by

Carol Ajie

PROMULGATION OF COURT RULES

Permit me the Great Chair and the audience to commence the presentation of my paper with a call upon the Lagos State legislative and executive arms of Government to accede the power to make Court Rules to the Lagos State Judiciary and if the Bench does not want to take it, as I believe it should, to give it to its closest ally, the Bar rather that have it exercised by the House of Assembly and the Governor, as it is presently being done. I commend very strongly, to the Lagos State Legislature, sections 79 & 80 of the High Court Law of Rivers State CAP 62, Vol. 3 Laws of Rivers State of Nigeria 1999 which empower the Chief Judge of Rivers State and members of the Rules Committee make court rules. In the exercise of these powers, the new rules of the High Court of Rivers State are right now about being promulgated by the C.J of the State.

In contradistinction, our own section 89 of the High Court of Lagos State Law CAP H3, Laws of Lagos State, Vol. 3 2003 confers enormous power on the legislature to enact court rules when it created sub-sections (a) – (w) on virtually everything and anything a Judge should do or not do in the court and we talk about the independence of the judiciary. The opening paragraph says the House of Assembly may make rules of court; and therefore does not make it compulsive for the House of Assembly to dabble into the Chief Judge’s function, yet my Lord the C. J. concede a role and duty His Lordship ought to very jealously guard. In OKO v IGWESH (1997) 4 NWLR Pt 497 p.48 at 60 paras A-B, the Court of Appeal held that the word "may" traditionally leaves the doing of an act at the option of the actor and does not conjure peremptoriness. See also ADESOLA v ABIDOYE (1999) 14 NWLR Pt. 637 p.28 S.C.

Despite that section 89 sub-sections (a) – (w) of the High Court Law make intellectual servitude of the Lagos State Judiciary, as if it were a serfage of the Legislative and Executive arms of Government to sit and rise on the orders of the Master, to tell it when to go on vacation and when not and stripped the spin machine of the Bench and invariably the Bar, we need reverse this calamitous legislative order. A part of this assignment is therefore to help provoke that badly needed discourse to turn the symbol of justice in the right direction.
And that is in the direction of section 274 of the grund norm, the supreme law of the land, the Constitution of the Federal Republic of Nigeria 1999 which even section 12, Part 3 of the High Court Laws of Lagos State under reference, recognized, acclaimed and acknowledged when it said:
"The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by the Constitution of the Federal Republic of Nigeria."

REASON FOR MY CALL TO ACTION

Sections 236, 248, 254, 259 and 274 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 give the respective Heads of Courts namely: the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja and the States’ High Courts power to make rules regulating the practice and procedure of their respective Courts subject to the provision of an Act of the National Assembly for the Federal Courts or a law of the State Houses of Assembly for the State High Courts for each State of the Federation.

Pursuant to these powers, the Chief Justice of Nigeria, promulgates and signs his Court Rules without undue interference by the National Assembly. So also does the President of the Court of Appeal, the Chief Judge of the Federal High Court and the Chief Judge of FCT Abuja – all of them make their Court rules. So did the C.J. of Kwara State, the Honourable Justice Timothy Adepoju Oyeyipo C.J Kwara State sign and authenticate the new High Court Rules of Kwara State on April 29, 2005 under and by virtue of section 274 of the CFRN 1999; thus symbolised the essence of the principle of separation of powers. It becomes therefore logical for the Courts to issue practice directions on rules promulgated by them and such directions would form part of the rules as we have in the Supreme Court and the Court of Appeal Rules.

Not so for the High Court Rules of Lagos State 2004 which were promulgated and signed by the Legislative and Executive arms of Government respectively, right in the Centre of Excellence!! – Assisted by the Bench and Bar. Curious! No wonder there has not been practice direction for years in Lagos High Courts?. Hence members of the legal profession groan under the pain of inconsistencies in the application of the rules by various Judges? Each Court gives its own interpretation of how it wants to apply the new rules. The lawyers and litigants bear the brunt of an ill equipped judiciary; they grumble and grope in the dark uncertainties of interpretation of the new rules. Surely this is not the path to follow because it is anything but unhealthy for the justice sector. Something must be done urgently before we crumble into abysmal decadence.

A COMPARATIVE PERSPECTIVE OF THE HIGH COURT RULES OF LAGOS STATE dated March 4, 2004; FCT ABUJA RULES dated December 4, 2004; and KWARA STATE RULES dated April 29, 2005.

In comparing and distinguishing these rules, I shall refer to the High Court of Lagos State (Civil Procedure) Rules 2004 as the Lagos Rules 2004; the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2005 as the FCT Rules 2004 and the Kwara State High Court (Civil Procedure) Rules 2005 as the Kwara Rules 2005.

Whilst the Lagos Rules 2004 and Kwara Rules 2005 adopt the descriptive norm "Claimant", the FCT Rules retained the use of the word "Plaintiff" – American styled, the former being a UK coinage. Nothing hysterical about it after all we practice USA styled democracy whilst our legal system is modeled on the British legal system from the colonial days of old. Happily, the phraseology "Defendant" is retained in all the new rules of the High Courts under periscope. To the more salient aspects of the new rules.

RETROSPECTIVE SLANT

Order 1 rule 1(1) of Lagos Rules 2004 states that:
"These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters."
Order 1 rule 4(1) of Kwara Rules 2005 states the same thing that:
"These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters."
There is however no such provision as the above in the FCT Rules 2004 meaning that it has no retrospective slant and that helps in reducing the confusion of not mixing old causes in new wine skins with the tendency for it to bubble over and spill the docket.

WRIT OF SUMMONS

Order 3 rule 2(1) Lagos Rules 2004 states that:
"All civil proceedings begun by writ of summons shall be accompanied by:
a) statement of claim;
b) list of witnesses to be called at the trial;
c) written statements on oath of the witnesses and
d) copies of every document to be relied on at the trial."
Sub-rule (2) of rule 2 of Order 3 says "where a claimant fails to comply with Rule 2(1) above, his originating process shall not be accepted for filing by the Registry."

There is no such provision granting the Registry the authority to refuse a writ of summons for want of compliance under FCT Rules 2004 and Kwara Rules 2005, unlike the Lagos Rules. Of course the intention is to reduce the Judges’ work load so as not to congest the cause list with so many nebulous processes.
Order 2 rule 2(2) of the Kwara Rules 2005 reads:
"Except where Order 23 applies, every writ of summons shall be accompanied by:statement of claim;
a) list of witnesses to be called at the trial;
b) written statement on ]oath of the witnesses; and
c) copies of every document to be relied on at the trial."
The exception clause i.e. Order 23 of Kwara Rules 2005 is the UNDEFENDED LIST section.

To commence a suit in Abuja, Order 4 rule 15 of FCT Rules 2004 provides that:
"A writ is issued when signed by a Registrar or other officer of Court duly authorised to sign the writ and accompanied by:-
a) a statement of claim;
b) copies of documents mentioned in the statement of claim to be used in evidence;
c) witness statement on oath; and
d) a certificate of pre-action counseling."

Sub-rule (17) of Order 5 of FCT Rules 2004 defines a pre-action counseling certificate as:" A certificate of pre-action counseling signed by Counsel and the litigant shall be filed along with the writ where proceedings are initiated by Counsel, showing that the parties have been appropriately advised as to the relative strength or weakness of their respective cases, and the Counsel shall be personally liable to pay the costs of the proceedings where it turns out to be frivolous."

Under the Lagos Rules 2004 and Kwara Rules 2005, there is no requirement for a certificate of pre-action counseling but O. 49 r.13 of Lagos Rules 2004 and O.55 r.13 of Kwara Rules 2005 create personal liability clauses against lawyers who are negligent in the conduct of cases in court.

RESPONSE TIME

Whilst Form 3 (General Form of Originating Summons) of Lagos Rules 2004 stipulates 42 days within which the Defendant shall enter an appearance upon being summoned; Form 3 (General Form of Originating Summons) of Kwara Rules 2005 stipulates 8 days period within which the Defendant is to appear to a served writ of originating summons. Under the FCT Rules 2004 Form 54 (General Form of Originating Summons) i.e. Order 5 rule 1 gives the same period as the Kwara Rules 2005 – within 8 days for the Defendant to respond to a served writ of originating summons.

Although Order 3 rule 8 - Form 3 of Lagos Rules 2004 stipulates 42 days response time as stated above, Order 17 rule 16 still of the Lagos Rules 2004 contradicts its earlier provision when it said that:
"A respondent to an originating summons shall file a counter to the affidavit together with all the exhibits he intends to rely upon and a written address within 21 days after service of the originating summons."
This misnomer ought to be addressed by the Rules Committee of the Lagos State Judiciary, with a view to harmonizing the provisions.
For writ of summons under the new High Court Rules, the Defendant’s response time is within 42 days for Lagos (O.3 r.3), within 30 days for Kwara (O.2 r.3) and within 8 days for Abuja (O. 4 rr. 1 & 8).

LIFE SPAN OF EVERY ORIGINATING PROCESS: RENEWAL

The life span of every originating process in Lagos and Kwara States is the same period of six months but twelve months for Abuja. See O.6 r. 6 Lagos; O.6 r.6 Kwara and O.4 r.16 (1) FCT Rules 2004. To renew a writ in Lagos State, a claimant needs the Judge to intervene before the expiration of the writ sought to be renewed. It is instructive to note that Kwara State has a more revolutionary procedure for renewal of writs. O. 6 rr. 6 & 7 of Kwara Rules 2005, empower the Registrar and not the Judge to renew writs for 3 months if satisfied that it was impossible to serve the original process to the power conferred on Masters in England. The objective is in order not to congest the Court with less complex applications. Whereas under the FCT Rules 2004, it is the Judge and not the Registrar who renews un-served writs, for 12 months at a time up to no limit of extensions. See O.4 r.16 (2), (3) & (4) of FCT Rules 2004.

SERVICE OF WRITS

All the rules are unanimous on methods of effecting service of originating processes i.e. by a Sheriff, Deputy Sheriff, Bailiff, Special Marshall or other officer of the Court; Or a law firm, courier company or any other person appointed by the Chief Judge to serve court processes. See O.7 r.1 Lagos Rules 2004; O.7 r.1 Kwara Rules 2005 and O.11 r.1 FCT Rules 2004. On substituted service, O.11 r.5 of the FCT Rules 2004 expressly recognizes substituted service by e-mail or any other scientific device, courier service or any other means convenient to the court, in addition to the conventional modes of substituted service – pasting at the last known address, advertisement, etc. Lagos Rules 2004 and Kwara Rules 2005 are not so exploratory on the issue of substituted service, it does not make an expression of e-mail service or any other scientific device but it does appear that O.7 of Kwara Rules 2005 is an admixture of both O.7 of Lagos Rules 2004 and O.11 of FCT Rules 2004 considering the similarities it bears with Lagos and Abuja in some aspects. For example O.11 r.5(1) of FCT Rules 2004 says:
"Where it appears to a Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected…." through any of the substituted methods set out in sub-rules 5(1)(a) -(f). O.7 r.5(1) of Kwara Rules 2005 which is mutatis mutandis with FCT Rules except that it lays out service by substituted means to exclude e-mail and courier service. Lagos O.7 r.5 has a more conservative approach, it says the Judge may order "substituted service as may deem just."

Under the new rules it is easy for an applicant in Abuja or Ilorin to ask for substituted service whether or not personal service has been attempted, the Lagos Judges still insist on attempts first at personal service, however futile it may be, before one can bring an application for substituted service even though the Judge has a discretion to take and grant an application for substituted service where it is envisaged that "prompt personal service" cannot be made. With utmost respect our Judges’ reluctance at taking such an important step slows down the speed of justice.