Some Drafting Mistakes in the Court of Appeal Rules 2021

by Associate Professor Ibrahim Abdullahi, SAN

                       

On 1st November 2021, the new Court of Appeal Rules 2021 (hereinafter referred to as the 2021 Rules) came into force, repealing the Court of Appeal Rules 2016 and its provisions immediately began to take effect from that date. While commending the efforts made in bringing the 2021 Rules into force, however, like Christopher Columbus, an in-depth voyage into the drafting skills exhibited in the 2021Rules would reveal that mistakes abound in the table of contents when compared with the actual substantive headings provided in the 2021 Rules. The essence of this write up is to bring to the fore some of the drafting mistakes inherent in the 2021 Rules with a view towards the appropriate authority taking remedial actions in rectifying same. 

Drafting is an important tool not only in advocacy but also in drafting of Rules of Court and the need for the mastery of the art of drafting becomes more imperative. Just like an otherwise good case can be lost by inadequate drafting skills as the very foundation of every case are the processes presented to the Court for adjudication, likewise mistakes in the drafting process of Rules of Court has the consequential effect of affecting the mischief at which it was aimed and sometimes occasionally misleads.

A mistake is “some unintentional act, omission, or error arising from ignorance, surprise, imposition or misplaced confidence. The draftsmen of the 2021 Rules are human beings and therefore are liable to make mistakes and in truism we can all make mistakes because of the humanity in us. The draftsmen are not an exception. They are not supernatural beings so they are liable to making mistakes in the drafting process. They cannot claim perfection. No human being is ever perfect. It is because of the imperfection of man that the law sets in and recognizes the imperfect nature of counsel and as such provided succor to ameliorate the pain of a litigant arising directly from the mistake of his counsel. The need for this is that a party in the judicial process should not suffer reverse or a detriment as a result of mistake, error or blunder on the part of his counsel. See the case of BELLO & ORS V. ATTORNEY GENERAL OF OYO STATE (1986) NWLR (PT. 45) 825 and NATIONAL ELECTORAL COMMISSION v. WODI (1989) 2 NWLR (PT. 104) 444. 

The contents page (table of contents) of the 2021 Rules is a crucial aspect. It tells the reader what to expect – how many parts there are, what the Rules look like, how long they are, and what pages they can find certain topics covered by the Rules and so on. A table of contents is important to orient the reader and gives a roadmap to the contents of the Rules of Court. Writing a clear table of contents for the 2021 Rules is therefore critical. Headings are one of the most important parts of Rules of Court. Headings in table of contents should not only be clear and descriptive but consistent with what lies within the substantive rules. It should therefore be clear, uniform, and easy to understand.

The importance of a table of contents cannot be over emphasized as it provides for ease of navigation.  Readers in particular prefer to navigate through Rules of Court from the handy table of contents as it provides embedded links to the particular abridged contents of the Rules sought for which makes it even easier to reach a desired Rule of Court. It serves as the readers guideposts. In other words, it provides a simple and logical “nexus” of guideposts. It is supposed to provide catchy (yet descriptive) titles that tally with the actual contents of the headings to be found in the substantive rules.

Some of the drafting mistakes in the officially gazette of the 2021 Rules showing inconsistencies between the table of contents and the headings of the substantive Rules are as follows:

1.In the table of contents to the 2021 Rules, Order 4 Rule 9 reads: ‘Powers of the Court as to New Trial’ while at page 20 of the official gazette 2021 Rules, the heading of Order 4 Rule 9 reads: ‘Powers of the Court as to New Trials’

2. In the table of contents to the 2021 Rules, Order 8 Rule 15 reads: ‘Registrar’s directive where Exhibit not produced’ while at page 31 of the official gazette 2021Rules, the heading of Order 8 Rule 15 reads: ‘Registrar’s directive where Exhibits not produced’’

3. In the table of contents to the 2021 Rules, Order 14 Rule 2 reads: ‘Manner of Service’ while at page 37 of the official gazette 2021Rules, the heading of Order 14 Rule 2 reads: ‘Manners of Service’

4. In the table of contents to the 2021 Rules, Order 17 Rule 21 reads: ‘Notice of final determination of Appeal (Criminal Forms 18, 19, 20 or 21)’ while at page 48 of the official gazette 2021Rules, the heading of Order 17 Rule 21 reads: ‘Notice of final determination of Appeal (Criminal Forms 18, 19, 20 and 21)’

5. In the table of contents to the 2021 Rules, Order 18 Rule 12 reads: ‘Procedure after Determination of Appeal’ while at page 55 of the official gazette 2021Rules, the heading of Order 18 Rule 12 reads: ‘Procedure after Determination’

6. In the table of contents to the 2021 Rules, Order 19 Rule 10 reads: ‘Consequences of failure to file Brief’ while at page 61 of the official gazette 2021Rules, the heading of Order 19 Rule 10 reads: ‘Consequent of failure to file Brief’

7. In the table of contents to the 2021 Rules, Order 19 Rule 12 reads: ‘Stay of Computation of Time and Exemption from payment of fees’ while at page 61 of the official gazette 2021Rules, the heading of Order 19 Rule 12 reads: ‘Stay of Computation of Time and exemption from payment of default fees’

8. In the table of contents to the 2021 Rules, Order 23 Rule 8 reads: ‘Notification of Judgment’ while at page 65 of the official gazette 2021Rules, the heading of Order 23 Rule 8 reads: ‘Notification of Judgement’ 

9. In the table of contents to the 2021 Rules, Order 23 Rule 10 reads: ‘Interlocutory Judgment not to prejudice Appeal’ while at page 66 of the official gazette 2021Rules, the heading of Order 23 Rule 10 reads: ‘Interlocutory Judgement not to prejudice Appeal’

10. In the table of contents to the 2021 Rules, Order 23 Rule 11 reads: ‘Powers of the Court to give any Judgment or Order’ while at page 66 of the official gazette 2021Rules, the heading of Order 23 Rule 11 reads: ‘Powers of the Court to give any Judgement or Order’

11. In the table of contents to the 2021 Rules, Order 25 Rule 4 reads: ‘List of Law Reports, Textbooks etc’ while at page 68 of the official gazette 2021Rules, the heading of Order 25 Rule 4 reads: ‘Lists of Law Reports, Textbooks etc’

12. In the interpretation column of the 2021 Rules, Order 1 Rule 5, ‘Appear’ was used instead of ‘Appeal’. The real intention is apparent in view of the definition that followed suit which is not in tandem with the word ‘appear’ but ‘Appeal’

By gazetting the 2021 Rules, it constitutes a notice to the whole world. In the case of OSITA C. NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 2 NWLR PT. 688 PAGE 621, Nnaemeka-Agu JSC held that: “…Any fact stated in official gazette constitutes a notice to the whole world…” At the Court of Appeal of Nigeria level, the Justices of the Court of Appeal referred publication in a Gazette as a constructive global notice. See the case of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 2 NWLR (PT 135) 688 AT 721, PARAS A – B; 738, PARAS E – H. The entire world may therefore have access to the Rules and it may not completely be an image booster for Nigeria and the Judex if these kinds of mistakes are left unattended to.

Conclusion

The Draftsmen of the 2021 Rules need to have handled same with great skill, accuracy, elegance and professional expertise. The headings provided in the 2021 Rules provides a helpful/useful guide to construction since they serve as an indicator or sign post to what the Rules set out to achieve and the mischief at which it was aimed by those who made them. Unless mistakes are identified, admitted and corrected by laid down procedure, they persist and will continue to persist as errors or mistakes irrespective of a purported correction by the party in his own personal capacity. 


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