Further Issues on Pre-Emptive Remedies Under the Lagos State High Court (Civil Procedure) Rules 2019

Description

ABSTRACT

Further Issues on Pre-Emptive Remedies Under the Lagos State High Court (Civil Procedure) Rules 2019

 Muiz Banire, SAN* 

The importance of the existence of the res prior to the institution of a suit and during the pendency of a suit is sacrosanct. This is because, in the absence of the res, litigants, lawyers and judges would have no business administering justice in court. It has been long established that all courts possess the power to preserve the res in an action. The rationale is to ensure that the final order made does not expose the court to a state of helplessness, leaving a victorious party with a mere empty and pyrrhic victory. A section of the High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No. 2 of 2019 on Pre-action Protocol (hereinafter referred to as “The Practice Direction”) deals with pre-emptive remedies, which this paper focuses on. The Practice Direction caters for the preservation of the res pending compliance with pre-action protocol preparatory to the institution of an action in the High Court of Lagos State. This paper is a follow-up to a previous paper on the nature and objectives of the pre-emptive remedy provision in the Practice Direction. It explains the need for proper application of pre-emptive remedies provision in the Practice Direction. This paper, which is a sequel to the previous paper, is necessitated by recent decisions of the High Court of Lagos State, which suggest that some Judges are yet to appreciate the essence and unique character of the preemptive remedy provisions. This paper, therefore, discusses further issues arising from the operation of the provisions in the Practice Direction.

Keywords: Pre-Emptive Remedies, Practice Direction No 2 of 2019, High Court of Lagos State Civil Procedure Rules.

INTRODUCTION
In my earlier paper titled “Pre-emptive Remedies for the Preservation of the Res: An Appraisal of Enforcement Challenges”₁ (“the earlier Paper”), I dealt extensively with the exposition of the issues surrounding and arising from the implementation of the provisions on pre-emptive remedies under the High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No. 2 of 2019 on Pre-action Protocol (“the Practice Direction”). However, recent decisions of the High Court of Lagos State have shown that there remain further pertinent issues on applying the preemptive remedies provision of the Practice Direction that require further elaboration.

In the earlier paper, I observed that the essence of the pre-emptive remedy, like any other preservative order, is essentially to preserve the res of the litigation pending compliance with the Pre-action Protocol.₂

*BL, PhD. Senior Advocate of Nigeria and Founder/Principal Partner of MA Banire and Associates. The author can be reached at

mu*********@ma**************.com











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1. Muiz Banire, ‘Pre- Emptive Remedies for the Preservation of The Res: An Appraisal of Enforcement Challenges’ (2021) 12(4) The Gravitas Review of Business and Property Law 35.
2. ibid 36-37

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.13 NO.3