Guardian Law ReportAS part of activities marking the commencement of a new legal year, the new High Court of Lagos State (Civil Procedure) Rules 2012 was presented to the public at a stakeholders' summit held on Wednesday, the 19th day of September 2012. The summit has been well-reported. The discourse here is a look at the major highlights of the new rules. The attempt does not feign exhaustiveness. Far from it. It is, for want of a better expression, 'a first blush at the Rules'.The approach here is fairly straightforward. It examines how the new Rules have succeeded in dealing with one or two provisions of the 2004 Rules that have been the subject of criticisms, diverse interpretations and reported legal contest. However, it does not stop there. As the Rules are not yet operational, this commentator envisages that they can still survive a surgical blade if a diagnosis suggests an excision is required. Suffice to say that the commentary will also seek to identify one or two pitfalls already spotted in the 2012 Rules. A caveat though as to the 'pitfall(s)': the commentator reserves the right to be wrong!Stated objectivesThe new Rules now come with broader objectives that are well articulated in the preamble to the Rules. Like its soon-to-be predecessor (as I write, the 2004 Rules remains 'the bride'), the jurisprudential basis of the new Rules lean heavily in furtherance of the good, proper and fair administration of justice; which, with a view to achieving a new concept has been introduced: Active case management. This striking feature of the 2012 Rules embraces fully the use of Alternative Dispute Resolution (ADR) in resolving appropriate or 'suitably qualified' dispute(s), on the one hand; and greater judicial management of the traditional dispute resolution mechanism of the court, on the other hand. The 2012 Rules state that the court must further the overriding objective by 'actively managing cases' and active case management includes exercising the various judicial powers listed in r.2 (2). These objectives are, without doubt, well-intentioned and will go a long way in bringing justice home, shining a light on how the court should manage its process in the administration of justice.One significant point to note though is that the 'overriding objective' is now explained in the preamble to the Rules. It thus appears to have now been taken out of the operative provisions of the Rules as a preamble is, strictly speaking, not part of an enactment. The High Court Rules is a subsidiary legislation on procedure. Comparatively, the 2004 Rules have the 'overriding objective' stated and enacted as an operative aspect of the Rules in Order 1 Rule 1 (2). The law concerning the restrictive use that may be made of a preamble as an aid to construing the enacting provisions has been well stated in the following (foreign and local) cases: A-G v. Prince Ernest Augustus of Hanover (1957) A.C 436, at p.467; David-Osuagwu v. A-G Anambra (1993) 4 NWLR Pt. 285 P.13 at 64; Ogbonna v. A-G, Imo State (1992) 1 NWLR (Pt.220) 647) (See in particular the leading judgment delivered by Nnameka-Agu, J.S.C in the case of Ogbonna v. A-G, Imo State (supra)). The purpose of the preamble in a statute or written document is to clarify any ambiguity in the words used in the enacting part. A preamble needs not be looked at all if the enacting part is unambiguous.Lest I am accused of trying to make an anthill out of a molehill (or, is it 'mountain out of a molehill''), I would be quick to offer that the unintended effect of this is that the 'overriding objective' is relegated to the background merely as an aid to construction/interpretation, which of course was not the thinking when the objective was first introduced into the Rules in 2004. The 'overriding consideration' must not be seen as an idle canon of interpretation. This is certainly not the raison de tre of the Rules. It is, with respect, a rule of adjudication (well, as prescribed by this 'handmaiden of justice'). As many readers will know, the English CPR (the White Book) has a similar provision: 'the overriding objective being to aid the courts in giving a purposive meaning/interpretation to any Rule being interpreted'. The emphasis is on 'any', and not when there is ambiguity. In a legislative sentence, 'any' is used to indicate that there are no qualifications or limitations. Put simply, there is a world of difference between when the overriding objective provides a compass to guide the courts at all times, as opposed to when it shall provide a compass only when there is an ambiguity.Suggestion: Arguably, the stated objective of all these reforms is to have the 'mission statement' guide the civil courts in everything they do. Thus, as minute or insignificant as the point of having the 'overriding objective' enacted as a specific rule may appear, there is a need to consider this closely. This may even be achieved by enacting a rule, which affirms and declares the preamble as an operative part of the Rules.Interestingly, the stated objective of the Fast Track Court being to have matters heard and determined in a period not exceeding nine (9) months is enacted as Order 56 Rule 1 of the new Rules.Delineation of null acts or omissions within the intent of Order 5 Rule 1(1)As we are aware, the 2004 Rules of Court made it incumbent on any party desiring to file a pleading to support such pleading with a list of witnesses, written depositions of witnesses on oath, list of documents to be relied on at the trial and copies of the documents; a process colloquially labelled 'frontloading'. Order 17 Rule 1 of the 2004 Rules puts a corresponding obligation on the defendant. It is understandable as to discourage the filing of weak or frivolous cases, the frontloading system was the very first step taken (in 2004) at restoring confidence in the justice delivery system.Now, even though the sanction for non-compliance with the front loading requirements appears to be that the originating process will not be accepted for filing by the registry (Order 3 Rule 2(2) of the 2004 Rules), the many frequent contests/objections as to defect was not at the court's registry, but in the courtrooms; as the express lettering of Order 5 Rule 1 (1) of the said Rules to the effect that '(1) Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings' was called in aid to nullify such processes or proceeding. In no time, Order 5 Rule 1 (1) soon permanently reared its head as the basis for many an objection seeking to nullify any or indeed every 'defective' step or proceeding; howbeit as to any insignificant defect as to time, place, manner, or form of the originating process! In the context of the 2004 Rules, the language of the applicable rule (O.5 R.1 (1) compels mandatory compliance with every stipulated rule or step for commencing an action. Well, at least, that is the position of an opposing side in the forensic contest. The objections were frequently brought and much judicial ink has been spilled on the interpretation, the ambit of what defect the rule covers, etc.Happily, the 2012 Rules draws a clear delineating line of act(s) and omission(s) of either of the claimant or the defendant that would ordinarily amount to a nullity in the presumptive step that the act/omission done or, left undone at the purported commencement of an action is proper or regular. Simply put, there is now a succinct demarcation of what amounts to a nullity as opposed to what act/omission will 'at best be treated or regarded as an irregularity' of a mistaken or faulty procedural step at the commencement of an action.The masterstroke in Order 5 Rule 1(1) of the 2012 Rules leaves no one in doubt as to what will amount to nullity. It provides: '(1) Where in beginning or purporting to begin any action there has, by reason of anything done or left undone, been a failure to comply with Order 3 Rule 2 or Order 3 Rule 8, the failure shall nullify the action.' (Emphasis supplied). Simply put, only failure to comply with the requirement of the Rules as to frontloading (that is the stipulation of Order 3 Rule 2 or Order 3 Rule 8 of the 2012 Rules) will carry the stiff penalty of nullifying the process or step purportedly taken. This, I consider a plus for the already congested dockets of our courts! At least, for now.ADR as a compulsory dispute resolution mechanismA common thread that runs through the new Rules appears to be the promotion of ADR as dispute resolution mechanism. Until now, the appeal has been that disputing parties should, where the circumstance dictates, attempt ADR. The 2012 Rules now makes it compulsory. Well, almost. It provides that 'all originating processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State.' If a doubt is still retained as to the compulsion on disputing parties to go to ADR by the aforesaid provision, Order 25 Rule 7 of the 2012 Rules on ADR directives and sanctions reinforces the point. Whilst the commentator concedes that these provisions will, without doubt, ease high-court docket congestion, and is in furtherance of speedy resolution of 'genuine disputes', the appropriateness of having 'suitable' matters compulsorily referred to ADR institutions or practitioners immediately raises a lot of concern. For constraints of space and subject matter however, these provisions will form the subject of another discourse/paper.Requirement of counter-affidavit in contested application for summary judgmentOrder 11 of the 2004 Rules provides that where a defendant wants to contest an application for summary judgment, he should file specified court processes, namely; (a) his statement of defence; (b) depositions of his witnesses, (c) exhibits to be used in his defence and (d) a written brief in reply to the application for summary judgment. The 2004 Rules did not expressly provide for the filing of an affidavit in reply to the claimant's application for summary judgment. This 'lacuna' became evident when the issue arose (in a few decided cases) as to the propriety of the defendant not filing a counter affidavit to contradict the averments in the claimant's affidavit so that such uncontroverted averments shall not be deemed as admitted by the court.To drive the point home, a quick reference shall be made to the judgment of the Court of Appeal, Lagos Division in Pastor Ikenna Nnabude & Anor. V G.N Godiscoy (W/A) Ltd, reported in (2010) 15 NWLR (Pt. 1216) p 365. Both parties argued a common issue touching on the propriety (or lack of same) of filing a counter-affidavit in rebuttal of the facts averred in support of an application for summary judgment. The appellants argued that the High Court's judgment was predicated on an erroneous presumption that the rules require the filing of a counter affidavit. The respondent contended differently. Its position being that Order 11 Rule 4 of the 2004 Rules did not dispense a party from filing a counter affidavit. Earlier at the trial court, the learned trial judge noted that as no counter affidavit was filed by the defendants/respondents challenging the facts contained in the affidavit in support of the claimant's application, 'the evidence ought to be admitted and relied upon on a minimum of proof'. In a judgment delivered on the 8th day of July 2010, the Court of Appeal held that the defendants complied with the well set out requirements of Order 11 Rule 4 of the Rules as the Rules did not provide that the defendant should file a counter affidavit in addition to the statement of defence.Two years later, that which the draftsman intends is now explicitly stated in its most known signification. The express lettering and wording of Order 11 Rule 4 (d) of the 2012 Rules leaves no room for conflicting dicta or diverse interpretations on the question. Where a defendant intends to defend an application for summary judgment, the rule under reference now expressly specifies the filing of a counter affidavit in addition to the other specified processes in Order 11 Rule 4 of the Rules.Upfront filing of witness' statement on oathTo be sure, the upfront filing of all documents to be used at trial never contemplated all possible scenarios. The 2004 Rules did not make express provision for the few exceptions where it is not possible to frontload witness statement on oath. This defect has now been remedied in the 2012 Rules. There is now a clear indication as to how to deal with, for example, a witness under subpoena who may not be sworn. Such witness statement is expressed to be an exception to the rule that witness statement on oath must be frontloaded. See Order 3 Rule 2 (1) (c) of the 2012 Rules.'Proactive' regime of costsOrder 49 of the 2012 Rules is emphatic on reasonableness of costs payable to the receiving party. Gone are the days of meagre N1,000 costs to penalise a party's tardiness in the prosecution or defence of his case. The principle to be observed in fixing costs is now expressed to take account of the right of the compensated party to be 'indemnified for the expenses which he has been necessarily put in the course of the proceedings, as well as compensated for his time and effort in coming to court.' Such expenses are further expressed to include:(a) The cost of legal representation and assistance of the successful party to the extent the judge determines that the amount of such cost is reasonable;(b) The travel and other expenses of parties and witnesses to the extent that the judge determines that the amount of such expenses is reasonable, and such other expenses that the judge determines ought to be recovered, having regard to the circumstances of the case.Probate matters made easy: Elegance in draftingTo those familiar with the rigours of Order 55 of the 2004 Rules, it really is a tall order coming to terms with its expansive breadth and clumsiness. Honourable Justice Alogba captured it well when, at the stakeholders' summit, he likened grappling with the meaning of Order 55 to reading through the Rule to appreciate its purposive meaning and intermittently looking up the meaning of several of the words used in the dictionary! It was, well until now, a no-go for the commentator! Happily, the 'grammar' there has now been simplified and broken down to readable, easy-to-use, friendly rules between Orders 56 and 60. More importantly, there is a logical sequence in the salient issues being addressed. And, to think that the draftsman tried to say all that within a single Order 55 in 2004' Little wonder that Order has a record-105 Rules to it!It is also pertinent to note that the procedure at the registry, whether the application is for grant of probate or administration in general (letters of administration with or without Will) has also been succinctly explained.'Kuti is a Partner in the commercial law firm of Perchstone & Graeys, Lagos.
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