REFORMING CIVIL PROCEDURE RULES TO ENHANCE
ACCESS TO JUSTICE IN NIGERIA: THE LAGOS STATE
EXPERIENCES
INTRODUCTION
The concept of a fair hearing has been the heart of
social justice both in our customary law systems and in
our adopted common law tradition. As a result, court
systems and enforcement machineries have, from time
immemorial, been standard paraphernalia of organised
societies in Nigeria. Indeed, access to the justice system
can be considered the hallmark of civilisation. The 1999
constitution of the Federal Republic of Nigeria continues
the tradition by establishing a rich court system,
featuring Customary and Sharia Courts alongside
Magistrates and High Courts. The pyramid ranges up
through the appellate courts to the Supreme Court. The
same constitution also establishes a Police Force to
compliment the in - built enforcement structures of the
court system.
To guarantee access to this justice system, section 36
(1) of the Constitution provides that;
“In the determination of his civil rights and obligations,
including any question or determination by or against
any government or authority, a person shall be entitled
to a fair hearing within a reasonable time by a court or
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other tribunal established by law and constituted in such
a manner as to secure its independence and
impartiality”.
This provision shows clearly an intention to guarantee
access to justice not only to the complainant or plaintiff
but also to the respondent. However, section 36 (1) is
more often invoked by respondents who were not
offered any real opportunity to be heard before an
adverse determination of their rights. Hardly would you
hear a complaint from the Plaintiff who has successfully
gained access to the court system in an attempt to
vindicate his rights but who is unable to get his case
determined. It really does appear that while he is
actively taking advantage of the justice system, he
should have nothing to complain about. This has led to
a rather one – side view of access to justice; focusing
on those that are deprived entry and virtually ignoring
those that did enter but are locked in an endless search
for justice.
However, a closer look at section 36 (1) reveals clearly
that the objective is not a guarantee access to the
courts per se. Rather, it is to guarantee access to
justice - a fair hearing within a reasonable time by an
impartial judge. The fact that anybody could issue a writ
of summons at anytime and at little cost was therefore a
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misleading ‘achievement’. The real question should have
been “how many people got justice or had their cases
fairly determined within a reasonable time?”
As of 1999 when the military era came to an end, the
answer was quite appalling. But up till now, it seemed
that while we all agreed that justice delayed was justice
denied, we had regarded that time worn phrase more as
a normative or an idealistic one, the realisation of which
was not a priority issue. It is not surprising therefore
that while everybody kept busy going in and coming out
of courtrooms, the problem of “justice delayed” climbed
to a dizzying height without attracting much solution.
IDENTIFYING THE PROBLEM
In Lagos State, we have since made a multi-layered but
sustained effort to identify the real problems and device
workable solutions. This began in 1999, even before the
current administration was sworn in. Immediately after
the 1999 elections, I was privileged to be part of a small
group of lawyers appointed by the then Governor-elect
of Lagos State, Bola Ahmed Tinubu, to develop a justice
policy for Lagos State. The group eventually produced a
blueprint that became the main guide of Lagos justice
reform project. The blueprint made an important
philosophical conclusion – namely; that the justice
system must be capable of protecting Key
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developmental policies, which include the protection of
fundamental rights, law enforcement, and social justice.
A closer scrutiny of the system revealed that the
interminable delays suffered by litigants were its most
virulent problem. Like an unattended cancer, it tended
to grow bigger and bigger. Signs of congestion,
especially in the High Courts had began to show as far
back as the mid – eighties but with persistent neglect by
the 1990s, a situation had arisen which assured that
many of the cases filed in the late 1990s did not stand a
reasonable chance of being concluded within a decade,
especially where there were interlocutory appeals. As of
May 2000, pending cases at the Lagos High Court were
in order of 40,000.
To give a sense of the workload in Lagos State
compared with another busy jurisdiction - Rivers State.
The table below shows:
YEAR COURT FRESH CASES FILED PENDING CASES
1999 Lagos 10,226
20, 169
Rivers 2,409
8, 398
2000 Lagos 9,969
23,197
Rivers 3,399
10,669
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A study conducted on the duration of trials in the Lagos
High Court, indicated the following results;
TYPE OF CASE
Land Matters
Personal Matters
Commercial Cases
Family Cases
TRIAL TIME
7-8 years
3-4 years
3-5 years
2-5 years
Going by this Table, the overall average for cases was
4.25 years. These figures of course assume that there
would be no interlocutory appeals which could drag the
process on for an additional 50- 75% of the average
expected duration.
Prior to the drafting of the new civil procedure rules,
another study was conducted by the Ministry of Justice
in August, 2001 which showed that it took an average of
5.9 years for a contested case to move from filing to
judgement. Indeed the administrative process of
instituting a case i.e., from point of filing to assignment
to court, could take as long as 6 weeks. As may be
expected, other random studies show that few lawyers
who practiced regularly in the Lagos High Court were
able to conclude 10 contested cases in 10 years.
UNDERLYING CAUSES
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Several factors accounted for this problem. First, there
was a shortage of judicial officers. In May 2000, the
Lagos High Court was down to about 30 Judges - and
by December 2001, the number had further reduced to
26, due mainly to retirement of the older judges. At an
average trial time of 5.9 years it was clear that the vast
majority of cases would not be concluded even in the
new century especially considering that anywhere
between 10,000 to 12,000 new cases were expected in
the year 2002 and incrementally from year to year. In
effect, our studies showed that to make a significant
impact on the pending and current cases within a 5 year
period, we needed to have not less than 100 judges
working a full 9:00am to 3:00pm daily.
We also found that technology could assist in a major
way. Our trial run of digital recorders and transcribers in
the courtroom indicated that they had the capability of
cutting trial time by half. Therefore, we concluded that it
was possible to make the desired impact with about 55
judges who had the necessary equipment and were well
remunerated, with a decent housing, transportation and
other encouragement by way of a carefully planned
benefit scheme. This also called for additional
courtrooms and upgraded equipment.
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The last major culprit, as we found out, was the civil
procedure rules of the High Court. As of 1997, when the
earliest and most authoritative surveys of the legal
practice and the trial procedure was conducted by a
joint effort of the Lagos Judiciary, Hurilaws, (a justice
sector NGO) and the Nigerian Institute of Advanced
Legal Studies, one of the major results was that the civil
procedure rules required a radical makeover of the
problem of trial delays was to be dealt with. In 2000, we
took up the issue at our first Stakeholders Summit on
Administration of Justice in the 21st Century. By the time
of the 2nd summit, it had become the single issue for
consideration.
SUGGESTIONS FOR REFORM
In composing the new rules, the Lagos Rules Committee
considered the memoranda submitted by various
authors, jurists and legal practitioners as well as the
final communiqué of the 2nd summit which dealt
exclusively with civil procedure. The old High Court
Rules still formed the basic working document, but the
committee had, in addition the two models which
featured for review at the 2nd summit. It also had the
Woolf’s Report on which the new English Rules were
based.
MAJOR CHANGES EFFECTED BY THE NEW RULES
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The new rules were passed into law and finally into
effect in June 2004. As stated in Order 1 Rule 2,
application of the rules “shall be directed towards the
achievement of just, efficient and speedy dispensation
of justice”. The new rules adopt the concept of case
management, front loading and pre-trial conferencing,
all of which are intended to relieve congestion in the
Courts by reducing the number of cases that actually go
to trial. It is significant to note that many of these
concepts were adopted in the 1999 review of the Civil
Procedure Rules of England and Wales upon the
recommendation of the Woolf’s committee.
To the same end, many time wasting procedure or
obsolete rules were abandoned and judges were given a
firmer control over proceedings in the Courts.
SERVICES OF PROCESSES
All studies indicated that the starting point of delays in
the judicial process was at the Sherrif’s Department. For
a long time, delay in the service of court processes had
been one major suppressant of judicial activity. This was
due mainly to corruption and inefficiency of the Sherrif’s
Department. By virtue of the new Order 7 Rule 1, any
law firm, Courier Company, or any other person
appointed by the Chief Judge can now serve originating
processes. This is to supplement the usual crop of
process servers, which includes the Sherriff, Deputy
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Sherrif, Bailiff, Special Marshal or other officers of the
court.
FRONT LOADING
We also found that the old method of issuing a writ to
commence proceedings, filing pleadings at a later date
and revealing evidence only as trial progresses, allow
many unserious litigants to clog the system. It also
made it impossible for the judge to apprehend the
issues in dispute or attempt a settlement early enough.
Under the new rules, both claimant and defendant are
now expected to reveal their entire case before trial. For
example, all civil proceedings commenced by writ of
summons must be accompanied by a statement of
claim, list of witnesses to be called at the trial, written
statements on oath of the witnesses and copies of every
document to be relied upon at the trial. Where a
claimant fails to comply, his originating process will not
be accepted for filing by the registry (Order 3 Rule 2).
Similarly, under Rule 8, an originating summons must
be accompanied by an affidavit setting out the facts
relied upon, all exhibits to be relied upon, and a written
address in support of the application
In the same vein, the defendant who is served with an
originating process is expected to file a statement of
defence accompanied by copies of documentary
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evidence, list of witnesses and their written statements
on oath (Order 17 Rule 1). This he must do within 21
days of service on him of the originating processes. In
cases commenced by originating summons, the
defendant must file a counter affidavit together with all
the exhibits he wants to rely upon and a written address
within 21 days within the service of originating
summons (Order 17 Rule 17)
‘Frontloading’ enables the trial judge to identify the
points in controversy between the parties as soon as the
pleadings close, schedule trial to refer the parties to
alternative dispute resolution methods as may be
appropriate. Also, it makes it possible for parties to
settle all preliminary matters and most issues of
admissibility of evidence before actual trial of the case.
As was expected, this has the effect of drastically
reducing the number of cases that come to court as well
as the amount of time it takes to dispose of them.
Pre-trial conferencing
The old summons for Direction is to be replaced with
pre-trial conferencing. Within 14 days of close of
pleadings, the claimant is required to apply for Pre—trial
Conferencing Notice (Form 17). This notice is issued
along with Pre-trial Information Sheet (Form 18).
Specifically, the pre-trial conference is for disposal of
those matters which that can be dealt with on
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interlocutory application. It also enables the judge to
give such directions as to future course of action as
appear best adapted to secure its just, expeditious and
economical disposal. In appropriate cases, the judge
uses the opportunity to promote amicable settlement or
adoption of alternative dispute resolution. If the
claimant does not make application for pre-trial notice,
the defendant has an option of doing so or applying for
an order to dismiss the action
(see generally Order
25)
Scheduling Order
At the pre-trial conference, the Judge enters a
scheduling order regarding things to do in furtherance
of the case, e.g., joinder of other parties to the action;
amendment of pleadings or other processes, filing of
motions; further pre trial conferences; or any other step
that appears necessary in the circumstances of the case.
The pre-trial judge also considers and takes appropriate
action on the following:
(a)
formulation and settlement of issues;
(b)
amendments and further and better
particulars;
(c)
the admissions of facts, and other evidence by
consent of the parties;
(d)
control and scheduling of discoveries;
inspection and production of documents;
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(e)
narrowing the field of dispute between expert
witnesses, by requesting their participation at the
pre-trial conference or in any other manner;
(f)
eliciting preliminary objections on point of law;
(g)
hearing and determination of non-contentious
motions; giving orders or directions for separate
trials of a claim, counterclaim, 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 statement of special case of law or facts
under Order 28;
(j)
determining the form and substance of the pretrial order;
(k)
such other matters as may facilitate the just
and speedy disposal of the action.
Deadline for completion of Pre-trial
Pre-trial conference in any particular case must be
completed within three months of close of pleadings,
and the parties and their legal practitioners are
expressly enjoined to co-operate with the judge in
working with this time-table. If the pre- trial conference
does not end within three months period, the case has
to be referred to the Chief Judge for further directions.
Thus only Chief Judge can extend the time allowed for
pre-trials. It is expected that this time limit and
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supervisory role of the Chief Judge would prevent the
pre trial conference from becoming another long drawn
out procedure.
As far as practicable, pre-trial conference are to be held
from day to day or adjourned only for purposes of
compliance with pre-trial conference orders. Upon
completion of pre- trials, the pre- trial judge issues a
Report, which serves as a guide to subsequent course of
the proceedings unless modified by the trial judge.
Obligation to Participate in Good Faith
If the claimant or his legal practitioner fails to attend the
pre-trial conference or obey a scheduling order, or is
substantially unprepared in good faith, the judge will
simply dismiss the claim. Where the default is that of
the defendant, the judge may enter final judgement
against him. However, any judgement given under this
rule may be set aside upon an application made within
seven days of the judgement or such other period as
the Pre-trial judge may allow, not exceeding the pretrial conference period. Such application shall be
accompanied by an undertaking to participate effectively
in the pre-trial conference.
Alternative Dispute Resolution (ADR)
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There is no doubt that the way forward for a justice
system committed to enlarging access to and ensuring
effective and timely delivery of justice is the use of ADR.
Year by year we realize with greater consternation that
the courts simply cannot cope alone with the number of
pending cases, and that several cases need not come
before the courts, they are better suited to ADR.
As may be seen from the stated objectives of the pretrial conference, the new rules give recognition to the
need for many cases to be referred for ADR. To
facilitate this process, the High Court of Lagos State has
a Multi-door Courthouse, a facility that provides a
number of ADR options to litigants. This concept has so
far been a great success. The number of referrals to
mediation, arbitration and conciliation has grown
incrementally every year- and several cases, some of
which had gone on in the courts for years, have been
resolved using ADR methods.
Interrogatories and Inspection
The old rules on discovery and inspection were hardly
ever used, so they have been restructured. Now the
claimant or defendant in any proceeding has the right to
deliver interrogatories in writing for the examination of
the opposite party and such interrogatories must be
delivered within seven days of close of pleadings.
Indeed, they form part of the agenda of pre-trial
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conference. Interrogatories are also required to be
answered by affidavit filed within seven days, or within
such other time as the judge may allow. If any person
interrogated refuse to answer or answers insufficiently,
the pre trial judge shall on application issue an order
requiring him to answer or to answer further as the case
may be (see Order 26 particularly rules 1, 5, and 7).
Under the current dispensation, inspection is expected
to take place during pre trial conference.
Amendment and adjournments
The review process also affects the old rule on
amendments and adjournments. These two are reputed
to be the major causes of delay in civil litigation. Under
the old rules, adjournments were granted almost as a
matter of course and a party was allowed to amend his
pleading at any time before judgement. The position
has now changed. A party may amend his originating
process and pleadings at any time and as many times as
he wishes before the pre- trial conference and during
the conference, but he cannot amend more than twice
during the actual trial. In fact, it is envisaged that by the
time parties are through with the pre trial and the real
issues in controversy have been agreed and set down
for hearing, there will be little or no need to amend the
pleadings.
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In cases where any originating process or pleading is to
be amended, the application must be accompanied with
a list of any additional witnesses to be called, their
written statements on oath and copies of any
statements on oath and copies of any document to be
relied upon consequent on such amendment. This is in
line with the front- loading concept described earlier.
The requirement of leave to amend is however
dispensed with to save time. The application to amend
is brought directly before a judge and may be allowed
upon such terms as to costs or otherwise as may be just
(see order 24 Rule 1 & 3).
Attempts are also made in the new rules to curtail the
number of adjournments that a court would allow. Apart
the award of realistic costs to be paid by the defaulting
party, the rules provide that hearing of any motion or
application may from time to time be adjourned
provided that application for adjournment at the request
of a party shall not be made more than twice (see order
39 Rule 7). Presumably, any party who is unable to
move his motion or application after seeking two
adjournments would be deemed to have abandoned it.
The Respondent who is likewise tardy would also be
deemed to consent to the application, which would then
be granted, except it is by itself baseless of fundamental
defective.
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Use of written Addresses
Though hitherto unknown to any law or rules regulating
trial at the High Court level, the practice of submitting
written address was fast gaining ground, especially in
civil proceedings. This was because of its inherent
advantages as a time saving devise, which also provided
accurate records of argument proffered by the parties.
Now, by the virtue of the new Order 31, written
addresses are required to back up all application and
final addresses in the High Court of Lagos state. The
address must be printed on white opaque A4 size paper
and set out in paragraphs numbered serially and should
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 issue arising from the evidence;
IV. A succinct statement of argument on each issue
incorporating the purpose of the authorities
referred to together with full citation of each such
authority.
The address must be concluded with a numbered
summary of the points raised, the party’s prayer, and a
list of all authorities referred to. Where any unreported
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judgment is relied upon the Certified True Copy has to
be submitted along with the written address.
Aside from saving trial time, these requirements also
ensure that lawyers pay closer attention to the
formulation and expression of their arguments. This
should, on the whole, raise the standard of legal
practice in our courts.
By virtue of order 31, oral arguments of not more than
twenty minutes are allowed for each party to emphasize
and clarify his written address. This is expected to allay
the fear of some commentators who were of the view
that institutionalization of written addresses would stifle
advocacy among lawyers.
Penalties and Costs
Another cause of delay under the old regime was the
ultra low cost of obtaining adjournment and taking the
court through frivolous detours. Under the new rules
penalties are stricter. Also, costs to be awarded are
expected to be a realistic representation of the loss
suffered by the innocent party. These are all intended to
speed up trial, mainly by discouraging frivolous
application for adjournment. For instance, Order 44 Rule
4 provides that the judge may, as often as he deems fit,
and either before or after the expiration of the time of
appointed by the rules or by any judgment or order of
the court, extended of adjourn the time for doing any
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act or taking any proceedings, provided that any party
who defaults in performing an act within the time
authorized by the judge or under the rules, Shall pay to
the court the additional fee of N200.00 for each day of
such defaults at the time of filling his application for
extension of time.
Also, a defendant who enters appearance after the time
prescribed in the originating process for doing so is
required to pay an additional fee of N200 for each day
of defaults (Order 9 Rule 5).
Furthermore, Order 24 Rule 4 provides that if a party
who has obtained an order to amend does not amend
accordingly within the time limited for that purpose by
the order, or if no time is thereby limited, then within 7
days from the date of the order, such party shall pay an
additional fee of 200.00(two hundred naira) for each
day of defaults.
The upward review of penalties under the news rules is
perhaps most apparent in the section on probate. For
instance, the liability imposed an executor who neglects
to apply for within 3 months of the testator’s death has
been raised from 100 to 50,000.00. A similar penalty of
N50,000.00 is imposed on an unauthorized person who
intermeddles with an estate (see Order 53 Rules 3 and
4).
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Costs payable as they arise
Under these Rules, when cost is ordered, it immediately
becomes payable, and must be paid within 7 days of the
order. Otherwise, the defaulting party or his legal
practitioner may be denied further audience in the
proceedings. As stipulated in Order 49 Rule 8, where the
judge orders costs to be paid or security to be given for
costs by any party, the judge may order all proceedings
by or on behalf of that party to be stayed until the costs
are paid or security given accordingly. However, such an
order shall not supersede the use of any other lawful
method of enforcing payment.
Personal liability of legal practitioner for cost
One of the arguments which sustained the low rate of
costs awarded in the past was that a litigant should not
be punished for the negligence of his counsel. Under the
new rules, a legal practitioner may now be held
personally liable for costs arising from his own
negligence. Where in any proceedings costs are incurred
improperly or without reasonable cause or are wasted
by undue delay or by any other misconduct default, the
judge may make an order of personal liability or
indemnity against any legal practitioner whom he
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considers to be responsible (whether personally or
through a servant or agent)(Order 49 Rule 13)
Costs may be ordered in the course of trail or taxed in
separated proceedings upon the termination of the case.
In the latter case, any party to the taxation proceedings
who is dissatisfied with the allowance or disallowance
(in whole or in part) of any item by a taxing officer or
with the amount allowed by a taxing officer in respect of
any item, may apply to the judge for an order to review
the taxation as to that item (Order 49 Rule 26).
Transition and Training
To ensure a successful transition to the new rules
regime, the Lagos State Ministry of Justice collaborated
with the State Judiciary to organize a series of training
programmes both for the judges and practitioner. The
first Judges’ Workshop on the new rules created the
forum for members of the Rules Committee to explain
the intendment of the changes and to brainstorm with
the judges on the likely problem areas. This was
followed by another seminar led by Fidelis Oditah, QC,
SAN, who had practiced extensively, with similar rules in
England.
The problems identified at two meetings formed the
basis of another seminar, which featured Judge Paul
Collins, CBE and Judge Keith Hollis both of the English
Bench, and Oba Nsugbe, QC who brought the
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perspectives of another English Barrister. The objective
of this third meeting was to enable judges of the High
Court of Lagos State learn from the experiences of the
English Judges, both of whom were closely involved in
training programmes organised by the Judicial Studies
Board of England (JSB) before the implementation of
new civil procedure rules (Woolf Reform) in that
country. Three sets of such Seminars have also been
held for legal practitioners and the suggestions that
emanated from all these seminars informed the first set
of amendments and re-enactment of the new rules in
2004.
In spite of these, we still anticipate a constantly evolving
set of rules. The Rules Committee is therefore kept
standing and charged with the task of keeping in view
possible areas of improvement. They are also to submit
draft Practice Directions to the Chief Judge from time to
time, which can then be issued to smoothen those
minor creases that do not justify an amendment to the
Law
Complementary Activities
To further enhance the speed of access to justice, the
Lagos state Government is currently implementing a
court Automated Information System which will
computerize existing manual processes and create a
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database of all cases pending before each judges and
their current status until delivery of judgment and
execution. The database will enable administrative
judges to track cases and establish checkpoints for
queries if a case is unduly prolonged relative to set
performance standards. Intranet and Internet facilities
are available on this system and counsel and litigants
should, be able to access the cause list and other case
information on the internet from their own offices. The
automation process, which is assisted by the U.K.
Directorate for International Development, is practically
concluded. The first phase should go live.
Also, we installed digital recorders and transcribers for
all the High Court in Lagos State. As noted earlier, this
on its own has an established potential of reducing trial
time by half.
Conclusion
This overview of the new rules of civil procedure shows
clearly that a lot of changes have been introduced to
practices in the High court of Lagos state. Much work
will now be done by Lawyers in Chambers ever before
they approach the courts. In the process of gathering
the evidence and preparing pleadings and arguments,
lawyers to many would –be claimants will definitely
come to realise the futility of the proposed court action.
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Similarly, a defendant who gets a total picture of the
case along with witness` dispositions and documentary
evidence is quite unlikely to put up a defence, unless he
is sure of his own position. With all the materials
exchanged by the parties and before the judge, it is
easier to apprehend the matters in dispute and to
attempt settlement by ADR. The Judge will have to firm
control of proceedings as he has been empowered to
penalize frivolous application. Inevitably, all these will
result in a rapid decongestion of the courts. Only those
with serious cases will have access to justice and real
justice, which can only come from a fair resolution of
submitted disputes, will be much closer to hand.
This is of course not presented as perfected. In fact, we
do not see it as such. That is why we have machinery in
place for a constant review and reform of the rules. We
are also doing our best to ensure that interactions such
as this occur as frequently as possible. The problems of
facilitating quick access to justice is a constantly
evolving one and it takes the watchful attention of all
stakeholders – litigant, lawyers and judges – to keep it
in check.
Thank you
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