This is the third part of the series on a comparative analysis of the new Court of Appeal Rules, 2016 with the 2011 Rules. As with previous posts, reference to the Old and new Rules relate to the 2011 and 2016 Rules respectively. Previous discussions on the innovations of the new Rules can be found on this blog by clicking on Part 1, and Part 2. I intend to discuss the provisions relating to applications to court in this third post.
A number of changes have been made in the new rules regarding applications to court. The first noticeable change is that Order 7 which hitherto contained the provisions relating to applications under the Old Rules has now been moved to Order 6. It might gladden the practitioners heart that save for few semantic / cosmetic changes in wordings of the provisions, the provisions of Rules 1 – 7 under Order 7 of the Old Rules is the same with Rules 1 – 7 of the New Rules. When I mean a few semantic alterations, I mean substituting words like "if" with "where" (Order 6 R 5), "where" with "whenever" (Order 6 R 4) and " within the time prescribed by Section 24 of the Court of Appeal Act, 2004" (Old Rules) to "within the time prescribed by the Court of Appeal Act" (New Rules). In context, purport and meaning, nothing has changed.
The first significant change under Order 6 of the New Rules dealing with applications to court is the removal of the old Rule 8, which deals with Non-Contentious applications. It should be recalled here, and as it has been stated earlier in a previous post, The definition of "Non-Contentious Motion" is retained under the New Rules as it used to be under the Old Rules. But here is the snag. Under the provisions of Order 7 Rule 8 of the Old Rules, provision is made for the filing of Form 6 by any Respondent who wishes not to contest an application, after which the motion will be heard in chambers by the Court. However, it is very apparent from the New Rules that the filing of any form for Non contentious motions is not envisaged under the New Rules, with its outright removal. There is absolutely no provision for filing of Notice of intention not to contest an application under the New Rules as the new Form 6 is now Summons to Settle Records, one then wonders why the need to define "Non-Contentious Motion" under the New Rules. Will it even be right to file any Notice of intention not to contest any application? Has the Court saved time or tacitly approving delay in non contentious motions?
A new Rule 8 under the New Rules however has two subsections. The first subsection deals entirely with what the hitherto Rule 9 had provided for, that is, time limit for arguing an application. A twist has however been introduced. We can recall that in the old Rules, a maximum of thirty minutes is allowed for oral arguments on applications for each side. However, under the new Rules, particularly Order 6 Rule 8 (1), the time for oral argument for applications has been reduced to a maximum of 15 minutes.
The second subsection under Order 6 Rule 8 of the New Rules makes provision for hearing of applications as duly argued in absence of any party on whose behalf a written address in support of an application has been filed, when ordered by the Court. This is obviously to cover for situations of delay that may be occasioned by absence of counsel when written addresses have been ordered and accordingly filed. It accords with the position of hearing appeals where briefs had already been filed and deeming it as properly heard.
A cursory look at the new Order 6 Rule 9 (1) would portend to show that it is a complete replica of the Old Order 7 Rule 10 (1) which deals with enlargement of time for issues provided under the Rules, but this is not so. As a way of cementing their intention to totally do away with the notice of intention not to contest an application, the new proviso under Order 6 Rule 9 (1) gives an exception to something else entirely which enlargement of time does not apply to. It makes it an exception not to enlarge time for issues contained under Order 16 (Court of Appeal Mediation Programme), while the Old Order 7 Rule 10 had made an exception for filing of notice of intention not to contest an application. For clarity purposes, here are the wordings of the Rules:
O. 7 R 10(1) (Old Rules):
The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
O. 6 R 9 (1) (New Rules)
The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16
Apart from the above, the wordings of the provisions which relate to application for enlargement of time to appeal under Order 7 Rule 10 (2) of the Old Rules is the same with Order 6 Rule 9 (2) of the New Rules. Equally, the provision relating to when appeal would be deemed to have been brought under the Old Order 7 Rule 11 is in pari materia with what obtains under Order 6 Rule 10 of the New Rules.
A new innovation of the New Rules is contained under Order 6 Rule 12. The provision has introduced for the first time, the time limit for bringing an application to set aside a judgment or ruling of the court. A time limit of fourteen days is provided for filing an application to set aside a judgment or Ruling of the Court. This is however not to say that once the fourteen days expire, the application cannot be brought as the proviso under the Rule makes way for such longer period as the court may allow for good cause, and even taking a hint from the discretionary power of the court to enlarge time as discussed above.
Overall, the new introductions concerning applications at the Court of Appeal arguably deal with time consciousness and avoiding delay. The reduced time limit spent on oral arguments, time limit on filing application to set aside Judgment or Ruling and hearing of applications in absence of parties where written addresses have been duly filed by them. One would have thought it judicious for the drafters to have retained the provisions relating to non contentious motions so as to save precious judicial time. Importantly too, like its predecessor, the Rules has not provided for the time limit to file a counter affidavit to an application. This ought to have been provided for, say perhaps the seven days replicated in various High Court Rules or not later than two days before hearing of the Application as provided in certain respects at the Supreme Court. All these would have assisted to speedy determination of applications before the court.
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