The outbreak of COVID 19 in Wuhan, China sometime in December 2019, the eventual declaration of the virus as a pandemic in March 2020 by the World Health Organisation, and the discovery of first case in Lagos State led to unprecedented lockdown measures initially in 3 states and subsequently majority of the States of the Federation. To curtail the spread of the virus, measures ranging from restriction on large gatherings, closure of government offices and other businesses, imposition of curfew, closure of airports/borders, ban on sea and road travels, and ban on intra-State movement amongst others were introduced.
Just like every other sector, the judicial sector was not spared by the damning effect of the virus. Many State and Federal High Courts followed Federal Government or State lockdown as the case may be and shut down such that the agelong principle that the courts must always remain open for the smooth administration of justice even under a state of war or emergency is being threatened by this pandemic. These extraordinary measures by the Judiciary have raised new challenges in relation to access to and effective administration of justice and case management. Time is of essence in the administration of justice and the enforcement of legal rights must be triggered within a given period after the right accrues. The time to commence a suit, to file and respond to processes, to deliver judgments and to file an appeal are all prescribed for by law[1]. Failure to adhere to the time and activate the jurisdiction of the Court timeously as provided under the relevant laws may be fatal. While some breaches can be remedied by way of praying for an extension of time, some cannot be salvaged and thus totally extinguish the cause of action of the aggrieved party. This article would therefore seek to review how our Nigerian judiciary is currently or intends to address the challenges posed by the pandemic in terms of computation of time under the Limitation laws on the one hand, and computation of time under the Rules of Court and propriety of penalties award on the other hand.
Judiciary’s Response to COVID 19
Since the first case of the virus was confirmed in Nigeria, several directives have been issued by the Chief Justice of Nigeria, President of the Court of Appeal[2] and the Chief Judge of the State High Courts[3] on how the threat posed by the virus should be managed to protect the stakeholders in the justice system. The first circular issued by the Chief Justice of Nigeria on the COVID 19 pandemic was dated the 20th day of March 2020[4] wherein His Lordship advised all courts to adhere strictly to the social distancing guidelines and ensure that sitting arrangements in courts conforms with the recommendation by the Nigeria Centre for Disease Control. In a subsequent circular issued on the 23rd day of March, 2020,[5] the Chief Justice of Nigeria suspended sitting in all Courts in the Country for an initial two weeks which was eventually extended and made indefinite vide a subsequent circular dated 6th April 2020[6]. This is in addition to the curfew imposed by the government and the directive that all government workers who incidentally mans the registry of the court should work from home.
Limitation Laws and Access to Justice
The limitation law is one of the procedural laws that regulates the time within which a legal right recognised under the law can be exercised. These are contained in various laws and mainly in the Limitation Act and the Limitation Laws of the respective states. These laws regulate the time for filing different cause of action ranging from breach of contract which is 6 years[7], to claim of ownership of land which is 12 years[8] and time for bringing an action against certain persons or institutions[9] amongst several others. The time prescribed under the limitation laws are sacrosanct and courts have over the years given these provisions narrow and strict interpretation[10]. Failure to file an action within the prescribed period automatically abates the cause of action and the right of the aggrieved party to seek remedy in court.[11] Also, no application for extension of time can be filed to revive an action that has become statute barred where the statute did not specifically provide for such concession.
While it is conceded that the statute of limitation is sacrosanct and matters that have become statute barred have died a natural death which cannot be resurrected, the breach that may be occasioned on account of the COVID 19 pandemic is undoubtedly sui generis (on of its own kind) and may be a game changer in the way the provisions of limitation laws are construed.
The jurisprudential basis for limitation laws is to ensure there is always an end to a likely dispute between the parties and also to punish an indolent aggrieved party who chose to sleep on his right when same is breached. It is opined that the closure of the Court and its registry to litigants due to the pandemic and the absence of alternative means of access to justice through e-filing and remote hearing does not fall within the scope of the above stated jurisprudential basis. It can be easily argued that the inability to file an action during a pandemic is not as a result of laches on the part of the litigants, but rather, as a result of the policies of government on social distancing which makes access to court impossible. It seems therefore unfair for a litigant to be punished by the same court whose registry is closed, thereby denying such litigant access to justice. The recent uncertainty created by the administrative holding response of the Chief Judge of the Federal High Court, subjecting approval for remote hearing of cases to superior directives of the Chief Justice of Nigeria underscores this point, as there is no clarity when such directive may come and there is neither any clarity as to when the Federal Government would effectively lift lockdown against the spread of a pandemic over which it appears to have no real control and which seems to be the only determinant for life span of such extraordinary quarantine measures which has led to lockdown of cities all over the world for months.
Considering the peculiarity of the COVID 19 pandemic, there is a strong argument in support of the position that application of limitation laws on matters that are time bound should be suspended as a result of the lockdown imposed by government. This contention is premised on the maxims Impotentia Excusat Legem (Inability excuses the non observance of the law) and Lex Non Cogit Ad Impossiblia (the law does not compel a person to do that which he cannot possibly perform)[12]. Also, it is generally acknowledged law that the burden and sin of the inability of the registry of court to discharge its duties to the litigants cannot be visited on the litigants[13].
If the above is the case, the pertinent question is how can this proposition be achieved within the context of our laws? It is opined that the suspension of the implication of the limitation laws can either be realised through legislative or judicial interventions. Some jurisdictions have enabling statutes which empowers a named person or office (in most cases the executive head) to suspend application of limitation law in a state of emergency. Regulations and Orders are usually made in this regard. In Ontario Canada, a state of emergency was declared on the 17th March 2020 while the courts were closed on the 15th March 2020 except for urgent matters in a fashion similar to Nigeria. In dealing with the challenge of time running against litigants based on limitation laws, Ontario passed Reg 73/20 pursuant to section 7.1(2) of the Emergency Management and Civil Protection Act. The Regulation suspends limitation periods under any provision of a statute, regulation, rule, by-law, or order of the Government of Ontario for the duration of the emergency[14]. A similar approach was adopted in the British Columbia with the issuance of Ministerial Order no. M086 titled Limitation Periods (COVID-19) Order. The Order suspends certain limitations periods in the province of British Columbia and will remain in effect until the state of emergency declared on March 18, 2020 expires or is cancelled.[15]
A careful consideration of the approach taken by the jurisdictions outlined in the above paragraph shows that the suspension of limitation laws was done by issuance of Orders and Regulations by the Executive arm pursuant to emergency laws. In Nigeria however, we don’t have laws with similar provisions which allows such regulations to be made by the Executive suspending the limitation law during a state of emergency. For us to achieve legislative intervention to put limitation laws in abeyance during the pandemic in Nigeria, there will be the need for a law to be passed by the National and State Houses of Assemblies. This may however be difficult as many of the State Houses of Assemblies have suspended their sitting indefinitely since the outbreak of the pandemic while the uncertainty on this key legal issue rages on.
In the event that the legislative arm of government fails to enact a law suspending the limitation laws as canvassed above, it is our respectful position that the judiciary being the last hope of the common man and an institution saddled with the responsibility of manning the temple of justice can still remedy the perceived injustice that would be foist on litigants whose right would be taken away unjustly by the strict application of the law.
The court in achieving the above may assume its customary role of judicial activism and exercise its constitutional powers to ensure the laws are interpreted only to give effect to the intention of the makers. The Limitation law is not meant to take away the right of litigant in a gangster like fashion neither is it meant to visit the helpless situation of the court on the litigant. The Court cannot leave litigant whose matter have become statute barred as a result of the pandemic without a remedy[16].
The reasoning of the Supreme Court in the case of Administrator and Executor of Estate of Abacha Vs Eke-Spiff & Ors[17] on the rationale for the introduction of limitation law can be adopted by the Court to widen the scope of interpretation vis-a-viz the issue of the COVID 19. The supreme court Per Aderemi JSC held thus
“However, Section 31(5) (a) and (b) of the same Edict provides for the postponement of limitation period in case of fraud concealment or mistakes. It provides: ‘Subject to Section (E4) where in the case of any action for which a period of limitation is prescribed by the Edict either: (a) The action is based upon the fraud of the defendant; or (b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendants.’The saying is that, ‘No prescription runs against a person who was hindered in bringing a court action’. Per ADEREMI, J.S.C. (Pp. 44-45, paras. E-A)
In interpreting the implication of COVID 19 on limitation law, the courts can build on the decision of the Supreme Court as quoted and the landmark judgment in Sifax Nigeria Ltd & 4 Ors v. Migfo Nigeria Ltd [2018] 9 NWLR (Pt 1623) 138 sc wherein the Supreme Court departed from its agelong position of giving the principle of limitation law a narrow interpretation[18]. These decisions of the Supreme Court have given a path for parties to explore and invite the Court to further expand the reasoning in the decisions in preserving the right of the litigants affected by the restrictions occasioned by COVID 19. In this instant, the prescription of the law as to time though mandatory, the court in its quest to do justice ought generally to be imbued with the dictates of reason to accommodate a party that appears to have unwittingly run foul of the dictates of the procedural law[19].
This is more as Section 15 of the Interpretation Act which deals issue of computation of time in the statutes does not contemplate the precarious situation presented by this pandemic and thus did not provide a guide on how it could be addressed.
Computation of Time, Access to Justice and Waiver of Penalties for Late Filings
On computation of time under the Rules of Court, unlike the rigid and strict application of limitation law wherein time cannot be extended by the court, the provisions of the rules of court prescribing a timeframe within which processes are to be filed are liberally construed by the Court.
Courts generally have the power to waive non-compliance and grant parties the indulgence to regularise their positions and seek for an extension of time to do any act which they failed to do within the timeframe prescribed. Litigants seeking the exercise of the discretion of the Court must however pay the requisite default fees as provided by the Rules[20].
The flexibility in the application of the Rule is premised on the trite position that Rules of court are meant to assist the Court in administering justice and noncompliance with the rules may not be fatal to the case of a party as same could be remedied[21].
Although Judges are given the discretionary powers to waive non-compliance with the provision of the Rules, a party seeking for an extension of time is however made to pay default fees as a penalty for the breach. The amount to be paid as penalty fees is always determined by the Chief Judge as may prescribed in the rules of court or practice direction issued by the Chief Judge to that effect[22]. The amount to be paid as default fee is as contained in Order 48 of both the Federal High Court and the High Court of Lagos State Civil Procedure Rules 2019. Order 48 Rule 4 of the High Court of Lagos State Civil Procedure Rules provides thus:
The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court a fee of N1000.00 (One Thousand Naira) for each day of such default at the time of compliance.
Further to the above quoted provision of the Rules, it may be contended at face value that the payment of default fees is mandatory and Judges are not given the discretionary powers to waive cost in consideration of the peculiar facts that occasioned the delay which may be circumstances beyond the control of the party.
The pertinent question is whether parties will still be required to pay default fees covering the period of lockdown for failure to file processes within time? It is our respectful position that parties cannot be made to pay default fees as it is the court that closed its doors to the litigants and cannot therefore turn around to punish litigants and counsel for failure to file processes during the pandemic.
As earlier mentioned, the Statutes have given the Heads of Courts the power to make Rules to regulate the sitting of the court in order to ensure seamless administration of justice. Pursuant to these powers, the Heads of various courts have been issuing practice directions on remote court sitting amongst several others to deal with the peculiarity of the situation created by the pandemic. It is our considered proposition that a practice direction dealing with suspension of payment of default fees during the pandemic should also be issued by the various Heads of Courts to avoid a situation where the sins of the Court would be visited on the litigants.
In the event that the Chief Judge of the respective State High Courts and other heads of Courts fails to issue practice direction waiving payment of default fees during the pandemic, parties are at liberty to file an application before the judge handling their matters praying for the waiver of default fees that accrues during the lockdown imposed by government as a result of the pandemic. This approach had been successfully tested before in cases before the High Courts.[23]This position is also in line with the fundamental duty of the courts to do justice. It is also in line with the revered legal axiom ubi jus ibi remedium (where there is a wrong there is a remedy).[24] The Supreme Court has shown the way on the need to do substantial justice even in the absence of the support of a statutory provision in plethora of cases.[25]
Conclusion
There is need for an urgent action to be taken by enactment of laws and issuance of practice directions to deal with the uncertainties and seemingly unjust scenarios created by the pandemic as regards the application of limitation law and payment of default fees by the litigants. It is becoming clear that the disruptive effect of this pandemic requires the different arms of government to be proactive, thinking outside the box and sometimes with no box, seeing that the Nation and the world appears to be dealing in uncharted territories and the future remains for now uncertain.
It is hoped that in the short term, the National and States Houses of Assembly and heads of courts would urgently devise means to pass urgent laws in various areas including those suspending the application of limitation laws and award of penalties in courts arising from the prevalence of the pandemic, as these issues- if not arrested- lead to denial of access to justice.
Nnamdi Oragwu
Adeyinka Abdulsalam
The content of this article is intended to provide a general guide to the subject matter. where relevant, Specialist advice should be sought about your specific circumstances.
For more information, please contact us at info@punuka.com, or the following persons:
n.oragwu@punuka.com
, a.abdulsalam@punuka.com
[1] These are contained in the Constitution, several Statutes and Rules of Court
[2] An example is the COVID 19 Special Panels 2020 with reference number PCA/JJ/VOL XV issued on the 24th April 2020
[3] The Chief Judge of High Court of Lagos State issued a COVID 19 Practice Direction which is to come into effect on 4th May 2020
[4] Circular Ref No NJC/CIR/HOC/11/629
[5] Circular Ref No NJC/CIR/HOC/11/631
[6] Circular Ref No NJC/CIR/HOC/11/656
[7] Section 8(1) Limitation Law of Lagos State
[8] Section 16(2) Limitation Law of Lagos State
[9] Public Officer Protection Act provides for a period of Three months
[10] Ajibona V Kolawole (1996) LPELR-299 SC
[11] Araka V Ejeagwu (2000) LPELR-533 (SC)
[12] Okon Bassey Ebe V Commissioner of Police (2008) LPELR-984SC
[13] Kangnaan V Kangnaan (2019) LPELR 46502 CA
[14] https://www.dentons.com/en/insights/alerts/2020/march/25/suspension-of-limitation-periods-in-ontario-and-the-constitution-act
[15] https://www.jdsupra.com/legalnews/suspension-of-limitations-periods-in-57085/
[16] See Bello V A G Oyo State (1986) LPELR0 764 Sc
[17] (2009) LPELR-3152
[19] See Broad Bank Nig Ltd v Alhaji S Olayiwola & Sons Ltd (2005) 3 NWLR (pt 912) 434
[20] See Order 48 of the High Court of Lagos State Civil Procedure Rules 2019
[21] See Order 7 of the High Court of Lagos State Civil procedure Rules 2019
[22] The amount payable at the Federal High Court and the High Court of Lagos State is N1000 per day
[23] Application for waiver was granted by the Federal High Court in Suit FHC/L/CS/588/14 -AIC V FAAN a similar application was however refused by the High Court of Lagos State in LD/3223LMW/2016 -Novojo Farms and Fisheries Company Limited Vs G.U. Okeke and Sons Limited
[24] University of Calabar Teaching Hospital & Anor V Bassey (20080 LPELR-8553 CA
[25] Bello V AG Oyo (Supra)
The outbreak of COVID 19 in Wuhan, China sometime in December 2019, the eventual declaration of the virus as a pandemic in March 2020 by the World Health Organisation, and the discovery of first case in Lagos State led to unprecedented lockdown measures initially in 3 states and subsequently majority of the States of the Federation. To curtail the spread of the virus, measures ranging from restriction on large gatherings, closure of government offices and other businesses, imposition of curfew, closure of airports/borders, ban on sea and road travels, and ban on intra-State movement amongst others were introduced.
Just like every other sector, the judicial sector was not spared by the damning effect of the virus. Many State and Federal High Courts followed Federal Government or State lockdown as the case may be and shut down such that the agelong principle that the courts must always remain open for the smooth administration of justice even under a state of war or emergency is being threatened by this pandemic. These extraordinary measures by the Judiciary have raised new challenges in relation to access to and effective administration of justice and case management. Time is of essence in the administration of justice and the enforcement of legal rights must be triggered within a given period after the right accrues. The time to commence a suit, to file and respond to processes, to deliver judgments and to file an appeal are all prescribed for by law[1]. Failure to adhere to the time and activate the jurisdiction of the Court timeously as provided under the relevant laws may be fatal. While some breaches can be remedied by way of praying for an extension of time, some cannot be salvaged and thus totally extinguish the cause of action of the aggrieved party. This article would therefore seek to review how our Nigerian judiciary is currently or intends to address the challenges posed by the pandemic in terms of computation of time under the Limitation laws on the one hand, and computation of time under the Rules of Court and propriety of penalties award on the other hand.
Judiciary’s Response to COVID 19
Since the first case of the virus was confirmed in Nigeria, several directives have been issued by the Chief Justice of Nigeria, President of the Court of Appeal[2] and the Chief Judge of the State High Courts[3] on how the threat posed by the virus should be managed to protect the stakeholders in the justice system. The first circular issued by the Chief Justice of Nigeria on the COVID 19 pandemic was dated the 20th day of March 2020[4] wherein His Lordship advised all courts to adhere strictly to the social distancing guidelines and ensure that sitting arrangements in courts conforms with the recommendation by the Nigeria Centre for Disease Control. In a subsequent circular issued on the 23rd day of March, 2020,[5] the Chief Justice of Nigeria suspended sitting in all Courts in the Country for an initial two weeks which was eventually extended and made indefinite vide a subsequent circular dated 6th April 2020[6]. This is in addition to the curfew imposed by the government and the directive that all government workers who incidentally mans the registry of the court should work from home.
Limitation Laws and Access to Justice
The limitation law is one of the procedural laws that regulates the time within which a legal right recognised under the law can be exercised. These are contained in various laws and mainly in the Limitation Act and the Limitation Laws of the respective states. These laws regulate the time for filing different cause of action ranging from breach of contract which is 6 years[7], to claim of ownership of land which is 12 years[8] and time for bringing an action against certain persons or institutions[9] amongst several others. The time prescribed under the limitation laws are sacrosanct and courts have over the years given these provisions narrow and strict interpretation[10]. Failure to file an action within the prescribed period automatically abates the cause of action and the right of the aggrieved party to seek remedy in court.[11] Also, no application for extension of time can be filed to revive an action that has become statute barred where the statute did not specifically provide for such concession.
While it is conceded that the statute of limitation is sacrosanct and matters that have become statute barred have died a natural death which cannot be resurrected, the breach that may be occasioned on account of the COVID 19 pandemic is undoubtedly sui generis (on of its own kind) and may be a game changer in the way the provisions of limitation laws are construed.
The jurisprudential basis for limitation laws is to ensure there is always an end to a likely dispute between the parties and also to punish an indolent aggrieved party who chose to sleep on his right when same is breached. It is opined that the closure of the Court and its registry to litigants due to the pandemic and the absence of alternative means of access to justice through e-filing and remote hearing does not fall within the scope of the above stated jurisprudential basis. It can be easily argued that the inability to file an action during a pandemic is not as a result of laches on the part of the litigants, but rather, as a result of the policies of government on social distancing which makes access to court impossible. It seems therefore unfair for a litigant to be punished by the same court whose registry is closed, thereby denying such litigant access to justice. The recent uncertainty created by the administrative holding response of the Chief Judge of the Federal High Court, subjecting approval for remote hearing of cases to superior directives of the Chief Justice of Nigeria underscores this point, as there is no clarity when such directive may come and there is neither any clarity as to when the Federal Government would effectively lift lockdown against the spread of a pandemic over which it appears to have no real control and which seems to be the only determinant for life span of such extraordinary quarantine measures which has led to lockdown of cities all over the world for months.
Considering the peculiarity of the COVID 19 pandemic, there is a strong argument in support of the position that application of limitation laws on matters that are time bound should be suspended as a result of the lockdown imposed by government. This contention is premised on the maxims Impotentia Excusat Legem (Inability excuses the non observance of the law) and Lex Non Cogit Ad Impossiblia (the law does not compel a person to do that which he cannot possibly perform)[12]. Also, it is generally acknowledged law that the burden and sin of the inability of the registry of court to discharge its duties to the litigants cannot be visited on the litigants[13].
If the above is the case, the pertinent question is how can this proposition be achieved within the context of our laws? It is opined that the suspension of the implication of the limitation laws can either be realised through legislative or judicial interventions. Some jurisdictions have enabling statutes which empowers a named person or office (in most cases the executive head) to suspend application of limitation law in a state of emergency. Regulations and Orders are usually made in this regard. In Ontario Canada, a state of emergency was declared on the 17th March 2020 while the courts were closed on the 15th March 2020 except for urgent matters in a fashion similar to Nigeria. In dealing with the challenge of time running against litigants based on limitation laws, Ontario passed Reg 73/20 pursuant to section 7.1(2) of the Emergency Management and Civil Protection Act. The Regulation suspends limitation periods under any provision of a statute, regulation, rule, by-law, or order of the Government of Ontario for the duration of the emergency[14]. A similar approach was adopted in the British Columbia with the issuance of Ministerial Order no. M086 titled Limitation Periods (COVID-19) Order. The Order suspends certain limitations periods in the province of British Columbia and will remain in effect until the state of emergency declared on March 18, 2020 expires or is cancelled.[15]
A careful consideration of the approach taken by the jurisdictions outlined in the above paragraph shows that the suspension of limitation laws was done by issuance of Orders and Regulations by the Executive arm pursuant to emergency laws. In Nigeria however, we don’t have laws with similar provisions which allows such regulations to be made by the Executive suspending the limitation law during a state of emergency. For us to achieve legislative intervention to put limitation laws in abeyance during the pandemic in Nigeria, there will be the need for a law to be passed by the National and State Houses of Assemblies. This may however be difficult as many of the State Houses of Assemblies have suspended their sitting indefinitely since the outbreak of the pandemic while the uncertainty on this key legal issue rages on.
In the event that the legislative arm of government fails to enact a law suspending the limitation laws as canvassed above, it is our respectful position that the judiciary being the last hope of the common man and an institution saddled with the responsibility of manning the temple of justice can still remedy the perceived injustice that would be foist on litigants whose right would be taken away unjustly by the strict application of the law.
The court in achieving the above may assume its customary role of judicial activism and exercise its constitutional powers to ensure the laws are interpreted only to give effect to the intention of the makers. The Limitation law is not meant to take away the right of litigant in a gangster like fashion neither is it meant to visit the helpless situation of the court on the litigant. The Court cannot leave litigant whose matter have become statute barred as a result of the pandemic without a remedy[16].
The reasoning of the Supreme Court in the case of Administrator and Executor of Estate of Abacha Vs Eke-Spiff & Ors[17] on the rationale for the introduction of limitation law can be adopted by the Court to widen the scope of interpretation vis-a-viz the issue of the COVID 19. The supreme court Per Aderemi JSC held thus
“However, Section 31(5) (a) and (b) of the same Edict provides for the postponement of limitation period in case of fraud concealment or mistakes. It provides: ‘Subject to Section (E4) where in the case of any action for which a period of limitation is prescribed by the Edict either: (a) The action is based upon the fraud of the defendant; or (b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendants.’The saying is that, ‘No prescription runs against a person who was hindered in bringing a court action’. Per ADEREMI, J.S.C. (Pp. 44-45, paras. E-A)
In interpreting the implication of COVID 19 on limitation law, the courts can build on the decision of the Supreme Court as quoted and the landmark judgment in Sifax Nigeria Ltd & 4 Ors v. Migfo Nigeria Ltd [2018] 9 NWLR (Pt 1623) 138 sc wherein the Supreme Court departed from its agelong position of giving the principle of limitation law a narrow interpretation[18]. These decisions of the Supreme Court have given a path for parties to explore and invite the Court to further expand the reasoning in the decisions in preserving the right of the litigants affected by the restrictions occasioned by COVID 19. In this instant, the prescription of the law as to time though mandatory, the court in its quest to do justice ought generally to be imbued with the dictates of reason to accommodate a party that appears to have unwittingly run foul of the dictates of the procedural law[19].
This is more as Section 15 of the Interpretation Act which deals issue of computation of time in the statutes does not contemplate the precarious situation presented by this pandemic and thus did not provide a guide on how it could be addressed.
Computation of Time, Access to Justice and Waiver of Penalties for Late Filings
On computation of time under the Rules of Court, unlike the rigid and strict application of limitation law wherein time cannot be extended by the court, the provisions of the rules of court prescribing a timeframe within which processes are to be filed are liberally construed by the Court.
Courts generally have the power to waive non-compliance and grant parties the indulgence to regularise their positions and seek for an extension of time to do any act which they failed to do within the timeframe prescribed. Litigants seeking the exercise of the discretion of the Court must however pay the requisite default fees as provided by the Rules[20].
The flexibility in the application of the Rule is premised on the trite position that Rules of court are meant to assist the Court in administering justice and noncompliance with the rules may not be fatal to the case of a party as same could be remedied[21].
Although Judges are given the discretionary powers to waive non-compliance with the provision of the Rules, a party seeking for an extension of time is however made to pay default fees as a penalty for the breach. The amount to be paid as penalty fees is always determined by the Chief Judge as may prescribed in the rules of court or practice direction issued by the Chief Judge to that effect[22]. The amount to be paid as default fee is as contained in Order 48 of both the Federal High Court and the High Court of Lagos State Civil Procedure Rules 2019. Order 48 Rule 4 of the High Court of Lagos State Civil Procedure Rules provides thus:
The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court a fee of N1000.00 (One Thousand Naira) for each day of such default at the time of compliance.
Further to the above quoted provision of the Rules, it may be contended at face value that the payment of default fees is mandatory and Judges are not given the discretionary powers to waive cost in consideration of the peculiar facts that occasioned the delay which may be circumstances beyond the control of the party.
The pertinent question is whether parties will still be required to pay default fees covering the period of lockdown for failure to file processes within time? It is our respectful position that parties cannot be made to pay default fees as it is the court that closed its doors to the litigants and cannot therefore turn around to punish litigants and counsel for failure to file processes during the pandemic.
As earlier mentioned, the Statutes have given the Heads of Courts the power to make Rules to regulate the sitting of the court in order to ensure seamless administration of justice. Pursuant to these powers, the Heads of various courts have been issuing practice directions on remote court sitting amongst several others to deal with the peculiarity of the situation created by the pandemic. It is our considered proposition that a practice direction dealing with suspension of payment of default fees during the pandemic should also be issued by the various Heads of Courts to avoid a situation where the sins of the Court would be visited on the litigants.
In the event that the Chief Judge of the respective State High Courts and other heads of Courts fails to issue practice direction waiving payment of default fees during the pandemic, parties are at liberty to file an application before the judge handling their matters praying for the waiver of default fees that accrues during the lockdown imposed by government as a result of the pandemic. This approach had been successfully tested before in cases before the High Courts.[23]This position is also in line with the fundamental duty of the courts to do justice. It is also in line with the revered legal axiom ubi jus ibi remedium (where there is a wrong there is a remedy).[24] The Supreme Court has shown the way on the need to do substantial justice even in the absence of the support of a statutory provision in plethora of cases.[25]
Conclusion
There is need for an urgent action to be taken by enactment of laws and issuance of practice directions to deal with the uncertainties and seemingly unjust scenarios created by the pandemic as regards the application of limitation law and payment of default fees by the litigants. It is becoming clear that the disruptive effect of this pandemic requires the different arms of government to be proactive, thinking outside the box and sometimes with no box, seeing that the Nation and the world appears to be dealing in uncharted territories and the future remains for now uncertain.
It is hoped that in the short term, the National and States Houses of Assembly and heads of courts would urgently devise means to pass urgent laws in various areas including those suspending the application of limitation laws and award of penalties in courts arising from the prevalence of the pandemic, as these issues- if not arrested- lead to denial of access to justice.
Nnamdi Oragwu
Adeyinka Abdulsalam
The content of this article is intended to provide a general guide to the subject matter. where relevant, Specialist advice should be sought about your specific circumstances.
For more information, please contact us at info@punuka.com, or the following persons:
n.oragwu@punuka.com
, a.abdulsalam@punuka.com
[1] These are contained in the Constitution, several Statutes and Rules of Court
[2] An example is the COVID 19 Special Panels 2020 with reference number PCA/JJ/VOL XV issued on the 24th April 2020
[3] The Chief Judge of High Court of Lagos State issued a COVID 19 Practice Direction which is to come into effect on 4th May 2020
[4] Circular Ref No NJC/CIR/HOC/11/629
[5] Circular Ref No NJC/CIR/HOC/11/631
[6] Circular Ref No NJC/CIR/HOC/11/656
[7] Section 8(1) Limitation Law of Lagos State
[8] Section 16(2) Limitation Law of Lagos State
[9] Public Officer Protection Act provides for a period of Three months
[10] Ajibona V Kolawole (1996) LPELR-299 SC
[11] Araka V Ejeagwu (2000) LPELR-533 (SC)
[12] Okon Bassey Ebe V Commissioner of Police (2008) LPELR-984SC
[13] Kangnaan V Kangnaan (2019) LPELR 46502 CA
[14] https://www.dentons.com/en/insights/alerts/2020/march/25/suspension-of-limitation-periods-in-ontario-and-the-constitution-act
[15] https://www.jdsupra.com/legalnews/suspension-of-limitations-periods-in-57085/
[16] See Bello V A G Oyo State (1986) LPELR0 764 Sc
[17] (2009) LPELR-3152
[19] See Broad Bank Nig Ltd v Alhaji S Olayiwola & Sons Ltd (2005) 3 NWLR (pt 912) 434
[20] See Order 48 of the High Court of Lagos State Civil Procedure Rules 2019
[21] See Order 7 of the High Court of Lagos State Civil procedure Rules 2019
[22] The amount payable at the Federal High Court and the High Court of Lagos State is N1000 per day
[23] Application for waiver was granted by the Federal High Court in Suit FHC/L/CS/588/14 -AIC V FAAN a similar application was however refused by the High Court of Lagos State in LD/3223LMW/2016 -Novojo Farms and Fisheries Company Limited Vs G.U. Okeke and Sons Limited
[24] University of Calabar Teaching Hospital & Anor V Bassey (20080 LPELR-8553 CA
[25] Bello V AG Oyo (Supra)
