The number of cases filed by litigants in Nigerian courts has steadily grown over the years and continues to grow. The effect of this growth has been an overburdening of the court system with a deluge of cases, some of which could have been resolved by the parties without recourse to litigation in the courts.
In the year 2012, the High Court of Lagos State reviewed its Civil Procedure Rules, with, among other objectives, a view to promoting the use of alternative methods of dispute resolution and thereby reducing the burden on the courts. The High Court of Lagos State (Civil Procedure) Rules 2012 was the product of this exercise.
A significant innovation of the 2012 Rules was the introduction of the Pre-Action Protocol Form 01, which requires a Claimant, or his legal practitioner, to state, on oath and with supporting documentary evidence, that before bringing the action in court he has made attempts at an amicable resolution of the dispute through any alternative dispute resolution mechanism and such attempts were unsuccessful. The Claimant is also to state in the Form that by a written memorandum to the Defendant, he has set out his claims and options for settlement of the dispute and, as far as practicable, he has complied with the duty of full and frank disclosure of all information relevant to the issues in dispute.
The introduction, by the 2012 Rules, of the Pre-Action Protocol Form 01 was a welcome development for the judicial system. This is because it was intended to serve as an initial filter for disputes, with the overall objective of ensuring that disputes that can be amicably resolved by the parties or through a form of ADR are resolved, without having to file a formal action in court. However, over the five year life of the Rules, so far, it can be said that disputing parties, particularly Claimants, have largely paid lip service to this requirement of the Rules and regarded the Pre-Action Protocol Form 01 procedure as a mere formality, precedent to the bringing of an action in court. In addition, judicial pronouncements on the Pre-Action Protocol Form 01 procedure have been few and far between, therefore offering limited guidance on the actual scope of the requirements of Claimants and their legal practitioners, with respect to the Form.
However, a recent decision on the Pre-Action Protocol Form 01 procedure made by ADESANYA. J of the High Court of Lagos State, in the case of LD/006CM/15: ONIKOYI V. UNION BANK OF NIGERIA PLC offers some useful guidance on the Form 01. In the that case, the Claimants brought an action against the Defendant, by way of Originating summons, where they sought Orders from the High Court for the Defendant to pay their solicitors’ professional fees, for the conduct of another Suit in which the family was involved against the Defendant/Bank, from their family account with the Bank and also for the Bank to deposit the balance of funds in the account in an interest yielding account.
In response, the Bank raised an objection to the suit on the ground that the Claimants failed to fulfil a condition precedent to the filing of the action, which was the satisfaction of the requirements of the Pre-Action Protocol Form 01 as provided for in the Civil Procedure Rules and prayed the court to strike out the action. In this case, the Claimants had stated in the Form 01 that they had made attempts to settle the matter with the Bank by sending to the it a written memorandum setting out their claims and options for settlement, which attempts were unsuccessful. To prove their attempts at settlement of the dispute with the Bank, the Claimants attached letters written by their lawyers. However, the letters were addressed to persons other than the Bank.
In determining Bank’s objection to the suit, the court considered the steps said to have been taken by the Claimants towards resolution of the dispute before litigation, in the light of the provisions of Order 3 Rule 8 and Order 5 Rule 1 of the Rules on the requirements of Form 01. In its decision, the court held that compliance with Order 3 Rule 8 of the Rules, which includes the pre-action protocol requirement to encourage parties to explore amicable settlement of the matter before submitting the dispute to court for adjudication, is mandatory for a Claimant. The court also found that the steps said to have been taken by the Claimants did not meet the Pre-Action Protocol requirements, as there was nothing before the court to show that the Claimants had actually taken steps to see that the dispute was resolved before recourse to litigation. Simply filing the Pre-Action protocol Form 01 without more, as the Claimants had done, did not satisfy the requirements of the Rules.
On the consequence of the failure of a Claimant or its legal practitioner to fulfil the conditions of Pre-Action Protocol, the court referred to and applied Order 5 Rule 1 of the Rules, which provides that failure to comply with the Protocol shall nullify the action. Consequently, in its final decision, the court held that the failure of the Claimants to comply with the Pre-action Protocol requirement of the Rules, before initiating the suit, rendered the suit incompetent and as a result the court lacked jurisdiction to entertain the suit, which was then struck out by the Court.
This decision is important for the reason that it underscores the mandatoriness of the requirements of the Pre-Action Protocol in the High Court of Lagos State and shows that the court may have sounded the death knell for the practice of Claimants treating the requirements as a mere formality precedent to filing an action in the High Court. From this decision of the court, a Claimant, or its legal practitioner, has a duty to follow through with an attempt at an amicable resolution of disputes, otherwise it risks having its case struck out by the court for non-compliance with the Rules.
Mobisola Akerele and Obaloluwa Adeleke of Tayo Oyetibo LP acted for the 1st Defendant, Union Bank of Nigeria Plc, in this case.