The Lagos State High Court (Civil Procedure) Rules 2004: the Experience So Far in Its

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THE LAGOS STATE HIGH COURT (CIVIL PROCEDURE) RULES 2004: THE EXPERIENCE SO FAR IN ITS OPERATION.

BY

HON. JUSTICE OPEYEMI O. OKE (MRS)

It is a great honour and privilege to stand before this special gathering consisting of eminent jurists this afternoon. I have been invited by the Planning Committee of the Ogun State Bar and Bench Forum to share my experience in the operation of the High Court of Lagos State (Civil Procedure) Rules, 2004 which Ogun State Judiciary adopted as its own State (Civil Procedure) Rules, 2008.

When I received the invitation, followed by a phone call from my Lady the Chief Judge of Ogun State – Hon. Justice Olopade and my sister Hon. Justice Dipeolu, then a visit from my brother, Hon. Justice Onamade, I was very happy to know that Lagos State Judiciary has a partner in shaping the Administration of Justice in Nigeria as a whole.

The High Court of Lagos State (Civil Procedure) Rules, 2004 came into existence when the Lagos State Judiciary embarked on a Judicial Reform and introduced fresh and vibrant judicial thinking into the Administration of Justice in Nigeria.

The 2004 Rules of Court introduced a high level of judicial efficiency and responsibility and we have risen to the challenge of not reforming the Rules of Court but ensuring its implementation by the entire Court administration, the legal community and the consumers of justice in Lagos State.

It is necessary for me to give a background of why and how the 2004 Rules of Court in Lagos State came into being before I share my experience in the operation of same. This will enable you to appreciate my experience – the good, the bad and the ugly.

There is no doubt that every user of Court wishes for a just and speedy dispensation of justice. It is therefore not surprising to know that access to justice and speedy trial of cases is indeed a Constitutional mandate which does not require any special justification for doing so or require to be justified by advancing any reason. Section 6(1) and 6(2) of the 1999 Constitution of the Federal Republic of Nigeria vest the judicial powers of the Federal and States in our Courts, established for the Federation and each State. Section 6(6)(b) of the Constitution provides that these judicial powers shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person. This provision of the Constitution was clearly interpreted by Bello J.S.C (as he then was now of blessed memory) in the case of Senator Adesanya V President of Nigeria (1982) 2 NCLR page 358 at 385-386 when he stated thus:-

“…….. It seems to me that upon the construction of the subsection, it is only when civil rights and obligation of the person who invokes the jurisdiction of the Court are in issue for determination that the judicial powers of the Court may be invoked.”

This simply means that the Courts are established as a form for the resolution of legal disputes between persons including government. It is therefore not surprising that Section 236 of the Constitution gave heads of Courts, that is, the Chief Judges etc. power to make rules of Court on practice and procedure that will ensure better administration of justice in their respective jurisdiction. Thus, the institution or agency most empowered and vested with the power to bring a change and redress the battered and dysfunction civil justice system is the Judiciary itself. The reason for this is not far fetched. It is simply because most of the factors responsible for the congestion in the Court like trial delays, unnecessary adjournments, complexities in the rules of the Court are matters under the control of the judiciary itself and if there is anyone that knows how to bring a remedy for better image of the Judiciary, it will be the actors themselves. The approach before 2004 to resolve the many challenges in the administration of our civil justice system had been on a wrong perspective because the reasons for the mirage of problems leading to delay of justice was misplaced. We were clamouring for number of Judges to be increased and for better infrastructures and working environment. I can assure you now that the Lagos State Government knows better, that the solution lies more in the review of the Rules of Court.

Dr. R. Akinola Aguda in his book, “The Crisis of Justice” (1986) said that:

“The present incredibly slow process of judicial administration is frightening and oppressive…… A judicial system which can permit a simple case, for example one of wrongful termination of employment to remain in the Courts for over five years cannot be said to be running smoothly. Whatever happens at the end of such an aberration of Court trial can hardly be said to be justice… Our present system of judicial administration is a bankrupt system, and it is very sad indeed that no government from independence in 1960 to this moment has ever made any conscious effort to re-organize or modernize this bankrupt system. It is an inexplicable irony that whilst some of our other smaller sister countries in the so-called Third World are taking giant steps in the technological age of the 21st century, we are satisfied to continue to wallow in the stinking stenches of the 19th.”

The Lagos State Government realized that it takes more than the appointment of more Judges and better infrastructures to solve the mirage of problems such as delays, congestion in our Courts and also to take our justice system to a quality and high pedestal as in the advanced countries since the world has become a global village.

THE BIRTH OF THE 2004 CIVIL PROCEDURE RULES OF LAGOS STATE

Prior to the year 2004, when the Civil Procedure Rules of 1994 was still in force, the administration of justice in Lagos State was under a serious attack and criticism. The reason for this was obvious, trial of cases take as long as 8 years, 12 years or even more to conclude. There had been instances when cases end up spending 28 years before finally being concluded especially in land matters. Our Courts were congested and the average citizen in the society had lost all hope of the Judiciary being the last hope of the common man or the society. The long delay and congestions in our law Courts painted the Judiciary in a bad image. The public perception of our Courts as effective dispute resolution platform was negative.

The Lagos State Government in its unflinching determination and in its effort towards a Judicial Reform in the administration of our justice system, as it affects our Civil Procedure Rules, organized series of summits for all stakeholders to discuss necessary reforms. The first summit was in year 2000 while the second one was held in February, 2002. The government along with all stakeholders in the administration of justice reached a consensus among others, that there is the need for a reform of the present system and the need to have a High Court Rules that will facilitate fair hearing, quick dispensation and administration of justice without the loss of judicial integrity. The Lagos State Government thus became the first State in the Federation to embark on such a huge and important as well as positive project for the use of humanity. The Hon. Chief Judge at that time – Hon. Justice Ibitola Sotuminu, set up the Rules Review Committee of which I was the Chairperson to review the 1994 Rules of Court. This gave birth to the Lagos State (Civil Procedure) Rules, 2004.

The guiding principles and objectives amongst others resulting in the birth of the 2004 Civil Procedure Rules of Lagos State are:-

1.To attain quick dispensation of justice with minimal delay, bearing in mind the need for fair hearing.

2.To achieve clarity and simplicity in the New Rules so as to enable Lawyers and non-lawyers alike to easily comprehend the rules.

3.To ensure that the concept of case management is fully in the Rules. In this regard, “Front loading” and “Pre-trial Conference” became fundamental to the new rules. It is intended that these would reduce Court congestion by cutting down on the number of cases that actually go on trial.

4.To ensure that through the rules, Judges have a better grasp and control of proceedings in their Courts. At the same time it took into cognizance and maintained the concept that Judges should not “descend into the arena”. It is however a unanimous view in all the conferences and memoranda submitted that Judges must assume the duty of taking full charge of proceedings in the Courts and ensure that the proceeding accord with the justice of the case in the light of the case management concept.

5.To eliminate time-wasting practices which have hitherto belaboured the Courts and seriously hindered the efficient delivery of justice.

6.To eliminate obsolete and scarcely utilized Rules whenever possible.

CATEGORIZATION OF REFORMS

A large number of the existing rules were changed and consequently we revolutionize Civil Procedure Rules in the State. However many of the old rules, which are still relevant and useful, were retained. For the first time, a judicial policy to be adhered to by all Judges and Lawyers in the interpretation of the rules was clearly stated in Order 1 Rule 2 of the 2004 High Court of Lagos State Civil Procedure Rules.

Major Reforms covered matters like Commencement of Proceedings, Mode of Originating Processes, Parties, Person under Legal Disability, Pleadings, Service, Penalty for Default of Appearance, Pre-trial Conference, Compulsory Discovery and Inspection, Promotion of Amicable settlement at the pre-trial conference, Amendment, Adjournment, Costs, Payments into Court, Inquires, Accounts, Probate action and Judgment.

MY EXPERIENCE

It is natural for a person to share happy experience with others, good ones, good times and it is also understandable to shy away from remembering nasty experience or bad ones. However, for the nasty experience or not so good ones, one become victorious when one is not deterred or weighed down by it, but rather put on a thinking cap and find how to make a bad experience a better one. This is my own philosophy and this is what led us to go back on the drawing board last year to review our 2004 Rules of Court.

We have recorded tremendous success in the operation of the 2004 Rules of Court in the following areas:-

FRONT LOADING

In the past, that is, before the advent of the 2004 High Court of Lagos State (Civil Procedure) Rules, a Claimant may take out a Writ of Summons, serves on the Defendant and goes to sleep for about six months before filing his Statement of Claim after obtaining an Order of Court for extension of time to do so. The Defendant also after being served may also go to sleep, taking no action until he is served with an application for final judgment in default of pleading. In circumstances like this, exchange of pleadings may take one or more years before it is closed. The Front-loading system introduced into the 2004 Rules has put an end to this gimmick of filing a case a party does not intend to pursue but just filed to score a point over their adversary.

Front Loading means that Origination Processes are “front loaded” into court before the commencement of any proceedings. For instance, a Claimant files with his Writ of Summons, a Statement of Claim, a list of his witnesses, copies of documents he intends to rely on at the trial and written deposition of his witnesses.

And where for instance, the Claimant fails to comply with this Rule, his Originating Process shall not be accepted by the Registry. Likewise, the Defendant upon being served with the originating process, must file a statement of defence accompanied by copies of documentary evidence, list of witnesses and their written statements on oath within 42 days of service.

This enables the Pre-trial Judge identify the issues and make efforts towards amicable settlement or reference to Alternative Dispute Resolution. Front loading will obviously discourage frivolous actions. Where all processes and documents are before the court prior to the very first hearing of the matter, the case is bound to proceed very quickly. With the Front Loading concept, a Litigant comes to Court only when he is ready to pursue his claim. The Court is no more a dumping ground for abandoned case. Generally, cases now move faster in Court and the Court is not so congested any longer.

PRE-TRIAL CONFERENCE PROCEEDINGS

The Rules have introduced a pre-trial hearing procedure, whereby it is mandatory that all cases must first go before a pre-trial Judge. The provision for Summons for Direction under Order 27 of the old rules of 1994 was hardly ever used. It was rendered obsolete and ineffective. Something more useful and more proactive has to be devised to take its place. The concept of Pre-trial Conference Proceedings was therefore adopted in the New Rules. This is provided for in Order 25 of the 2004 Rules.

The essence of this innovation is to have a pre-trial review of fresh cases. This process will narrow the areas of dispute by deciding which issues need full investigation and trial. It will make possible summary disposal of some cases. All proceedings, issues of fact in disputes must be defined by each party and filed within 7 days after close of pleadings. See Order 27 Rules 1.1 of the 2004 Civil Procedure Rules. If the parties differ on the issues, the Pre-trial Conference Judge may settle the issues.

All preliminary applications and procedures will be settled at this stage. It is an improvement on the erstwhile summons for directions. Hearing notice to which is attached a Pre-trial Information Sheet containing questions to be answered by the parties, is issued by the Judge upon the application of the Claimant or his Legal Practitioner. If a Claimant fails to apply for the pre-trial hearing notice at a due date, his action may be struck out. The Pre-trial Judge is empowered to issue a scheduling order for matters like Joinder of Parties, Amendments, other Motions, Formulation of Issues, and Inspection. Thus, case management is mandatory. At the end of the Pre-trial Conference the Judge issues a report which constitutes a guide for the subsequent course of proceedings.

The pre-trial proceedings are held daily depending on the Court’s diary and there is a penalty for failure to attend, or to participate effectively. The Pre-trial Conference is held in the open Court in an informal atmosphere because Judges and Counsel are not robed. Parties are also allowed to make contributions at the conference and address the Pre-trial Judge. The essence of this is to facilitate an amicable resolution of the dispute between the parties rather than their case going to trial. A large number of cases are now settled amicably at the Pre-trial conference where parties are guided by the pre-trial Judge to formulate their terms of settlement which is endorsed by the Pre-trial Judge as the judgment of the Court in that suit.

Judgment may also be entered against a party at the Pre-trial Conference upon admission or against the Defendant in default of a defence by him. If a party or legal practitioner fails to attend the Pre-trial Conference or obey a scheduling or unprepared to participate in the conference in good faith the Pre-trial Judge shall dismiss the claim in the case of the Claimant or in the case of the Defendant enter final judgment against him. Any judgment given under this rule may be set aside upon application made within 7 days of the judgment or such other period as the Pre-trial Judge may allow but not exceeding the Pre-trial Conference period which is three months. Though an extension could be granted on application by either of the party made to the Chief Judge.

DISCOVERY AND INSPECTION:- Although provisions always existed under the rules (Order 28) for discovery and inspection, hardly were they ever utilized. The new rules have now made Discovery compulsory and transferred inspection to the pre-trial proceeding. Many Lawyers are making use of this now having realized that it helps speed up trial as issues are settled at the Pre-Trial stage.

AMENDMENTS AND ADJOURNMENTS:- Most of the sluggishness and delay encountered during proceedings relate to numerous amendment of pleadings, and unnecessary adjournment by parties who are ill-prepared for their cases. Amendments and adjournments have been known to be the main cause of delay in litigation. This problem was tackled by limiting the number of amendments allowed during trial. Only two amendments are now allowed. Counsel are aware of this and they tried to keep to it. It results in quick disposal of cases.

Also, the requirement for leave of court is dispensed within an application for amendment – see ORDER 26(2) Old and 24(2) New Rule. Where adjournments are allowed, they are strictly controlled and granted only where absolutely necessary and at a cost sufficient to compensate the other party for the day thrown away.

USE OF WRITTEN ADDRESSES