A CRITICAL RE-EXAMINATION OF THE DEFAULT FEE PAYMENT REGIME

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Theophilus Orumor, ACIArb
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A CRITICAL RE-EXAMINATION OF THE DEFAULT FEE PAYMENT REGIME

In the legal and many other sectors, a default fee, strictu sensu, is a punitive fee paid by a party, mostly a responding party, for his lateness, default or delay in taking the required, relevant and or necessary action or steps within the allowed time limit. It is mostly paid in situations where time can be discretionally extended for the taking of the said relevant step or steps. In situations where time cannot be extended, the issue of default fee payment may not even arise.

Although there are very many reasons that may result in lateness in filing a responding process, ostensibly in order to curb lackadaisical attitude and indolence in the prosecution or defence of mostly civil matters before our courts, most civil procedure rules of our courts, as part of the reformed rules of courts, introduced the payment of default fees for parties who default in taking the necessary step they should have taken  within the defined or limited timeline. A perusal of the civil procedure rules of most State High Courts across the federation indicate similar codification with respect to default fee payment.  

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Order 49 Rule 5 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules  2018  provides for it thus :

Any party who defaults in performing an act within the time authorized by the court or under these rules shall pay to the court  an additional fee of N200.00(Two Hundred Naira) for each day of such default at the time of compliance

Order 48 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2019 provides for it thus:

The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding:

Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules shall pay to the court a fee of N1000.00(one thousand Naira) for each day  of such default at the time of compliance.

Order 45 Rule 5(1) of the High Court of Anambra State(Civil Procedure)Rules 2019 enacts the provision thus:

Any party who defaults in performing an act within the time authorized or limited under these rules shall pay to the court an additional filing fee of N500.00 ( five hundred naira) for each day of such default at the time of compliance.

Order 44 Rule 4 of the High Court of Rivers State (Civil Procedure) Rules 2010 enacts the provision thus:

The judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the court, extend or adjourn the time for doing any act or taking any proceeding:

Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay   to the court an additional fee of N200.00 (two hundred naira) for each day  of such default at the time of compliance .

Order 48 Rule 4 of the Federal High Court Rules 2019 makes the provision for payment of default fees thus:

The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these Rules or by  any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding:

Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules shall pay to the court an additional fee as contained in Appendix 2 to these Rules for each day of such default.

Article 38 of Appendix 2 (fee payable) states thereof :Fee for late filing—- 1000.00 per day.

Order 3 Rule 13 of the Federal High Court AMCON Rules 2018   states thus:

Filing a memorandum of appearance after the time allowed in rule 11(3) of this order shall attract a fee of N5,000 for each day of default, to  be paid at the registry.

As logical and or good-intended as the concept and practice may seem, there are critical and fundamental issues begging for answers. Some of these germane issues are: what is the rational of payment of default fee solely to the state/court? Can a party who suffers from a delayed action still be entitled to cost from a party who has already paid default fees to the state/court? This piece attempts to critically examine these issues in the most succinct of terms and proffer relevant panacea in the light of some seeming lacunas visible in the default fee payment regime.

It is opined, that from the wordings of most of the default fee payment provisions and the continual economic increment of the said fees from time to time, it is clearly obvious that the payment of default fees solely to the state/court constitutes a revenue source for our courts, just like filing and other fees in the first place. However, the issue to be asked is: who suffers when there is deliberate or indolent delay in the adjudicatory process as caused by the defaulting party? Is it the court or the adverse party that suffers? Your guess is as good as mine! It is opined that the affected party is the adverse party and not necessarily the court. What then is the rational of the payment of default fees, in some cases, extremely exorbitant, solely to the court? Has the court, by its sole collection of default fees, inexorably designed itself to benefit from the indolence of a party before it?

It is opined that the court is an uninterested arbiter and not supposed to be a beneficiary of the indolence of a party before it, by way of receipt of default fees. The constitutional duty of a court has been given judicial pronouncement in a long line of cases. In INEC v. ATUMA & ORS (2013) LPELR-20589(SC),the Supreme Court held noted thus:

“This court will continue to pronounce it that the constitutional function of a court of record is well circumscribed and defined. It is simply an arbiter. It is for the parties to present their case and it is for the court to decide the matter as presented by them. See: Iwuoha v. NIPOST Ltd. (supra) at page 32; The State v. Oladimeji (supra) at page 74; Ebba v. Ogodo (supra) at page 112.” Per FABIYI, J.S.C. (P. 33, paras. C-D)

The Learned Senior Counsel (LSC), Mr.Johnson Odion Esezobo, only recently, in a similar exposé, buttressed the point succinctly thus:

“…. the justice sector is not part of the commercial sector of the economy meant to generate revenue. Rather, it belongs to the service sector. And its service, justice delivery, is a social service which the state owes the citizenry at little or no cost or nominal cost…”

The other germane issue in the default fee payment regime is the issue of corresponding payment of cost by a defaulting party to the adverse party who suffers from the default. Can a defaulting party who has been subjected to the payment of default fees to the court still be ordered to pay cost to the adverse party who has suffered as a result of the defaulting party’s delay? No doubt, whatever answer one may give to this question will certainly be mootable. While some may see such as proper, others may contend that awarding additional cost against a defaulting party who has already paid the requisite default  fees to the court/state  amounts to double punishment or double jeopardy so to speak.

Whichever position one takes, what is however sure is the court’s absolute discretion in the award of cost generally.  The award of cost by a court to whichever party the court may deem entitled, being a discretional power, would certainly be exercised in a judicial and judicious manner, having regards to the presented facts and circumstances of each particular case.

What then is the way out of the seeming imbroglio in view of the issues raised in this piece?  

It would appear that the drafters of the Delta State High Court (Civil Procedure) Rules, 2009  gave critical thoughts to  the outlined issues above before enacting its own provisions regarding default fee payment. Order 44 Rule 3(1) of the said rules would seem to have provided a  panacea for all parties .The said rule state thus:

The judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the court, extend or adjourn the time for doing any act or taking any proceeding:

Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay   to the court an additional fee of N100.00(One hundred Naira) and also cost in the sum of N100.00(One hundred Naira) to the opposing party or each of the opposing parties for each day of such default at the time of compliance.

The route taken by the Delta State High Court (Civil Procedure) Rules 2009 on the topic at hand is highly recommended to other rules of court at least for now. The aforesaid provisions, it is opined, provides a win/win situation and a soothing balm for the relevant party as well as the court in the light of the circumstances.

Theophilus Orumor, Esq, LSC, ACIArb(UK)

info@thelaw-house.com

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