PROPOSED AMENDMENTS
TO THE
HIGH COURT OF OGUN STATE
(CIVIL PROCEDURE) RULES, 2008
BY
HON. JUSTICE P. A. ONAMADE
AT THE
WORKSHOP ON REVIEW OF
HIGH COURT OF OGUN STATE
(CIVIL PROCEDURE) RULES, 2008.
ORGANISED BY
OGUN STATE BAR AND BENCH FORUM
ON
28TH DAY OF MARCH, 2012.
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The Chairman of this occasion, My Lord, Hon. Justice George Oguntade,
JSC, my Lord, the Hon. Chief Judge of Ogun State, my Brother Judges, Hon.
Chairmen of the various branches of the N.B.A, members of the Bar, members of
the media, print & electronics, ladies and gentlemen.
We are here gathered to improve the administration of justice through our
Rules of Court.
What are Rules of Court anyway? In the words of Pats-Acholonu, JSC in
Duke v. Akpabuyo Local Government, 24 NSCQR 401:
“Rules of court are in the nature of beacon lights to the parties to
a dispute illuminating the path leading to justice. Our Courts
have held that rules of court are meant to be obeyed. They provide
support in the administration of justice. But it must be understood
that being rules or regulations they assist the court in its effort
to determine issues or controversies before the court. Care must be
exercised in not elevating them to the status of a statute as they
are subsidiary instruments. They are to be used by the courts to
discover justice and not to choke, throttle or asphyxiate justice.
They are not sine qua non in the just determination of a case and
therefore not immutable”.
By judicial decisions, rules of court are there to regulate matters in court,
help parties in the presentation of their case within a procedure made for the
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purpose of a fair and quick trial. Strict compliance with these rules makes for
quicker administration of justice. But they are no more than an adjunct to the
course of justice. See Solanke v. Somefun (1974) All NLR (Pt. 1) 586.
On the importance of Rules of Court. The Supreme Court had this to say in
Solanke v. Somefun, (1974) 1 All NLR 586 at 591 that:
“Rules of court are meant to be complied with and therefore any
party or counsel seeking the discretionary power of the Judge to
be exercised in his favour must bring his case within the provisions
of the Rules on which he purported to make his application. If
counsel fail to discharge their duties in that respect it is but fair and
right that the court should refuse to exercise its discretionary power”.
Application of the High Court of Ogun State (Civil Procedure) Rules 2008
commenced on the 15th day of September, 2008. It would have been in use for
four years by the next legal year.
ORDER 3
The main difference between this 2008 Rules and the previous one is the
introduction of the front-loading system of filing Originating processes in civil
actions. Thus by Order 3 Rule 2 of the 2008 Rules of Court:“(1)
All civil proceedings commenced by Writ of
Summons shall be accompanied by
(a)
Statement of Claim
(b)
List of Witnesses to be called at the trial
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(2)
(c)
Written Statements on oath of the witnesses and;
(d)
Copies of every document to be relied on at the trial.
Where a Claimant fails to comply with Rule 2 (1) above, his
Originating process shall not be accepted for filing by the
Registry.
I have underlined “shall not be accepted for filing by the Registry” in the
above Rule 2. I will start my proposed amendments from here. That is Order 3
Rule 2 (2) should be reworded to remove that power conferred on the Court
Registrar.
Providing that the Court Registrar should refuse a process may bring a
conflict between the Registrar and the Legal Practitioner. The Legal Practitioner
has prepared his processes in accordance with his client’s brief. He is supposed to
be versed in the law as well as the Rules of Court more than the Court Registrar.
Retaining the 0.3 rule 2(2) as it is may cause friction and I understand it is causing
friction between the legal practitioner and the Court Registrar.
The determination of whether or not a court process meets the requirements
of the Rules of Court should be left to the court suo motu or upon objection being
raised by the other party.
In Lambert Nzekwe v. Dominic Anaekwenegbu (2011) 16 NWLR Part
1274, 431 at pp. 447-448 the question was asked: whose responsibility or duty is
it to prepare and make endorsement on the Writ of Summons between the court
registrar and the legal practitioner whose services are engaged by the plaintiff?
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After a careful reading of Order 6 rule 1 of the Anambra State High Court
(Civil Procedure) Rules 2006, it is very clear that it is the plaintiff or his legal
practitioner that has the duty to prepare the Writ of Summons.
It follows therefore that all endorsements on Form 1 – the Writ of
Summons are to be carried out by the plaintiff or his legal practitioner.
The provisions of the Anambra State High Court (Civil Procedure) Rules,
2006 under Order 6 rule 1 stipulates as follows:
‘Originating process shall be prepared by a plaintiff or his legal practitioner
and shall be clearly printed on opaque A4 paper of good quality’.
Order 6 rule 2 (1) provides:
‘The Registrar shall seal every originating process whereupon it shall be deemed to be issued.
……………………………………………………………………………………..
The Anambra State High Court (Civil Procedure) Rules, 2006 also
stipulates that all civil proceedings commenced by Writ of summons shall be
accompanied by:
(a)
Statement of claim
(b)
List of witnesses to be called at the trial
(c)
Written statement on oath of the witnesses and
(d)
Copies of every document to be relied on at the trial
………………………………………………………………………
Order 3 rule 2(3) provides that where a plaintiff fails to comply with Rule 2
(1) his originating process shall not be accepted for filing by the Registry.
However, there are omissions as to other endorsements required to be made
on the Writ of Summons. It is clear from the provisions of Order 6 Rule 1, that it
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is the responsibility of the plaintiff or his legal practitioner to make such
endorsements on the Writ of Summons – Form 1.”
Our Order 3 Rule 2 (2) in the Ogun State 2008 Rules of Court should
therefore be reworded to read something like:
“(2)
Where a claimant fails to comply with Rule 2 (1) above his
originating process shall be struck out by the court upon
application by the defendant or suo motu.”
There should be a similar provision where a statement of defence is not
accompanied by the List of witnesses to be called at the trial, Written statements
on oath of witnesses and Copies of every document to be relied upon at the trial.
It is necessary to specifically state that commencing an action by
Originating Summons is no excuse for not attaching such other processes that
must be attached to a Writ of Summons.
I therefore wish to suggest that our Order 3 rule 5 be made specific or
enlarged to include:
“Where an action is commenced by Originating Summons, it shall be
accompanied by:
(a)
affidavit(s) in support (if necessary)
(b)
copies of every document to be relied upon at the hearing
(c)
written submissions of the party or his/her legal practitioner”.
There should also be a new Rule 6 to read like:
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“6 Where a party is responding to an Originating Summons, he shall file
along with his/her response:
(a)
counter-affidavit(s) (if necessary),
(b)
copies of every document t be relied upon at the hearing
(c)
written submissions of the party or his/her legal practitioner.”
The other Rules under Order 3 shall be re-numbered accordingly.
Still on Order 3 but now on Rule 9. The Rule provides and I quote:
“9
Subject to the provisions of the Sheriffs and Civil Process Act,
a Writ of Summons or other Originating Process issued by the
court for service in Nigeria, outside Ogun State shall be
endorsed by the Registrar of the Court with the following notice:
“This summons (or as the case may be) is to be
served out of Ogun State of Nigeria and in the
……………………………… State).
Again, there is no justification why this responsibility should be heaved on
the innocent Court Registrar who is here being saddled with the duty of checking
if a Writ is for service out of Ogun State for the necessary endorsement.
There have been several cases where Counsel who ought to have properly
endorsed their Originating process but failed to do so, hide under this rule by
saying that it is the responsibility of the Court Registrar to so endorse a Writ for
service outside Ogun State. And, of course, there are authorities cited in support
of such argument.
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I therefore wish to suggest that the provisions of 0.3 rule 9 be amended by
deleting ‘Registrar of the Court’ and substituting thereof the words ‘Claimant or
his Legal Practitioner’.
This will be in accordance with the provisions of Order 6, rule 1 which says
that:
“1.
Originating process shall be prepared by a claimant or
his Legal Practitioner ……………….”
If that is so, that Claimant or his Legal Practitioner should complete any necessary
endorsement required where such Originating Process is to be served outside
Ogun State. The responsibility should not be shared by the Court Registrar.
Also Order 3 r. 9 inadvertently omitted to include the Federal Capital
Territory. It should be amended to read:
“9.
This summons (or as the case may be) is to be served out of
Ogun State of Nigeria and in …………… State or the
Federal Capital Territory.”
ORDER 4
In the event a case will not go on on the date fixed for it to come up, it will
be necessary for the Court to contact the party or his legal practitioner not to waste
time coming to court. The fastest means of doing so now is by telephone. But
unless the party or his legal practitioner has supplied his telephone number, to
contact him will no doubt be impossible.
It is therefore necessary to include at the end of 0.4 r.6 (1) the phrase “and
his/her telephone number”.
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Similar addition should be made to 0.4 r.6 (2).
ORDER 6
Order 6 Rule 6 (1) of our 2008 Rules of Court provides that the life span of
every originating process shall be 12 months.
Whereas, Rule 6 (2) provides that a Writ may be served within its life span,
the Note to Form 1 which is in the General Form of Writ of Summons provides
that the Writ is to be served within six calendar months.
Quarrey: What happens where an originating process cannot be served after the
expiration of the first six months when the Writ itself has not expired? Can it not
be served during the seventh, eighth or nineth month? Or do we expect learned
claimant’s counsel to start applying for extension of time within which to serve?
Since the claimant’s counsel can even apply for extension of the lifespan of
the Writ, there is no reason while the service should be limited to the first six
months. It should be possible to serve a Writ during its lifespan.
I therefore wish to suggest that the Note (or N.B) under Form 1 at page 135
of the 2008 Rules be deleted.
ORDER 7
Another omission observed in our 2008 Rules of Court is the provision
relating to service of processes within Nigeria but outside jurisdiction of the High
Court of Ogun State in accordance with the provisions of S.97 of the Sheriffs and
Civil Process Act. This is an omission since it was in our 1988 Rules of Court.
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It is therefore necessary that a new rule 17 to Order 7 be provided to read:
“17
Every Originating Summons for service within Nigeria but out of Ogun
State shall, in addition to any other endorsement or notice required by law of such
State or the Federal Capital Territory, have endorsement thereon by the claimant,
applicant or counsel representing him or her a notice to the following effect (that is
to say):
This Summons (or as the case may be) is to be served outside Ogun State
in the ………………….. State or the Federal Capital Territory.”
An Originating Writ or Summons for service outside Ogun State in which it
was issued may be issued as a concurrent Writ with one for service within Ogun
State and such other State or the Federal Capital Territory and shall in that case be
marked by the claimant, applicant or counsel representing him or her.
Now to Order 7 r. 15 on time of service of processes. The Rule provides
that:
“(1)
Service of Originating and other processes,
pleadings, notices, summons, orders and documents
whatsoever shall be effected between
the hours of six in the morning and six in the evening.”
The question that comes to mind is: What happens where it is impossible
to serve a process before 6.00 a.m or before 6.00 p.m, but the party can be
served say at 6.15 p.m? Do you tell the Bailiff to go on another day to serve
within time when it is clear that the party is evading service?
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As a way out, I think the Bailiff should serve even if at 6.30 p.m but he
should put in his affidavit of service the correct time of service. To save the
situation therefore, I wish to suggest the provision of a new 0.7 r.15 (2) to read
thus:
“(2) Where an originating process, pleadings and other court
processes are served before 6.00 a.m or after 6.00 p.m. such
service shall be deemed to have been effected the following
day, which is not a Saturday, Sunday or a public holiday”.
ORDERS 10, 11 and 20
Order 10 is on Default of Appearance.
Its Rule 1 provides that it is
applicable where a Writ is endorsed for a liquidated demand.
Order 11 is on Summary Judgment. Its Rule 1 provides that the claimant
should believe that there is no defence to his claim.
Order 20 is on Default of Pleading. Its Rule 1 provides that it applies to a
claim for a debt or liquidated demand.
The question is: Which of these three Orders applies to a case to be placed
on the ‘Undefended List’? For the two major requirements for a suit to be placed
on the undefended list are that:
(i)
it should be for a debt or liquidated demand, and
(ii)
the claimant must state that he believes there is no defence to the
claim.
But none of our existing Orders 10, 11 and 20 meets these two
requirements.
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I therefore wish to suggest that Order 11 which is on Summary Judgment
be expanded to include claims under the Undefended List by providing for a new
Rule 8 for such claims are follows:
“8(1) Whenever application is made to a court for the issue
The Unde-
of a writ of summons in respect of a claim to recover
fended list
a debt or liquidated money demand and such application
affidavit.
is supported by an affidavit setting forth the grounds upon
which the claim is based and stating that in the deponent’s
belief there is no defence thereto, the Court shall, if
satisfied that there are good grounds for believing that there
is no defence thereto, enter the suit for hearing in what shall
be called the “Undefended List”, and mark the Writ of
Summons accordingly, and enter thereon a date for hearing
suitable to the circumstance of the particular case.
(2)
There shall be delivered by the claimant to the Registrar upon
Copy of
the issue of the Writ of Summons as aforesaid, as many copies
Affidavit
of the above mentioned affidavit as there are parties
to be
against whom relief is sought, and the Registrar shall annex
served.
one such copy to each copy of the Writ of Summons for service.
(3) (a) If the party served with the Writ of Summons and affidavit
delivers to the Registrar a notice in writing that he intends
to defend the suit, together with an affidavit disclosing a
defence on the merit, the Court may give him leave to
defend upon such terms as the Court may think just.
(b)
Where leave to defend is given under this rule, the action shall
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Notice of
intention
to defend
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be removed from the Undefended List and placed on the ordinary
Cause List and the Court may order pleadings, or proceed to
hearing without further pleadings.
(4)
Where any defendant neglects to deliver the notice of defence and
Judg-
affidavit prescribed by rule 8 (3) (a) or is not given leave to defend
ment
by the Court the suit shall be heard as undefended suit, and
in
judgment given thereon, without calling upon the plaintiff to
undefen-
summon witnesses before the court to prove his case formally.
ded
suit.
(5)
Nothing herein shall preclude the Court from hearing or
requiring oral evidence, should it so think fit, at any stage of
oral
evidence
the proceedings under rule 8 (4).
Again on Order 10 but this time Rule 1. Where the defendant defaults in
appearing to a Writ of Summons and Judgment is eventually entered in favour of
the claimant for the sum endorsed on the Writ, the court may also award interest at
the rate specified (if any) or if no rate be specified at the rate of six per cent per
annum to the date of the judgment and costs.
Whereas Order 35, rule 4 provides that upon delivery of a judgment, the
Judge may order interest at a rate not exceeding ten per cent per annum to be paid
upon any judgment.
I wish to suggest that in consonance with current economic realities, that
the rate of interest in our Order 10 Rule 1 be increased from 6% to 10%.
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ORDER 15
I wish to comment on our Order 15, Rules 1 (2) and (3). It provides that:
“(2)
A defendant shall file his statement of defence, set off
or counter-claim, if any, not later than 60 days after
service on him of the claimant’s Originating process and
accompanying documents. A counter claim shall have the
same effect as a cross-action, so as to enable the court
pronounce a final judgment in the same proceedings. A
set-off must be specifically pleaded.
(3)
A claimant shall within 30 days of service of the statement of
Defence and counter-claim, if any, file his reply, if any to such
Defence or counter-claim”.
Some hold the view that the period of time given to the defendant in 0.15,
rule 1 (2) is too long and that it should be reduced.
But the period of 60 days was put there bearing in mind that by the
provisions of Section 4 of the Limitation Law of Ogun State, which reads:
“4.
The following actions shall not be brought after the expiration of six years
from the date on which the cause of action accrued, that is to say:
(a)
actions founded on simple contract or on tort.
(b)
………………………………………………”
x
x
x
x
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x
x
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If a claimant has six years to decide whether or not to sue and six years to
gather materials for his proposed action against the defendant, giving the
defendant 60 days to respond to such Originating process is a minimal fraction of
ratio 36:1 of what the law allows to the claimant.
But the provisions of the Limitation Law of Ogun State apply only to cases
of Contract and Tort. Therefore another provision may be added to Order 15 to
take care of other cases other than those relating to Contract and Tort. I am
therefore suggesting a new Rule 1 (4) which may read:
“(4)
But where a claim does not relate to Chieftaincy or Land
matters, Contract or Tort a defendant shall file his Statement
of defence, set off or counter-claim, if any, not later than
14 or 21 or 30 days after service on him of the claimant’s
Originating process and accompanying documents”.
And a new Rule 1 (5) to read:
“(5)
A Claimant in a suit other than Chieftaincy or Land matters,
Contract or Tort shall within 7 or 14 days of service
of the statement of defence and counter claim if any, file his
reply if any, to such defence or counter claim”.
The other rules can then be re-numbered accordingly.
ORDER 23
Order 23 of the High Court of Ogun State (Civil Procedure) Rules, 2008
provides in its Rule 2 (1) and I quote:
“(1)
The plaintiff in an action may, without the leave of the
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court, discontinue the action or withdraw any
particular claim made by him therein, as against
any or all of the defendants at any time not later than
fourteen days after service of the defence on him ……….”
The experience we have here is that a claimant will simply file a Notice of
Withdrawal or Discontinuance and disappear and neither plaintiff nor counsel will
deem it courteous to appear so as to inform the court of the withdrawal. This is
after putting the defendant in the expenses of engaging the services of counsel to
file a Memorandum of Appearance, Statement of Defence, Witness Statement on
oath and other processes.
When the claimant no longer come to court the
defendant may find it difficult asking for cost.
I therefore wish to suggest that where statement of defence has been filed in
respect of an action, the claimant can only Withdraw or Discontinue with the leave
of court.
But where no such Statement of Defence has been filed, he may
withdraw or discontinue the action without the leave of court.
ORDER 24: AMENDMENTS
We are here gathered to consider which part of our 2008 Rules of Court to
amend for better administration of justice.
Order 24 of our Rules of Court relates to amendments. What then is meant
by amendment?
“ I do not intend to go into academics, but the word ‘amendment’ has been
interpreted by the Supreme Court in a number of cases. In the case of Chief
Adedapo Adekeye & Ors v. Chief Akin-Olugbade (1987) 3 N W L R (pt. 60)
214 at 223 paragraphs E – F, (1987) 6 S C N J 127 at 135, per Oputa, JSC, the
apex court interpreted amendment thus:
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“An amendment is nothing but the correction of an error
committed in any process, pleading or proceedings at law or
in equity and which is done either as of course or by the
consent of parties or upon notice to the court in which the
proceeding is pending”.
Order 24 of the Ogun State Rules, 2008 provides in its Rule 1 viz:
“1
A party may amend his Originating Process and pleadings at
any time before the close of pre-trial conference and not more
than twice during the trial but before closing his case.”
The question that comes to my mind is: How many times can he amend
before trial? It seems he is given a blanket cheque in the first leg of Rule 1. I
wish to suggest that the number of permitted amendments be stated or limited as in
the second leg of Rule 1.
Also Order 24 Rule 1 is clear as to when a party can be allowed to amend
his or her pleadings. The party can only amend before closing his case.
That is the provision of our Rule. It means a party cannot amend ‘at any
time before judgment’ as stated in such decisions of the Supreme Court in:
1.
Chief Kalu Igwe v. Chief Okuwa Kalu, 9 N. S. C. Q. R 386 at 401,
where it was held that an amendment of the pleadings would be granted
even at a late stage of the proceedings.
2.
Ipadeola v. Oshowole, (1987) 5 S C N J 200 at 203 where it was held
that it is within the power of the court to grant an amendment even if the
amendment would add to the existing cause of action or substitute
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therefore a new cause of action provided the additional or new cause of
action arises out of the same or substantially the same facts as are
contained in the pleading.
3.
Adeleye v. Akin-Olugbade, (1987)
6 S C 268 at 268 where the
Supreme Court stated that the court does not set a time limit to do
justice and in the same vein it does not or perhaps also cannot set a time
limit to grant an amendment designed to achieve justice between the
parties.
In line with the above decisions of the apex Court, I wish to
suggest that our Order 24 Rule 1 be amended to read something like:
“1.
A party may amend his Originating Process and pleadings
not more than once/twice before close of pre-trial conference and
not more than twice during the trial but before judgment”.
0RDER 25
Our Order 25 deals with Pre-trial conference. The problems we have been
facing are procedural. Should the parties be present at the pre-trial conference? As
of now and in most cases, only counsel are present. How should counsel dress at
the pre-trial conference? Should they be fully robed or just in suit? Should pretrial conference be in open court or in chambers? I have no doubt that our Sister
Judge from Lagos State will be of assistance here as we can share their experience
on how this Rule is applied or operated.
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ORDER 31
Order 31, Rule 4 provides that oral argument of not more than 20 minutes
shall be allowed for each party. The purpose of this rule is to allow counsel the
opportunity to highlight certain areas of his written submissions.
But experience has shown that counsel hide under this rule to back-date
themselves to the 19th century when lawyers indulge in taking the other by
surprise. They now raise new and vital points knowing that the other counsel is
not likely to be prepared for. And you wonder why such vital points are not in the
written address.
An applicant’s counsel who has filed his written address and also
responded to the respondent’s counsel’s written address has no reason to raise new
points by way of oral argument. Same thing for the respondent’s counsel who has
had the opportunity of replying to the applicant’s counsel’s written address.
Therefore, short of suggesting that 0.31 r. 4 be deleted, I will suggest that
the time for oral argument be limited to 10 minutes and that the oral argument be
restricted to highlighting issues in the written address and/or citing of more
authorities.
Order 31 Rule 4 may therefore be re-worded to read:
“4 Oral argument of not more than ten minutes to highlight points
raised in the written address or cite new authorities in support
shall be allowed for each party”.
Since the purpose of front-loading evidence of witnesses and filing of
written addresses is to limit as much as possible the time it will take to dispose of
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an action, absence from or lateness of counsel to court should also not contribute
nor delay the hearing of a case.
Therefore, if on the day of hearing or at any adjourned date of a case,
counsel for both or either of the parties is not in court his written submissions
should be deemed adopted to enable the court proceed to judgment or ruling over
the matter. Please note that we are not adopting witness’ statement on oath in
his/her absence.
I therefore wish to suggest a new Rule 6 to Order 31 which may read thus:
“6.
Where a written address has been filed in a case or an application
but the party or counsel concerned is not in court his/her written
address shall be deemed adopted and made part of the record
of proceedings of the court”.
ORDER 39
There is a part of the provisions of 0.39 r.l (1) that “Every motion shall be
served within 5 days of filing”.
Quarrey: What happens to such applications if not served within 5 days?
Should it be struck out or should counsel apply for extension of time to serve it? I
wish to suggest that that sentence be deleted from our 0.39 r.l (1).
PRE-TRIAL CONFERENCE
Now some comments on one of the major innovations brought about by the
new Rules of Court. That is “Pre-Trial Conference”.
What is meant and what constitutes pre-hearing session; and what matters
are to be dealt with at a pre-hearing session?
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The pre-hearing sessions envisaged by the provisions of the Rules are
formal sessions where issues on the merits of various applications and objections
would be thrashed out by the parties and determined by the court . Let us look at
the difference between a “trial” and a “pre-trial hearing or conference” as defined
in the Black’s Law Dictionary 8th edition on Pg. 1543 and pg. 1226 respectively.
“Trial – a formal judicial examination of evidence
and determination of legal claims in an adversary proceeding”.
Pre-hearing or conference
“An informal meeting at which opposing attorneys
confer usually with the judge, to work toward the disposition
of the case by discussing matters of evidence and narrowing
the issues that will be tried. The conference takes place
shortly before trial and ordinarily result in a pre-trial order”.
There is in my view a world of difference between an informal meeting of
the parties mediated by a judge, or the court to settle procedure, and the elaborate
provisions set out in the Practice Directions.
See the case of Dr. Chris N. Ngige & anor. v. Mr. Peter G. Obi & ors
(No 1) (2012) 1 NWLR Part 1280, 40 at 64 per Ogunwumiju, JCA.
Purpose of a pre-trial conference:
The pre-trial in a case shapes the conduct of the main trial and therefore
inseparable proceedings from the main trial. The court and all the parties are
involved in the pre-trial proceedings, the purpose of which is clearly provided by
Order 25 of the 2008 Rules of Court.
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“(2)
Upon application by a claimant under sub-rule 1 above, the Judge
shall cause to be issued to the parties and their Legal Practitioners (if any) a pretrial conference notice as in Form 17 accompanied by a pre-trial information sheet
as in Form 18 for the purposes set out hereunder:
(a) disposal of matters which must or can be dealt with on interlocutory
application;
(b) giving such directions as to the future course of the action as appear best
adapted to secure its just, expeditious and economical disposal;
(c) promoting amicable settlement of the case or adoption of alternative
dispute resolution.
(3)
If the claimant does not make the application in accordance with
sub-rule 1 of this rule, the defendant(s) may do so or apply for an order to
dismiss the action.
2.
At the pre-trial conference, the Judge shall enter a scheduling Order
for:
(a)
joining other parties;
(b)
amending pleadings or any other processes;
(c)
filing motions; further pre-trial conferences;
(d)
any other matters appropriate in the circumstances of the case.
Abdulkadir, JCA in considering what the court or tribunal can do at a prehearing session stated thus:
“7.
At the pre-hearing session, the tribunal or court shall consider
and take appropriate action in respect of the following as may be
necessary or desirable:
(a)
amendments and further and better particulars;
(b)
the admissions of facts, documents and other evidence
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by consent of the parties;
(c )
formulation and settlement of issues for trial;
(d)
hearing and determination of objections on point of law;
(e)
control and scheduling of discovery, inspection and
production of documents;
(f)
narrowing the field of dispute between certain types of
witnesses especially the commission’s staff and witnesses
that officiated at the election, by their participation at prehearing session or in any other manner;
(g)
giving orders or directions for hearing of cross-petitions or
any particular issue in the petition or for consolidation with
other petitions;
(h)
determining the form and substance of the pre-hearing order;
(i)
such other matters as may facilitate the just and speedy
disposal of the petition bearing in mind the urgency of
election petitions.
(8)
At the pre-hearing session, the tribunal or court shall ensure that
hearing is not delayed by the number of witnesses and objections
to documents to be tendered and shall pursuant to sub-paragraphs
(1) (b), (2) (e), (7) (b) and (7) (e) above;
(a)
allow parties to admit or exclude documents by consent;
(b)
direct parties to streamline the number of witnesses to
those whose testimonies are relevant and indispensable.
- Abdulkadir, JCA in Dr. Chris N. Ngige & anor. v. Mr. Peter G. Obi &
ors. (No.2) (2012) 1 NWLR Part 1280, 68 at pp 83-84.
It is observed that under Order 25 Rule 1 (3), the defendant may apply that
a suit be dismissed if the claimant fails to apply for issuance of a pre-trial
22
23
Conference Notice. I think it is necessary we re-consider this since the defendant
himself can also apply for the pre-trial Conference Notice.
Under Order 30 Rule 1, when a cause on the Weekly Cause List has been
called for hearing and neither party appears, the Judge shall, unless he sees good
reason to the contrary, strike out the cause or matter.
And Rule 4 (1) provides that where a cause is struck out under Rule 1 of
this Order either party may apply that the cause be replaced on the cause list.
Since the defendant can himself apply for a pre-trial Conference Notice if
the claimant fails to do so, he should not be given the right to a cheap judgment of
having the claimant’s case dismissed for failing to apply for a pre-trial Conference
Notice.
I therefore wish to suggest that Order 25 Rule 1 (3) be amended to read:
“(3)
If the claimant does not make the application in accordance with sub-rule 1
of this rule, the defendant(s) may do so or apply for an order to strike out the
action”.
APPEALS FROM LOWER COURTS
Our 2008 Rules inadvertently left out procedure for appeals from
Magistrates Courts and Customary Courts. This was provided for in the old 1988
Rules.
It is therefore necessary to restore our previous Order 44 in the 1988 Rules
with necessary modifications to conform with the new Rules.
23
24
The new Order, which should be headed “Appeal from Magistrates and
Customary Courts” should be numbered as a new Order 41 after the existing Order
40 which is on “Application for Judicial Review”. The other Orders should
accordingly be re-numbered.
However, I have thought it necessary to add to the provisions of the 1988
Rules a new Rule 26 to provide for the filing of written submissions or addresses
in line with the provisions of the 2008 Rules.
So the new 0.41 should read thus:
ORDER 41
APPEALS FROM MAGISTRATE’S COURT, ETC
1.
Every appeal shall be brought by notice of appeal which shall
be lodged in the lower court within thirty days of the decision
appealed from and served on all other parties affected by the
appeal within that period.
Notice of
Appeal
2.
(1)
The notice of appeal shall set out the reference number
of the proceedings in which the decision complained
of was given, the names of the parties, the date of such
decision and the grounds for appeal in full.
Contents
etc of
Notice
of
Appeal
(2)
Where the appellant complains only of a part of the
decision, the notice of appeal shall specify the part
complained of; otherwise the appeal shall be taken
to be against the decision as a whole.
(3)
The notice of appeal shall give an address within the
Judicial Division in which is situated, the lower court
appealed from, to which notices may be sent for the
appellant, and such notices may be sent to him by
registered post.
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25
(4)
The Notice of Appeal shall be in Form 40 in the
appendix and may be varied to suit the circumstances of the
case but so that no variation of substance shall be made.
3.
The Registrar of the Lower Court shall, within
three months of the decision appealed from,
prepare as many certified copies of the proceedings
required for the consideration of the appeal as there are
parties on record. Save where the fees for preparing
such copies are remitted, a deposit decided upon by
the Registrar as likely to cover such fees, shall be
made by the appellant before the preparation of
such copies.
4.
The Registrar of the lower court shall within seven
days of preparing copies aforesaid send the same to
the Registrar of Court in the Judicial Division in
which the lower court is situated, and the appeal shall
be decided by the Judge of that Division.
5.
When notifying a party of the day fixed for the
hearing of the appeal, the Registrar of the Court
shall send him a with copy of the proceedings.
6.
The time prescribed in rules 1 to 4 may be enlarged
at any time by the Court on such terms (if any) as
may seem fit, after notice given to the respondent by
the appellant of his application for enlargement
of time.
7.
Where the time available to the appellant for the taking of
any step has expired before such step has been taken or
completed, the respondent may, on notice to the appellant,
apply to the Court to strike out the appeal, and the Court
may strike out, or enlarge time for sufficient reason shown.
8.
All civil appeals from lower courts
shall be heard by one Judge of the
25
Copies
of
proceedings.
Appeal
to
judge
of
High
court
Respondent
to be
supplied
copy of
proceedings
proceedings
time
where
time
expires
Constitution
of Court
26
Court.
hearing
appeals
9.
The appeal shall come on for hearing at
such time and at such place as the
Registrar of the Court shall notify
to the parties.
Time and
place for
hearing
10.
(1)
If, on the day of hearing or at any
adjournment of the case, the appellant
does not appear, the appeal shall be struck
out and the decision shall be affirmed,
unless the Court thinks fit, for sufficient
cause, to order otherwise.
(2)
If in any such case the respondent
appears, the judgment shall be with costs of
the appeal against the appellant, unless the
Court expressly orders otherwise, but if the
respondent does not appear, the costs of the
appeal shall be in the discretion of the Court.
11.
If on the day of hearing and at any adjournment of the case, the appellant appears, the
Court shall, whether the respondent appears
or not, proceed to the hearing or further
hearing and determination of the appeal, and
shall give judgment according to the merits of
the case without regarding any imperfection or
defect of form.
where
appellant
fails to
appear
Where
appellant
appears
Provided that if it appears or is proved to the
Court that the appellant has not complied with the
requirements precedent to the hearing of an appeal
hereinbefore contained, the Court shall dismiss the
appeal and affirm the decision, with or without costs
of appeal against the appellant.
12.
On the hearing, it shall not be competent
for the appellant to go into any other reasons
for appeal than those set forth in his notice of
grounds of appeal.
Provided that where, in the opinion of
26
Appeal
limited to
grounds
given to
notice.
27
the Court, other grounds of appeal than those
set forth in the Memorandum of Grounds of
Appeal should have been given, or the statement
of the grounds of appeal in defective, the Court,
in its discretion, may allow such amendments
of the Memorandum of Grounds
for Appeal upon such conditions as to service
upon the respondent and as to cost as it may
think fit.
13.
(1)
The respondent may give notice that he
intends at the hearing to ask the court to confirm
the judgment of the lower court on grounds other
than those stated by that court.
Request to
confirm
judgment
on other
grounds.
(2)
The notice shall be accompanied by a clear
statement of the grounds on which the respondent
intends to ask the Court to confirm the judgment
of the lower court.
(3)
Such notice and grounds shall be filed in
court within fourteen days of service on the
respondent of the notice and grounds for appeals,
and shall be served on the appellant or his legal
practitioner.
14.
(1)
The respondent may file grounds for
appeal against any part of the judgment of the
lower court.
Counter
appeal
(2)
Such grounds shall be filed by the
respondent within fourteen days of service on him
of the appellant’s notice and grounds for appeal, and
shall be served on the appellant or his legal practitioner
before the hearing.
15.
(1)
No objection on account of any defect in the
form of setting forth any ground of appeal shall be
allowed, unless the Court is of opinion that the ground
of appeal is so imperfectly or incorrectly stated as to
be insufficient to enable the respondent to enquire
into the subject matter thereof or to prepare for the
27
Objections
to form
of grounds
for
appeal
28
hearings.
(2)
In any case where the Court is of opinion that any objection
to any reason for appeal ought to prevail, the court may, if it thinks
fit, cause the reason for appeal forthwith to be amended upon such
terms and conditions, if any, as the court may think just.
16.
On any appeal from a decision of a lower Court, no
objection shall be taken or allowed to any
proceeding in such court for any defect or error
which might have been amended by that court, or to
any complaint, summons, warrant, or other process
to or of such court for any alleged defect therein
in substance or in form, or for any variance between
any complaint or summons and the evidence
adduced in support thereof in such Court.
Defects
in
proceeding.
under
appeal
Provided, however, that if any error, defect, or variance
mentioned in this rule appears to the Court at the hearing of any
appeal to be such that the appellant has been thereby deceived or
misled, it shall be lawful for the Court either to refer the case back to
the lower court with directions to re-hear and determine the same or
to reverse the decision appealed from, or to make such order for
disposing of the case as justice may require.
17.
No objection shall be taken or allowed, on any appeal,
to any notice of appeal which is in writing or to say
recognizance entered into under this Order for the
due prosecution of such appeal for any alleged
error or defect therein, but if any such
error or defect appears to the Court to be such that the
respondent on such appeal has been thereby deceived or
misled, it shall be lawful for the court to amend the
same and, if it is expedient to do so, also to adjourn
the further hearing or the appeal, the amendment
and the adjournment, if any being made on such terms
as the court may deem just.
Defects
in
notice
of
appeal
or
recognizance
18.
The Court may, in any case where it may consider it
necessary that evidence should be adduced, either:
Additional
Evidence
(a)
order such evidence to be adduced before the court
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29
on some day to be fixed in that behalf; or
(b)
19.
(1)
refer the case back to the lower court to take such
evidence, and may in such case either direct the lower court
to adjudicate afresh after taking such evidence and subject to
such directions in law, if any, as the Court may think fit to
give, or direct it, after taking such evidence, to report specific
findings of fact for the information of the Court, and on any
such reference the case shall, so far as may be practicable and
necessary, he dealt with as if it were being heard in the first
instance.
When additional evidence is to be taken by the lower
court and specific findings of fact reported, it shall
certify such evidence to the Court which shall
thereupon proceed to dispose of the appeal.
Mode of
Taking
Evidence
(2)
The appellant or his legal practitioner shall be present
when the additional evidence is taken.
(3)
Evidence taken in pursuance of rule 18 shall be taken
as if it were evidence taken at the trial before the lower court.
(4)
When forwarding to the Court any additional evidence taken by a lower
court in pursuance of rule 18, the lower court may express its opinion on the
demeanour of the witnesses and of the value of their evidence and may also, if it is
the same court against whose decision the appeal has been made, state whether or
not it would have come to a different decision had the additional evidence been
brought forward at the trial.
20.
The fees in the Second schedule shall be chargeable in civil
appeals save where the same would have to be paid by a
Government officer acting in his official capacity or where
the lower court or the court waives or remits the same on
the ground of the poverty of the person chargeable therewith
where it appears that there are substantial grounds of appeal.
Fees
Second
Schedule
21.
Allowances may be made to witnesses in accordance with
Allowances
the provisions of the Third Schedule.
To
witnesses
Third
Schedule.
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30
22.
(1)
On application being made for stay of execution under
any enactment establishing the lower court, the lower court
or the Court may impose one or more of the following
conditions:
(a)
that the appellant shall deposit a sum fixed by the
court not exceeding the amount of the money or the
value of the property affected by the decision or
judgment appealed from, or give security to the
satisfaction of the Court for the said sum.
(b)
that the appellant shall deposit a sum equal to the amount
of the costs allowed against him or give security to the
satisfaction of the Court for the said sum.
(c)
that the appellant shall, where the decision or judgment
appealed from relates to possession of lands or houses,
give security to the satisfaction of the Court for the
performance of the decision or judgment in the event
of the appeal being dismissed.
(d)
that the applicant’s property shall be seized and attached
pending the making of a deposit or the giving of security
as aforesaid, including a deposit or security for the
expenses incidental to the seizure and attachment.
(e)
that the appellant’s property shall be seized, and attached
and, sold and the net proceeds deposited in court pending
determination of the appeal.
Stay of
execution
(2)
Any order made on any such application shall limit the time (not being
more than thirty days) for the performance of the conditions imposed,
and direct that in default of such performance within the time so limited
execution may issue or proceed.
(3)
An application for stay of execution under the enactment establishing
the lower court may be made at any time after lodgment of the notice of
appeal and shall in the first instance be made to the lower court.
Provided that where execution has been ordered by the Court the
application shall not be made to the lower court but to the Court.
(4)
The application may be ex parte but the Court may direct notice thereof
30
31
to be given to the other party to the appeal. Where an order is made exparte the Registrar of the Court shall notify the other party of the order
made.
(5)
Where the appellant proposes to give security instead of making a
deposit, the application shall state the nature of the security and the
name of the surety proposed (if any).
(6)
Any party dissatisfied with an order made by the lower court may apply
to the Court by motion (Original or interlocutory, as the case may
require) with notice to the other party for a review of the order, and the
Court may thereupon make such order as may seem just.
(7)
An appeal shall not operate as a stay of execution under the decision or
judgment appealed from except so far as the lower court or the Court
may order; and no intermediate act or proceeding shall be invalidated
except so far as either court may direct.
23.
The Court may make such order as to the payment of costs by
or to the appellant as it may deem to be just and such order
may be made also in any case where an appeal has not been
entered into or prosecuted.
Cost
24.
(1)The Court may, in special circumstances, upon application
Security
on notice by motion (original or interlocutory as the case may
for
require), supported by affidavit, order the appellant to deposit
costs
such sum or give such security as may seem fit for the respondent’s
costs of appeal including the costs incidental to the application.
(2)The order shall limit the time (not exceeding thirty days)
within which the deposit or security shall be made or given and
may direct that in default of its being made or given within the
time so limited the appeal shall without further order stand
dismissed.
(3) Where an appeal so stands dismissed the respondent shall be
entitled to all reasonable costs occasioned by the appeal and the
amount of such costs may be stated in the order in anticipation or may be
assessed at any time by the court of its own motion or on
application made ex parte or on notice as the Court may see fit.
(4) Where an appeal so stands dismissed the appellant shall take
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32
no further step or proceeding therein save by leave of the Court for
reinstatement of the appeal, which may be granted on such terms (if any) as
may seem fit upon application by motion on notice given within a month of
such dismissal (but not otherwise).
(5)
Subject and without prejudice to the discretion of the Court to grant
costs where it seems proper on an application made under paragraph (1),
costs shall not normally be granted to the applicant save where the net
proceeds of execution levied on the appellant’s goods are insufficient to
satisfy the amount payable under the judgment or decision appealed from.
25.
(1)
When a case is decided on appeal the court shall
certify its judgment or order to the lower court in which the
decision appealed against was pronounced.
Orders
of
High
Court
to be
certified to
Magistrate’s
Court.
(2) The lower court to which the court certifies its
judgment or order shall thereupon make such orders as are
conformable to the judgment or order of the Court, and, if
necessary, the records shall be amended in accordance
therewith.
26.
Submissions or address of either party to an appeal or of
his/her legal practitioner in support or in opposition to an
appeal shall be in writing, set out in paragraphs and
numbered serially.
27.
After the pronouncement of the judgment of the Court,
the lower court from which the appeal came shall have
the same jurisdiction and power to enforce, and shall
enforce, any decision which may have been affirmed
modified, amended, or substituted by the Court or any
judgment which may have been pronounced by the Court,
in the same manner in all respects as if such decision or
judgment had been pronounced by itself.
Enforcing
of judgment
28.
Any order given or made by the Court may be enforced
by the Court or by the lower Court as may be most
Enforcement
of orders
32
33
expedient.
29.
The court may, if it deems fit, enlarge any period of
time prescribed by this Order.
High Court
may enlarge
time.
“In this Order:
“the lower court” means the court whose judgment is
Intrepretation.
appealed against, and include a Magistrate’s Court or a
in the Southern States and A District Court in the
Northern States, but does not include an arbitrator,
a referee or an auditor;
“judgment” includes an order or a ruling.
33
34
FORM 40
NOTICE OF APPEAL (CIVIL)
In the Magistrate’s Court of the ……………………………… Magisterial District.
No
……………………
A.B. Versus C.D.
Take notice that the Plaintiff (or Defendant, as the case may be) A.B. (or
C.D.; name the Party who is appealing) appeals from the judgment (or order, or
decision) dated the ………………………… day of………………, 19………. in
the above proceedings.
And further take notice that his grounds of appeal are …………….………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
DATED……………………………………………………………………..
………………………………………….
A.B. (or C.D) (or the Legal Practitioner
Acting for him).
To C.D.(or A.B.)
of …………………………………………………………………………………..
Notes
This notice must be filed with the Registrar of the Magistrate’s court within
a month of the decision appealed from and served on all parties affected by the
appeal within that period.
The grounds of appeal should be given in full.
The rules on civil appeals from Magistrates should be looked at carefully.
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35
CORRECTION OF TYPOGRAPHICAL ERRORS
I have noticed the following typographical errors in our 2008 Rules, which
should now be corrected in the proposed Amended Rules. The errors which I have
noticed and their corrections are as follows:
PAGE
ORDER
ERROR
4
11
17
28
44
0.3, r l, line 2
0.7, r 8, line 1
0.9, r.5, line 1
0.14, r.2 (2), line 2
0.24, r.9, line 1
CORRECTION
Rit
Their
Recover
Made
Application
Writ
Their
Recovery
Make
Applicant
CONCLUSION
There is no doubt that application of Rules of Court is to help the Court in
its primary duty and objective, namely, to do justice to the parties by deciding o
the merits of their cases.
These Rules are mere handmaids to justice and
inflexibility of the rules will only serve to render justice grotesque – Oputa, JSC in
Nnaji v. Chukwu (1988) 6 S C N J 132 at 145.
But Rules of Court can only regulate matters in court, help parties in the
presentation of their cases within a procedure made for the purpose of a fair and
quick trial if the Rules themselves are in tandem with the times. But being rules
made by man, they can only be in tandem with the times if the operators regularly
update them by amending them to keep with the requirements of the time. Since
Rules of Court are part of the wheel in the administration of justice, it is necessary
to continually oil that wheel to ensure that there is no clog therein.
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36
For, in the words of Oputa, JSC in ‘The Ten Commandments for the
Judge’ published in JUSTICE of May 1991 at page 16, the eminent jurist said:
“There will be no judicial enforcement of rights, no fair hearing,
if the wheels of justice are either immobilized, or clogged by
apparent bias or self-interest or else rendered virtually impotent
and ineffectual by long tortuous and inordinate delays. The
wheels of justice are meant to turn and should therefore be made
to turn --- and not only turn but also to turn freely, to turn
smoothly and what is more, to turn expeditiously. These
wheels should not be subjected to artificial and extraneous
strains and stresses, nor be manipulated in any way to create
an obstacle to justice or else to produce an obvious injustice”.
My Lords, Members of the Bar, ladies and gentlemen, it is necessary that
we amend the Ogun State High Court (Civil Procedure) Rules, 2008 to enable the
wheel of justice turn smoothly in Ogun State.
Thank you all.
JUSTICE P.A. ONAMADE
JUDGE
28/3/12
36