24 Jan THE EFFECT OF NON-COMPLIANCE WITH THE REQUIREMENT OF FRONTLOADING ON ADMISSIBLITY OR OTHERWISE OF DOCUMENTARY EVIDENCE AND FAILURE TO RESPOND TO INTERROGATORIES – A LECTURE PRESENTED BY P. I. WILCOX ESQ. IN THE LAW FIRM OF GRANVILLE ABIBO (SAN) & CO. AS PART OF THE CONTINUING LEGAL EDUCATION SERIES.
THE EFFECT OF NON-COMPLIANCE WITH THE REQUIREMENT OF FRONTLOADING ON ADMISSIBLITY OR OTHERWISE OF DOCUMENTARY EVIDENCE AND FAILURE TO RESPOND TO INTERROGATORIES – A LECTURE PRESENTED BY P. I. WILCOX ESQ. IN THE LAW FIRM OF GRANVILLE ABIBO (SAN) & CO. AS PART OF THE CONTINUING LEGAL EDUCATION SERIES.
- The bane of the controversy and arguments surrounding the issue of non-compliance with the requirement of frontloading on admissibility or otherwise of documentary evidence was founded on the introduction of the concept of front-loading by the High Court (Civil Procedure) Rules of various states.
- The quintessence of the introduction of the concept of front-loading is for the purpose of achieving a just, efficient and speedy dispensation of justice.
- This Lecture seeks to probe the minds of its audience by bringing to the fore; the controversy and arguments in our Nigerian Judicial system on the effect of non-compliance with the requirement of frontloading on admissibility or otherwise of documentary evidence under the Rivers State High Court (Civil Procedure) Rules, 2010 vis-à-vis the relevant provisions of the Evidence Act 2011 which governs admissibility or otherwise of documentary evidence.
- It also highlights the concept of interrogatories and the implications of failure to respond to same.
- THE CONCEPT OF FRONTLOADING
- The concept of Front loading as enacted in the Rivers State High Court (Civil Procedure) Rules 2010 is akin to the Claimant putting all his cards on the table as to how he intends to prove his claim so that the Defendant is not taken by surprise as to the details of the action he is going to face in Court. In the same vein, the Defendant must also put all his own cards on the table, so that the Claimant would know how and by what means and materials, the Defendant is planning to defend the action against him.
- The objective of frontloading is to ensure that there is no trial by ambush and to expedite the hearing of an action. It is to enable the parties know not only the case they are to meet at the trial but also the oral and documentary evidence by which the case is proved. It affords the parties an opportunity at the pre-trial hearing session to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues were appropriate. See OKALI & ANOR v. OKALI & ANOR (2017) LPELR-CA/E/133/2010.
- It also helps to discourage the filing of weak or frivolous cases and affords the parties the opportunity to assess and weigh the relative strength and weaknesses of their cases, facilitates settlement out of Court and thus avoiding unnecessary litigation with the attendant expenses.
- It can be said that the concept of the frontloading system is majorly anchored on the provisions of ORDER 3 RULE 2 (1), ORDER 17 RULE 1 AND ORDER 32 RULE 4 OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES 2010 which states respectively as follows;
“All Civil proceedings commenced by Writ of summons shall be accompanied by:
- Statement of Claim
- List of Witnesses to be called at the trial
- Written statement on oath of the witnesses and
- Copies of every document to be relied on at the trial”
“The Statement of Defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statement on oath”
“Unless, at or before trial, a Judge for special reasons otherwise orders or directs, no document, plan, photograph or model shall be receivable in evidence at the trial of an action unless it has been filed along with the pleadings of the parties under these Rules”
- The intendment of the above provisions is unequivocal as its implications are further provided in ORDER 3 RULE 2 (3) OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES 2010 that the Registrar of Court is empowered to reject a Writ presented for filing at the Registry for failure to comply with the frontloading requirements.
- Even if the Registrar accepts a writ for filing which does not comply with the requirements, the Court is empowered to strike out the Writ upon proper application brought before it. In the case of JABITA V. ONIKOYI (2004) ALL FWLR (PT. 233) 1625 AT 1647 both the claim and counter-claim were struck out because the Claimants and the defendants failed to annex pleaded documents to their pleadings and the list of witnesses did not include potential witnesses as required under Order 3 Rule 2 (1) of the HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES 2004.
- Flowing from the foregoing, it can be gleaned that the requirement of frontloading is as provided for in the Rules of Court. Due reliance on the above findings will bring us to the crux of this lecture.
3.0 THE EFFECT OF NON-COMPLIANCE WITH THE REQUIREMENT OF FRONTLOADING ON ADMISSIBILITY OR OTHERWISE OF DOCUMENTARY EVIDENCE
- It is worthy of note that the Supreme Court has reiterated the trite fundamental principle that Rules of Court must be obeyed. They are binding upon all parties before the Court. Rules of Court are not mere rules but akin to subsidiary legislations and therefore have the force of law by virtue of SECTION 18(1) OF THE INTERPRETATION ACT.
See also AGIP (NIG) LTD. VS. AGIP PETROL INT. & ORS (2010) 5 NWLR (PT. 1197) 349
3.2 The Court of Appeal in the case of OFFIONG & ORS VS. EKPO & ANOR (2017) LPELR-CA/C/366/2014 in delivering its judgment made a pronouncement on the provisions of Order 31 Rule 4 (which deals with the limitation on the use of documentary evidence) of the Cross Rivers State High Court (Civil Procedure) Rules 2008 (which is in pari materia with the provisions of Order 32 Rule 4 of the Rivers State High Court (Civil Procedure) Rules 2010) stated thus;
“The said Order 31 Rule 4 of the Cross Rivers State High Court (Civil Procedure) Rules, 2008 provides thus: Unless at or before trial a Judge for special reasons otherwise orders or directs, no document, plan, photograph or model shall be receivable in evidence at the trial of an action unless it has been filed along with the pleadings of the parties under these Rules. The provisions of Order 31 Rule 4 of the High Court (civil Procedure) Rules, 2009 (supra) are unequivocal. They are not ambiguous, at all…”
- An argument which can be proffered from the foregoing is that since the Rules of Court (which has a binding force of Law) has provided and introduced the frontloading system of practice, it might be conceptual to have the notion that the effect of non-compliance with the requirement of frontloading will affect the admissibility of documentary evidence.
- It is only necessary to remind ourselves that the Law is not static but dynamic; arguments on an issue can be proffered both ways and presented before the Court for proper interpretation and adjudication depending on the peculiarity of the facts of each case.
- Basically, the substantive and most reliable argument which can stand the better test of time is the fact that admissibility is governed by the provisions of the Evidence Act.
- This was rightly espoused in the case of DAGGASH VS. BULUMA & ORS. (2014) 14 NWLR (PT 892) 144 AT 204-205 when it HELD thus;
“As indicated earlier in this judgment, the issue of admissibility of document is governed by the Evidence Act and whether the particular document is relevant. The relevant provisions of the Evidence Act are very clear and unambiguous.”
- It must be noted that the issue of admissibility of documentary evidence is generally governed by the provisions of Sec 83 of the Evidence Act, 2011 and other relevant sections of the Act.
- The controversy on the basis for admissibility of documentary evidence was laid to rest in the celebrated case of OKONJI VS. NJOKANMA (1999) 12 SCNJ 259 where it was HELD that there are generally three main criteria that govern admissibility;
- Whether the document is pleaded
- Whether the document is relevant and
- Whether the document is admissible in Law. (All three conditions must be fulfilled).
3.9 Consequently, the argument that non-compliance with the requirement of frontloading affects the admissibility of documentary evidence is by all means a misconception. This is largely predicated on the fact that even the Rivers State (Civil Procedure) Rules, 2010 provides that non-compliance with its provisions can be treated as an irregularity. See ORDER 5 RULE 1 OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES 2010.
3.10 Notwithstanding that documents were not frontloaded; the Courts ought not to reject same at trial as this would occasion a miscarriage of justice. The major recommendation on laying to rest the controversy on the issue of frontloading affecting admissibility was enunciated by the Court of Appeal in the case of OGBORU & ANOR. VS. UDUAGHAN & ORS. (2010) LPELR-CA/B/EPT/38/10 where it HELD thus;
“On the other hand, there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice. The learned trial Tribunal fell into grave error when it rejected the documents tendered …on the ground that the documents were not frontloaded as required by the practice direction. This is more so when the documents…are duly pleaded… and which are relevant and germane to the determination of the petition. The rejection of the [documents…] has occasioned substantial miscarriage of justice…”
3.11 The Courts have always been enjoined to look past the issue of technicalities and undue reliance on the application of the provisions of the Rules of Court but to lean in favour of attaining substantial justice instead.
3.12 In conclusion, in order to lend credence to the whole idea behind the concept of frontloading; it has always been the consistent practice of the Courts to readily give parties the required opportunity to frontload documents which were inadvertently omitted but pleaded so as to attain substantial justice between the parties.
This brings us to the second limb of this lecture.
- At the close of pleadings, the facts in issue between the parties to an action are highlighted. Sometimes, certain facts or documents necessary for proof of the case or defence may be within the exclusive knowledge or in possession of the opposing Counsel.
- A party is empowered under the provisions of ORDER 26 RULE 1 OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010 to cause his opponent to disclose to him certain facts or obtain material documents in his possession before trial by way of interrogatories.
- The Black’s Law Dictionary, Eight Edition defines an interrogatory thus;
“A written question (usually in a set of questions) submitted to an opposing party in a Lawsuit as part of discovery.”
- Interrogatories are either to extract facts or to cause the opponent to admit facts which are never at large but must have a nexus with the matter or matters in issue.
- PRINCIPLES GUIDING THE ADMINISTRATION OF INTERROGATORIES
- The party desirous of discovering facts may deliver interrogatories in writing for the examination of any other party or parties within 7 days of the close of pleadings and shall form part of Pre-trial conference. The interrogatories shall be in FORM 19 as provided in the RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010
- The Party being interrogated is required to answer by affidavit which shall be filed within 7 days.
- A party may object to answering any interrogatory on the ground that it is scandalous, irrelevant or not bona fide for the purpose of the cause or matter or that the matters inquired into are not sufficiently material at that stage or on any other ground. Such objections may be contained in the affidavit in answer. The Affidavit in answer is in FORM 20.
- If a person served with interrogatories fails to answer or answers insufficiently, the Judge may upon application, make an order requiring the interrogated party to answer or to answer further as the case may be.
- A party may at the trial use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories.
- FAILURE TO RESPOND TO INTERROGATORIES
- Where a party neglects to comply with an order to answer interrogatories or for discovery of inspection of documents, he shall be liable to committal.
- If he is a Claimant, he shall be liable to have his action dismissed for want of diligent prosecution; if a defendant, he will have his defence struck out, upon application by the interrogating party, as if he had not defended.
- Service of the order on a party or his counsel is sufficient to found an application for committal for disobedience to the Order. Although, the party may plead that he had no notice of the order.
- It is also imperative to note at this point that, a Legal Practitioner who is served with the order to answer interrogatories or for discovery or inspection of document and neglects to give same to his client, shall be liable to pay costs occasioned thereby and is also liable to committal or attachment. See ORDER 26 RULE 11 & 12 OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010. CONCLUSION
It is noteworthy that the beauty of the Legal Practice today, lies in the consideration of expediencies rather than undue reliance on the provisions of the Rules of Court in order to achieve substantial Justice. The introduction of the concept of frontloading and interrogatories in our judicial system is highly commendable and should be sustained as it has continually achieved the purpose of its derivation by aiding the speedy dispensation of justice.
- LAW AND PRACTICE RELATING TO EVIDENCE IN NIGERIA, 2ND EDITION BY T. AKINOLA AGUDA
- PRINCIPLES OF CIVIL PROCEDURE IN NIGERIA BY D. I. EFEVWERHAN
- LAW OF EVIDEENCE IN NIGERIA: SUBSTANTIVE AND PROCEDURAL BY S. TAR. HON
- CIVIL PROCEDURE IN NIGERIA, 2ND EDITION BY FIDELIS NWADIALO
- THE EVIDENCE ACT 2011
- RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010.
- BLACK’S LAW DICTIONARY, EIGHT EDITION
- PRACTICE COMPASS (AN ANNOTATION OF STATUTES AND RULES OF COURTS FOR LEGAL PRACTITIONERS), 1 BY BENSON ‘DELE OLOWORARAN, LL.M AND UCHECHUKWU E. OLOWORARAN, LL.M. P. I. Wilcox, Esq 7/12/2018.