By S.O. Giwa Esq.

When new High Court (Civil Procedure) Rules are made by Chief Judge of the State pursuant to power conferred on him by Section 274 of the Constitution of the Federal Republic of Nigeria (1999) (as amended) to make Rules for the High Court in his State with the approval of the State Executive Council with a view to providing orderly as well as expeditious means of enforcing claims in the State High Court and settlement of disputes, many litigants and lawyers were overwhelmed with joy and belief that the drafters of the newly made High Court (Civil Procedure) Rules have made improvements, corrections, changes by removing defects in the existing High Court (Civil Procedure) Rules.

How true is this?

The writer’s search for the High Court (Civil Procedure) Rules in force in Lagos and Ondo States in 2019 revealed newly made High Court of Lagos State (Civil Procedure) Rules 2019 and Ondo State High Court (Civil Procedure) Rules 2019 duly signed by the respective Chief Judge of Lagos and Ondo States upon which many praising write-ups have been made by many writers who commended the Chief Judges of the two States for blazing the trails and urged Chief Judges in other States to follow suit.

Studying the High Court of Lagos State (Civil Procedure) Rules 2019 and Ondo State High Court (Civil Procedure) Rules 2019 with a view to joining other writers in applauding the good work of the drafters of those Rules evinced that the drafters of the aforementioned Rules reproduced the below provision without making any correction to the said provision:

‘‘Whenever any endorsement or pleading is amended, it shall be marked in the following manner:

‘Amended ….day of ………pursuant to Order of (name of Judge)dated the …..day of …….’’ The underlined word ‘endorsement’ is the writer’s for discussion.

It is important to make it known that the above quoted provision is the provision of Order 24 rule 6 in High Court of Ekiti State (Civil Procedure) Rules 2011; High Court of Ogun State (Civil Procedure) Rules 2014; High Court of Oyo State (Civil Procedure) Rules 2010; Order 28 rule 6 in Kwara State High Court (Civil Procedure) Rules 2005, Order 26 rule 6 in Lagos State (Civil Procedure) Rules 2019 with the use of the word ‘Indorsement; and Order 14 rule 6 in Ondo State High Court (Civil Procedure) Rules 2019.

A critical look and meticulous reading of the provision ‘‘‘Whenever any endorsement or pleading is amended, it shall be marked in the following manner’ in no doubt evinced that indisputable and unarguable intent of the drafters of the above mentioned Orders and Rules is that ‘endorsement’ is to be amended and when amended, the said amended endorsement must be marked in the manner provided thereunder.

It is the writer’s stand that it therefore means that on the amended endorsement, it must be written on the endorsement that it is ‘amended ……day of …..pursuant to Order of (name of Judge) dated the ….day of …’.

Flowing from the writer’s submission is the pressing question: Is an endorsement a process of court meant to be amended under the provisions on amendment in the various State High Courts (Civil Procedure) Rules? What then is an endorsement?

Before having recourse to the provision of the rule 1 of the aforementioned Orders on the amendment under State High Courts

(Civil Procedure) Rules for discussion, it is important to scout for the real meaning of the word ‘endorsement’ which the provision in focus contained for one to ascertain if the said provision needs amendment or not.

It is worth saying that reading through the provisions on application and interpretation of terms under Order 1 of the aforementioned State High Courts (Civil Procedure) Rules with a view to finding the meaning of the word ‘endorsement’ and definition of the word ‘court process’ or ‘process’ provided for under Rules of Court.

Reading through the provisions under Order 1 of the aforementioned State High Courts (Civil Procedure) Rules in focus evinced the meaning of ‘court process’ or ‘process’ to include all documents or written communication of which service is required. For easy reference, the said provision goes thus:

‘Court Process’ or ‘Process’ includes Writ of Summons, Originating Summons, Originating Process, Notices, Petitions, Pleadings, Orders, Motions, Summons, Warrants and all documents or written communication of which service is required.’

It is crystal clear that there is no mention of the word ‘endorsement’ or ‘indorsement’ in the above quoted interpretation of the word ‘court process’ or ‘process’ as court process or process and the endorsement is not a written communication which service is required because an endorsement according to FindLaw Legal Dictionary sourced from dictionary.findlaw.com is an inscription on a document or instrument.

It is hereby convenient to submit that the inclusion of the word ‘endorsement’ in the provision ‘Whenever any endorsement or pleading is amended, it shall be marked in the following manner’ in the State High Courts (Civil Procedure) Rules in focus is a defect in the Rules and same is yearning for amendment for proper word intended by the drafters to be inserted in its place.

It is however convenient to submit that deductible inference from the provision of the rule 1 of the aforementioned Orders on the amendment under State High Courts (Civil Procedure) Rules for discussion is that it is the originating process and pleadings that are provided for under the amendment under State High Courts (Civil Procedure) Rules and neither the meaning of originating process nor pleading includes endorsement or indorsement. Hence, the provision of the rule 6 of the aforementioned Orders on what to be amended as evinced in the provision of the rule 1 of the aforementioned Orders on the amendment under State High Courts (Civil Procedure) Rules is originating process or pleading not endorsement which is to be made on originating process or pleading.

It is the writer’s final stand that there is no provision in any of the aforementioned State High Courts (Civil Procedure) Rules for marking the amended Writ of Summons or any Originating Process in the manner provided under rule 6 of the aforementioned State High Courts (Civil Procedure) Rules and marking same by many legal practitioners in Nigerian Courts is a self-decided act under misconceived application of the said provision which has no legal backing.

It is hereby recommended while applauding the drafters of the High Court of Lagos State (Civil Procedure) Rules 2019 and Ondo State High Court (Civil Procedure) Rules 2019 for good job that the provision of the rule 6 of the aforementioned Orders of their respective High Court (Civil Procedure) Rules requires urgent amendment so that all other drafters who are desirous of amending their respective High Court (Civil Procedure) Rules would have good and correct provision to be followed hook line and sinker. Writer so advised.

By S.O. Giwa Esq. a.k.a pentalk (Ibadan based Legal Practitioner) [email protected] 08035224192