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22 Jan

CIVIL WEEK 3 OVERVIEW AND INTRODUCTION

WEEK 3

:: OVERVIEW/SCOPE OF CIVIL LITIGATION COURSE: Relate to procedure regulating civil actions. Ranging from ADR, institution of suit, trial, till determination and appeal… etc.

Non-compliance with procedure may have fatal effects on a party’s case, its justifiability notwithstanding.

:: INTRODUCTION TO LITIGATION AND ADR. Read in the ADR Write-up.

:: SOURCES OF CIVIL PROCEDURE:

Rules of Court: Made by the head of each court (pursuant to powers conferred by the law creating the court) to govern practice and procedure of the court and ensure effective administration of justice. (e.g Supreme Court Rules 1985 pursuant to Section 236 Constitution, Court of Appeal Rules->Section 248, FHC Rules by CJ à 254, HC 259, Of the 1999 Constitution, etc. Attempts have been made to unify by enacting the uniform CPR though in practice, states still have their own rules though substantively similar.

Statute Creating the Court: e.g. Court of Appeal Act, Supreme Court Act, etc. Statute prevails over rules. It empowers heads to create rules as discussed above.

Constitution: establishes the superior courts of record and has provisions on procedure (e.g. right of appeal) and is instrumental in the making of other rules like FREPRà See 46(3) CFRN.

Other Statutes and Rules: like the Sheriff and Civil Process Act (which is on exclusive legislative list-Nwabueze V Obi Okoye [1988] 10-11 SCNJ. 60) and Judgment enforcement Rules (like Foreign judgment reciprocal enforcement rules), CAMA, Companies Winding Up Rules 1983, Matrimonial Causes Act, Matrimonial Causes Rules, etc.

Decisions of the Court on Procedure: where law is silent or ambiguous. Craig V Craig (1966) 1 All NLR 173. Lion Building V Shodipe (1976) 12 SC 135.

Practice Directions: on how court rule should be complied with-University of Lagos V Aigoro (1984) 11 SC 152.

Practice Directions have the force of law though lowest in hierarchy-Buhari V INEC, S. 18 Interpretation Act. See for example Justice Ayo Salami’s on 1st April, 2011 on election cases pursuant to powers conferred by Section 243 and 285 constitution.

– English  Rules of Practice and Procedure: Management Entreprises Ltd V Otusanyam though resort to English rules is not encouraged in Lagos (Or1 R 1) and more vehemently prohibited in the North (sc 35 HCLNorth). Rather, resort should be had to that which would do substantial justice in the case.

:: AIM, SCOPE AND APPLICATION OF RULES OF COURT: the aim is essentially to ease administration. Therefore, non-compliance may not automatically nullify the case[1]. All consideration should bear the interest of justice in mind.

:: COURTS WITH CIVIL JURISDICTION:

From the combined interpretation of AG Anambra V AG Federation and Tukur V Government of Gongola State, jurisdiction is the authority or competence of a court (constitutionally or statutorily conferred) to hear and decide matters before it. In absence of which, court should strike out the matter otherwise the suit amounts to a nullity. From Madukolum V Nkemdilim, we would note that the subject matter/issue must be within the jurisdiction of the court and the case should have been brought before the properly constituted court after compliance with condition precedents and through due process. Superior courts of record are provided under Section 6 of the 1999 Constitution.

A prudent lawyer should properly examine the parties, subject-matter and facts so as to decipher the appropriate court to institute his matter in. Note however that some court rules enjoin the courts to transfer wrongly instituted cases to appropriate courts rather than strike out the matter. See for example; Section 22 FHCA, 32 HCLFCT, 24 NICAct. Fasakin Foods (Nig.) Ltd V Shosanya.

Note the qualifications of the Judges which is discussed in another chapter of this work.

Section 22 FHCAct empowers the court to transfer a case that to the High Court where deserving rather than striking out or dismissal. A.M.C V NPA (1987) 1 NWLR (Pt. 51) 475. It appears when the HC is faced with a similar position, it should strike it out? Order 22 Rule 3 HCCPRLagos A.M.C V NPA supra, Fasakin Foods Ltd V Shosanya (2006) 10 NWLR (Pt. 978) 126.

 

:: ETHICAL ISSUES (IMPROPER USE OF THE RULES AND WRONG CHOICE OF COURT) AND CONSEQUENTIAL SANCTIONS.

[1] Objection should be raised timeously else waiver may be implied from inaction-Saraki V Kotoye. Or 2 R1 Abuja, Or 5 Lagos says non-Compliance at beginning can render suit a nullity. Non-compliance in the course of the suit be regarded as mere irregularity.

Isochukwu

Quite eccentric really

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