By James Nwanyanwu

INTRODUCTION

The new High Court of Enugu State (Civil Procedure) Rules 2020 unveiled during the law week held from the 30th of November to 4th of December, 2020 does not just come handy in this time especially with the outbreak of the covid19 pandemic by providing for substituted service via electronic means, it also embraces electronic system of filing and conducting of cases to enable the court and litigants conduct cases without hitches. The new Rules is an improvement on the old 2006 Rules. This is a pacesetting High Court Rules that will transform the face of the civil justice system to face the future of legal practice in emerging technologies.

THE INNOVATIONS

Some of the changes in the new Rules are highlighted here. It is the view of the writer that the overriding and significant point in the new Rules is the electronic system of filing and conducting of cases as listed in Order 58. This great feat was made possible under the watch of the Chief Judge of Enugu State Hon. Justice N.P. Emehelu, FCI Arb. This article will focus on highlighting some of the new/ novel provisions of the Rules.

ORDER 1: APPLICATION AND INTERPRETATION

Order 1 Rule 4 (b) provides for cost against counsel who employs delay tactics to frustrate hearing or, in Rule 4(c) for delay in filing processes and actual hearing.

ORDER 2: PLACE OF INSTITUTING AND TRIAL OF SUITS

Rule 1 provides that a judge on transfer may by assignment order issued by the chief Judge hear and conclude part heard matters in the new division.

Rule 5 Allows trial of suits commenced in the wrong judicial division unless the chief Judge or administrative judge otherwise directs

ORDER 3: FORM AND COMMENCEMENT OF ACTION

Rule 9 Allows for interlocutory applications in actions commenced by originating summons.

Rule 11 provided for form for pre action counseling to be signed by counsel and the litigant and maybe filed along with the originating processes showing that the parties have been appropriately advised to the relative strength and weakness of their case.

ORDER 4 : INDORSEMENT OF CLAIM AND ADDRESS

Rule 6(2) provides for indorsement of an address within jurisdiction to include telephone number(s) and e-mail address.

ORDER 5: EFFECT OF NON COMPLIANCE

Rule (1) (a) and (b) talks about the effect of non compliance with the rules and what the court can do if it treats the non compliance as an irregularity and what it can do where it does not treat the non compliance as an irregularity.

(This rule has deleted the former Order 5 Rule 5 of the old Rules).

ORDER 6: ISSUE OF ORIGINATING PROCESS

Rule 2(1) provides that the Registrar shall seal every originating process and it shall be deemed issued or write L.S. or locus sigillis where there is no seal available to affix.

ORDER 7: SERVICE OF PROCESS

Rule 1 (1) allows for service by electronic means; and the chief Judge may appoint and register any courier company or any other person mutually agreed to serve oronic means as substituted service.

Rule 15(1) adjusted to use the terms “correctional facility” and “mentally- challenged” in place of prison and lunatic as in found in the old Rules.

Rule 15(2) enlarged service on an infant to” parents” instead of just ‘father’ as in the old Rules.

Rule 19(3) proof of service can also be by electronic means

ORDER 9: APPEARANCE

Rule 2(2) defence counsel to supply email and telephone number(s) especially where from outside jurisdiction.

ORDER 11: SUMMARY JUDGMENT

Rule 4 – upon service of motion for summary judgment the defence now has 14days to file notice of intention to defend and in the case of a person outside Enugu state 42days, as against 5days and 30days respectively in the old Rules.

ORDER 13: PARTIES GENERALLY

Rule 18 A third party now has 42days to enter appearance upon service of order of joinder.

Rule 26 (1) application for an order to carry-on proceeding in the event of death, Bankruptcy or other event shall be by motion on notice.

ORDER 17: DEFENCE AND COUNTERCLAIM

Rule 14 gives 7days to deliver a further defence or further reply as against 8days in the old Rules.

Rule 16(2) allows an applicant to an originating summons 10days of receipt of respondents counter affidavit to file a further affidavit and written reply on law and facts.

ORDER 19: ADMISSION

Rule 5- objections on admissibility to be raised specifically under the relevant pretrial information sheet and dealt with accordingly prior to hearings subject to court’s direction.

Rule 6: court to give ruling on objection on admissibility of any document or res until final judgment and admit provisionally.

ORDER 22: PRELIMINARY OBJECTIONS AND PROCEEDINGS IN LIEU OF DEMURRER

Rule 3 provided that this order regulates practice and procedure in court in respect of preliminary objection.

ORDER 25: PRETRIAL SCHEDULING AND PROCEEDINGS

Rule 8 power of court to refer cases to Enugu state multi door house in appropriate cases.

ORDER 30: PROCEEDINGS AT TRIAL

Rule 1 emphatically restated the procedure at trial

Rule 5(3) provides 7days to relist a cause struck out or to set aside a judgment instead of 6days.

Rule 19 (1) provides for expediting proceedings in cases of undue delay by the court via an order to that effect or require the prosecution to explain the delay.

Rule 19(3) when a matter is pending in court and no proceeding is held or application filed in the case over a period of 12months, the court shall strike out the case.

Rule 20 reinstated the power of the court to refer a matter to ESMDC or any other dispute resolution centre in appropriate cases during trial.

ORDER 31- FILING OF WRITTEN ADDRESS

Rule 2 content of written Address shall be maximum of 45 pages, and 20 pages for a reply on point of law; font type, paper type and type of spacing are also stipulated.

ORDER 32- EVIDENCE GENERALLY

Rule 6 permits disposing with the presence of a Surveyor in evidence where the surveyor certifies that he is the maker of the survey plan.

Rule 29 provides for evidence by radio/ visual conference where expedient.

Rule 30 power of court to recall a witness upon application

ORDER 37: TRANSFER AND CONSOLIDATION

This order regulates application for transfer, mode, length of each step and the entire process from Magistrate to high court and from one high court to the other.

ORDER 38: INTERLOCUTORY ORDERS ETC.

Rule 1(2) provides that in case of urgency application may be made ex parte but generally applications for injunction will be on notice.

ORDER 39: MOTIONS AND OTHER APPLICATIONS

Rule 4 places restriction on order nisi and order to show cause

Rule 5 court may hear ex parte applications in Chambers

Rule 6(3) award or settlement at the multi door court house or any lawfully recognized ADR institution may by the leave of court be enforced as judgment/ order of court.

Rule 6(4) Application to set aside or remit an award May be within 3months after such award was published or as extended by court.

PART 11 OF FORMER ORDER 42 IS NOW ORDER 43 AND INTERPLEADER BY SHERIFF IS INCLUDED

ORDER 45: COMPUTATION OF TIME

Rule 3(2) parties can now extend time by filing Certificate of Consent.

Rule 3(3) excludes in the computation of time the period matter was adjourned for settlement out of court.

ORDER 54: APPEALS IN CIVIL PROCEEDINGS

Rule 4 allows an appellant to compile records of Appeal.

ORDER 58: PROCEDURE FOR VIRTUAL/REMOTE HEARING OF CAUSES AND MATTERS

Rule 1- says the provisions of the order shall apply to virtual/remote hearing of causes and matters such as: new cases where there is urgency, pending cases involving urgent or important and time bound interlocutory applications, motions; appeals, bail applications, recovery of premises, adoption of addresses, fundamental right enforcement, summary judgment, rulings and judgments; any other matter as the Chief Judge may approve during emergency situations, etc

Rule 5- provides for electronic filing and such a process to bear e-mail address or Telephone number of counsel or contact person where not represented by counsel.

Rule 7 assessment can be made electronically via e-mail, WhatsApp and Text Message or on the Website of the Judiciary.

Rule 10 service may be effected by e-mail, WhatsApp or otherwise directed by the Court.

Rule 13- computation of time of service via electronic means runs from date it was sent.

COMMENTS

No doubt that the new Rules is a very commendable initiative in the fight against delay in justice delivery, hence the provision of electronic filing, service and virtual hearing in deserving occasions. It is not defined as to what “Electronic Means” excludes. It suggests then that the windows of what ‘Electronic means’ are is not closed. It is believed the website of the judiciary will be in best working condition as well as user-friendly. The new Rules underscores the place of Alternative Dispute Resolution [ADR]. It is also prayed that the court officials would utilize the email and/or phone numbers in Order 6 Rule 2 to notify a counsel from outside jurisdiction in the event that the court may not sit. Order 7 rule 19[3] said proof of service can be by electronic means, the rules did not state how acknowledgment of service/receipt can be exhibited. It is submitted that a process shall be deemed delivered or served upon being “sent”. It is also suggsted that the Chief Judge includes matrimonial causes as part of causes/matters to be heard under Order 58 of the Rules to ease the delay in such matters especially where either of the parties is outside jurisdiction but intends to contest a petition.

CONCLUSION

It is no doubt that the provisions of Order 58 are novel in Nigeria and though it does not apply to every cause or matter, it would no doubt encounter peculiar challenges from poor network to power supply, etc. It is hoped that all human efforts needed for a smooth implementation of the letters of this Rules are in place to achieve quick justice delivery for all parties.

Written by James Nwanyanwu, Enugu. Jamesnwanyanwu@gmail.com 08034875692