Order 5 Rule 1(2) and 5(3) of the Lagos State High Court (Civil Procedure) Rules 2019 (“the Rules”) list the documents that must accompany a writ of summons or originating summons. Failure to accompany a writ of summons or originating summons with the documents listed in the provision above nullifies the action- See generally Order 5 Rule 1(3) and 5(4) and Order 7 Rule 1(1) of the Rules.
One of such compulsory accompaniment of a writ of summons or originating summons is the pre-action protocol Form 01 with “necessary documents”. It, therefore, follows that an action commenced by writ of summons or originating summons without an accompanying pre-action protocol Form 01 with “necessary documents” is a nullity.
A prototype of the statement of compliance with pre-action protocol is annexed to the Rules as Form 01. However, the reference to “pre-action protocol Form 01 with necessary documents” suggests that Form 01 ought to be accompanied by some other documents. Those other documents together with Form 01 form the “Pre-Action Protocol Bundle” (PAPB) as explained in the High Court of Lagos State (Pre-Action Protocol) Practice Direction No. 2 of 2019 (“PD No. 2”).
Pre-action protocol requirements
The requirements of the pre-action protocol are extensively provided for in the PD No. 2. Under the PD No. 2, there is a General Pre-action Protocol (“GPP”). However, there are also claim-specific pre-action protocols that apply to the following subjects: defamation, mortgages, land matters, recovery of debts and recovery of premises.
According to paragraph 2 of the preamble to the GPP, the GPP applies to all actions instituted at the High Court of Lagos State, and where claim-specific pre-action protocols exist, it applies collaboratively with the claim-specific pre-action protocol. But where the GPP conflicts with a claim-specific pre-action protocol, the claim-specific pre-action protocol will take precedence. This discourse focuses largely on the GPP.
According to paragraph 3 of the preamble to the GPP, before the commencement of proceedings, the Court expects parties to have engaged in pre-trial correspondence sufficient to –
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues;
(d) consider a form of Alternative Dispute Resolution (ADR);
(e) support the efficient management of those proceedings;
(f) reduce the cost of and delay in resolving disputes.
The above may well pass as the essence of the requirements of pre-action protocol and objective of the PD No. 2.
What are these pre-action protocol requirements? The GPP provisions of the PD No. 2 may be summarised as follows:
- Any person who wishes to make a claim (that is, an intending claimant), against another (the potential defendant), must, prior to commencing the action, prepare and deliver to the potential defendant a memorandum of claim, setting out concise details of the claims, the basis of the claim, a summary of the facts, the reliefs sought (which if monetary, must show how the amount is calculated). The memorandum of claim shall be accompanied by exhibits in support of the claims and a proposal for settlement through ADR.
- The potential defendant shall within seven (7) days of service of the memorandum of claim, serve on the intending claimant his responses to the memorandum of claim and the proposal for settlement.
- Where the potential defendant fails to respond to the memorandum of claim, the intending claimant shall send a reminder to the potential defendant, giving him additional seven days (7) days to respond, failing which the intending claimant shall proceed to file an affidavit of his failure to participate in settlement talks.
- In the case where the potential defendant responded to the memorandum of claim, the intending claimant shall take an objective view on the dispute and attempt an out-of-court settlement of the dispute. But where the parties are unable to settle, evidence of attempts at settlement must be adduced before they will proceed to litigation as a last resort.
- The parties will thereafter deliver an agreed list of issues for determination to the court. Counsel for each party will deliver a statement on oath stating the reasons for his insistence on litigation rather and out-of-court settlement.
- All the correspondence and documents filed in pursuance of the above together with Form 01 will be contained in the PAPB.
Consequences of non-compliance
The GPP provides that when a party has not complied with the provisions of the GPP or not acted within the time limit set out in a relevant protocol or unreasonably refused to submit to ADR or failed to comply with an order or directive of a Judge or the Chief Judge, then the following sanctions will apply:
- The originating processes with supporting documents shall not be accepted for filing at the registry.
- Where a respondent fails to file a response as required by the GPP, or unreasonably refused to submit to ADR, the claimant may proceed to litigation by filing the originating processes together with the accompanying documents and the PAPB and obtain judgment against the respondent.
- Failure to comply with an order of the judge will amount to contempt of court.
The GPP further provides that-
- Where the parties fail to comply with the time stipulations in the GPP or any claim specific pre-action protocol, it shall not affect the validity of the documents filed, rather, it shall attract a daily default fee of N1,000 (one thousand Naira) in favour of the counter-party, and the sum shall be deducted from or added to the money reliefs awarded in the final judgment provided that a counter-party, may in the interest of settlement, waive the applicability of the default fees.
- Where a party unreasonably or disproportionately fails or refuses to comply with the settlement procedure under the GPP, or a directive of court referring parties to ADR but insists on proceeding to trial, the court shall impose cost of a minimum of N100,000.00 (one hundred thousand Naira) which shall be deducted from or added to monetary reliefs in the final judgment or alternatively apply the provisions of Order 53 Rule 2 of the Rules.
Order 53 Rule 2 of the Rules provides that where an offer of settlement made in relation to the pre-action protocol or in the course of case management or ADR is rejected by a party and the said party eventually succeeds at trial but the award is not in excess of the offer of settlement earlier made, the winning party shall pay the costs of the losing party from the time of the offer of settlement up to judgment.
The consequences of non-compliance as highlighted above may be juxtaposed with the provisions of Order 5 Rule 1(2) and 5(3) of the Rules. Clearly, the GPP does not render an action incompetent for non-compliance. The implication is that failure to accompany an originating process with a Pre-Action Protocol Form 01 and the PAPB renders an action incompetent in accordance with the Rules. However, accompanying such originating process with a defective PAPB does not render the action incompetent, rather, the defaulting party will be caught by the consequences of non-compliance under the GPP. In Spog Petrochemicals Ltd. v. P.P.L. Ltd (2018) 1 NWLR (2018) 1 NWLR (Pt. 1600) 321, the court held that a defective Form 01 cannot render the entire action a nullity, as the Court can permit same to be used despite the defect, given that the Form 01 is in form of an affidavit.
A notable issue arising out of the consequences of non-compliance as stated under the GPP is that the originating processes shall not be accepted for filing at the registry. The case of Spog Petrochemicals Ltd. v. P.P.L. Ltd (supra) gives the court the discretion to accept or reject a defective Form 01. However, it appears that the GPP has now given the officials of the court registry the power to determine the competence or otherwise of a Form 01 and the PAPB and reject same for filing. Where such originating process is rejected at the registry, the court is denied the power to exercise its discretion in line with Spog Petrochemicals Ltd. v. P.P.L. Ltd (supra). This raises constitutional questions as to whether the GPP ousts the jurisdiction of the court with respect to the exercise of discretion to accept a defective Form 01 and vests the power in the registry.
Pre-Action Protocol requirements and applications for pre-emptive remedies
It is not out of place for a claimant to file alongside the originating processes, an application for an injunctive remedy pending the happening of an event, such as the determination of the suit. Such application may be an ex parte motion for injunctive relief.
Order 43 Rule 3(2) of the Rules demands that an ex parte motion for injunctive relief must be filed alongside the motion on notice. The usual practice is that when a claimant commences an action and simultaneously files an ex parte motion for injunctive relief with an affidavit of urgency, he need not serve the originating processes on the defendant immediately, rather, the ex parte motion is expeditiously determined, and if granted, he will then proceed to serve the defendant with the order of court, the originating processes, and the motion on notice. The defendant may thereafter take steps to set aside the interim order or challenge the motion on notice.
The reason behind the practice is to prevent serious mischief or forestall irreparable damage which may occur if the defendant becomes aware of the suit prior to the making of the order of court. For instance, a claimant, apprehensive that the defendant may dissipate or alienate the assets which form the subject matter of the suit, may file alongside the originating processes an ex parte motion for mareva injunction. If the defendant becomes aware of the suit prior to the grant of the order for mareva injunction, he may proceed to dissipate or alienate the assets, leaving the claim with an empty and enforceable order/judgment when the motion/suit is finally heard and granted. Thus, it is wise for the claimant not to serve any process on the defendant until the ex parte motion is determined.
However, this practice is adversely affected by the requirements of the GPP. The mere service of a memorandum of claim in accordance with the GPP is suggestive to a potential defendant that a suit is imminent. Such potential defendant may then take steps to cause serious mischief such as dissipation of the asset, such that by the time the parties fully comply with the requirements of the GPP, the mischief would have been done and it would be futile to grant an injunctive relief in the circumstance.
To carter for the above scenario, the GPP provides for pre-emptive remedies. It provides as follows:
- Where in the interest of justice or to prevent irreparable damage or serious mischief, there is a need for pre-emptive remedies to be ordered by the court, the affected party must file either the memorandum of claim with its accompanying documents and the memorandum of settlement, in the case of a claimant or the response to the memorandum of claim with its accompanying documents in the case of a respondent, together with an ex parteoriginating application for the pre-emptive remedy sought supported by an affidavit and a written address in the Registry.
- After the remedy is either granted or refused by the court, the Judge will order the parties to continue with full compliance of the Protocol.
- Where an order of injunction is granted ex parteand parties are unable to settle before the order abates, the Judge may extend its life span until compliance with the Protocol is complete.
It must be noted that the pre-emptive remedy procedure above did not mention that the memorandum of claim should be served on or delivered to the defendant; rather it provides that it should be filed together with an ex parte originating application. The implication is that a claimant need not comply with the requirements of pre-action protocol until the ex parte originating application is determined. The procedure, therefore, allays the fear that the defendant upon becoming aware of the imminent suit by the service of a memorandum of claim may take steps to cause serious mischief.
The pre-emptive remedy procedure may come under serious criticisms, some of which are highlighted below:
Undue advantage:The basic objective of the GPP is to foster amicable resolution of disputes through ADR with litigation as a last resort. If the court grants a party an ex parte order prior to the commencement of settlement talks, it may appear to give one party an advantage over the other. The person in whose favour the order is made assumes a somewhat higher bargaining power and this may hamper negotiation. It is akin to a party negotiating with a gun pointed to his head. Given that the parties do not have a level playing field, it may be difficult to achieve the objective of the GPP which is the amicable resolution of disputes.
- Change of facts:
The pre-emptive remedies procedure does not contemplate service of the memorandum of claim on the potential defendant. Rather, it requires that the memorandum of claim and its accompanying documents be filed in court together with the ex parte originating application. It follows that the memorandum of claim and the accompanying documents form part of the records and documents to be considered by the court in the determination of the ex parte originating application. It follows that the same memorandum of claim filed in court should be what is eventually served on the defendant after the ex parte order is granted because it is judicially absurd that a document different from that which was submitted to and considered by the court in making the order is served on the defendant after the order is obtained.
But change in facts and circumstances may necessitate the service on the defendant of a memorandum of claim different from that which was originally filed in court. For example, where after the grant of the order, genuine circumstances arise which necessitate the alteration of the reliefs sought by the claimant or the inclusion or exclusion of facts in the memorandum of the claim. If this is permissible without leave of court, then it is of no essence to have filed the memorandum of claim.
It appears that the order made by the court under the pre-emptive remedies procedure of the GPP is a final order in the sense that it finally dispenses with the issues submitted under the ex parte originating application, leaving the respondent with the option of setting aside the order or commencing an appeal in deserving circumstances. If the order is actually final, the effect is that the court would have determined a suit without hearing the other party against the principle of fair hearing. Furthermore, the court would have become functus officio and have no power to further act pursuant to the suit.
It may be argued that the fact that an order made pursuant to the ex parte originating motion under the pre-emptive remedies procedure abates after seven days unless otherwise extended by the Judge, is a pointer to the fact that the order is not intended to be final. Assuming it is not intended that the ex parte order be final, the pre-emptive remedies procedure does not provide for what becomes of the fate of the suit after the parties comply with the GPP bearing in mind that the writ of summons or originating summons that may be filed by the claimant is a distinct originating process from the ex parte originating application and will have distinct suit numbers and may be assigned to a different Judge. Will the claimant have to file a fresh writ of summons or originating summons after parties have complied with the GPP or will the parties proceed with the suit commenced under an ex parte originating application? The pre-emptive remedies procedure does not answer these questions, and to this extent may be said to be deficient.
- Duration of the order:
Ordinarily, an ex parte motion for an interim injunctive relief is made pending the determination of the motion on notice, while the motion on notice for interlocutory injunction is made pending the determination of the suit. However, the pre-emptive remedy procedure under the GPP is suggestive that the maximum life span of the ex parte order is hinged on the time of complete compliance with the GPP. It does not provided for a pre-emptive remedy pending the determination of the suit, although it may be argued that nothing in the GPP prevents a party from bringing a motion on notice for injunctive relief pending the determination of the suit after compliance with the GPP.
The foregoing shows that despite the good intendments of the PD No. 2, the provisions of the GPP particularly, the pre-emptive remedies procedure still raises questions begging for answers. Most of these questions as highlighted in the criticism above are so fundamental that they cannot be overlooked. For instance, the finality or otherwise of the ex parte order made by the court pursuant to an ex parte originating application raises constitutional issues. As at present, the provisions of the PD No. 2, particularly the pre-emptive remedies procedure under the GPP have not been tested in court. It is hoped that the first judicial intervention on these issues will address these questions if there is no intervention by the Chief Judge of Lagos State by way of an amendment or issuance of other practice directions.
By Kingsley Ibe