Law Review Nigerian Law Procedural Law

HIGHLIGHTS OF THE NEW FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2019 – Omolola Oyewole

INTRODUCTION
On Friday, 5th July, 2019, the former Chief Judge of the Federal High Court of Nigeria, Justice A. Abdu Kufarati unveiled the new Federal High Court (Civil Procedure) Rules, 2019 (the new rules). It will be recalled that the Federal High Court (Civil Procedure) Rules which was in operation before 5th July, 2019 came into force in 2009, which makes it exactly 10 years before the emergence of the new Rules.

According to the erstwhile Chief Judge, it is imperative to ensure that the court is not left behind, hence, it’s unceasing adaptation to modern trends. This is achieved by a continuous constant review of the laws and procedures, in order to ensure that justice is delivered not only to the common man but to everyone that approaches the court seeking justice.

The new rules in comparison with the old rules has actually introduced a lot of innovations to enhance speedy dispensation for justice and for your ease, we have been able to highlight notable inventions inherent in the new rules.

Documents accompanying civil proceedings commenced by a writ of summons
Contrary to what used to obtain in the 2009 rules, one of the documents that needs to accompany a writ of summons now includes an affidavit of non-multiplicity of action on the same subject matter.(i)

This is a welcome innovation as this will curb abuse of court processes.

Unidentifiable or Vague Address for Services
Where the address for service is unidentifiable or vague, the party filling the process shall act as a pointer to the process server.(ii )There was no such provisions in the 2009 rules.

Contents of a petition
A petition shall now also include an affidavit of non-multiplicity of action on the same subject matter.(iii)

Service of process on government employees
In the 2009 rules, there was a lacuna for service of process on the armed forces, the Nigerian Police Force, army paramilitary service or any of their officers. The new Rules now provides that service shall be effected on the legal unit of such a government agency or parastatal service which shall then cause same to be served on the appropriate party.(iv)

Where violence is threatened during the service of a document
In the new Rules, in addition to informing the person to be served the nature of the process or document from as near as practicable to the person, the process/document can also be thrown or left within the reach of the person to be served.(v)

Service of Process within jurisdiction
Contrary to what used to obtain in the old rules, an originating process or court process filed by any party before the Court shall be served on any other party in any part of the Federation without the leave of Court.(vi)

Consolidation of Suit
In the 2009 rules, there was a lacuna as to what happens when a party desires to consolidate several suits which are pending before different judges. The new Rules now provides that such party will apply in the first instance to the Chief Judge to transfer the matter to a judge before whom one or more of the matters is pending.(vii)

Defence to Originating Summons
In converse with the 14 (fourteen) days provided by the 2009 rules for a defendant to file his defence after the service of an originating summons, the new Rules have extended the days with an addition of 16 (sixteen) more days. Thus, a defendant has 30 (thirty) days to file his counter-affidavit with all the exhibits he intends to rely upon and a written address.(viii)

Default of Pleadings in a case of damages and detention of goods
The new Rules has expressly stated that where damages are to be ascertained and, in any case, where declaratory relief is sought, the judge shall set the matter down for trial rather than enter a judgment in default of pleadings.(ix)

Notice to admit documents
The provisions of Or 15 R 2(1) under the 2009 rules has been struck out in the 2019 Rules, possibly as a result of the fact that Or 15 R 1 contains the same provision and there is absolutely no need for endless repetition.(x)

Correction of clerical error or mistake
There is a new inclusion in the new Rules as to when a judge can correct a judgment, order or proceeding of clerical mistake or error arising therein from any accidental slip or omission.(xi)

This was not provided for in the 2009 Rules.

Default of appearance by the Plaintiff
The 2009 rules provide for the consequences of a Plaintiff not appearing in his own case in Or 19 R 3, but in the new Rules, there is an omission of this provision which might possibly be an oversight as the side note still provides for default of appearance by the Plaintiff.(xii)

Taking of evidence at any stage of a cause or matter
In the new Rules, there is now a provision that the judge shall have control over the duration for cross-examination of the witness in any matter.(xiii)

Power of court to order written address
Prior to what used to obtain in the 2009 rules, where the court has the power to order the filling of written addresses in any case, the new Rules has now included a provision as to when the court can also dispense with the filing of written addresses where the interest of justice so demands.(xiv)

Filing of written address
In addition to the guidelines give for the writing and filing of written addresses, there is now an inclusion of the judge’s direction on the volume or limit of counsel addresses in the 2019 rules.(xv)

Signing of Orders
Where the 2009 rules provide that an order shall be signed by the Chief Judge where the judge that drew it up dies, retires or for any other reason is unable to sign the drawn up order, the new Rules provides that it shall be signed by the Chief Judge or the judge seized of the matter.(xvi)

Discharge of an Ex parte order
As against the 7 (seven) days allowed under the old rules for an application to vary/discharge an ex parte order, the new Rules has extended the day of such application to 14 (fourteen) days.(xvii)

Filing of an affidavit
The new rules has included that an affidavit shall not be filed after the hearing of an application has begun except with the leave of court. The old rules was silent as to this provision.(xviii)

Disputing the court’s jurisdiction
As against the 21 (twenty-one) days provided for a defendant of an originating process to bring an application disputing the court’s jurisdiction in 2009 rules, there has been an extension to 30 (thirty) days under the new Rules.(xix)

Stay of proceedings or execution pending appeal
Whereas, the old rules did not expressly stipulate the requirement for a written address in an application for stay of proceedings or execution, the new Rules has made a written address one of the requirements for an application for stay of proceedings or execution pending appeal.(xx)

Application for judicial review
Under the old rules, there were 3 conditions the court will have regard to in granting an application for judicial review. In the new Rules, the 2nd and 3rd conditions under the old rules have been substituted with; an affidavit verifying the statement relied on and an affidavit and written address in support of the application for leave, as against the nature of the persons and bodies against whom relief may be granted by way of such order and all the circumstances of the case as it used to obtain under the old rules.(xxi)

Opposing an application for judicial review
There was no express provision for this in the 2009 rules, but the new Rules has provided that a person willing to oppose the granting of such application shall within 7 (seven) working days after the receipt of the originating process file a counter affidavit and a written address.(xxii)

The applicant may file a further affidavit with a reply address on point of law within 5 (five) days after receiving the counter-affidavit of the Respondent.(xxiii)

Application for an order of committal
Prior to the new Rules, an application for an order of committal must be supported by an affidavit stating the grounds of the application. However, according to the provisions of the new Rules, such application is to be supported by a statement setting out the name, description, and address of the person sought to be committed, as well as , an affidavit, with the exhibit (if any) and a written address.(xxiv)

Service of an application for an order of committal
The new Rules have expressly stated that an application for an order of committal its accompanying processes shall be served personally on the person sought to be committed, and leave of court must be obtained to serve via a substituted means. This express provision for seeking the leave of the court was not available in the 2009 rules.(xxv)

Garnishee Proceedings
The value of the judgment debt to facilitate the institution of a garnishee proceeding in the 2009 rules was stipulated not to be less that #20,000 (twenty thousand naira) but in the new Rules, the value of the judgment debt should not be less than #100,000 (one hundred thousand naira)(xxvi) . More so, such application should now be accompanied by a written address.(xxvii)

Vacation Judges
There is now an express provision in the new Rules for the assigning of one or more judges to be vacation judges to hear and determine any urgent cause or matter or application during the vacation period. Although, this used to be the convention, it was not expressly stated in the 2009 Rules.(xxviii)

In addition to this, the Chief Judge can also hear and determine any urgent cause or matter in any judicial division.(xxix)

Cause Lists
The Registrar, where a judge is unable to sit in court to deal with a matter fixed for hearing, shall now endorse a memorandum recording the parties present and the next adjourned date in the case file.(xxx)This was not included in the old rules.

Establishment of communications and service Centre for e-filing
There are novel introductions as regards e-filling in the new rules which includes the following:

  1. All matters which are electronically filed shall conform to the 2019 rules.(xxxi)
  2. There is now an establishment of an E-filling unit which is responsible for filling any document and process of court electronically, including the scanning of hard copy processes into soft copy. The officer in charge of this unit shall be referred to as the E-filling Registrar.(xxxii)
  3. The Plaintiff determines the method of filling his processes, to which the defendant shall comply with in filling his defence.(xxxiii)
  4. The Chief Judge determines the court in which an electronically filed matter shall be heard.(xxxiv)
  5. Where a cause or matter has been filed electronically, same method shall be used till the determination of the matter.(xxxv)
  6. Documentary exhibits can be saved directly where such document is in soft copy or scanned where it is in hard copy.(xxxvi)
  7. There is now a provision for electronic signature which will constitute the parties signature on the documents.(xxxvii)
  8. Where a document is to be signed or made under oath, the party may electronically sign the document or manually sign the document and scan the page with the signature.(xxxviii)
  9. Where an e-filed process is considered filed out of time arising from a technical failure or system outage on the part of the filing system of the court, any process or document so filed, may be deemed filed and the party may seek appropriate relief from the court.(xxxix)
  10. Where a system outage or technical failure prevents a party from complying with an order as to time, the party may seek further direction from the court.(xl)

CONCLUSION
The innovative character of the new Rules especially the provisions for electronic filing, is a commendable approach by the court in ensuring that justice is dispensed with swiftly and without unnecessary delays. Hopefully, Legal Practitioners will holistically apply the provisions of the law without an element of fraud.

Endnotes

i. Or 3 R 3 (1). Also, see Or 3 R 9

ii. Or 4 R 7

iii. Or 5 R 2(d)

iv. Or 6 R. 6

v. Or 6 R 26

vi. Or 6 R 31

vii. Or 11 R 4

viii. Or 13 R 49

ix. Or 14 R 3(2)

x. Or 15 R 1

xi. Or 17 R 7

xii. Or 19 R 3

xiii. Or 20 R 16(2)

xiv. Or 22 R 1(b)

xv. Or 22 R 5(2)

xvi. Or 24 R 1

xvii. Or 26 R10(2)

xviii. Or 27 R 4(2)

xix. Or 29 R4

xx. Or 32 R 1

xxi. Or 34 R2

xxii. Or 34 R(2)(b)

xxii. Or 35 R 2 (1)

xxiv. Or 35 R 2 (2)

xxv. Or 37 R 1(1)

xxvi. Or 37 R 2

xxviii. Or 46 R 8 (1)

xxix. Or 46 R8 (2)

xxx. Or 47 R 3 (2)

xxxi. Or 58 R 2

xxxii. Or 58 R 1(3, 4), 2(1)

xxxiii. Or 58 R 4

xxxiv. Or 58 R 5

xxxv. Or 58 R 6

xxxvi. Or 58 R 7

xxxvii. Or 58 R 8

xxxviii. Or 58 R 9

xxxix. Or 58 R 10

xl. Or 58 R 11

Article Author

Omolola Oyewole

Omolola Oyewole is a lagos based legal practitioner who is presently creating a niche for herself in Maritime Law. She is currently serving as an associate at Femi Atoyebi and Co. Omolola also has interest in commercial and corporate law as well as Human Resources and Leadership.
She is an avid reader and blogs in her spare time.

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