REVIEW OF THE CIVIL PROCUDURE RULES IN THE VARIOUS HIGH COURTS IN NIGERIA AND THE COURT OF APPEAL
Now that Lagos State is reviewing its High Court Civil Procedure Rules, the other states of the Federation and the Federal High Court should also review theirs. The Court of Appeal should also review its Rules.
In this article, I will highlight some defects in the High Court of Lagos State (Civil Procedure) Rules 2004 (the Lagos CPR) and the Court of Appeal Rules, and then suggest amendments.
Use of forms
There should be a greater use of forms and a simplification of the existing forms.
For example, the Memorandum of Appearance could be modified to contain provisions for the defendant to indicate whether he: contests the jurisdiction of the court; challenges the validity of the service of the writ of summons on him; admits the claim (in part or in whole) or intends to defend the claim (in whole or in part).
There should be a form for interlocutory applications.
There is no reason why there should be no form called “Certificate of Service” that will be completed and filed in court by a party who effected service of a court process on his opponent.
Venue for commencing proceedings
Order 2 Rule 4 (1) of the Lagos CPR provides that all other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business. This is the provision for torts and breach of trust. What happens if the tort or breach of trust is committed in Lagos and the potential defendant neither resides nor carries on business in Lagos? Does it mean that he cannot be sued in Lagos? The Rules should be amended so as to also enable defendants to be sued in the Judicial Division where they commit torts or breaches of trust.
Parties
Order 13 Rule 28 of the Lagos CPR provides for a person to be sued in his business name. It should be amended so as to expressly permit a person to sue in his business name.
The Rules should be amended to permit actions to be brought against persons unknown in certain circumstances. This will make it possible for possession proceedings to be brought against squatters and for trespass actions to be brought against touts.
Service of Originating Processes
Order 7 Rule 1 (1) of the Lagos CPR states that the Chief Judge may also appoint and register any law Chambers, courier company or any other person to serve court processes and such person shall be called a process server.
It appears that this provision has not been utilized. The present position is that a party has to make an ex parte application for substituted service and will thereafter swear and file an affidavit of service. The Chief Judge should utilise this provision and appoint reputable courier companies as process servers. The names of such courier companies should be contained in Practice Directions that will be issued from time to time by the Chief Judge. When this is done, a claimant can file his writ of summons and complete and lodge a form at the same time, undertaking to serve the writ by courier. After service is effected, the claimant can then complete and file a Certificate of Service in the Prescribed Form. This will save time and expense.
Drawing up orders
At the moment, after an order has been made, a party has to apply for it to be drawn up. This can be time consuming. There is no reason why an applicant’s lawyer cannot draft the order and email it to his opponent and to the Judge’s registrar. If the judge approves the draft, he will sign it and it will be sealed. If the Judge intends to amend the draft order, he can do so electronically.
Abandoning the use of statements on oath and affidavits in favour of signed Witness Statements
At the moment, the affidavit is the only form of evidence allowed for interlocutory applications.
Statements on oath of witnesses who will give evidence at the trial are required to be filed by the parties. They have to be filed as part of the front-loading process. The statement, though sworn, does not become evidence until its maker is sworn and adopts it as his evidence in chief at the trial.
The present position is cumbersome. On a strict application of the law, a witness who is abroad may be required to come to Lagos to swear the statement on oath before the action is filed. Each time an interlocutory application has to be filed, the deponent of the affidavit in support of the application will have to make a trip to the court.
Affidavits should be abolished in favour of witness statements. At the bottom of the witness statement, there should be declaration by the witness that he believes the contents of the statement to be true and that he is aware that if he makes a false statement, he may be prosecuted for perjury. The use of witness statements in place of affidavits will simplify the process. Any lost revenue to the State can be made up by increasing filing fees.
Time for the filing and service of witness statements/disclosure of documents
At the moment, the claimant is required to file his witness statements with the writ of summons. There seems to be no provision for the filing of further witness statements by either party. The defect with the present Rule is that the claimant is required to file his witness statement when he does not know what defence the defendant will raise and when he has not seen the defendant’s documents. When the defendant then files his defence and his documents, the claimant is unable to comment on them.
The Rules should be amended so that only the list of witnesses, list of documents and copy documents should be filed with the writ of summons. Furthermore, a party should not only file a list of documents (with copies of the said documents attached to the list) that he intends to rely upon at the trial but all documents that are relevant to the case (Order 26 Rule 8 of the Lagos CPR permits any party to make a written request to any other party to make discovery on oath of the documents that are or have been in his possession, custody, power or control, relating to any matter in question in the case). Thus, a party should include in his List of Documents (and attach copy documents to it) all documents that are or have been in his possession, custody, power and control relating to any matter in question in the case (whether they advance or undermine his case).
Parties should be required to file and serve their witness statements within a specified time after deemed close of pleadings. This will enable the parties and their witnesses to comment on and deal with each party’s pleadings and documents in their witness statements. Parties should be allowed to file further witness statements before the trial. The need for that might arise on the discovery of fresh facts or evidence or the availability of a hitherto unavailable witness.
Applications for extension of time and for leave to amend pleadings
At the moment, any party who desires an extension of time to comply with the Rules or who wants to amend his pleadings has to make an interlocutory application. Most of these applications are not opposed. These unopposed applications clog up the cause list and help in overcrowding the court room.
There is no reason why parties who are legally represented cannot be allowed to agree on extension of time and amendment of pleadings without appearing in court. This should be permitted, provided that it does not affect the date fixed for the trial of the action. There should be a form called ‘consent order for extension of time and for amendment of pleadings’. Where there is agreement, both parties’ legal practitioners should sign the form which will then be filed in court by the legal practitioner of the party seeking the extension of time or leave to amend pleadings. That party should also pay the penalty at the time of lodging the form.
It is only when the other side refuses to consent to a request for extension of time or for amendment that an application should be made to the court for the said relief. If it is then granted, the respondent should be ordered to pay the costs if his refusal to consent to the request is found to be unreasonable.
If this policy is adopted, it will go a long way in reducing the present overcrowding of our courts and reducing the burden on judges.
Interlocutory applications
At the moment, there is no provision for the filing of application bundles. The result is that there are so many motions, affidavits and written addresses in different parts of the Judge’s file. The Judge will then waste valuable judicial time trying to sort them out.
There is no reason why an applicant should not be required to file and serve, at least 2 days before the hearing, an indexed and paginated bundle of the documents that will used at the hearing of the interlocutory application. This ‘Application Bundle’ should include copies of: the motion; all affidavits and exhibits; and the written addresses.
Each party should also file and serve a bundle of authorities to be relied upon at the hearing 2 days before the hearing of the interlocutory application.
The citation of excessive authorities should be discouraged. It imposes an unnecessary burden on judges. Surely, in general, one authority is sufficient for each proposition of law. More than one authority should only be cited where the case law on the subject is not very clear. Where an authority is cited, counsel should also mention the specific pages of the law report that are relevant.
The Rules should be amended so as to permit each party 30 to 45 minutes for making oral submissions at the hearing of the interlocutory application. The present practice of adopting written addresses is killing the art of advocacy.
The Cause List
At the moment, the courts are overcrowded. All cases for the day are listed for 9.00 am. A party turns up at court at 9.00 am and his case is not called until 1.00 pm. All the parties and their counsel turn up at 9.00 am. Sometimes, counsel will not find a seat.
There is no reason why the hearing of cases cannot be staggered. If there are 5 cases for a particular day, the first could be listed for 9.30 am, the second for 10.00 am and so forth. This will reduce the overcrowding of courts and it will also enable counsel and litigants to make effective use of their time. They will come to court when their cases are listed and not necessarily at 9.00 am.
There is no reason why a Judge should not be given at least 1 day a week to sit in his chambers and read his papers for the week, 3 days in a week to deal with hearings and 1 day to read judgments and rulings.
Division of functions amongst judges and division of the court into sections
[Speeding up the trial process]
At the moment a case is assigned to a Judge and he deals with all aspects of the case from the beginning to the end. The consequence is that no other Judge will be able to deal with urgent interlocutory aspects of the case if the assigned Judge is not available. Another consequence is that on a particular day, the assigned Judge will deal with all interlocutory applications in the cause list before dealing with a trial. By the time the trial starts the Judge is tired and the trial is then adjourned part-time to another date.
The High Court should be divided into three sections. One section should deal with all interlocutory aspects of a case from the commencement of the action to the Pre-Trial Conference (PTC). Another section should deal with trials only and the third section should deal with post-judgement aspects of a case (like applications for a stay of execution and enforcement of judgments/orders) and appeals from the Magistrates’ Courts. Judges should be rotated after serving say, 2 years in a section.
The Pre-trial section will deal with the case up to the PTC. After the PTC, the file will be transferred to the Trial section and after judgment; it will be transferred to the Post-Judgment section.
All questions of admissibility of documentary evidence should be dealt with at the PTC in order to prevent unnecessary objections to the admissibility of documentary evidence at the trial.
In this regard, the Evidence Act should be amended to permit all evidence (whether hearsay or not) and all documents (whether originals or copies and in whatever form, electronic or otherwise) that is relevant to a case to be admitted. The only exception should be privileged documents or communication. It will be a matter for the parties to argue on what weight the Judge should attach to any piece of evidence and a matter for the trial Judge to decide what weight, if any, to attach to any piece of admissible evidence. This will reduce the time that is spent on arguing about the admissibility of evidence and the attendant interlocutory appeals.
In order to quicken up the process, a claimant should be given a specified time after the PTC to apply for a trial date failing which the claim will be struck out automatically. Alternatively, the Judge conducting the PTC, in consultation with a Registrar in the Trial section of the court, can list the case for hearing. At the time of the PTC, the issues would have been narrowed down and the parties can give realistic estimates about the time they will spend on the cross-examination of witnesses.
The trial of an action should be on a consecutive basis. The case will be tried on a day to day basis until the trial is concluded. If possible, the trial Judge can deliver judgment at the conclusion of the trial. If for example, the time estimate for a case is 5 days, the trial Judge can read the trial bundle and written addresses on Monday, the trial will take place on Tuesday, Wednesday and Thursday and the Judge will deliver judgment on Friday.
Two weeks before the date fixed for the trial, the claimant should file and serve an indexed and paginated Trial Bundle consisting of the originating process, the pleadings, relevant interlocutory orders, the disclosed documents and witness statements. He should file and serve with the trial bundle, a Case Summary that will deal with the issues that will be dealt with at the trial 7 days before the trial The defendant can file and serve a supplementary bundle (if he feels that there are relevant documents that the claimant did not include in the trial bundle) and a Case Summary (if he feels that the claimant’s Case Summary is inadequate).
Both parties should file and serve their written addresses at least 3 days before the commencement of the trial. This will enable the trial Judge to know in advance of the trial, the legal submissions that will be made at the trial and to deliver judgment immediately after the trial. Any submissions on the matters arising in the course of the trial (like comments on the evidence given by witnesses in the course of the trial) can be made orally immediately after the defendant closes his case.
Requests for adjournments should sparingly be granted. If granted, realistic costs should be awarded against the party seeking the adjournment.
Costs and interests
In order to deter parties from making frivolous interlocutory applications and unreasonable requests for adjournments, costs should be more realistic. Furthermore, costs awarded against the losing party after a hearing or trial should be realistic. This will discourage unreasonable claims and defences.
The Chief Judge, can by way of annual Practice Directions, set and review tariffs for costs. For example, a party who loses an interlocutory application might be required to pay ₦10, 000 costs and a party who loses the trial of the action might be required to pay ₦100, 000 costs. A party who applies for an adjournment might be required to pay ₦10, 000 or ₦15, 000 costs.
A party who fails to pay interlocutory costs within the time specified by the Judge should be prevented from taking further steps in the proceedings until the costs are paid.
The Rules should make express provisions for the award of interests in all claims for liquidated sums and all claims for damages. Monetary judgments should also attract interest. The Chief Judge should fix the interest rates yearly by the issue of Practice Directions. This will discourage people from setting up frivolous defences.
Appeals to the Court of Appeal
In order to speed up appeals, the notice of appeal should be filed at the Court of Appeal. The appellant should file and serve the record of appeal himself within a specified time from the filing of the notice of appeal. If the record of appeal is not filed within a specified time after the filing of the notice of appeal, the appeal should be automatically struck out.
The respondent should be permitted to file a supplementary record of appeal if he feels that the appellant omitted relevant documents when preparing the record of appeal.
Each Division of the Court of Appeal should set up a permanent panel of judges that will be dealing with applications for leave to appeal and disposing of them without an oral hearing pursuant to the provisions of section 242 of the 1999 Constitution.
This will help to decongest the Court of Appeal.
In order to deter frivolous appeals and unreasonable requests for adjournments, realistic costs should be awarded against the losing party and the party seeking the unreasonable adjournments.
Parties to an appeal should be allowed to consent to requests for extension of time and for the amendment of grounds of appeal without the need for them to appear in court provided the date fixed for the hearing of the substantive appeal will not be affected. This will help to decongest the Court of Appeal.
Chima Umezuruike, LLM (Lond.),
Barrister and solicitor of the Supreme Court of Nigeria,
Member of the Honourable Society of the Inner Temple,
Member of the Academy of Experts,
Member of the Expert Witness Institute,
Member of the Society of Expert Witnesses