Wednesday 19 April 2017


I wish to continue the series by bringing Order 2 into limelight. The first post of the series dealt with the introductory part of the New Rules, particularly the interpretation provisions. You can find the post here. Interestingly, the Court of Appeal Rules, 2016 (New Rules) followed the order and manner the 2011 Rules (Old Rules) was made. Order 2 of the New Rules is also dedicated to Service of court processes. One noticeable difference on the face of the Rules with a quick overview is that the number of Rules under Order 2 has increased. From the initial 9 Rules contained under Order 2 of the Old Rules, the New Rules boasts of 16 Rules under Order 2. I will make attempts to bringing out the new provisions and comparing them with the old ones.

Order 2 Rule 1 sub-rules (a) and (b) are still intact as provided under the Old Rules. The makers of the New Rules still maintain a verbatim reproduction of the Old Rules which deals with personal service of Notice of Appeal. The problem with this provision as I wish to point out from the outset is that the verbatim reproduction has a far reaching significance which may set the tone for rigorous interpretation if issues are joined on it. Order 2 Rule 1 (a) makes the mandatory personal service subject to Order 2 Rules 7, 8 and 9, whereas the drafters of the New Rules have amended the new Rules 7, 8 and 9 contained under the new Order 2. In order words, the wordings contained under the Old Rules 7, 8 and 9 of Order 2 have changed to Rules 14, 15 and 16 respectively! Even with the change, the New Rules still make the provisions of Order 2 Rule 1 (a) subject to Rules 7, 8 and 9. In more simplistic terms, the requirement of personal service may be jettisoned, albeit erroneously on grounds contained under Rules 7, 8 and 9  of Order 2 of the new Rules, whereas Rules 14, 15 and 16 were meant to be referred to. This conclusion is not unconnected to the difficulty in serving an ex-officio party representing the Government, substituted service and service out of jurisdiction. These are the issues contained under the New Rules 14, 15 and 16, copied from the Old Rules 7, 8 and 9.

At the risk of taking it a bit too far, the well settled procedure for deferring to a trial High Court's Rules for substituted service when personal service is not practicable at the Court of Appeal now suffers a setback. With this amendment, the propriety of serving through substituted means may be questioned. A way out of the quagmire, perhaps, is reading and interpreting the New Order 2 Rule 15 in isolation of Order 2 Rule 1. I do not wish to take this any further.

One other significant issue to be noted at this juncture is the lifting of the provisions contained under the Old Order 6 Rules 8, 9, 10, 11, 12 and 14 into the New Order 2. It should be recalled that these provisions were made specifically to relate to civil appeals under the Old Rules. One therefore wonders whether the drafters see it plausible to apply these provisions to both criminal and civil appeals by lifting and bringing it under Order 2. What would therefore seem as innovations therefore under the provisions of Order 2, which the unwary might take as new provisions are rather old provisions under the hitherto 2011 Rules under Order 6. I will leave the rest to the probing mind to compare.

Order 2 Rules 2 and 3 of the Old Rules have been replicated under Order 2 Rules 5 and 6. The provisions are a verbatim reproduction of the rules relating to meaning of an address of service and the endorsement of address of service. Order 2 Rules 7, 8 and 9 are new provisions under the New Rules. As stated above, and arguably for that matter, the provisions of Rules 7, 8 and 9 as referred to in the proviso to Order 2 Rule 1 is erroneous. A brief look at the provisions of Rules 7, 8 and 9 which deals with directions as to service of the Notice of Appeal or Respondent's notice seems to have been well covered under the proviso of the New Order 2 Rule 2. Order 2 Rule 2 seems to have been re-broken down to Rules 7, 8 and 9. The opinion is mine. I hope to get a feedback on this.

The provision of Order 2 Rule 4 of the Old Rules as regards mode of service, which is not required to be personal service, has equally been retained under Order 2 Rule 10. A change that is rather more of semantics has been introduced under the new rules regarding change of address and a notification of such change. Whereas under the Old Rules, particularly Order 2 Rule 5, any person wishing to change his address in an appeal needs to notify the Registrar and communicate the new address to other parties. This provision has been retained under Order 2 Rule 12 of the New Rules. What obtains under Order 2 Rule 11 tilted change of Address of party seems covered under Rule 12, save for the mention of "intended appeal". In sum, the Old Order 2 Rule 5 has been broken down to Order 2 Rules 11 and 12. As stated above, Order 2 Rule 6 of the Old Rules has equally been reproduced under Order 2 Rule 13 of the New Rules.

Finally, I have stated the inherent problem with Order 2 Rules 14, 15 and 16 above. They are contained under the Old Rules 7, 8 and 9 which enjoy the exception to the personal service rule. I have equally discussed the seemingly error in replicating the proviso to relate to Order 2 Rules 7, 8 and 9 and the problems that may likely spring up from interpretation of the provisions. I wish to pause here for now. Thanks for reading. Do not forget to share this post and drop comments below.

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