When Hon. Justice Inumidun Akande (Rtd), an erstwhile Chief Judge of Lagos State, unveiled the High Court of Lagos State (Civil procedure) Rules in 2012, a major striking feature was the introduction of the Pre-action Protocol Form 01 as one of the documents that must necessarily accompany a writ of summons or originating summons by virtue of Order 3 rules 2 and 8 which inexplicably omitted originating motions from the processes that must be so accompanied.
The arrival of Pre-action Protocol Form 01, which was inspired by Lord Woolf's Reforms, unexpectedly drew diverse reactions from legal circles in the mould of reviews, opinions, scholarly articles and ultimately, rulings and judgements emanating predominantly from the Lagos High Court's bench until when the Court of Appeal sitting in Lagos, Nigeria had its say on the said Pre-action Protocol Form 01 in a case that shall be considered shortly.
While Dr. Muiz Banire, SAN, in a paper titled "A consideration of the Alternative Dispute Resolution under the Lagos State High Court (Civil Procedure) Rules 2012" submitted that:
"To further underscore the importance of attempts at ADR as a condition precedentto the institution of an action, Order 3, rule 2(1)(e) and rule 8(2)(d) of the 2012 Rules make Form O1 a mandatory process that must accompany a writ of summons and originating summons respectively. Proof of Pre-action attempts at ADR is, therefore, condition precedent to the institution of a suit under the 2012 Rules. By virtue of Order 5, rule 1(1) of the 2012 Rules, failure to show proof renders the action a nullity"
On the other hand, Mr. Oluwole Kehinde, in his article titled "Pre action Protocol and right of access to court" submitted that:
"One is not oblivious of the decisions of the Supreme Court in the line of cases of Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76, to the effect that regulations of the right of access to court, like pre-action notice, are legitimate and constitutional. However, it is respectfully submitted that those authorities do not exactly accommodate the species of rules relating to pre-action protocol like mandatory or compulsory mediation under consideration. Accordingly, such cases are clearly distinguishable and therefore inapplicable here."
Regrettably, the High Court of Lagos State has been inconsistent in its decisions on the effect of non-compliance with Pre-action protocol Form 01 and issues surrounding it. One would have thought that such a document with noble intent would not have its purport and effect enmeshed in judicial uncertainty.
The court had in the following decisions upheld the mandatoriness of compliance: See the ruling of Obadina, J. in Suit No: LD/506LM/2015 between Mrs. Olubukunola Osomo v. Gov. of Lagos State & 2 Ors. delivered on February 2, 2016; the ruling of Alogba, J. (now Chief Judge) in Suit No LD/192/2013 between Nitol Textiles Manufacturing Co. Nig. Ltd. v. Coastal Services Nigeria Ltd. delivered on June 19, 2013) and the ruling of Ighile, J. in Suit No. BD/1100LMW/15 between Dr. Lateef Seriki-Abass & Ors. v. Wasiu Seriki-Abass & Ors (delivered on February 8, 2016).
Contrariwise, in the case of Stanbic Bank v Ehiremhen Suit No. LD/261CMW/15 delivered by Hon. Justice J.E. Oyefeso, in a case where the Claimant did not even file any Pre-action Protocol Form 01 at all but when the Defendant raised an objection, the learned judge held that:
"The essence of Pre action Protocol is to ensure that genuine efforts are made at trying to settle matters amicably before resorting to litigation.
Even if we were to look at the Pre action Protocol Form 01 in the sense of a type of pre-action notice, failure to even serve a pre-action notice merely gives a defendant a right to insist on such notice before the Claimant can approach the court. It merely puts the jurisdiction of the court on hold pending compliance with the precondition. I have gone through the case file. No pre-action protocol Form 01 was file....We must understand that the rules of court are made for the convenient and orderly hearing of cases...I am satisfied that the substantive requirements of the law have been complied with and I so hold."
This is no doubt, one, out of the numerous decisions of the High Court of Lagos state dismissing any objection on pre-action protocol as leaning towards technicalities as opposed to substantial justice.
Thankfully, the Court of Appeal sitting in Lagos had been invited by Tunde Adejuyigbe, SAN in the case of Spog Petrochemicals Limited & Anor. v Pan Pennisula Logistics Limited (2017) LPELR – 41853 (CA) to interpret the effect of non-compliance with Pre-action protocol requirements.
The Respondent (Pan Peninsula) took out a writ of summons against the Appellant (Spog) at the High Court of Lagos State claiming $750,000 being balance of the sum of vehicles supplied to Spog by Pan Peninsula. Upon receipt of the originating processes, Spog filed a preliminary objection to the suit on the grounds that:
- That the pre-action protocol form 01 which is an affidavit attached to writ of summons filed by the Respondent was deposed to by the Respondent which is not a natural person.
- That the Respondent failed to set out its claims and an option for settlement in the written memorandum filed along with the pre-action protocol Form 01.
The trial court heard the objection but dismissed same on the 18th day of December 2015 which decision culminated in the appeal under consideration.
Sole issue considered by the Court of Appeal
By aggregating the issues distilled by both parties, the Court of Appeal formulated the sole issue thus:
"Whether the High Court was right that the Respondent's writ of summons has substantially and sufficiently complied with provisions of Order 3 Rule 2(1)(e)"
In order to fully appreciate the Court of Appeal's decision, I will endeavour to quote their lordships in extenso while driving home the points made therein, bearing in mind the gravamen of the appeal being an allegation surrounding incompetence of the Pre-action protocol Form 01 which was allegedly signed by a company without stating the name of the natural person that signed on its behalf, as well as its failure to be accompanied by a memorandum sent to the Defendant stating the claims.
On the requirement of pre-action protocol, the court had this to say: "The requirement of the Pre-action Protocol Form 01 is only a statement that the other processes for the commencement of the action have been filed in accordance with the rules of that court."
On whether incompetence of Pre-action Protocol Form 01 vitiates the writ: "Clearly, the Form 01 has nothing to do with the validity or competence of writ of summons which it is to accompany or the suit commenced thereby."
On the effect of swearing to the Form 01 before a Commissioner for oaths: "The fact that the Form was sworn to before a duly authorized Commissioner for Oath and signed by the person who swore to the facts contained therein, substantially complies with the requirement of the statement in the Form, the fact of making the statement in the name of Respondent notwithstanding."
On whether Form 01 is a condition precedent: "Form 01 is not alone a condition precedent for the commencement of an action by writ of summons but as stipulated in the Sub-rule to accompany the writ."
On effect of failure to comply with the pre-action protocol, the court held: "In any case, Sub-rule (2) of 3 provides for the consequence of failure to comply with the provision of Sub-Rule (2) by saying that:
"Where a claimant fails to comply with Rule 2(1) above, the originating process shall not be accepted for filing by the Registry. The above provision did not say that failure to accompany a writ of summons with any one of the processes listed in Sub-rule (1) would render an otherwise valid writ incompetent. In unambiguous terms, the provisions only provide that where writ was not accompanied by all the processes listed therein, it shall not be accepted for filing by the Registry. However, once accepted and assessed by Registry of the Court and the requisite fees paid by the claimant and duly filed, the consequence of any non-compliance with the provisions cannot go to affect the validity and competence of the writ."
On the form of memorandum: "The rules of the High Court did not state, stipulate or prescribe any form or manner the memorandum should be in except that it be written. Admittedly, the purport of the said memorandum is to set out claims of a claimant against the defendant and the discretion to settle them amicably without the need to go to trial."
In conclusion, however regrettable it may appear that the Court of Appeal's attention was not drawn to the provision of Order 5 Rule 1 of the rules, it is nevertheless this writer's humble but forceful opinion that, an interpretation of the said provision would nevertheless have no damning effect on the posture of the law as encapsulated by the Court of Appeal for the following reasons:
First, the provision of Order 5 rule 1 is impliedly subject to the provision of Order 3 rule 2, hence, it is inferior to the express provisions of Order 3 Rule 2. See Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 S.C.
Second, while Order 5 rule 1 is general in its application to the entire provision of Order 3 rules 2 and 8, Order 3 rule 2 sub-rule 2 is specific on the penalty for non-compliance. Again, it is trite that a general provision cannot override specific provision on an issue. See Kraus Thompson Org. v. N.I.P.S.S (2004) 17 NWLR (Pt. 901) 44.
Third, Order 5 rule 1 provides for the effect of non-compliance and the Court of Appeal also ruled on the effect of non-compliance, hence it is our opinion that, the court had, by implication, interpreted the intendment of the said provision.
From the foregoing, one can safely opine that, the decision of the Court of Appeal herein represents a demystification of the Pre-action Protocol monster that has unwittingly snuffed lives out of legitimate claims on the ground of experimental technicality with blatant disregard for its purpose, not being an end to litigation but as preliminaries of dispute resolution. Confirming the probable counter-productivity of the procedure, Dr. Banire, SAN noted in his earlier cited paper that:
"Also worthy of consideration is the suitability of mandating every claimant and his legal practitioner to comply with the requirements of Pre-action Protocol. By virtue of Order 3, Rule 2(1)(e) and Order 3, Rule 8(2)(d), compliance with pre-action protocol is a pre-condition to filing a writ of summons or originating summons under the Rules. This may turn out to defeat the very essence of litigation in matters where exigency of time requires an immediate intervention by the court."
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