Pre-Emptive Remedies for the Preservation of the Res: An Appraisal of Enforcement Challenges

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ABSTRACT

Pre-Emptive Remedies for the Preservation of the Res: An Appraisal of Enforcement Challenges

Muiz Banire, SAN*

Civil procedure rules are usually innovatively introduced to facilitate effective justice delivery within the court system. In this regard, Lagos State introduced the pre-emptive remedy provisions, targeting preservation of the res pending the formal commencement of the suit and prevention of rendering litigations nugatory. This article interrogates the nature, essence, and challenges of pre-emptive remedies. In the end, it provides workable recommendations addressing the otherwise overwhelming challenges bedevilling the operation of pre-emptive remedies in the civil litigation system of Lagos State.

Keywords: Civil Procedure and Practice, Enforcement Challenges, Lagos State, Preemptive Remedies, Preservation, Res.

INTRODUCTION
In recent times, there have been a lot of plausible innovations happening in the administration of justice in Nigeria, especially as it relates to courts’ civil procedures and practice. In this regard, it has long been a fact that Lagos State has always been the champion of procedural reforms in the justice delivery sector in Nigeria. This is particularly so when it comes to making court rules that reflect global trends through positive changes in civil procedures. In this vein, Lagos State, in 2012, first introduced Pre-action protocol Requirements as a core component of the High Court Civil Procedure Rules of the State.₁ The objective behind the introduction of the Pre-action protocol was to ensure that parties explore the possibility of amicable settlement before filing a suit in court and that where litigation becomes inevitable, the necessary parties must have exchanged information that would enable each party to understand the other party’s case and, therefore, appropriately streamline the areas in dispute by sieving the grain from the chaff. In effect, it aims at ensuring that where litigation is avoidable, it should be avoided. However, as laudable as Pre-action protocol goals appear to be, litigants and counsel within the Lagos State jurisdiction soon discovered that its general application as a pre-condition to the initiation of all suits could work injustice in certain situations. A recurrent example involved matters of urgency where giving  the other party notice of the intention to sue would negatively impact the res by putting it at the risk of being dissipated, destroyed,  altered, sold or utilised (as the case may be) by any of the parties in such a detrimental manner which would render litigation pointless.

In a bid to cure this mischief, the Lagos State, once again, in its usual innovative way, introduced Pre-emptive Remedy₂ provisions through Practice Direction No. 2 to the High Court of Lagos State…

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

1. Or 3, rl 2(1) (e), the Preamble to the Lagos High Court (Civil Procedure) Rules, 2012 as well as or 3, rl 2(1) (e) of the same 2012 Rules which made Pre-action protocol Form O1 one of the documents that must accompany a writ or summons. In effect, it made compliance with Pre-action protocol a mandatory pre-condition to the institution of a suit.
2. Except otherwise stated, reference to “pre-emptive remedy” in this article is as used in the High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No. 2 of 2019 Pre-action protocol.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.12 NO.4