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Reforming bail system through bondsmen

The Lagos State Judiciary has held a stakeholders’ summit on ‘bondsman and recovery of recognisance.

Bondsman Bail

Where are the bond persons?’ asked Chief Judge of Lagos State,  Justice Opeyemi Oke, as stakeholders gathered for a summit. It was organised to discuss the operation of bondspersons, sureties and bonds companies as part of the efforts to enhance criminal justice administration in the state.

The event was the The stakeholders’ summit actualising the law on the bondsman and recovery of recognisance in Lagos  State.

At the event were judges, magistrates, experts in bonds posting and the civil society, among others.

The Practice Direction for Bondsmen and Bonds companies was inaugurated at the event.

The Administration of Criminal Justice Law (ACJL) of Lagos State 2011 makes provision for bondmen. Lagos State judiciary is pioneering the system.

What the law says

Section 138 of the ACJL 2011 authorises the licensing and registration of Bondspersons by the Chief Judge of the State.

Section 138 (1) of the Law provides: “The Chief Judge may by regulation, register and license individuals or corporate bodies or persons to act as Bondspersons within the jurisdiction of the Court in which they are registered.”

The law was followed with the setting up of a “Committee on Creation of Bondsmen and Recovery of Recognisance” set up on November 30, 2012. It was a matter of regret that to date, not one individual or corporate organisation has been registered for the scheme.

Justice Oke lamented the absence of licensed bondsmen to bail defendants. She wondered why no individual or corporate body has applied to be licensed bondsman and bonds company over eight years after the Bondsmen Regulation of 2011 came into force in line with Section 138 of the  ACJL 2011.

It was in line with her desire to see the scheme in operation that she also set up another committee last February 27 with a mandate to find ways to actualise the recommendations  of an earlier Committee on Creation of Bondsmen and Recovery of Recognisance set up November 30, 2012.

The 10-man committee was chaired by Justice Grace Onyeabo, with Justices Mojisola Dada, Hakeem Oshodi, Sybil Nwaka, Abidemi, Okikiolu-Ighile, Lateef  Lawal-Akapo,  Kudirat Jose, Sedoten Ogunsanya,  Adedayo Akintoye  and Idowu Alakija as members.

The Chief Registrar, Mrs. Taiwo Olatokun and Deputy Chief Registrar (Admin.) Lagos, Mrs. Adebisi Femi-Segun were Secretaries.

The Committee held its inaugural meeting last April 11 and deliberated extensively at its various meetings on its terms of reference.

In spite of the work done by the committee, no individual or corporate body registered to participate in the bail bonds scheme.

“I have been greatly concerned that in spite of the hard work and deliberations of the Committee, nobody has signified interest in registering as a Bondsman,” Justice Oke said.

She was, however, gladdened by the committee’s findings that “the major hindrance to the commencement of Bondsman scheme in Lagos State Judiciary is the lack of understanding of how it works and lack of publicity by stakeholders on the forfeiture of recognisance and registration of Bondsperson.

“Hence the Summit to create necessary awareness and bring to fore creative ways of actualising the law on bondsperson in the state”.

The Chief Judge, therefore, encouraged individuals and corporate bodies to partner the Judiciary on actualising the bondsman scheme in order to make bail more accessible to defendants standing trial in courts.

She urged them to make necessary applications to join the scheme, emphasising that it has been proven in other jurisdictions that the professional bail bondsman brings important benefits to the society in which it works.

She said the introduction of the bondmen was to make bail more accessible to anyone charged with a criminal offence and prevent touting by unlicensed persons and  defendants from absconding from trials.

In the meantime, Justice Oke disclosed that the Bondsperson scheme would be implemented with a pilot scheme that will operate for six months in four courts, that is, two high courts and two magistrates courts in Lagos and Ikeja Divisions

Justice Oke described the bondsmen scheme as very laudable, pointing out that it would assist defendants to obtain bail and ensure that such persons can be produced seamlessly as and when needed in court.

She expressed confidence that the bondsperson scheme will significantly reduce prison congestion and other problems associated with same, while also ensuring that recognisance can be recovered in full where persons on bail abscond.

How it works

On how it would work, Justice Oke explained that  Section 138 (8) of the ACJL confers on the bondsperson the power of arrest should a defendant attempt to abscond.

She said: ”Every bondsperson shall have the powers to arrest any defendant or suspect, who is absconding or who he believes is trying to evade or avoid appearances in court: if he cannot bring the person arrested within 12 hours of the arrest before a court, he shall hand the person arrested over to the Police which shall produce such person before the appropriate court.

“In the United States, bail bondsmen play an important role in maintaining social control over bailed defendants.

“The bondsman and the defendant form a contract in which the bail bondsman agrees, for a fee, to act as the defendant’s surety. In addition to paying the fee, the defendant agrees to appear in court for all scheduled appearances,” she said.

Making the system effective

In his lecture titled: A Practical approach to the Bondmen procedure in the Justice system in Lagos State, a bail bond expert, Dr Seyi Adetayo, noted that bondsmen practice has not only helped defendants to access bail, but also assisted low income group  to access justice.

Dr Adetayo said the introduction of the bondsmen would eliminate the activities of touts masquerading as professional bondsmen and other malpractices, adding that it would generate employment.

He described bail as the amount of money that acts as insurance between the court and the person in court or jail, otherwise, the defendant could escape from justice.

He said defendants, particularly in criminal matters, have the option to pay for their bail in cash, adding that many found it difficult to do this as bail is often set at a high amount.

He said this explained why most defendants are financially unable to post bail by themselves. He said this is why they seek help from a bail agent or bail bondsman, who will post a bail bond for them to forestall them from being in prison custody while trial lasted.

Adetayo  explained that there are two types of bail bond. According to him, the criminal bail bond is used in criminal cases and guarantees that a defendant appears for trial when called upon by the court.

The civil bail bond, on the other hand, is used in civil cases and guarantees the payment of a debt, plus interest and costs, assessed against the defendant.

According to him, the name given to a firm whose business it is to assume the responsibility and payment guarantee for the obligations of another person is ‘surety bonds company’.

Such a company, he said,  is licensed to post bail guarantee for a person brought before the court.

On the other hand, he described bondman or bonds agent as a professional agent for an insurance company who specialises in providing bail bonds for people charged with crimes and awaiting trial.

While the scheme might appear alien in Nigeria, Adetayo said the system of bondsman and surety bond company has been in practice in the United States for many years and some other developed countries.

Benefits of bonds system

Apart from checking the activities of ‘court touts’, Adetayo explained that  licensed bondsmen are not useful to the defendants, but  makes it possible for low income earners to access justice.

He stated further that in addition to its being an avenue for employment generation, it has the capacity for decongesting the prisons.

It ensures that a defendant does not abscond from trial, he said.

According to him, the scheme works perfectly in the US because its social security system has a data bank that enables the people to be captured and documented.

He said because of the country’s peculiarity, we must develop our own approach to fit our system.

The requirements

For the process to be practicable in the country, Adetayo said the scheme must begin with the process of registering and licensing both bond person and the surety bond companies, which must be incorporated in the country.

He also said the surety bond companies to be so licensed must be able to post an insurance guarantee of not less than N10million while the board members must have capacity to serve, but must exclude persons from the judiciary,  a serving member of the civil service, Ministry of Justice among others.

The bondperson, according to him, must not be less than 18 years, possess a minimum of Ordinary School Certificate Level (O/L), satisfy and pass bondsman licensing examination, must be a serving member of LEA, civil service or the judiciary and  has not been convicted of a minimum of felony among other criteria.

The license of such practitioner, both individual and corporate, must be renewable every two and three years respectively, he said.

For the scheme to be a success, Adetayo advised the judiciary to develop and approve bail schedule for the different levels of the court to work with in order to curb malpractices and ensure compliance with set rules.

He said an internal mechanism must also be put in place to check the process for compliance and ensure  that too much burden is not put on the person the law is meant to protect.

He advised on the need to appoint a registrar for bail postings to set up mechanism for ethics and conducts, and establish a three-way seemless filings and approvals among others.

Justice Kazeem Alogba also stressed the need for inter-agency cooperation with the judiciary to make the scheme work, advising the proposed surety bonds companies to latch on to insurance companies, which could assist them to take on higher risks.

He stressed the need for police involvement in the scheme in view of the fact that a court order would be required before a suspect could  be remanded in prison custody.

Aside from suggesting an effective biometric system to lessen the risks of those absconding, he advised magistrates to be wary of bail conditions they grant in their courts in order for defendants to meet them.

Justice Onyeabo described the bondsmen scheme as an innovation of Lagos State, which would assist the police to arrest defendants that have absconded and ensure effective criminal justice administration system.

Speaking on the workability of the scheme, a senior lecturer in Faculty of Law, University of Lagos (UNILAG), Akoka, Dr Akeem Bello, disclosed that statistics in the US have shown that defendants released on bond bail appear more in court for trial than others. He expressed confidence that the scheme would improve criminal justice administration in the state.

Bello suggested the creation of a unit in the judiciary to oversee its implementation and for the scheme to take off on a small scale at the initial stage.

To create awareness, Dr Bello said efforts should be made to introduce it among the branches of the Nigerian Bar Association (NBA), retired police officers, and businessmen among others.

Aside from organising training programmes for prospective bonds persons and surety bonds corporate bodies, he also suggested that they should be empowered to be able to obtain collateral security from such defendants, like uncles, to ensure that defendants always appear in court for trial. Report was made by Adebisi Onanuga.

Culled from TheNation

Woman, 31, allegedly burns son with hot iron

 

A 31-year-old mother who allegedly burnt her 12-year-old son with hot pressing iron, has been arraigned before a Tinubu Chief Magistrate’s Court in Lagos.

The defendant, Shaki Adebayo, who resides at 210 Bamgbose St., Lagos Island, is facing a charge of assault occasioning grievous harm, an offence she has denied committing.

The prosecutor, Sgt. Hafsat Ajibode, told the court that the defendant committed the offence on Feb. 10, at about 3pm at her residence.

Ajibode alleged that the defendant, a mother of three, assaulted her 12-year-old first child, by burning his body with hot pressing iron for not returning from an errand on time.

“Adebayo claimed that she sent her son on an errand at about 9am and that he came back at about 4pm.

“She inflicted injury on the boy with hot pressing iron out of anger for the boy’s irresponsible act.

“A neighbour who was aware of the defendant’s maltreatment of her three children, forced the door open when she heard the boy’s screams and cries.

“When she saw how badly the boy’s body was burnt, she came to the station to report the defendant, which led to her arrest,” Ajibode told the court. (NAN)

Source: DailyTrust

When Justice Is In Crisis

The release of Ministering Justice coincides with a moment of considerable crisis for Nigeria’s politics and institutions of the law. The decision of President Buhari to suspend the chief justice of Nigeria (CJN) within the immediate horizon of an election season naturally divides opinion. It also calls into sharp relief the role of an attorney-general, which is itself the theme of Ministering Justice.

The known facts do not allow for much speculation: A petition dated January 7 was addressed to the chairman of Code of Conduct Bureau (CCB) complaining about what appeared to be allegations of substantial omissions or discrepancies in the asset declaration of the chief justice. The chairman’s office stamped receipt of the petition on January 9. On the same date, January 9, the attorney-general apparently addressed an ex-parte application to the Code of Conduct Tribunal (CCT) asking it to order the chief justice to vacate office and for the president to swear in the next senior-most Justice of the Supreme Court in his stead to act. With this time-line, there was no question of verification of the asset forms in issue or investigation of the petition received on January 9 before a referral to the CCT. There was just no time for that.

A charge was only preferred against the CJN on January 10. Things moved very quickly thereafter. On January 23, the CCT sat in a open session and upon being informed that there was an order of the Court of Appeal requiring it to preserve the status quo, appeared to adjourn. Two days later, it appeared, however, that sometime after adjourning on January 23 and on the same day, the same CCT somehow granted the ex parte application of January 9 on its terms. The only problem is that the application was not moved, the underlying petition was not investigated and the charges framed upon it were yet to even be taken on arraignment. Those who support the steps taken by the president dismiss this narration as of no consequence. But these facts do in fact matter.

The fall out of this is that a free-for-all political argument has broken out, naturally garlanded, as is our wont in Nigeria, with choice epithets and inspired invective. In this trade in abuse, many things have been lost. There should be no argument over whether or not a chief justice should be investigated for alleged infractions of public integrity standards. S/he is not above the law. But that is a non-sequitur. The issue is what happens when that is the situation.

In this case of the crisis caused by the suspension of the CJN, the real damage has been caused by the appearance of unprofessionalism on nearly all sides. The worst case is the casual and unpardonable perfunctoriness of the honourable attorney-general of the federation (HAGF).

It should go without saying that any allegation along those lines should be investigated and if infractions are found, the law should be applied firmly. The problem is that in this case, an investigation has not taken place and the law has been abused by the most powerful politician in the country in circumstances that make it impossible not to ascribe partisan political animus to him. That is damaging. Many people argue that the Nigerian judiciary is corrupt. Complaints of rampant judicial corruption are in fact older than post-colonial Nigeria. In the immediate decade after the Amalgamation, Sir Kitoyi Ajasa, one of Nigeria’s earliest judges, was said to have been preferred to the bench as an act of craven, colonial cronyism. The way to deal with these allegations is not to appropriate the low ground in a high political season.

There are many objections to what the president has done and to how he did it. For one, judicial appointments, like removals, involve all three branches of government and demonstrate the coherence of the basic structure of the Constitution in the separation of powers. The CCT and CCB are executive organs. By relying on them exclusively in this process, the president violated this basic structure of the Constitution. Second, he procured this violation through the deployment of sovereign vigilantism. It is a basic canon of dispute resolution that parties having subjected themselves to a process cannot return and take the laws into their hands just to guarantee outcomes that they want or like. That is exactly what President Buhari did. By so doing, the government loses the high ground in a country with serious rule of law crises, to tell citizens to respect laws or honour institutions that it treats with unconcealed disdain. Third, the president compromised the integrity and independence of the CCB and the CCT. Many say the allegations against the CJN are grave. Indeed, they are. And precisely because they are, they deserve to be disposed of through due process, for without that we will never know the facts or be assured that the allegations have weight. The question will surely be posed: if the government was so sure of its allegations, why was it in a haste to end-run the process? This leads to the fourth point, which is the moral burden of claiming to fight corruption through mechanisms of hypocrisy that selectively use laws only when they are deemed favourable.

Above all, however, the argument is that the National Judicial Council (NJC) headed by the chief justice could never be trusted to discharge its burdens in investigating him. This is an insult to all Nigerians – including people like the co-authors of Ministering Justice and the impeccable public servants who have led the Lagos State Ministry of Justice since 1999 – who show in their own modest examples recounted in the book, how much of a fallacy this is. In any case, even assuming this to be the case, would it not have made sense to allow the NJC to show itself a failure before resorting to sovereign vigilantism?

Even after procuring the ex-parte order from the CCT, the president had the option of notifying the NJC about the development in order to trigger the exercise of its constitutional role. He chose not to. Rather he exercised non-existent powers to summon a vice chair of the NJC to assume the role of the chief justice without the knowledge of the NJC. The justice tapped, himself a judicial veteran, allowed his ambition to outstrip his experience, intellect and ethics, a terminal vice that hardly qualifies him for consideration as chief justice.

Casual Locusts

Unsurprisingly, the authors of Ministering Justice devote their final chapter to address wider challenges of Nigeria’s justice system, which they elegantly describe as “locusts, clogs and fetters”. Ministering Justice is a tale of how they set about undoing all these in Lagos. It’s also a manual for how the rest of Nigeria can do the same. They argue a compelling case for a reform of judicial appointments and a return to professionalism and ethics. At any other time, their undoubted expertise should ordinarily afford ample authority to their suggestions. The current climate elevates their suggestions to the status of prescription.

In this case of the crisis caused by the suspension of the CJN, the real damage has been caused by the appearance of unprofessionalism on nearly all sides. The worst case is the casual and unpardonable perfunctoriness of the honourable attorney-general of the federation (HAGF). In approaching the matter the way he did, he assures that his principal will be dogged long after he has left office of by undeniable accusations of abuse of power. The underlying message of the memoir in Ministering Justice is that a HAG cannot afford to expose his or her principal to the damage of such toxic legacy. In the manual in the book, the authors show how this can be done. It’s a companion for everyone interested in how the law can serve the public interest in and beyond Nigeria. Many more who have verifiable outcomes to show for their time in public service should follow the combined examples of Supo Shasore and Akeem Bello and document their records for posterity.

Title: Ministering Justice: Administration of the Justice Sector in Nigeria
Authors: Olasupo Shasore, SAN & Akeem Bello, Ph.D.
Publishers: Quramo Publishing
Price: N10,000
Pages: 319

Chidi Odinkalu, a member of the National Executive Committee (NEC) of the NBA, is co-convener of #NigeriaMourns.

Ministering Justice: Undoing the Locusts, Clogs and Fetters.

Nigeria’s laws, institutions and processes are, for the most part and with some exception, defined by two inherent flaws. One is the flaw of the time warp and the other is the flaw of institutional cross-dressing. Let’s begin with the time warp. Many of the essential norms and institutions that still govern the country that now exists as a democracy, have their origins in Victorian England and were transported to Nigeria on the backs of either unaccountable colonialists or the bayonets of unelected soldiers. With colonialists, we were subjects incapable of being citizens; with soldiers, we became citizens without a country to call our own. Colonialists treated us as morons; soldiers presided over a Republic of Zombies. Yet, these norms and institutions designed to govern morons and zombies for the most part continue to regulate much of our affairs around the country.

These origins organically lead to a second flaw – the problem of normative and institutional cross-dressing in which laws made for non-deliberative, autocratic systems continue to be applied to govern the essential processes of deliberative democracy. Nearly always, this cross-dressing is an ill-fit but the reflex that has survived martial rule learns how to “obey the last order.”

….the authors…devote their final chapter to address wider challenges of Nigeria’s justice system…Ministering Justice is a tale of how they set about undoing all these in Lagos. It’s also a manual for how the rest of Nigeria can do the same. They argue a compelling case for a reform of judicial appointments and a return to professionalism and ethics…

The underlying sclerosis that afflicts the administration of justice in Nigeria owes its origins to these two flaws. In our federation of 36 states, however, one state has led the process of weaning itself of this illness and in persuading the rest of the country to discover virtue in doing so. That state is Lagos. In the period since the country returned to elective government 20 years ago, it has under the professional leadership of its Ministry of Justice, orchestrated a set of carefully calibrated reforms to re-configure the normative and institutional foundations of its governance for the challenges of deliberative democracy. In this spirit, Lagos has pioneered many reforms, including the Administration of Criminal Justice Law 2007, amended and re-enacted in 2011; (Nigeria copied this in the Administration of Criminal Justice Act, 2015); the Coroners Law 2007; the Criminal Law of Lagos State 2011; and the Lagos Court of Arbitration, launched in 2012.

Ministering Justice

In Ministering Justice: Administration of the Justice Sector in Nigeria, Olasupo Shasore, a Senior Advocate of Nigeria (SAN), and Akeem Bello, a legal scholar, narrate how Lagos undertook and achieved these and many more path-breaking legal and institutional reforms.

The setting and the authors are hardly surprising. With over 11 per cent of Nigeria’s population, Lagos is the most populous State in Nigeria. But with a mere 3,577 km², Lagos is also by far the State with the smallest land-mass in Nigeria. Lagos is the site of the former colony (the rest of the country was “protected territory”). The oldest and first institutions of modern law enforcement and dispute resolution began in Lagos and the first lawyers in Nigeria also practiced in its territory. Lagos also harbours over 60 per cent of Nigeria’s industrial investment and about two-thirds of its commerce. In simple terms, institutional innovation and adaptation are existential imperatives for Lagos State.

The authors are well qualified to tell this unique story. For four years beginning in 2007, Mr. Shasore was the honourable attorney-general (HAG) of Lagos State and commissioner for justice. He was preceded in this office by Oluyemi Osinbajo, another Senior Advocate and law professor, who currently serves as Nigeria’s vice president. As attorney-general, Mr. Shasore worked closely with his co-author, Dr. Akeem Bello, who was assigned to the attorney-general’s office as the senior special assistant to the governor of Lagos State on public and constitutional law. The governor during this period was Babatunde Raji Fashola, another Senior Advocate and currently a minister in Nigeria’s federal government. After their combined time at the office of the HAG, Mr. Shasore and Dr. Bello went on to serve until 2015 as chairman and commissioner, respectively in the Lagos State Law Reform Commission. Back at the office of the HAG, they were succeeded by Ade Ipaye, another distinguished law teacher, who currently also serves as the deputy chief of staff to Nigeria’s president.

In a narrative that unfolds as both memoir and manual, the authors of Ministering Justice tell a story of two decades of innovation, experimentation and continuity in engineering the institutional adaptations required by a mega-city state. It is organised into twelve chapters that address several challenges aspects of the transformation of laws and institutions of Lagos State, including the reforms of the magistrate’s court system, criminal procedure, the coroner’s system, criminal law, governance of law and order, and commercial dispute resolution. It also illustrates other less well known aspects of the brief of the HAG as adviser to government, member of cabinet, public officer, manager, strategist for government, litigator and protector of the public interest.

In Ministering Justice, the authors showcase the stories of the emergence and operation of tools like the Criminal Case Tracking System (CCTS); the Crime Data Register (CDS); the Forensic Centre for Criminal Justice, and the Multi-Sector Working Group (MSWG) on Pre-Trial Detention. In doing so, they demonstrate the enormous value adding possibilities of a capable HAG in a consequential cocktail of re-imagined norms, institutions, processes, management tools and partnerships that make the incremental progress and protection of our communities possible.

Ministering Justice is a narrative of multiple cadences. Its highlights are subliminal. First, the authors demonstrate the significance of the office of the attorney-general in guaranteeing public good and envisioning the institutional arrangements required to secure it.

Ministering Justice is a narrative of multiple cadences. Its highlights are subliminal. First, the authors demonstrate the significance of the office of the attorney-general in guaranteeing public good and envisioning the institutional arrangements required to secure it. One clear highlight of the book is the story of how the office of the HAG was tasked to lead arguably the most radical and far reaching urban renewal project undertaken by Lagos State in the past twenty years – the Oshodi Market renewal project which began in 2010.

This leads to the second major highpoint of the narrative: it makes the point powerfully that effective public service and leadership requires not just capable minds but also a thoughtful team. Many will be struck by the fact that the onset of the Oshodi Market renewal project was preceded by nine months of reconnaissance and preparation, at the end of which the most critical decision was the choice of what time in the year to begin it. The government thoughtfully settled for the 4th of January, a time when “economic activities are usually at the lowest ebb…. with many businesses just about to open after the Christmas and New Year holiday.” The pivotal decision here was the strategic call by the governor, Raji Fashola, to define Oshodi as a law and order problem, not as a contract waiting to be parceled off. Once that call was made, it’s easy to see why and how the HAG had to lead it.

Thirdly, underlying the narrative of Ministering Justice is a lesson about professionalism that every legal professional and public officer should take to heart. By Chidi Anselm Odinkalu

Farmer remanded for allegedly defiling minor

An Okitipupa chief magistrate’s court in Ondo State on Wednesday remanded a 20-year-old farmer in prison for allegedly defiling an eight-year-old girl.

The chief magistrate, Mr Musa Al-Yunus, who gave the order, said the defendant, Yusuf Azuna, should be remanded in prison custody until May 25 for further hearing of the case.

The defendant of no fixed address had pleaded not guilty to the two-count charge bordering on assault and defilement.

The prosecutor, Insp. Zedekiah Orogbemi, earlier told the court that the defendant on Dec. 13, 2018 around 7am at Lafe village in Okitipupa, was caught assaulting his neighbour’s daughter.

He said the defendant had canal knowledge of the girl without her consent.

Orogbemi said the offence contravened sections 355 and 218, Criminal Code, Cap. 37, Vol. 1, Laws of Ondo State, 2006. (NAN)

Source: DailyTrust

Critical Review of the 2019 Lagos State High Court Civil Procedure Rules and Practice Directions in the Administration of Civil Justice in Lagos State

Introduction

The Preamble of the High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No 1 of 2019 provides thus. “A huge backlog of undecided civil cases has undermined the credibility of civil justice administration in Lagos State and threatens the economic progress of the state and the nation because of the commercial importance of Lagos State in Nigeria and the sub region”.

The hydra headed problem of delay in the administration of justice is not only with a negative impact in the State alone but in the country and abroad bearing in mind that investors always seek an assurance that the legal process of a country is viable. It is in the light of the above that the Chief Justice of Lagos State Hon. Mr. justice Opeyemi Olufunmilayo Oke, as the Head of the Judiciary in the State and other relevant stakeholders united to tackling this challenge which culminated to the introduction of the new 2019 Lagos State High Court Civil Procedure Rules and Practice Directions with effect from the 31st day of January 2019.

We would attempt to do a critical review of the relevant portions that sort to revolutionize and modernize the administration of civil justice in the state.

Justice and its Dispensation

The plague of delay in justice delivery system is still of major concern in the nation’s judicial system today. The expectation of the citizenry is huge and requires all stakeholders to work continuously to enhance confidence in the legal system, promote the rule of law, guarantee protection of lives and properties of the citizens. Thus, there is the need to vigorously ensure quick dispensation of justice, as the judiciary is the last hope of the common man. The congestion, administrative bottlenecks and the procedural pranks of legal practitioners, couple with the ineffectiveness of available legal rules all congregate to occasion untold hardship on litigants. This in itself is capable of eroding confidence in the judicial process. Bearing in mind that he judicial arm of the government remains the only and lasting beacon of hope, fairness, and justice to all citizens, the legal profession has a vital role to play in promoting the cause of justice, protecting human rights and upholding professional standards. To this effect, the 2019 Lagos State High Court Civil Procedure Rules (LCPR) and Practice Direction has been introduce to strengthen the judicial process and guard it against further delays.

Novel Provisions of the New Rules

  1. Pre-Action Protocol: Practice Direction No. 2 sets out mandatory preliminary steps that must be taken, before maters are instituted in Court. The rules require that before an action is instituted, there must have been attempts at settlement. The intending Claimant, must prepare and send a memorandum of claim setting out the details of the claim, and make a proposal for the settlement of the dispute through the use of Alternative Dispute Resolution mechanisms. The party against whom the claim is made (Respondent), must send his response within 7 days, and also make proposal for settlement. Where he fails to do so, the Claimant shall send a reminder giving additional 7 days to respond. The rules contains details of pre-action protocol steps for various matters like defamation, mortgages, land matters, debt recovery, and recovery of premises.

Part of the innovation of the rules, is that it allows litigants to seek pre-emptive remedies like injunctions, before a formal action is filed, to prevent irreparable damage or serious mischief. The procedure is by filing the memorandum of claim, together with an ex parte originating application. A party who wishes to institute an action, must file Pre-Action Protocol form 1, together with Pre- Action Protocol Bundle containing correspondence exchanged between the parties, and cogent evidence that ADR has been considered.

Unlike the old rules, there are stringent penalties for failure to comply with Pre- Action Protocol or the settlement procedure, under the pre-action protocol. Under Order 5 Rules 1(2) (3), 5 (3), (4), and Order 7 Rule 1 of the main Rules, non- compliance nullifies the proceedings. This is obviously a shift from the decision of the Court of Appeal in Spog Petrochemicals Limited & Anor v Pan Pennisula Logistics Limited where it was held that, once the originating process is accepted for filing, the non-compliance cannot defeat the action. Failure to comply with the timelines in Pre-Action Protocol, shall attract a daily default fee of N1,000, in favour of the other party. On the other hand, failure to comply with settlement procedure under the pre-action protocol or the directive of the court referring parties to ADR, shall attract costs of N100, 000 on the party insisting on trial.

  1. Substituted Service: Substituted service can now be done via electronic mails. See Order 9 Rule 5(1).
  2. Close of Pleadings: Pleadings are deemed closed, when the Defendant fails to file defence within 42 days. This was absent in the old rules. See Order 17 Rule 18.
  3. Withdrawal of Action at Trial: Order 25 Rule 4, allows a Claimant to withdraw his claim after trial has commenced. Such an action, will be dismissed by the court. This is substantially in consonance, with what obtains in practice. It will however, answer the question of what stage a matter would get to before a dismissal order can be made, when the Claimant or Counter-Claimant, seeks to discontinue the action. Under the rule, dismissal can only be possible when trial has commenced.
  4. Backlog Elimination Programme (BEP): One of the strategies for the expeditious disposal of civil cases, is the BEP. Under this program, the Chief Judge (CJ) shall designate cases which have remained undecided for a minimum period of 5 years before 14th January, 2019 (Practice Direction No. 2), as ‘Backlog’. Upon designation by the CJ as a Backlog, the Registrar shall issue a notice to the Claimant, to show cause why the case should not be struck out. The notice shall be sent to the email address provided. The Claimant must respond within 14 days, by filing a notice of discontinuance, giving notice that the matter has been settled, or intention to settle, or by filing application to set the matter down for trial. Where the court determines during compulsory case management conference that the matter can only be resolved by court proceedings, it shall direct the parties to file a joint trial plan within 14 days, and issue procedural timetable after considering the plan. Failure to comply with the timetable may lead to a default judgement, or a striking out of the case and costs of N50, 000 or N100,000 depending on the circumstances, disciplinary report against counsel etc. Trial shall be from day to day.

In order to resolve the matter, the direction mandates the use of ADR processes, and allows the parties to agree to a trial by ‘documents only’. Court may order costs not less than N250,000 for non-compliance, where it discovers that the matter could be resolved by ADR, and the other party was unwilling to settle.

  1. Transferred Cases: The rules require that, where a matter is transferred from other courts to the Lagos High Court, any of the parties shall re-file the action in compliance with Order 4.
  2. Alternative Dispute Resolution (ADR) Proceedings: Order 28 is a new provision, on ADR. The order applies to matters screened for ADR, matters referred to ADR during CMC, and applications for enforcement of arbitral awards. Interestingly, the rule provides that, the mode for enforcement of arbitral awards and other steps in arbitration, is by originating motion on notice. Under the old rules, it could be by motion on notice. See Order 39 Rule 4, of the old rules. Order 28 Rule 4, stipulates 3 months within which an application may be made to set aside or remit an award, and that the period may be extended by the court. It is submitted that, this can only apply to awards not made under statutory provisions like the Arbitration and Conciliation Act. See Dunlop Plc (Now DN Tyre & Rubber Plc) v Gaslink Nig Ltd (2008) LPELR43642.
  3. Diligent Prosecution: Order 34(3) reenacts the provisions of Order 27 Rule 13 and Order 30 Rule 19 of the old rules, on diligent prosecution. In addition, the rule provides that, where a matter is pending and no application is filed or proceedings held within 12 months, the matter shall be struck out.
  4. Filing of Written Address: Written addresses cannot exceed 20 pages and reply on points of law, 5 pages, without the leave of court. There was no limitation in the old rules. See Order 35 Rule 3.
  5. Interpleader: The Rules retained the old provisions on interpleader summons, but adds that, if Claimant fails to appear to maintain his claim upon being served with a summons, the Judge may make an order declaring him and all persons claiming under him, perpetually barred against the Applicant. See Order 47 Rule 8. Rule 9, gives the court the powers to order costs.
  6. Default fees have been increased to N1,000 as against N200, in the new rules. See Order 48 Rule 4. Costs have also been increased. These are desirable to stem the tide of deliberate delays in the judicial process, and are in line with international best practices.
  7. Fast Track Procedure: The Fast Track Court is ‘created’ to hear matters involving claims of not less than N100 million mortgage transaction, charge or other securities commenced by writ of summons. Fast track for a liquidated claim involving a Claimant who is not a Nigerian or resident in Nigeria, has been removed from the rules. A Claimant or Counter-Claimant, is no longer required to make application to the Registrar for fast track, as it was in Order 56 of the old rules. Various times for filing processes are abridged to meet the objective of the rules, which is to reduce the time spent on litigation, to a period not exceeding 9 months- Order 59. Specifically, in fast track cases, a Defendant is expected to file a defence within 30 days, and not 42 days, under the old rules.
  8. Proceedings in Revenue matters: The rules retained provisions on revenue matters. In addition, all matters involving revenue, now qualify for fast track. In tax cases, the Petition for recovery shall now be accompanied with a certificate issued pursuant to Section 78(3) of the Personal Income Tax Act. The rule also allows the Respondent to pay instalmentally, where he is not disputing the claim.The timelines for disputing the claim and filing replies, have been reduced. See Order 60.
  9. Administration of Estate: Penalty for failure to file the annual account of administration of estate, has been increased to N100,000 annually. Also, penalty for intermeddling with an estate, is increased to N500,000 from N50,000. See Order 61 Rules 16 and 17. There are other costs and penalties, in line with the drive to use costs to reduce frivolous and vexatious applications and actions.

The new rules and its controversy

While the new High Court Rules has been heralded in certain quarters as an antidote to the unceasing and unsavory delay in the administration of civil justice in the state, facts are beginning to emerge of that the Nigeria Bar Association, particularly the Ikeja branch which boast of a large chunk of practicing lawyers in the state have expressed their dismay and lack of involvement in the process of crafting and enactment of the new rules. The Ikeja  branch of the Nigerian Bar Association (NBA) through its Chairman, Mr Dele Oloke, faulted the Chief Judge of the State for the enactment of the rules without the input of it members. Addresing newsmen on Monday February 4th 2019, Chairman, NBA Ikeja Branch, described the launch as an “affront” to its 6,500 members, the second largest NBA branch in Nigeria. Mr. Oloke said that members of the Branch were not involved in the process of the enactment of the High Court Rules. He added that When the Committee of the Rules was set up by the CJ of Lagos State, there was no representation from all the five NBA branches of Lagos State. Quoting him, he said   “We are the lawyers that go to all these courts and make submissions that lead to adjudication by the judges, when the Rules Committee was set up, it was made up of judges and judges alone.

The Ikeja branch Chairman also unequivocally condemned the high costs of filing fees and the alleged N100,000 fine that is to be imposed against lawyers who are late to court proceedings. Describing the fine as “heavy” and “punitive”, he said that traffic in the Lagos metropolis and other unavoidable factors could lead to counsel coming late to court. He noted that judges who did not also sit for unavoidable reasons were not being fined. The NBA Chairman noted that a lot of lawyers who undertook pro bono cases for poor clients would be unable to afford the N100,000 fine and this may prompt such lawyers to drop the pro bono cases. According to him, “This will lead to instances of poor litigants abandoning the judicial system which is supposed to be the last hope of the common man and resorting to jungle justice,”

Impact of news rules in the administration of civil justice in Lagos.

The new rules as currently obtained, has the inherent capacity to stimulate a more proactive approach to litigation. Litigants through the news rules will be encouraged to resort to Alternative Dispute Resolution is comparatively faster and less technical compared to court proceeding. The LCPR is a giant leap, in the drive towards quick dispensation of justice. Pre- Action Protocol formalities and the BEP, are commendable and revolutionary in justice administration in Nigeria. The introduction of reasonable costs and default fees, will substantially prevent spurious and vexatious claims, and curb calculated delays by Lawyers. It is therefore hoped that It is hoped that, Lawyers will key into the system designed by the rules. Lawyers must, as a matter of urgency, get back to the business of resolving real disputes which is the objective of this rules. Lawyers from other jurisdiction who may intend on filing an action or defending same in Lagos must equally be abreast with the new news to avoid a miscarriage of justice on technicalities of procedural default.

Finally, it is equally expected of other Heads of Jurisdiction in Nigeria to take a cue from the Lagos rules substantially mirrors international best practices, in dispute resolution and fashion out an updated court rules and practice direction in their respective states. By so doing, there will be a synergy towards the attainment of civil justice in the whole of the country.

By Echem, Chinedu Solomon

Man, 45, remanded over rape of 7-year-old girl

An Ado-Ekiti magistrates’ court yesterday remanded a 45-year-old man in prison over alleged rape of a seven-year-old girl.

The defendant, Daniel Alamo, whose address was not provided, is facing a charge of rape.

The prosecutor, Insp. Oriyomi Akinwale, told the court that the defendant committed the offence on Feb. 10 in Aramoko, Ekiti.

He said the accused enticed the girl with money and defiled her.

Akinwale said the offence contravened Section 31 (2) of the Child Right Law Cap C7 Laws of Ekiti State, 2012.

The prosecutor urged the court to remand the accused in prison pending legal advice from the office of the Director of Public Prosecution (DPP).

The plea of the accused was not taken.

In her ruling, the magistrate, Mrs Modupe Afeniforo, ordered that the defendant be remanded and adjourned the case until March 13 for mention.(NAN)

Source: DailyTrust