EKITI STATE ADMINISTRATION OF CIVIL JUSTICE BILL: A GIANT STRIDE TOWARDS REFORMING ADMINISTRATION OF CIVIL JUSTICE IN NIGERIA

 

 

 

 

A PAPER DELIVERED

 

BY SBJ BAMISE, ESQ

DIRECTOR, CIVIL LITIGATION

MINISTRY OF JUSTICE, EKITI STATE

 

 

 

AT THE MINISTRY OF JUSTICE ACADEMY ON THE ADMINISTRATION OF CIVIL JUSTICE, BILL IN EKITI STATE

 

 

 

 

 

18TH JANUARY, 2019

EKITI STATE ADMINISTRATION OF CIVIL JUSTICE BILL: A GIANT STRIDE TOWARDS REFORMING ADMINISTRATION OF CIVIL JUSTICE IN NIGERIA BEING A PAPER DELIVERED SBJ BAMISE, DIRECTOR CIVIL LITIGATION, MINISTRY OF JUSTICE, EKITI STATE ON 18TH JANUARY, 2019

PREAMBLES:

Every State High Court Law in Nigeria empowers the Chief Judge of each State to enact rules (civil procedure rules) for the purpose of ensuring orderly as well as expeditious means of enforcing claims in court and settlement of dispute and to checkmate delays in administration and dispensation of justice. Of course, Chief Judge of different States in the Federation including that of the Federal Capital Territory have made use of this opportunity by putting in place at one time or the other different rules of court and practice directions with the aim of ensuring speedy and effective dispensation of administration of civil justice in their respective States. Despite all these attempts, attaining the expected standards towards effective dispensation of administration of civil justice has remained a mirage.  This palpable failure of the different State Civil Procedure rules to address this issue led to the enactment of the Uniform Civil Procedure Rules in 1987, championed by the Nigerian Law Reform Commission. Although, the Uniform Civil Procedure Rules applied to all States in the Federation. Each State did adopt same subject to some variations except Lagos State which did not, but extracted part of it to form part of its 1972 and the subsequent 1994 Civil Procedure Rules. Ekiti State equally adopted the Uniform Procedure Rules with some variation as reflected in its 1994 Civil Procedure Rules in operation before its 2011 Civil Procedure Rules which take after the reforms introduced by the Lagos State Civil Procedure Rules of 2004.As said earlier both the Uniform Civil Procedure and different States Civil Procedure Rules have not helped matters as they have created different problems in respect of its practicability towards achieving effective and quick administration and dispensation of civil justice[1].

In respect of the State Civil Procedure Rules, It could be observed, that legal practitioners have today adopted negative approach in frustrating the intendment of these rules by using the technical rules of court against the proper settlement of dispute in court thereby occasioning delays in achieving quick and effective dispensation of administration of civil justice. Frowning at how the rules have been used by legal practitioners to frustrate quick dispensation of civil justice on the ground of technicalities, the Supreme Court(per Aniagolu, J.S.C)  deprecated this attitude in the case of Afolabi V. Adekunle(1983) A.N.L,R.p.470 at 481;(1983)2 S.C.N.L.R.141, at 150 when it held:

While recognizing that the rules of court be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a facing game in which parties engage themselves in exercise of outsmarting each other in a whirling of technicalities, to the detriment of the determination of the substantial issues between them”

However, in as much as justice should not be slaughtered on the alter of speed, it must be understood that justice delayed is also justice denied. It is in an attempt to balance these case law aphorisms, that the Ministry of Justice, Ekiti State, under the able leadership of indefatigable Attorney General and Commissioner for Justice, Hon. Olawale Fapohunda, has taken the bull by the horns to propose for passage into law this volcanic bill called Ekiti State Administration of Civil Justice Bill,2019.It is volcanic in the sense that first, the Bill is geared towards putting a stop to or uproot in a drastic manner all the bottlenecks causing delay in administration of civil justice in the State or loopholes hitherto being explored to ensure delays in effective dispensation of administration of civil justice in Ekiti State. Secondly, the Bill has specifically indentified every stakeholder in administration of civil justice in Ekiti State and saddled them with obligations which they must compulsorily fulfill otherwise sanctions follow in terms of award of costs. Thirdly, the ICT features of the Bill is pragmatic, overwhelming and mercurial. There is a determined effort in this regard to introduce verbatim recording by our judges, electronic filling of court processes and other inventions which would be critically looked into in the course of this dissertation. You would agree with me that despite some challenges that may occasion the implementation of this Bill, it is needful for all stakeholders to face these challenges squarely in order to meet up with the rest of the world in achieving effective dispensation of administration of civil justice so that we do not go back to the era of what happened in ARIORI &ORS VS ELEMO&ORS (1983) SC13, the facts of which areas are as follows:

“The case was filed in the High Court of Lagos State on 15th December, 1960, and after all the preliminaries which included filing and settling of pleadings and substitution of parties for those that died during the pendency of the case, hearing was fixed before Kester J. (as he then was) for 15th November, 1964. Kester J. took some evidence in the case. After this, the pleadings were amended and again hearing was adjourned till 10th of June 1966. But the case did not come up until 8th March 1969 when it was mentioned de novo before Beckley, J. who was the Judge who eventually tried the case.”

From March 1966 until 1st March 1972, the case dragged on beset with someone application or another. However, on that day, that is 1st March, 1972, hearing commenced before Beckley J. By 3rd March, the 1st plaintiff’s witness had concluded his evidence and further hearing was adjourned till 6th of May at the instance of the Court. further evidence was taken and by consent, the case was adjourned till 14th June, 1972. The next adjourned date for mention was 16th October, 1972 and the adjournment was at the instance of the learned counsel for the defendants.

Further hearing did not continue until 12th of February,1974 and adjournment up till that time had been mostly at the instance of parties and/or their counsels who came up with various applications. The defence which  opened on 12th February 1974 was concluded on 3rd July 1974 and the court took the address of learned counsel from 12th July 1974 to 18th July 1974 when the learned trial Judge adjourned judgment sine die (i.e. until further notice).

Now, on 3rd October, 1975, fifteen months after the close of the case (and which was also three years and seven months after the court, i.e. Beckley, J. took the first evidence in the case), the learned trial Judge delivered his Judgment. He dismissed the plaintiff’s claim.

It is intriguing but equally heart-rendering to note that the case went to the court of Appeal and ultimately got to the Supreme Court where it was “disposed of” on the 21st day of January, 1983, 23 years after the case was first instituted at the High Court. Ask me, what then became of the case or what was the judgment of the Supreme Court in “disposed of” the case? And I will answer you that the Supreme Court “disposed of” the case in 1983 with an order for retrial before another Judge of the High Court. so, one may ask; what justice is in our judicial system for the public or the case of justice? Infact, would a pre-trial not have narrowed the issues and timeously get the matter disposed off?

It is pertinent at this stage therefore to go into the nitty- gritty of the Bill for the purpose of understanding its intendment and objectives.

What are the objectives of this Bill?

Adumbrated in Section 5(1) of the Bill are its objectives which are to facilitate just, efficient, timely and cost-effective resolution of the real issue in dispute. We are quite aware that it has been seemingly difficult if not impossible to achieve this focus even with all the reforms introduced via all the extant court rules enacted or put into place by different States in the Federation, Ekiti State not being an exemption. The euphoria that greeted the new civil procedure rules, especially the frontloading method whereby all documents intended to be tendered in the course of adjudication and witnesses to be called are filed alongside the originating processes for the purpose of ensuring timely resolution of dispute appears to have been whittled down in view of the fact that the hydra headed liberty entrusted legal practitioners to file all manners of applications whether reasonable or frivolous in the course of civil adjudication are still being preserved under the relevant extant rules of court. Of course, we cannot blame the courts because they are bound to rule on all applications before them even when same are frivolous[2]. However, it is interesting to note that this Bill intends to checkmate and drastically reduce such applications and even put a permanent stop to such[3].The court is to further this objectives by  making order or giving direction to that effect via section 7 of this Bill:-

  • In making any order or giving any direction in a civil proceeding, a court shall further the Primary Objective of this Law by having regard to the following objects –
    • the just determination of the civil proceeding;
    • the public interest in the early settlement of disputes by agreement between parties;
    • the efficient conduct of the business of the court;
    • the efficient use of judicial and administrative resources;
    • minimizing any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for –

 

  • the fair and just determination of the real issues in dispute; and

 

  • the preparation of the case for trial;

 

  • the timely determination of the civil proceeding;
  • dealing with a civil proceeding in a manner proportionate to –

 

  • the complexity or importance of the issues in dispute; and

                       

  • the amount in dispute.

 

  • For the purposes of subsection (1), the court may have regard to the following matters –

 

  • the extent to which the parties have complied with the pre-litigation requirements or any other mandatory or voluntary pre-litigation processes;
  • the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
  • the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
  • the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
  • the degree to which each person to whom the Primary Obligations apply has complied with the Primary Obligations in relation to the proceeding;
  • any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
  • the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
  • the extent to which the parties have had the benefit of legal advice and representation.

 

  • Except as otherwise stated, this section does not –

 

  • limit any other power of a court to make orders or give directions; or
  • preclude the court from considering any other matters when making any order or giving any direction.

 

How does this bill intend to achieve these objectives of efficient and timely dispensation of administration of civil justice?

One of the unique intendments of this Bill is to specifically provide windows for achieving these objectives and saddled some categories of stakeholders with the primary obligations or responsibilities of ensuring that the objectives of this Bill are achieved. Unlike the extant rules, this Bill identifies the stakeholders in civil dispute and directly put on their shoulders the cross to ensure the success of the objectives of this Bill. Not only ascribing these responsibilities to them, they are under legal burden to pay cost for their inaction or failure to carry out their obligation under this Bill. Now, what are these windows and who are these stakeholders?

Section5 (2)  provides widows through which these primary objectives can be achieved which are through-

  • The determination of the proceeding by the court;
  • Agreement between the parties;
  • Any appropriate dispute resolution process-
  • agreed to by the parties; or
  • ordered by the court

Section 8 of the Bill indentifies the stakeholders saddled with obligations to ensure the success of the objectives of this Bill thus-

  • any person who is a party;
  • any legal practitioner or other representative acting for or on behalf of a party;
  • any firm of legal practitioners acting for or on behalf of a party;
  • any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of any civil proceeding or of a party in respect of that civil proceeding, including but not limited to-
  • an insurer;
  • a provider of funding or financial support, including any litigation funder.

Note however that primary obligations imposed on the above parties do not apply to a witness except an expert witness under this Bill[4].

These primary obligations are as stated in sections 15-24 of this Bill and they include the following:-

  1. Primary Obligation to Act Honestly

A person to whom the Primary Obligations apply must act honestly at all times in relation to a civil proceeding.

           

            16.       Primary Obligation – requirement of proper basis

A person to whom the Primary Obligations apply must not make any claim or make a response to any claim in a civil proceeding that –

 

  • is frivolous; or

 

  • is vexatious; or
  • is an abuse of process; or
  • does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.

 

  1. Primary Obligation to only take steps to resolve or determine dispute

 

For the purpose of avoiding undue delay and expense, a person to whom the Primary Obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.

18.       Primary Obligations to cooperate in the conduct of civil proceeding

A person to whom the Primary Obligations apply must cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.

     

            19.       Primary Obligation not to mislead or deceive

 

A person to whom the Primary Obligations apply must not, in respect of a civil proceeding, engage in conduct which is –

           

  • misleading or deceptive; or
  • likely to mislead or deceive.

 

                        20. Primary Obligation to use reasonable endeavours to resolve dispute

 

A person to whom the Primary Obligations apply must use reasonable endeavours to resolve a dispute by agreement between the persons in dispute, including, if appropriate, by alternative dispute resolution, unless –

                       

  • it is not in the interests of justice to do so; or
  • the dispute is of such a nature that only judicial determination is appropriate.

         21.          Primary Obligation to narrow the issues in dispute

If a person to whom the Primary Obligations apply cannot resolve a dispute wholly by agreement, the person must use reasonable endeavours to –

  • resolve by agreement any issues in dispute which can be resolved in that way; and
  • narrow the scope of the remaining issues in dispute – unless–

(i)        it is not in the interests of justice to do so; or

(ii)       the dispute is of such a nature that only judicial determination is appropriate.

  1. Primary Obligation to ensure costs are reasonably and proportionate

A person to whom the Primary Obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to – (a) the complexity or importance of the issues in dispute; and (b) the amount in dispute.

            23.        Primary Obligation to minimize delay

For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the Primary Obligations apply must use reasonable endeavours in connection with the civil proceeding to – (a) act promptly; and (b) minimize delay.

            24.        Primary Obligation to disclose existence of documents

  • Subject to subsection (3), a person to whom the Primary Obligations apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control –
    • of which the person is aware; and
    • which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.
  • Disclosure under subsection (1) must occur at –
    • the earliest reasonable time after the person becomes aware of the existence of the document; or
    • such other time as a court may direct.
  • Subsection (1) does not apply to any document which is protected from disclosure –
    • on the grounds of privilege which has not been expressly or impliedly waived; or
    • under any other Law or enactment .
  • The Primary Obligation imposed by this section –
    • is an ongoing obligation for the duration of the civil proceeding; and
    • does not limit or affect a party’s obligations in relation to discovery.

 

It is interesting to note that that the court is to take into cognizance of any contravention of the primary obligation stipulated under this Bill[5]. Courts are also to sanction any erring party who contravenes any of these primary obligations by ordering such party to pay cost[6].

It has been pointed out earlier that one of the windows for achieving the primary objectives of this Bill is through determination of  proceeding by courts amongst others. To achieve this, the courts are saddled with the responsibility to give effect to these primary objectives[7] towards achieving effective dispensation of civil justice. In giving effect to these objectives for the purpose of ensuring timely and effective dispensation of administration of civil justice, this Bill, via Section 6 intends to complement the provisions of Order 5 of the Ekiti State Civil Procedure Rules 2011 in a pragmatic manner by putting an end to any application seeking to strike out a proceeding or process as a result of any procedural requirement or defect. It is observed that Order 5 of Ekiti State Civil Procedure allows the court to exercise discretion whether or not to strike out a process or proceeding as a result of procedural requirement or defect. However, this Bill does not allow such discretion as the Bill provides that the court SHALL not strike out, or set aside or adjourn any matter on account of any failure to comply with any procedural requirement or defect[8]. It may be apposite to set out verbatim the provisions of section 6 of this Bill  and Order 5 of the Ekiti State Civil Procedure rules for the purpose of appreciating this view.

Section 6 of the Bill

           

6(1)    A court to which this Law applies shall give effect to the primary objective of this Law in the exercise of any of its powers, or in the interpretation of those powers, whether those powers are part of the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction.

  • ­In giving effect to the Primary Objective of this Law, a court to which this Law applies shall at all times conduct its proceedings with the aim that the business scheduled for the day is accomplished.
  • No process or proceeding shall be struck out, set aside or adjourned on account of any failure to comply with any procedural requirement, and the parties may agree, or the court may make any orders required to rectify the procedural defect.
  • Sub-sections (2) and (3) do not apply if a party establishes that it will suffer injustice or prejudice that cannot be compensated by costs unless the process or proceeding is struck out, set aside or adjourned.

 

Order 5 of Ekiti State Civil Procedure rules

 

  1. Effect of non-compliance

(1)      Where in beginning or purporting to beging any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules whether in respect of time, place, manner, form or contents or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order.

(2)      The Court may on the ground that there has been a failure as mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part, the proceedings in which the failure occurred, any step ten in those proceedings or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

  1. (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

            (2)      An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion.

 

From above, it could be inferred that the Bill intends to make it ABSOLUTE that a process or proceeding is not struck out, set aside or adjourned as a result of any procedural defect. However, it must be noted that this Bill has no intention of revoking in anyway the extant Ekiti State Civil Procedural rules 2011. This Bill when passed into law is expected to operate alongside with the Ekiti  State Civil Procedure Rules,2011.However, section 2 of the Bill provides that in the event of any inconsistency between the Ekiti State Civil Procedure Rules, the provisions of this Bill when passed into law prevail.

However, taking a critical look at the entire gamut of the provisions of this Bill, it could said that this Bill when passed into law intends to create its own set of rules in one part when taking into consideration Part 5, section 48 of the Bill dealing with case Management Procedure. It is my view that the case management procedure provided for under this Bill would serve the same purpose as the pre-trial conference procedure under Order 25 of the Ekiti State Civil Procedure Rules, 2011, except that stringent punishment await any legal practitioner who fails on more than two occasions to comply with procedural deadline/case management time table, as such legal practitioner could be referred to Legal Practitioners’ Disciplinary Committee of the Nigerian Bar Association and the Legal Practitioners’ Privileges Committee for appropriate after Procedural Caution had been issued against such legal practitioner by the judge handling the matter[9], in addition to cost being awarded against him. It appears that a legal practitioner may have the option of electing either of the procedure. A critical look at both procedures may be apposite here.

Order 25,Civil Procedure Rules

(1)      (1)      within fourteen days after close of pleadings, the claimant shall apply  

for the issuance of a pre-trial conference notice as in Form 17.

(2)      Upon application by a claimant under sub rule 1 above, the Judge shall cause to be issued to the parties and t leg practitioners (if any a pre-trial conference notice as in Form 17 accompanied by a pre-trial information sheet as in Form 18 for the purposes set out hereunder:

(a)       disposal of matters which must or can be dealt with on interlocutory application

(b)       giving such directions as to the future course of the action as appear best adapted to secure its just, expeditious and economical disposal;

(c)       promoting amicable settlement of the case or adoption of alternative dispute resolution.

(3)      If the Claimant does not make the application in accordance with sub-rule 1 of this rule, the defendant(s) may do so or apply for an order to dismiss the action.

(4)      Where both parties fail to apply for the issuance of a pre-trial conference notice within the time stipulated by these rules the court, upon notification by the Registrar of such infraction shall strike out the matter.

            (2)      At the pre-trial conference, the Judge shall enter a scheduling order for:

                        (a)       joining other parties;

                        (b)       amending pleadings or any other processes;

                        (c)       filing motions; further pre-trial conference;

                        (d)       any other matters appropriate in the circumstances of the case.

(3)      At the pre-trial conference, the Judge shall consider and take appropriate action with respect to such of the following (or aspects of them) as may be necessary or desirable:

            (a)       formulation and settlement of issues;

            (b)       amendments, interrogatories and further and better particulars;

            (c)       the admissions of facts, and other evidence by consent of the parties;

(d)       control and scheduling of discovery, inspection and production of documents;

(e)       narrowing the field of dispute between expert witnesses, by their participation at pre-trial conference or in any other manner;

(f)       hearing and determination of objections on point of law;

(g)       giving orders or directions for separation trial of a claim, counter-claim, set-off, cross-claim or third party claim or of any particular issue in the case;

(h)      settlement of issues, inquiries and accounts under Order 27;

(i)        securing settlement of special case of law or facts under Order 28;

(j)       determining the form and substance of the pre-trial order;

(k)       such other matters as may facilitate the just and speedy disposal of the action.

(4)      Pre-trial conference or series of pre-trial conferences with respect of any case shall be completed within three months of its commencement, and the parties and their legal practitioners shall co-operate with the Judge in working within this timetable. As far as practicable pre-trial conferences shall be held from day to day or adjourned only for purposes of compliance with pre-trial conference orders.

(5)      After a pre-trial conference or series of pre-trial conferences, the Judge shall issue a report. This report shall guide the subsequent course of the proceedings unless notified at the trial.

            (2)      The pre-trial conference Judge shall also be the trial Judge unless either of the parties applies that the case be transferred to another Judge for trial.

(6)      If a party or his legal practitioner fails to attend the pre-trial conference or obey scheduling or pre-trial order is substantially unprepared to participate in the conference or fails to participate in good faith the Judge shall:

            (a)       in the case of the claimant dismiss the claim;

            (b)       in the case of a defendant enter final judgment against him.

            Any Judgment given under this rule may be set aside upon an application made within seven days of the judgment or such other period as the pre-trial Judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pretrial conference.

(7)      The Judge shall direct the pre-trial conference with due regard to its purposes and agenda as provided under this Order,  and shall require parties or their legal practitioners to co-operate with him effectively in dealing with the conference agenda.

 

Section-48 of the Bill

48(1) Within four (4) weeks from the service of a writ of summons or other originating process, the parties shall meet with the assigned Judge in Chambers to agree on a procedural timetable for the case (the Case Management Meeting). Alternatively the parties may, by agreement contained in an exchange of correspondence and approved by the Judge, hold such Case Management Meeting by telephone conference with the Judge.

  • The Case Management Meeting shall be held on a date to be appointed by the Judge.
  • The Procedural Timetable agreed at the Case Management Meeting shall be in the form set out in Appendix … to this Law
  • In the Procedural Timetable, the Judge and the parties shall schedule activities for the case under three different tracks as follows:
    • The Main Hearing Track, which shall consist of the activities set out in the first column of the Table in Appendix …. to this Law.
    • The Application Windows which shall consist of the activities set out in the second column of the Table in Appendix …… to this Law.
    • The ADR Window which shall consist of the activities set out in the third column of the Table in Appendix ….. to this Law.
  • Unless in exceptional circumstances, no activity on the Main Hearing Track shall be delayed on account of any activity in an Application Window or in the ADR window. Accordingly, the Judge and the parties shall schedule and implement activities in the Application Windows and in the ADR Window such that they run concurrently with events on the Main Hearing Track.
  • On or before the date of the first Case Management Meeting, each party shall designate a case representative by letter to the Judge and the other party.
  • A case representative shall be responsible for ensuring that the party complies with its Paramount Obligation and its Primary Obligations under this Act, and that all case management directions and agreements are implemented.
  • Where the party is a natural person, the party’s case representative shall be that party or another natural person that the party has appointed by Power of Attorney, or in the event of the death of such party, the party’s executors or administrators.
  • Where the party is a non-natural person, the case representative shall be a staff of that party who has sufficient authority to make decisions regarding the management of the case.
  • Where a party is a non-natural person and its designated case representative leaves the employment of the party, the Directors of the party or, where the body has no Board of Directors, the members of its governing body shall be jointly and severally responsible for ensuring that a new case representative is designated.

Coming back to the issue of absoluteness of the power of the court to not strike out any process or proceeding for want of procedural requirement or defect under this Bill, it may be necessary to look into what could amount to procedural requirements/defects and also appraise possible implications of such when this Bill eventually became law. Even though, a judge may still strike out a process or proceeding on the ground of injustice or prejudice which cannot be compensated by cost[10], this definitely in my view a tall order.

It is a bit difficult to pinpoint what could amount to procedural defects under this Bill because same is not in anywhere defined, but since this Bill when passed into law is to operate alongside the Ekiti State Civil Procedure Rules, we may have to fall back on the provisions of the said rules particularly Order 5, Rule 1, Order 3 and Order 40 of the rules in appreciating this scenario. These procedural defects are treated as irregularity under Order 5, rule 1,though the defects would not nullify the proceeding, but nonetheless, a judge can strike out such proceeding if application for such is brought within a reasonable time unlike under this Bill. The question is, would it amount to procedural defect under this Bill if a particular litigant is expected to commence action by writs of summons but instead commenced same via originating summons. Or, where such litigant commences action under Order 3,an action which he ought to have commenced under Order 40 of Ekiti State Civil Procedure Rules,2011.Our courts have always struck out processes or proceeding in this circumstance where action are wrongly commenced in line with case laws[11] .

Again, would it also amount to procedural defect or requirement when issues of jurisdiction are involved? It is my view that Section 6(3) of this Bill would not stand therefore when the matter involved jurisdiction and when an action is wrongly commenced as posited above. It appears section 49 of the Bill has settled this conflict.

I have earlier alluded to the fact that this Bill intends to create some set of rules, part of which is case management and pre-litigation requirements which must be complied with under this Bill except parties decide to waive same.

What therefore is pre-litigation requirements under this Bill?

Section 32 of the Bill is to the effect that:

  • Each person involved in a civil dispute must take reasonable steps, having regard to the person’s situation and the nature of the dispute:
    • to resolve the dispute by agreement; or
    • to clarify and narrow the issues in dispute in the event that civil proceedings are commenced.
  • For the purposes of this section, reasonable steps include, but are not limited to –
    • the exchange of appropriate pre-litigation correspondence, information and documents critical to the resolution of the dispute;
    • the consideration of options for resolving the dispute without the need for civil proceedings in a court, including, but not limited to resolution through genuine and reasonable negotiations or alternative dispute resolution.
  • Each person involved in a civil dispute must not unreasonably refuse to participate in genuine and reasonable negotiations or alternative dispute resolution.

The purpose of pre-litigation requirement is to avail parties who intend to commence action to first make use of available means of negotiation to ensure the resolution of such dispute before commencement of action. By section 31 of the Bill, parties must therefore comply with the pre-litigation requirements prior to the commencement of any civil proceeding in court in relation to any dispute. As a matter of fact, by Section 31(2) of this Bill, litigants only have a moratorium of six(6) months to start complying with pre-litigation requirements upon the commencement of the proposed law.  The court is to take cognizance of this pre-litigation procedure as part of the objective of ensuring timely, efficient and effective dispensation of civil justice[12]. The court in furthering the objective of this Bill is to have regard to the extent to which the parties have complied with the pre-litigation requirements or any other mandatory or voluntary pre-litigation process. One question that is begging for answer is, at what stage would the court take cognizance of the parties’ compliance with pre-litigation requirements since it is expected that whatever transpired at that stage is done before litigation proper. When would the report or certificate of pre-litigation be layed before the court. Is it during pre-trial conference or during case management scheduling? It appears this Bill is salient on this. It is proposed therefore that the pre-litigation report be tabled during case management or during pre-trial conference since parties can elect either of the procedure as already proposed in this paper. Parties are to exchange correspondence at the pre-litigation stage[13]. Parties are to bear their respective costs incurred during pre-litigation and court can also enforced same. Documents exchanged at this stage are protected except for the use of civil dispute involved only[14]. It is even contempt of court to use such documents otherwise except with leave of court. It appears one cannot commence action without first complying with pre-litigation requirements. However, it must be noted that pre-trial litigation is not a condition precedent to instituting an action as same could be waived[15].

What are the possible legal complications pre-litigation requirements might cause in the face of limitation laws?

There is the need to be cautious if pre-litigation requirements provisions are going to be retained in this Bill in view of the extant limitation laws which already provide specific period within which a litigant must commence action in court, though the Bill in section 30(1)&(2) of the Bill attempts to exempt some civil proceedings which pre-litigation requirements would not apply to though not exhaustive.  The solution, therefore is to provide timeline for pre-litigation requirements or in the alternative the provision should be removed totally to avoid any possible legal complications.

Electronic Case Filing

As earlier pointed out, the ICT feature of this Bill is unique as the Bill provides for electric case filing. It is already in the public domain that the Supreme court has started this unique idea. The Chief Judge is to issue regulations in the form of practice direction to establish and regulate the use of an electronic case filing[16]. It appears the Chief Judge is not under compulsion to issue these regulations taking into consideration the word “may” used in that section. But it must be noted that the advantages of embarking on this laudable process outweigh whatever disadvantages that may be envisaged in issuing these regulations.

Outsourcing/Public Private Partnership Arrangement

There is a succor to whatever challenges that embarking on electronic case filing might face. Therefore, instead for the court taking up the whole responsibility, especially considering the expected demand as regards technical knowhow, this Bill has provided for outsourcing such technical knowhow via Public Private Partnership. In this regard, the Chief Judge empowered via the said regulations/practice directions to contract a Court Licensed Electronic Case Filing Agency[17]. The practice directions to be issued in this respect by the Chief Judge is expected to prescribe the criteria and procedure for licensing the Agency and its remuneration by parties. Note that fees paid to the licensed Agency are recoverable under a cost order made by court[18]. Also the licence of the licensed Agency can be revoked upon breach of its duty to the court or the parties and the Agency can even be prosecuted if such breach amounts to an offence[19].

Electronic Filing

Section 40 of the Bill also provides for electronic filing system. However, this is subject to where the court has an electronic filing system and also where the parties have agreed to electronic filing or where there is a law, practice direction to this effect or where the court has ordered that parties should make use of electronic filing[20]. However, these conditions may appear to be a clog to the intendment of the proposed law. We are aware that the Supreme Court has taken a lead in this respect. Therefore, it is suggested that electronic filing should also be outsourced. The Licensed Electronic Filing Agency should also be licensed to do this. The practice directions to be issued should therefore also authorize the licensed Agency to carry out the filing.

Electronic Service

Section 41 of the Bill also provides for Court Licensed Electronic Process Servers. The Chief Judge is to issue regulations in form of practice directions for this purpose. This is to supplement the electronic case filing intendment of the proposed law. Also by section 41(2) this is also room for public private partnership to effect this. The Chief Judge can also outsource electronic process servers by authorizing them via regulations issued pursuant to the proposed law for the purpose of effecting service on the litigants/parties. Note that the licensed process servers are also subject to sanctions as fees paid to them are also recoverable under a cost order made by court. Their license can also be revoked, suspended or terminated.

Section 42 of the bill setup for Electronic Service is to be effected. First of all such service must be provided by law practice direction or court order. The recipient must also agree to such service.

Electronic service involved notification to an electronic address, e-mail address or social network portal. There must be an electronic site where the court process ought to be service may be downloaded and notification of service generated.

A party is expected to agree to electronic service and can only do this via a notice to all parties involved and suit notice must include electronic service address at which the party agrees to accept service.

A party intending to serve another party must ensure that the electronic service address to which service is to be effected electronically must have been in use during a period not longer than thirty days preceding the request for electronic service[21].

By Section 43 of the Bill, the Court is to maintain a list that contain current electronic service addresses provided by parties. Of course parties are responsible for electronic service on all the parties. In case of any change of address while the proceeding is pending, the party who has changed his electronic service address must file a notice of change of address with the court and must serve this notice electronically on all other parties[22].

However, a Court licensed electronic process servers that serves a document by means of electronic notification must ensure that the document served can be viewed and downloaded using the hyperlink provided and must preserve the document served without any change, alteration or modification from the time the document is posted until the time the hyperlink is terminated  and maintain the hyperlink until the case is concluded[23]. Of course, proof of service must be sent to the electronic address of the Court[24].

I have endevoured to bring to the fore the case management procedure of viz a viz the pre-trial conference procedure under the Ekiti State Civil Procedure Rules. It may be apposite for the purpose of proper analysis to address what the case management procedure really entails. It actually entails that within four (4) weeks after the service of a Writ of Summons or other Originating  Summons, the parties shall meet with the assigned Judge in Chamber to agree a procedural timetable. Parties can also by an agreement approved by the Judge hold such case management meeting by telephone conference with the Judge. The case management meeting shall be held on a date to be appointed by the Judge. The procedural timetable agreed upon shall schedule activities for the case under three difference tracks thus:

  • Main Hearing Track
  • Application windows
  • ADR window

Activities under these tracks must go concurrently[25].

The time table must be complied with by the parties as failure to adhere to the Procedural Timetable attract defaults penalty which must be paid into the court. Parties are expected to designate case representative whose duty is to ensure that parties to the dispute comply with their obligations under the proposed law[26].

Like the pre-trial conference procedure, all preliminary applications could also be heard within the activities set out in the procedural Timetable as the case management meeting does not constitute a waiver of such applications especially an application challenging the jurisdiction of the court[27].

Section 50 of the Bill provides for strict compliance with deadline on case management procedural timetable. Any unnecessary adjournments attract default penalty once procedural timetable is fixed. Parties must comply with deadline stipulated therein. However, a Revised Procedural Timetable could arise where any of the parties notifies the Court of his inability to meet the procedural deadline. A defaulting party would have to pay penalty.

Where a party persistently defaults or causes another party to default as a result of his act or omission, especially where such default occurs more than two occasions, the Judge would issue Procedural Caution to the party in default and if such party does not take steps to rectify the default by complying with the procedural deadline, the Judge may commit the case representative of the party to prison. Where the default is caused by the legal practitioner, such legal practitioner could be reported to Nigeria Bar Association Disciplinary Committee, after procedural caution had been issued against such legal practitioner.

From all indication, it appears that both pre-trial conference procedure and the case management under this Bill are similar. Though with slight difference, pre-trial conference under the extant rules is to be concluded within three(3) months but the Bill is silent on the duration of case management procedure. The implication is that case management procedural deadline would run through the duration of the whole case.

Part 6 of the Bill which deals with Summary Judgment appears to also complement Order 11 of the Ekiti State Civil Procedure Rules, 2011[28]. However, Section 54(4) of the Bill call for caution as the Court is empowered to determine the admissibility of documents or other evidence frontloaded with the Statement of Claim, Statement of Defence or Counter-Claim. It should be noted that Summary Judgment is fought on affidavit evidence. Summary trial which leads to summary judgment appears not to amount to substantive case/trial and therefore admissibility of documents may not arise at this stage.

Part 7 Section 56 of the Bill also provides for Alternative Dispute Resolution. Alternative Dispute Resolution activities are to be taken care of under one of the three(3) tracks provided for under case management procedure i.e., the ADR Window noted that activities under the other two tracks i.e., the Main Hearing Track and the Application windows. Activities in these two tracks are not to be suspended for the activities in ADR window[29].

Part 8 Section 58 of the Bill has also provided for situations where a court can grant ex-parte order. Unlike under the extant rules, this Bill specifically set out comprehensively grounds unpon which an ex-parte application can be granted. As a matter of fact ex-parte order can only be granted in deserving cases. It can only be granted if the act complained of is to occur seven(7) days to the granting of the ex-parte order. However, the order can still be granted if circumstances occur which made the applicant not to have knowledge that the act complained of would occur seven days to the granting of the order. Ex-parte order would also be granted where injury to be suffered could not be compensated by award of pecuniary damages.

One germane feature is that this Bill had made it compulsory for the filing of inter-parties application alongside the application for ex-parte order. Unlike under the extant rules where a party is not expected to be heard in ex-parte application, this Bill via Section 58(2) gives an interested party the right to give notice in writing of his interest to be heard and once such notice is delivered to the applicant, the applicant is bound to serve the ex-parte application on the party giving notice to be heard and the court could also direct that such ex-parte application be served on the interested party[30].

The interested party must however appear at a hearing schedule not less than 48 hours after the service of the ex-parte application on him. However, Section 58(11) of the Bill provides for 14 days as the return date after the granting of the ex-parte order.

 

Interlocutory Injunctions

Note that, by Section 59 of the Bill, where party applies for interim and interlocutory injunctions or interim preservation of property, the Judge is expected to make order directing the parties to explore, by way of an Interim Remedies Reference with the possibility of agreeing with the assistance of a neutral person under the rules of Licensed Dispute Resolution Institution to resolve the matter and file terms of settlement which for consent order. If the parties does not agree to terms, the Licensed Dispute Resolution Institution will file its report which will determine the measure of the interim order to be granted by the Court.

 

Electronic Recording

Part 9, Section 60 of the Bill also provides for electronic recording i.e vertim recording and transcription of all court proceedings. All court proceedings are to be recorded transcribed and made available to parties. As from the commencement of the proposed law, Judges shall no longer be required to record in long hand. Court proceedings and the verbatim transcripts produced shall be the valid record of proceedings of court. I want to believe that this is another laudable aspect if this Bill which ought to be implemented.

Party 10 Section 61 of the Bill also provides for interlocutory appeals and stay of proceedings which is one area of this Section that needs to be properly considered.

Even though the primary objective of the Bill is to ensure speedy and effective dispensation of administration of civil justice, Section 61(1) may however occasion some legal difficulties. Stay of proceedings pending appeal has always availed litigants the opportunity of resolving crucial evidential issues via an interlocutory appeal. Although it may be argued that this provision envisages the position of law to the effect that one can as well incorporate interlocutory appeal in the substantive appeal. But the danger in it is that one must obtain the leave of the court of appeal to argue grounds relating to interlocutory appeal in the notice of appeal filed, otherwise all the grounds relating to interlocutory appeal in the said notice of appeal would be incompetent, especially when the 14 days statutory period within which to appeal on interlocutory matter has lapsed before filing the notice of appeal containing such interlocutory matter.

But all the same the Bill admit some exceptions especially when the matter borders on Section 4 and 5 of the Arbitration & Conciliation Act, Cap. A. 18 LFN Vol. I, LFN (2010) and in respect of an application to stay or strike out  proceedings where the parties have agreed to resolve their dispute in Court.

However, it thus appear that the remedies provided under Section 62 of this Bill would also suffice in the sense that the Court would still make necessary orders where the issue border on improper service of process, mis-joinder or non-joinder and even on matter of jurisdiction. In fact another very innovative stance of the Bill via Section 62(2)(d) is that Court would approve stay of proceedings when there is a pending application for stay before court of appeal in respect of writ of attachment or garnishee proceedings. This however confirms the position of the law in NIGERIAN BREWERIES PLC Vs DUMUJE & ANOR (2016) 8 NWLR (Pt. 1515) 536.

Part 12 Section 64 of the Bill also provides for licensing Dispute Resolution Institutions. To this end, the Chief Judge is to license a Dispute Resolution Institutions where the institution is a going concern-incorporated under Companies and Allied Matters Act and has its registered office within jurisdiction and with two operational staff who have legal qualifications. The Dispute Resolution Institution is to provide services in respect of resolving matters referred to it under Interim Remedies Reference.

The Bill by Section 65 provides for cost. To this extent a successful litigant is entitled to recover cost incurred in the cost of proceedings. The actual amount recoverable is determined-

  • By the parties where they agrees on the amount.
  • Where they have not agreed on cost to be assessed by the Judge.

The categories of cost that are recoverable are:

  • Attorney fees
  • Court fees
  • Fees charged by expert witnesses etc[31]

The Bill has espoused the list of cost recoverable. We should note that cost recoverable also attract tax and the court is to appoint a Dispute Resolution Institution for the tax.

Thank you all for your attention.

[1]  See Ojukwu Ernest, “Ten years of uniform civil procedure rules: a review”, June(1998)vol.5 No.2 Abia State University Law Journal, p.71-72.Ojukwu Ernest, Making the uniform civil procedure rules unpracticable” May(1991) vol.2No.5 Justice p.31.

[2]   See Mobile Producing Nig. Unlimited V. Monokpo (2003)18 NWLR (Pt 852)356.

[3]   3 See Section 6(3) of the Bill.

[4]  See Section 8(2),(3) and (4) of the Bill.

[5]  See Section 26 of the Bill.

[6]  See Section 27 of the Bill.

[7]  See section 6 of the Bill.

[8]  Section 6 of the Bill

[9]   See Section 50(1)f&(2) of the Bill

[10]  See Section 6(4) of the Bill

[11]     See AZUDIBIA V.1NEC(2010)ALL F.W.L.R pt 505,p.1699,paras C-D, See also SYVESTER V.OHIAKWU(2014)5 NWLR (Pt1140) 467 at 501 where the court held: “-it is judicially established principle that mandatory rules of court prescribing how a proceeding shall be commence are applied as requiring strict and mandatory compliance in the absence of any provisions to the contrary. This is judicially established exception to the Rules shall be applied permissively. The approach of the Courts is to strike out proceedings that are begun without compliance with such rules. Such non-compliance is treated as having the effect of nullifying any process or proceedings that is not in compliance with the said rules.”

 

[12]   See section 7(2)a of the Bill.

[13]   See section 32 of the Bill.

[14]   See section 33 of the Bill.

[15]   See section 34 of the Bill.

[16]   See section 39(1) of the Bill.

[17]   See section 39(2) of the Bill.

[18]  See Section 39(3)(c ) of the Bill.

[19]  See section 39(4) of the Bill.

[20]  See generally section 40(a-c) of the Bill.

[21]   See generally Section 42 (1-4) of the Bill.

[22]   See Section 45 of the Bill

[23]   See Section 46 of the Bill.

[24]   See Section 47 of the Bill.

[25]   Activities in each track are contained in the Appendix to the Bill.

[26]   See generally Section 48 of the Bill.

[27]   See Section 49 of the Bill.

[28]   See Section 51 – 54 of the Bill.

[29]   See Section 56(1) of the Bill.

[30]  See Section 58(3) of the Bill.

[31]   See Section 66 of the Bill.