The declaration of the COVID -19 virus as a pandemic set off a chain of events that started with lock-downs in different parts of the world and ultimately led to a lock-down in Nigeria, as well. On the 29th of March 2020, President Muhammadu Buhari pronounced the COVID-19 Regulations 2020, made pursuant to sections 2, 3 and 4 of the Quarantine Act, CAP Q2 Laws of the Federation of Nigeria 2004. Lagos, Ogun and the Federal Capital Territory, Abuja were locked down as it were for an initial period of two weeks. Then following an address to the Nation on Monday the 13th of April 2020, the lock down period was extended by two weeks, ostensibly under the same regulations.
Prior to the COVID-19 Regulations 2020, some State Governors, including the Governor of Lagos State, had issued directives imposing some restrictions and setting out guidelines on human interactions. Businesses were enjoined to encourage their staff to work remotely and operations regarded as “non-essential” services were advised to shut down.
Administration of justice and other human endeavors are affected. Pursuant to Circular No. NJC/CIR/HOC/11/631 dated 23rd March 2020, the Chief Justice of Nigeria (CJN), Honourable Justice (Dr.) Ibrahim Tanko Muhammad, had in his capacity as the Chairman of the National Judicial Council (NJC), directed all Heads of Courts to suspend Court sittings for initial period of two weeks commencing from 24th March 2020. The said directive allows courts to sit skeletally with a view to dispensing matters that are urgent, essential or time-bound, in line with the extant laws. The NJC has since issued another circular (NJC/CIR/HOC/11/656) dated 6th April 2020 to extend the suspension of court sittings until further notice. It therefore follows that unless a matter falls within the categories of “urgent”, “essential” or “time-bound”, it would not be entertained by Nigerian courts until “further notice” from the NJC.
The terms “urgent”, “essential” and “time-bound” are difficult to define within the context of the Covid – 19 lock down order and the directives of the NJC made in consequence thereof. The directive itself ties the definition of those terms to the “extant laws” which were not mentioned in the NJC’s circular. It appears that whether or not a matter qualifies as urgent, essential or time-bound is at the discretion of a judge before whom the matter is brought. However, what is clear is that a large number of commercial and civil matters are affected by the NJC directives. This has now raised an issue of practice directions for lawyers, whether or not time would run for the filing of time-sensitive court processes, during the ongoing lockdown. Put differently, is time suspended during this period, or will the period of the lockdown be considered when computing time for time-sensitive court processes?
Statutes and Rules of Courts stipulate time for filing of processes. This is an essential ingredient of the court adjudication process. Except with respect to the time prescribed by the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act and similar statutes[1], time for filing court processes or for taking procedural steps in court matters are generally flexible in that they may be extended at the discretion of the courts. These Rules of Court further prescribe penalties for failure to file court processes or take certain procedural steps within the time prescribed by the Rules. For instance, Order 48 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2019 provides that any party who defaults in performing an act within the time prescribed by the Judge or stipulated under the Rules, shall pay to the Court a fee of N1,000 (One Thousand Naira) for each day of such default[2].
Rules of Court also provide for instances when time would not run. For instance, time does not run for the purpose of filing pleadings during the long vacation of the court, unless otherwise directed by the Judge[3]. Furthermore, where a period of time is prescribed or limited for the taking of a step, the period shall be calculated by excluding the day on which the order is made or on which the event occurred. Where the last day of the period is a holiday, the time shall continue until the end of the next day following which is not a public holiday; and where the step is required to be taken within a period which does not exceed six days, Saturdays, Sundays and other public holidays shall be excluded in computing the time[4].
As already premised, some statutory periods are immutable. They cannot be extended by the courts[5]. It is also important to note that Rules of Courts of Records are made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended). As such, they are sacrosanct and must be obeyed[6]. However, where strict adherence to the rules will occasion injustice, the court will lean in favour of doing substantial justice.[7]
The dystopian nature of the “lock-down” presents procedural challenges on several fronts. None of the rules of court reviewed, or even generally applicable envisages a situation where courts would not be able to function due to a “lock-down” occasioned by a pandemic. The Rules state that the courts will be open for business every day except on public holidays (which includes Sundays) and during the vacations of the courts, and the Registries of the courts are expected to be open for business except on public holidays.
It is worthy of note that the remit of the powers of the CJN is to make rules of practice and procedure for the Supreme Court of Nigeria and rules for the enforcement of fundamental human rights, pursuant to the provision of sections 236 and 46(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He does not possess the Constitutional vires to make rules of practice and procedures for other courts in Nigeria. It is also worthy of note that the NJC is not constitutionally empowered to make rules for practice and procedure of courts in Nigeria. The NJC is a body established under section 153(1) of the Constitution with powers relating to appointments and exercise of disciplinary control over Judicial Officers as specified in paragraph 21 of Part I of the Third Schedule of the Constitution. The NJC also has power to collect, control and disburse all monies, capital and recurrent, for the Judiciary and to deal with all matters relating to the policy and administration.
Rules of practice and procedure of the Court of Appeal is made by the President of the Court of Appeal, while rules of the Federal High Court, State High Court, High Court of the FCT and other courts of records in Nigeria are made by the Heads of those courts[8].
It follows that the directive of the NJC as contained in the circulars signed by the CJN does not operate to suspend the Rules of Courts validly made by the Heads of the Courts pursuant to the provisions of the Constitution. It would seem therefore that time will continue to run for the purpose of court filings during the ongoing lockdown, and none of the directives or circulars issued actually address this issue. Consequently, in order to address the confusion, and even injustice that may be occasioned by the inability of litigants and their counsel to file time-sensitive court processes during the lockdown, the Heads of the respective courts may have to issue specific practice directions exempting the period of the lockdown from the computation of time.
UNC LITIGATION TEAM:
Asimiyu Ayodeji
Abuchi Mbaneme
Oyindamola Ade-Alli
[1] See for example, Falae v. Obasanjo (1999) 6 NWLR (Part 606) 286.
[2] See also Order 44 Rule 4 of the High Court of Ogun State (Civil Procedure) Rules 2014 which prescribes N200 for each day of default. See also Part II of the Third Schedule to the Court of Appeal Rules 2016. See also Order 57 Rule 5(6) of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017.
[3] See Order 49 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2019
[4] See Order 48 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 2019; See also A-G., Federation vs. Kashamu (No. 2) [2020] 3 NWLR (Part 1711) 281
[5] Falae v. Obasanjo (1999) 6 NWLR (Part 606) 286
[6] Ali alaba Int’l Ltd Sterling Bank Plc (2018) 14 NWLR (Part 1639) 254; Ogunpehin vs. Nucleus Venture (2019) 16 NWLR (Part 1699) 533
[7] KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Part 1601) 473
[8] See sections 248, 254, 254(F)(1), 274 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)