The High Court Of The Federal Capital Territory, Abuja, Civil Procedure Rules, 2004: Can The New Rules Lead To Just, Efficient And Speedy Dispensation Of Justice?

By

Sama’ila Abdullahi Mohammed [1]

I. INTRODUCTION

President Olusegun Obasanjo was reported (Daily Trust: Wednesday, April 6, 2005 at page 5) to have “blamed court adjournments and delays in the judicial process for low foreign investment in the country saying some investors are seeking to be allowed to use courts outside the country, before they could invest in Nigeria.”

The President definitely knew what he was saying because credible research has established a primary nexus between a country’s efficiency of judicial process and rate of foreign investment flow.  But the issue is beyond just the impact of court delays on foreign investment flows.  The issue affects the basic principles of justice, one of which is that justice that is delayed is justice denied. 

In Nigeria, the careful observation and analysis indicate that the average period to commence and complete litigation is in the order of six years. As this figure is only an average, there are many instances where some litigation last longer than this period. There are instances where litigants died in the process of seeking but without getting judicial justice.  For example, in the celebrated case of ARIORI V. MURAIMO ELEMO (1983) 1 SCNLR 1, proceeding was commenced in October 1960 (the same month and year Nigeria got its independence from the British imperialist colonizers) and took 23 solid years to reach the Supreme Court of Nigeria.  Upon a hearing at the Supreme Court, the case was remitted back to the trial court for a re-trial, de novo!  Commercial and investment decisions cannot tolerate this level of delay in adjudication.  Sadly, delays are the order of the day in this respect.

Commenting along similar line, a justice of the Supreme Court of Nigeria, Justice Alfa Belgore, (The Guardian: Tuesday, April 5, 2005 at page 5) “canvassed for the overhauling of the nation’s procedural laws which he described as obsolete and constituting impediment to the administration of justice in the country.”

In apparent answer to these and other similar concerns, the Lagos State House of Assembly enacted a law: the High Court of Lagos State (Civil Procedure) Law, 2004.  The objective of the 2004 Lagos High Court Law (which embodies the Rules) is “directed towards the achievement of a just, efficient and speedy dispensation of justice.”  (Order 1, rule 2).  To enable it achieve its objective the new rules introduced new, radical and far-reaching innovations and expunged many orders and rules that were deemed not in tune with the spirit of speedy administration of justice in the State.

Taking its cue from the new experiment of Lagos State, the High Court of the Federal Capital Territory (FCT), Abuja, under the leadership of Honourable Justice Hassan Lawal Gummi, Chief Judge, also, introduced new rules.  These rules are referred to as the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules 2004.  As in the case of Lagos State, the FCT 2004 Rules are designed to replace the old Uniform High Court Rules, Abuja, 1990, make justice faster and expand access, by lowering costs of litigation.

II. OBJECTIVE OF THIS WRITE-UP

The objective of this write-up is to examine whether these rules are likely to lead to “the achievement of a just, efficient and speedy dispensation of justice” under the two jurisdictions.

III. APPROACH

The approach that we adopt here is simple. We, first, compare the 2004 FCT Rules with the Uniform High Court Rules, Abuja, 1990 and identify all the changes that have been made.  Secondly, we compare the 2004 FCT Rules with the 2004 Lagos Rules and identify areas of convergence and areas of divergence.  Our aim here is to establish whether the two experiments represent the same model or distinct models.  Thirdly, we will determine whether, on the face of the changes introduced, the new rules will lead to, just, efficient and speedy dispensation of justice in the two jurisdictions.  Finally, in view of the fact that most States of the Federation, which are currently operating one variant or the other of the Uniform High Court Rules, Abuja, are keenly watching these developments, we would end this discourse by recommending which of the two models or a synthesis is desirable for their adoption.  Henceforth, the two Rules are referred to as the Abuja Model and the Lagos Model.

IV. CHANGES INTRODUCED BY THE ABUJA MODEL

The Abuja Model has introduced some new Orders and expunged others.  Below is a summary of these changes:

A.     New Orders introduced.

1.      Judge is to encourage Alternative Dispute Resolution.

Order 17:  Alternative Dispute Resolution.

a.      A Court or Judge, with the consent of the parties, my encourage settlement of any matter(s) before it, by either:

1.      Arbitration

2.      Conciliation

3.      Mediation; or

4.      any other lawfully recognized method of dispute resolution.

This order is similar to Order 25, rule 1 (1) (c), of the Lagos Model, in which the Judge issues a pre-trial conference notice in Form 17 for the purpose of, among others, promoting amicable settlement of the case or adoption of alternative dispute resolution. It is in line with this rule that the Judge, in the case of Jabita v. Onikoyi,[2] while striking out the main claim and counter-claim, directed the parties to adopt the alternative dispute resolution as a better means of resolving their dispute rather resorting to litigation.

            I consider this an appropriate circumstance to call upon the parties to consider amicable settlement and / or alternative avenues of resolving their dispute.[3]

            The Judge, also, made similar comments, again:

                        Once a dispute is aired in any High Court…as here, it loses its “innocency” and acquires a potential “baggage of judicial commentaries, orders and / or directions” …In this regard therefore, in striking out both main suit and counter claim and to facilitate alternative dispute resolution either at the Lagos Multi-door ADR Center or any other respected forum such as the Lagos Island Local Government Chieftaincy Committee or better still in-house amicable resolution…I direct…accordingly.

Litigation is a very costly process, even to the party that may eventually win the matter.  That is why it is heartening to note that it is now a duty on the part of the judges to encourage and facilitate amicable settlement through ADR.

2. Requirement for a Written Address.

Order 36.  Written Address

1.      Where a party beginning has concluded his evidence, the Judge shall ask the other party if he intends to call evidence.  Where the other party does not intend to call evidence, the party beginning shall within 21 days after close of evidence file a written address.  On being served with the written address, the other party shall within 21 days file his own written address.

2.      Where the other party calls evidence he shall within 21 days after the close of evidence file and serve a written address.

3.      On being served with the other party’s written address the party beginning shall within 21 days file his own written address.

4.      A party who files the first address shall have a right of reply on points of law only.  The reply shall be filed within 7 days after service of the other party’s address.

5.      Oral arguments of not more than 30 minutes shall be allowed for each party to adopt and emphasise and clarify the written address already filed.

6.      A written address shall be printed on white opaque A4 paper of good quality, and set out in paragraphs numbered serially and shall contain:

a.      the claim or application on which the address is based;

b.      a brief statement of the facts with reference to the exhibit attached to the application or tendered at the trial;

c.       the issues arising from the evidence and

d.      a succinct statement of the argument on each issue incorporating the purport of the authorities referred to together with full citation of each such authority.

7.      Each party shall file two copies of his written address in court and serve a copy of it on every other party.

Order 36 of the Abuja Model is similar to Order 31 of the Lagos Model, which we have the privilege to quote, as follows:

Order 31: Filing of Written Address

1.      This order shall apply to all applications and final addresses.

2.      A written address shall be printed on white opaque A4 size paper and set out in paragraphs numbered serially and shall contain:

i.                    the claim or application on which the address is based;

ii.                  a brief statement of the facts with reference to the exhibit attached to the application or tendered at the trial;

iii.                the issues arising from the evidence;

iv.                a succinct statement of argument on each issue incorporating the purport of the authorities referred to together with full citation of each such authority.

3.      All written addresses shall be concluded with a numbered  summary of the points raised and the party’s prayers.  A list of all authorities referred to shall be submitted with the address.  Where any unreported judgment is relied upon the Certified True Copy shall be submitted along with the written address.

4.      Oral argument of not more than twenty minutes shall be allowed for each party.

5.      Each party shall file two copies of his written address in court and serve a copy thereof on every party.

3. Requirement for Pre-action Counseling Certificate

                        Order 4, Rule 17: Pre-action Counseling Certificate

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 strengths 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.

            This order is not available under the Lagos Model.  The objective of the order is to force the counsel to inform the parties about the relative strengths and weaknesses in their respective suites so that the parties can have realistic expectations about the outcome of the cases.  In such a circumstance, the parties can evaluate their chances and may, instead, decide to pursue alternative dispute resolution methods.

            It should be noted that the form, which this Certificate takes, has not been indicated in the Abuja Model.  It is hoped that a standard format be developed and used uniformly.

4. Drafting of Orders has been simplified

The drafting of the orders under the Abuja Model, just like the Lagos Model, has been thoroughly simplified.  For example:

            a. Order 1, Rule 2 (Uniform High Court Rules, Abuja, 1990)

Subject to any provision of an enactment or of these Rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings shall be begun by writ, that is to say, proceedings in which a claim-----

Now, compare this with the equivalent order under the new Abuja Model and notice how simplified it has become, thus:

a.      Order 1, Rule 2 (1)

Proceedings shall commence by writ, where a claim is---------

This simplification of Orders permeates the Abuja Model and it definitely has the potential to expedite matters and causes in the courts by fostering clearer understanding.

5. Changes in the Orders and Rules

i.                     Order 6, Rule 8: Issue when effected

ii.                   Duration of Ex-parte Order under Order 7, Interlocutory Applications, now limited to 14 days;

iii.                  Powers of the Registrar under Order 8, Rules 28 to 31 under the Uniform High Court Rules, Abuja, 1990 have now been removed under the Abuja Model. But it is instructive to state that the powers of the Registrar under the Lagos Model have been streamlined and strengthened.  This is provided in Order 41, Order 3, Rule 2 (2), 9 and 10;

iv.                 Notice, under Order 20, Rule 4 on Computation of Time, now reduced to not less than 7 days;

v.                   Application to set aside or remit an award, under Order 20, Rule 5, has been extended to 90 days instead of the former period of six weeks under the Uniform High Court Rules, Abuja, 1990;

vi.                 Under Order 25, Rule 5, Abuja Model, Pleadings in an action shall now close at the expiration of 14 days after service of the Reply or if neither Reply nor a Defence to a counter-claim is served, at the expiration of 14 days after the service of the Defence.  The Uniform High Court Rules, Abuja, 1990 required 30 days, in each case.

6.      Major change in the Undefended List Procedure

Order 23 guided Undefended List Procedure under the Uniform High Court Rules, Abuja, 1990.  Under the Abuja Model, Order 21 now replaces this Order.  In addition, the discretion of the Judge in deciding whether to place the suit under ‘the General Cause List’ or ‘the Undefended Cause List’ has now been removed. This is a welcome development, because, once a deponent to an affidavit has deposed that, in his belief, there is no defense to his action, it is not fair for a Judge, suo motu, and without the benefit of a counter-affidavit, to question that belief.  Besides, the Judge is now to grant such orders in Chambers and not in open court.  This will definitely assist in decongesting the Daily Cause List of most Courts.  To better appreciate the import of this change, let us reproduce the relevant orders.

            Order 23: Undefended List (Uniform High Court Rules, Abuja, 1990)

1.      Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defense thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defense thereto, enter the suit for hearing in what shall be called “the Undefended List”, and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the commencement of the particular case;……

Order 21, Rule 1Undefended List (Abuja Model)

1.      Where an application in Form 1, as in Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defense to it, the Judge in Chambers shall enter the suit for hearing in what shall be called the “Undefended List”.

The Lagos Model does not contain the Undefended List Procedure, which was contained in Order 60 of the High Court Civil Procedure Rules of 1994. The Undefended List Procedure is abolished.  In its place, is the Summary Judgment procedure under Order 11, which also provides for litigants who desire to recover their debts and liquidated money demands expeditiously.

7.      Orders Removed / Expunged

The following Orders have been expunged in the Abuja Model:

a.       Order 3:  Particulars of Claim

b.      Order 17: Detention of Ships and Reparation for Needless Arrests, etc.

c.       Reference to Arbitrator

B.     Major Areas of differences between the Lagos Model and the Abuja Model.

i.                     Introduction of Front-loading Concept (Order 3, Rule 2 (1));

ii.                   Need for Pre-Trial Conference (Order 25);

iii.                  Need for a Pre-Trial Judge as different from the Trial Judge;

iv.                 Service of Originating Process, in addition to being done by Sheriff, Bailiff and other officer of the court, can now be done by any Law Chambers, Courier Company or any person so appointed and registered to serve process.  Such persons are to be referred to as Process Servers;

v.                   Effect of non-compliance with rules under the Lagos Model shall nullify proceedings and does not render the proceedings or process merely irregular. (See Jabita v. Onikoyi)[4];

vi.                 Amendments of pleadings ad infinitum has been removed and have now been limited to only two during Trial proper stage under the Lagos Model (See Order 24, Rule 1 and Order 39, Rule 1);

vii.                Adjournments at the request of a party have been limited to not more than two times during the trial and costs have been imposed to take care of other judge-approved adjournments;

viii.              Absence of oral examination-in-chief which has been replaced by the witness’s statement as filed;

ix.                 Third Party Proceedings are now simplified;

x.                  The Lagos Model “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 1). On the other hand, Abuja Model categorically states that, “the provisions of this Order shall not apply in actions commenced before the coming into operations of these Rules”.

xi.                 The Lagos Model expunged the old 1994 provision under Order 14, Rule 18, which allowed courts to have recourse to English Rules in situations where no rule is provided. It is fair to assume that recourse by Lagos Courts to English Rules has now been abolished.   Under the Abuja Model, however, where a matter arises in which no provisions or no adequate provisions exist in the Rules, a Court shall adopt a procedure as may do substantial justice between the parties concerned, including, in our opinion, recourse to but not limited to English Rules.

xii.                Managerial role of the Judge

xiii.              Lagos Model was enacted by the Lagos State House of Assembly in apparent violation of Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN, 1999). But, in contrast to what Lagos State has done, the Chief Judge of the High Court of the Federal Capital Territory, Abuja, formulated the Abuja Model in exercise of the powers conferred on him by Section 259 CFRN, 1999.

V. Effect of Changes on Justice Administration

Many changes have been introduced under the two models. These changes are bound to impact positively on justice administration, especially with respect to timeliness in complying with court processes.  Another area that would also expedite settlement of disputes is the power given to the judges to encourage alternative means of dispute resolution.  This would in no way help in decongesting the courts. But it should be remembered that the bulk of cases are usually handled at the area courts, magistrate courts and other so-called inferior courts. Unless the changes affect these courts, the effect of the changes would likely be minimal.  In addition, we would like to call for full automation of court processes, such that efficiency could be enhanced.  There is need for the court’s personnel to be carried along in the changes through regular training and re-orientation.  Other relevant statutes affecting the trial of cases ought also to be reviewed.  For example, there is need for the Federal Executive Council to deliberate on the Report on the Reform of the Evidence Act submitted by the Nigerian Law Reform Commission in April 1998 and submit a Bill to the National Assembly for a new Evidence Act. Until that is done our Evidence Act will continue to be a clog in the speedy and efficient dispensation of justice in this country.  Unfortunately, Evidence is an item under the Exclusive Legislative List of the 1999 Constitution.  Therefore, a State, that notices major problems with the Evidence Act cannot legislate changes pertaining it.  Consequently, this is an area where the President needs to act fast if he is serious about the delay in courts.  He should compel the Attorney General of the Federation to submit the draft Evidence Act for his consideration. Additionally, rules of Supreme Court, Court of Appeal and the Federal High Court may also require to be reviewed in the spirit of the new times.

VI. Which Model should other States adopt?

As can be seen from our analysis, both models have introduced various changes designed to enhance the administration of justice.  We do not recommend that States should adopt one or a synthesis of the two models.  We advise that States should each study their personal circumstances and come out with revised rules that should assist the attainment of substantial justice for their citizens. An uncritical adoption of either of the two models may do more harm, eventually.  Also, as we are a federal state, States should avoid the admittedly strong temptation to adopt a uniform approach, as happened in the case of the Uniform High Court Rules.

VII. Conclusion

High court rules, like all other rules guiding human conduct, are drawn on the basis that they will assist towards the attainment of an objective.  They are not ends in themselves.  This is also the case with the High Court Rules.  They need to be constantly revised to accord with changing demands for efficiency and justice.