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Friday, 1 March 2013

OVERVIEW OF THE CIVIL LITIGATION IN NIGERIA




Civil procedure is one of our bodies of adjectival laws. Its focus is to provide orderly and possibly expeditious methods for citizens to assert and defend their claims in court. What civil procedure does is that one must know how to present his case no matter how good the case seems, that is, knowing the procedures and rules laid down by law to take in litigation. Not following the rules is the reason most counsels lose their case.
This course is however made to enable legal practitioners to know the rules of court and to guide on how to apply such rules. Civil procedure rules are found in rules of court e.g. Customary Court, Court of Appeal, High Courts, etc; also in the constitution, statutes case laws (decisions of superior courts), etc. it should however be noted that each state has its own High Court rules, Customary Court rules, etc. but the substance are basically the same. Students should therefore be familiar with court forms like writ of summons, originating summons, petitions, motions, etc which are usually annexed to the rules of court. They should also be familiar with orders and rules.
Orders are referred to as actions while Rules are referred to as the procedures of taking such actions.
CIVIL DISPUTE RESOLUTION MECHANISMS – LITIGATION, A. D. R.
A. D. R simply means Alternative Dispute Resolution. It is the method by which parties to a dispute reach an amicable resolution of the dispute without the need to resort to Court or litigation. ADR could be Court connected or non-Court connected. It is the former when where the matter was already in Court and the parties agreed on an out of Court settlement while it is the latter where the parties mutually reach an acceptable agreement without recourse to Court.
TYPES OF A. D. R
1.      Negotiation;
2.      Mediation;
3.      Conciliation; and
4.      Arbitration.
Negotiation entails the parties discussing and agreeing to terms or reaching certain agreement without the aid or intervention of a 3rd party. There are two types of negotiation viz. competitive or positional strategy (win/lose option) and co-operative or problem solving strategy (win/win approach). The former is a hostile negotiation in which the parties have set their mindset not to change their stand or compromise while the latter enables the parties to focus on their interest and pick from several options that will resolve the matter amicably.
Negotiation stages are Opening; Bargaining; Closing; and Execution. Negotiation styles are Soft; Hard; and Firm style. Sources of Power in negotiation are Competition; Legitimacy or authority; Precedent; Information; Investment; and Time. Negotiation tactics and tricks are Extreme initial position; Deadline; Threats; Promise; Emotions; Nibbles; Psychology play; Lack of authority or limited authority; and Numerical strength. However, it is advised that before you go into negotiation, prepare adequately by determining the Best Alternative To Negotiated Agreement (BATNA) as well as the Worst Alternative To Negotiated Agreement (WATNA).
Mediation is a non-binding dispute resolution mechanism involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. The 3rd party known as the mediator is impartial and does not take decision for the parties rather he helps and assists in identifying the issues and interests that need to be resolved. An agreement reached by the parties during mediation is enforceable if the terms of settlement are reduced into writing by the parties and witnessed by their counsel. The term of settlement will thereafter be filed in court and made the judgment of the court in form of a consent judgment.
Conciliation is the process of settling a dispute in an agreeable manner. It is a method by which a neutral person meets with the parties to a dispute and explore how the dispute might be resolved. However, he may deliver his opinion as to the merit of the dispute in necessary cases. There is a slim difference between mediation and conciliation and they are used interchangeably in some jurisdictions.
Arbitration is a method involving one or more neutral third parties who are usually agreed upon by the disputing parties and their decision is final. The decision arrived at by the arbitrator(s) is called an award, and same is enforceable like a Court’s judgment. The principal legislation dealing with arbitration in Nigeria is Arbitrators and Conciliation Act, Cap. A18, LFN 2004.
MULTI-DOOR COURT HOUSE
This is an alternative ADR process that is Court connected but not another ADR process, and it offers various processes of alternative dispute resolutions to the parties. It can be exercised by reference or referral by the Court in which case it is the Court that will advise the litigants to explore other ADR methods to settle their disputes. On the other hand, it can also be at the instance of the parties themselves where they agree to refer their dispute to the multi door house process for the resolution of their dispute. Where the multi-door Court House exists, cases filed in court go through a process of in-take screening in order to determine the appropriate door to use. Both the Abuja and Lagos High Court rules make provision for this process – Order 25 Rule 1 (c) Lagos; and Order 17 Rule 1 of the Abuja High Court Civil Procedure Rules.
Matters can be brought to the multi-door court house in any of the following 3 ways:
-         By Court referral i.e. the Court refers the matter to the Multi-Door Court House; or
-         By the parties walking into the Multi-Door Court House themselves; or
-         By direct intervention by the workers of the Multi-Door Court House of the Negotiation and Conflict Management Group (NCMG).
ADVANTAGES OF A. D. R
·         It is cheaper;
·         There is privacy;
·         It promotes reconciliation;
·         It saves time and cost; and
·         It encourages friendliness.

SOURCES OF CIVIL PROCEDURE
RULES OF COURT
Every court has its own rules e.g. Supreme Court Rules 1985, Court of Appeal Rules 2007, Federal High Court Rules of Lagos 2009, High Court of FCT (Civil Procedure) Rules 2004 and High Court of Lagos State (Civil Procedure) Rules, Sharia Court Rules, Magistrate Court Rules, District Court Rules, Customary Court Rules, etc.
It is always the statute creating the rules that states who makes the rules of court. Section 274 of the 1999 Constitution provides that a State High Court shall exercise jurisdiction vested in it by this constitution or by any law in accordance with the practice and procedure (including that of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of a State. In respect of service and execution of court processes especially superior courts of record, it is the Sheriff and Civil Process Act that is the principal legislation. This is because 2nd Schedule, Pt 1 of the 1999 CFRN providing for exercise of legislative powers, has service and execution of court processes as item 57 in the Executive Legislative list. Therefore, rules made in exercise of the powers conferred under section 274 of the Constitution especially as regards service and execution of court process or under the respective High Court Laws, must conform to the Sheriff and Civil Process Act or be void to any inconsistency. Otherwise, if strictly followed as it ought to be, states are precluded from legislating on service and execution of court processes of superior courts of record which is in the Exclusive List – Nwabueze v. Obi Okoye [1988] 10 – 11 SCNJ. 60; where Justice Obi sued the defendant (Nwabueze) and Longman for libel. It was held that the writ of summons issued from (Anambra State High Court) in this suit is properly issued. The application to set it aside was thereby dismissed.
For the Federal High Court, the applicable rules regulating the practice and procedure is Federal High Court Rules 2009. Section 254 of the Constitution provides that subject to the provisions of an Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court.
For the Court of Appeal, section 248 provides that subject to the provisions of an Act of the National Assembly, the President of the Court of Appeal may make rules regulating the practice and procedure of that court. The Court of Appeal Rules 1981 amended in 1984 has now been amended by Court of Appeal Rules 2002 and finally by the 2007 Rules.
Section 236 vests in the Chief Justice of Nigeria the responsibility of making rules for practice and procedure of the Supreme Court. The applicable rule is now Supreme Court Rules 1985.
STATUTES CREATING THE COURT
Section 8(2) Court of Appeal Act confers power on the appropriate authority to make rules for the C. of A; section 7 of the S. C. A; and section 25 of C. of A. Act provides for filing of notice of appeal. Whenever there is a conflict between rules and statutes, the latter prevails.
Other statutes are Sheriff and Civil Process Act/Law; and Judgment Enforcement Rules which relate to service of process and enforcement of judgment; Companies Act and Companies Winding up Rules relating to practice and procedure for winding up of companies. Matrimonial Causes Rules relating to practice and procedure in matrimonial causes.
There is also the Constitution which enables the making of Rules of Court and other procedural rules. E.g. section 46(3) enables the making of the Fundamental Enforcement Rules while sections 248 and 236 enable the making of C. of A and S. C Rules. The constitution also provides for right of appeal.
COURTS WITH CIVIL JURISDICTION
S. C. N. is the apex court in the hierarchy of courts in Nigeria consisting of the Chief Judge and such other number of justices in the S. C not exceeding 21 as may be prescribed by an Act of the National Assembly – section 230(2) of the 1999 Constitution.
Court of Appeal (C. of A) follows in hierarchy consisting of a President and such number of justices not less than 49 of which not less than 3 shall be learned in Islamic Personal Law and not less then 3 also learned in Customary Law.
F. H. C was first known as Fed. Revenue Court but later changed to F. H. C by section 230(2) CFRN. The civil jurisdiction is defined under section 7(1) of the 1973 Act. However section 251 of the 1999 CFRN vested additional jurisdiction on it to have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from the revenue of the government in which the government is a party to the suit; taxation of companies; customs and exercise duties; bank disputes; admiralty jurisdiction including shipping and navigation on the River Niger or Benue (this was conferred on the FHC by section 9(1)(d) of the 1973 Act but as the decree does not define the scope of admiralty jurisdiction, its limit of the court is understood as prescribed by the administration of Justice Act of England 1956 – American International Insurance Company v. Ceekay Traders Ltd (1981) 5 SC 81 where the issue was to whether State High Court has jurisdiction arising from marine insurance. It was held that the High Court has jurisdiction to entertain the suit. By section 7(g)(h)(i) of the 1956 English Act, the admiralty jurisdiction of the High Courts covers: (i) any claim for loss or damage to goods carried in ship; and (ii) any claim arising out of any agreement relating to the carriage of goods in ship. The cause of action, to cover admiralty jurisdiction must inter alia have arisen on the high sea. The goods must have been lost on sea and not on board – A. M. C v. NPA (1987) 1 NWLR (Pt. 51) 475 where the plaintiff/appellant sued the respondents in the FHC for special and general damages for breach of contract of bailment, or breach of duty as bailee in custody of appellant’s goods. Respondents raised the issue of jurisdiction and the judge transferred it to the state HC to try the case. Plaintiff appealed to the C of A which upheld the decision of the trial judge, that the FHC had jurisdiction but reversed the order transferring the case to the State HC and struck out the claim. Plaintiff appealed to the SC which also upheld the decision of the C of A. However, disputes arising out of Int’l Documentary Credits do not always come under the admiralty of the jurisdiction of the court.
JURISDICTION OF THE F. H. C
Bronik Motors Ltd v. Wema Bank (1983) 6 S. C. 158 at 168 where the plaintiffs in ground 13 complained that the Fed. C of A (now C of A) and the Lagos High Court erred in law in failing to observe that jurisdiction over the claim in this action is vested in the F. H. C and not in the H. C of Lagos state.
Jamal Steel Structures Ltd v. A.C.B where the suit was on jurisdiction of H. C to deal with matters having regard to the provisions of the Fed. Revenue Court Decree, 1973. It was held that the F. R. C has jurisdiction and not the High Court of Lagos in reference to section 8(1) of the decree.
American Int’l Insurance case (supra)
Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 – whether state HCs have admiralty jurisdiction; whether section 8(1) of FHC Act conferring exclusive jurisdiction on FHC is constitutional; whether any provisions of the 1979 Constitution limits unlimited jurisdiction of state HCs under section 236. The court emphasised that “the jurisdiction which the constitution specifically conferred on the FHC is that the court has concurrent jurisdiction with the SHC to grant redress for an infringement of a fundamental right under section 42. As regards the jurisdiction of the SHC, Idigbe J.S.C stated that a SHC has trial and appellate jurisdiction in respect of issues which are, by law (the constitution and the SHC law) but section 8(1) of the FHC Act 1973 is inconsistent with section 236 of the CFRN and is therefore void to the extent of the inconsistency. It was held that the FHC and SHCs have concurrent jurisdiction on admiralty matters.
Awoniyi v. Board of Customs and Excise (1990) 1 NSCC. 103 – power of SHC to transfer to the FHC a matter before it which it has no jurisdiction since the commencement of the 1979 CFRN. It was held that SHC has jurisdiction pursuant to section 236 of the CFRN
Nepa v. Edegbero – whether the HC of Niger state had jurisdiction to hear and determine the action which was brought before it by the plaintiffs in view of the CFRN (Suspension and Modification) Decree 107 of 1993. It was in the trial court that by virtue of Decree 107 of 1993 amending section 230(1) of the 1979 Constitution, a SHC had no jurisdiction to adjudicate in the matter before the court.
NDIC v. Okem Enterprises Ltd (2004) 10 NWLR (Pt 880) 107 – effect on respective jurisdictions of the FHC and SHC. The C of A held that the FHC has no jurisdiction to entertain causes and matters about individual customer and bank relationship. The SC however held that in so far as jurisdiction in dispute between an individual customer and his bank has been vested in SHC, sections 3(1) and 9 of the Failed Banks Decree (as amended) which vests jurisdiction on the same matters in the FHC must be seen as inconsistent with section 251(1)(d) of the 1999 CFRN. In that case, section 1(3) of the 1999 CFRN makes it void to the extent of his inconsistency.
STATE HIGH COURTS
Under section 236 of the 1979 CFRN, the SHC were courts of unlimited jurisdiction and as such any matter could be commenced there. In Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212, the S. C held that the SHC can exercise concurrent jurisdiction on matters upon which the FHC can exercise jurisdiction.
Awoniyi v. Board of Customs and Excise (supra). However, Section 38 of the Copyright Decree 1988 confers exclusive jurisdiction on the FHC. Also, section 560 of CAMD defines a court in the decree to mean the FHC. the foregoing provisions limited the extensive powers of the SHC to exercise unlimited jurisdiction so far as they relate to matters therein concerned.
Under section 251 of the 1999 CFRN, the jurisdiction of the SHC is limited which confers exclusive jurisdiction on the FHC in certain matters.
Under section 272, the SHC has jurisdiction in all matters except those that are made the exclusive preserve of the FHC by virtue of section 251 of the 1999 CFRN
POWER OF TRANSFER OF CASES FROM FEDERAL HIGH COURT
Under section2(2) of the FHC Act, it provides that no cause or matter shall be struck out by the FHC merely because such matter or cause was taken to the FHC instead of the HC of a State in which it ought to have been brought and the judge of the FHC before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate HC of the State. Section 26 of the Act deals with the powers of the FHC. In Mokelu v. Fed. Comm. for Works and Housing (1976) 1 NMLR 329 at 433. It was held that the FRC had no jurisdiction to hear and determine the action. Also, A.M.C v. NPA (1987) 1 NWLR (Pt 51) 475 (supra).
POWER OF TRANSFER OF CASES FROM STATE HIGH COURTS
The power to transfer a case must be in accordance with the rules of practice and procedure applicable to the SHC. The S. C held that the Lagos SHC under Order 22 Rule 3 has no power to transfer a case before it when it decides that it has no jurisdiction over such a case. The appropriate step to take is to strike out the action. See A.M.C v. NPA (supra). Also, Fasakin Foods Ltd v. Shosanya (2006) 10 NWLR (Pt. 987) 126 – whether a SHC can transfer a suit to the FHC on ground that it lacks the jurisdiction to hear it. It was held that where a court lacks jurisdiction, the order is to strike it out to enable the party commence the action de novo (afresh) in a competent court of jurisdiction. It should be noted that section 22(3) of the FHC Act relied upon which gives power to the SHC to transfer cases was struck out because it is inconsistent with section 1(3) of the 1979 CFRN.
SHARIA COURT OF APPEAL
This court has appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law. Section 277(2) of the 1999 CFRN deals with matters the court can adjudicate on which include marriages, family relationships, wills, succession, etc.
CUSTOMARY COURT OF APPEAL
Section 280(1) of the 1999 CFRN provides that there shall be for any state that requires it, a Customary Court of Appeal which shall consists of a President and such number of Judges as may be prescribed by a State House of Assembly. The President and Judges are however appointed by the Governor on the recommendation of the National Judicial Council.

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