NIGERIAN BAR ASSOCIATION, ABA BRANCH LAW WEEK, 2009
THEME:
THE RULE OF LAW, GOOD GOVERNACE AND LEGAL PRACTICE.
AN OVERVIEW OF THE EXTANT HIGH COURT RULES OF ABIASTATE
INTRODUCTION
I understand that my task would have been to attempt an overview of the Abia State High Court (Civil Procedure) Rules, which is in the making and the inauguration of which had been delayed by the strike action of the Judiciary Workers.
Even though, I played a role in producing the draft of the anticipated Rules, which the Committee set up by the Hon. Chief Judge, presented to the Chief Judge before the supervening strike of Judiciary Workers, it is unfortunate that as a result of the strike, His lordship the Hon. Chief Judge, could not produce his approved version of the Rules before the workers shut the judiciary gates and went on strike.
Since I do not have the gift of clairvoyance, I am not expected to know what the Hon. Chief Judge would approve and inaugurate. It would be impertinent of me to discuss the draft which the Committee submitted to the Hon. Chief Judge. This would be breach of protocol and an unwarranted disrespect to the Hon. Chief Judge.
I will therefore, deal with the present and leave the future well alone. The present is represented by the Abia State of Nigeria High Court (Civil Procedure) Rules, 2009. In delivering an overview of that rule, I shall again try as much as possible not to stray into the recommendations contained in the draft which the Committee submitted to the Hon. Chief Judge. I shall be limiting myself to general comments which are in the nature of reminding us of some of the reasons why the Bar rejected the extant Rules which came into force on the 1st day of July, 2009.
GENERAL OVERVIEW
1.The Abia State of Nigeria High Court (Civil Procedure) Rules, 2009 was made pursuant to Section 274 of the 1999 Constitution and Section 82 of the High Court Law of AbiaState, Cap. 48 Laws of AbiaState, 1991 – 2000. There is no doubt that subject to any law made by the Abia State House of Assembly, the Chief Judge of AbiaState may make Rules for regulating the Practice and Procedure of the HighCourtofAbiaState. That is the essence of Section 274 of the 1999 Constitution. Section 82(1) of the Abia State High Court Law enacted exactly that but Section 82(2) provided that the Chief Judge may delegate his powers of making Rules of Court to a committee, constituted by the Abia State High Court Law under Section 82(3) of the Law. I am to be contradicted, and I stand to be contradicted as I state that as at 1st of July, 2009, there was no High Court Rules Committee in AbiaState within the contemplation of Section 82(3) of the High Court Rules. It is therefore a mute point,whether the Hon. Chief Judge could have signed the extant Rules as Chairman, High Court Rules Committee, granted that he could personally make the Rules.
2.There is the general consensus that the need for new Rules in AbiaState is to create uniform Practice and Procedure Rules which,mutatis mutandis,would reflect what obtains in other jurisdictions. I understand the motivating factor to be to achieve uniformity in spite of the sovereignty of each State within the Federation of Nigeria in matters of Practice and Procedure. From the standpoint of the Legal Practitioner, uniformity would enhance the ability of the Practitioner to adapt to the practice at Courts of other jurisdictions and the Practice and Procedure in force in other jurisdictions to which he may find the need to migrate from time to time as an Advocate enrolled with the Supreme Court of Nigeria. The extant 2009 Rules of Abia State, is unique. In fact, it is so unique that it is a lone iroko in the forest. If uniqueness is the ideal, the rule could never be surpassed. If harmony and uniformity are the goals, the Rules is a misfit. I imagine that, that was one of the reasonsit was implacably rejected by the Bar.
3.One of the aspects of the extant Rules Book which has been criticized is the pattern of presentation of the subject matters. It is so confusing that the Practitioner finds it laborious to navigate from one theme to another and from one subject matter to another. Certain terms of art common to Practice and Procedure of the High Court, such as the Originating Summons and Originating Motion procedures were not retained. Judicial review procedure was dealt with as if it had common features with Originating Writ of Summons procedure. Apart from these, provisions for pleadings and Allied Matters were taken out of their usual context and thrown in as an afterthought at the end of the Rules Book. These dislocations made the extant Rules Book quite difficult to navigate. Left to simmer down, Legal Practitioners may well have found a way to adapt to it. As an aid to uniformity however, it is unsatisfactory, unhelpful both to the visiting Counsel and to the resident Counsel.
4.Apart from these general comments, there are specific provisions which require further thought. As they are, it is difficult to escape from the urge to criticize them. Some of them only will be highlighted hereunder:
(i)Order 1 Rule 3(2) – what really is the meaning of “every further step”?. If for instance, a Claimant had filed his writ and statement of claim before commencement of the Rules, is the Defendant obliged to comply with Order 8 by filing the processes therein prescribed including written statements on oath of his witnesses? If the matter is at address stage and the Defendant had addressed the Court before the rule came into force, is the Claimant obliged to file a written address. This provision has agitated the minds of both Judges and Counsel. There is no settled uniform approach.
(ii)Order 2 Rule 4(d) and Rule 8(d) – There are documents that may prove too problematic to copy and file. A book, a video clip, a photograph both negative and print, a tape recording.Is Order 15 Rule 4 sufficient safeguard for such documents?
(iii)Order 5 Rule 1 – This provision does not appear to take account of Order 9 Rule 3(1) & (4) which deal with substituted service. Can an application to serve an Originating Process, which is usually ex parte be dealt with at the pre-trial stage?. The pre-trial stage comes after pleadings – Order 14 Rule 1. This pre-supposes that the parties are already before the Court.
(iv)Order 5 Rule 2(2)–Requirement for personal photograph to accompany affidavit is a new fad. What really is the benefit of that?This is an extra requirement that simply increases the cost of litigation without aiding litigation in any substantial manner.
(v)Order 9 Rule 12 – This is clearly not possible. Pre-trial stage comes after the Defendant had been served with the claim of the Claimant and had indeed appeared. An application to serve the process on such a Defendant cannot therefore be taken at pre-trial session. Requirement of the leave of Court to serve a process out of AbiaState appears to be ultra vires the extant Rules.Service out of jurisdiction is governed by the Federal Act and not the State Laws. See Sections 96 and 103 of the Sheriffs and Civil Process Act.
(vi)Order 11 Rule 2–Does a Claimant require the agreement of the Defendant to withdraw his suit? See Order 16 Rule 13.
(vii)Order 15 Rule 3 – Can a Judge limit a party as to the number of witnesses which he requires to call? Does an issue of fair hearing under Section 36 of the 1999 Constitution not arise here?
(viii)Order 16 Rule 9 – Why limit oral submission to 10 minutes? Even the Court of Appeal and the Supreme Court allow for much more time. Why should a Court of first instance apply a more rigid time frame?
(ix)Order 16 Rule 13 – Contrast this with Order 11 Rule 2. In any case, where a Claimant discontinues after evidence, what is the effect?
(x)Order 19 Rule 1 – This provision conflicts with section 32 of the High Court law which allows appeal from any decision of a Magistrates Court. It is very unjust to create a situation where an accused person is made to subject himself to a final judgment which may well lead to his imprisonment, when he could have saved himself that injustice by appealing against a no – case submission decision??? Why should a Defendant suffer a judgment and eviction from his residence when an appeal against an interlocutory decision on jurisdiction or competence of the suit could have saved him that embarrassment?Interlocutory Appeals on Law are allowed from Court of Appeal to the Supreme Court and is a right from High Court to the Court of Appeal. Why should it not be allowed from Magistrates Court to the High Court? Is it not one of the measures by which the High Court may supervise the lower Courts so as to prevent injustice and wanton miscarriage of justice?
(xi)Order 22 Rule 6 – What is this provision supposed to achieve? Imagine the number of times in a suit counsel would need to attach his practice license whenever any process relating to a suit in which he is counsel is filed. Motions, preliminary objections, notice to produce, application to set suit down, haba!!! Can the Judge not simply request counsel to show his license when necessary?
(xii)Order 41 Rule 1–This provision addresses the same issue as Order 16 Rules 8 and 9.
5.These observations are not the product of any profound research. In view of the given, which is that a replacement Rule Book is anticipated, it is better to wait and discuss the new baby when it is born, if it is born. I hope I would still be honoured with an invitation to speak at the appropriate time.
Chief, the Hon. U. N. Udechukwu, KSC, SAN.
NOTE: All the observations made in this review were later adopted by the Hon. Chief Judge and issued as Practice Directions instead of the anticipated New Rules. Whether the radical alterations can be introduced as Practice Directions instead of as Amendments to the extant Rules is a mute point.
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U. Nnoruka Udechukwu, SAN.