BAZE UNIVERSITY, ABUJA

FACULTY OF LAW

COURSE CODE: LAW 204

COURSE TITLE: NIGERIAN LEGAL SYSTEM II

CONFLICT OF LAWS

Conflict of laws generally refers to the difference that exists between the laws
of two or more countries in relation to a given case, a situation also known as
private international law. However, when the conflict is between laws within
the same country, it is loosely called internal conflict of laws.

Internal Conflict of Laws

In a diverse country like Nigeria where people of different ethnic, cultural and
religious backgrounds are bound together by history, geography and
citizenship, it is only natural to find such conflicts. This difference was brilliantly
explained by Oputa JSC in Olowu and Others v Olowu and Others (1985) 3
N.W.L.R. Pt. 13 p. 372 SC as follows:

Nigeria being one nation, one country, will it not be contradiction in

terms to talk of conflict of laws in the same country? Our former
national anthem supplied the answer; ‘Though tribes and tongues may
differ in brotherhood we stand, Nigerians all.’ There are ‘tribes and
tongues’ in Nigeria – different customary laws dealing with devolution of
property on intestacy. Where there is a clash between two or three of
these different customary laws and the court has to choose which one
should apply, we have an issue of conflict of laws. Ibid., at p. 402.

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Nigeria can be said to operate an ‘integrated’ legal system, with a confluence
of multiple laws like English, customary and Islamic laws together with
statutory laws. Our diversity sometimes leads to a clash between multiple laws
and the court is faced with the difficult task of determining which of the laws
applies.

Respect for the diversity of Nigerians and their rights to administer customary
justice side by side with English law and jurisprudence has been well
recognized right from the advent of British rule. See the Royal Niger Company
Charter, 1886. The current position of customary law is to be found in different
enabling statutes across the country that provided for the application of
customary law, including Islamic law. See section 34 (2) of the High Court Law
of Northern Nigeria and other relevant provisions for the rest of the country
below under “who is a native.” These enactments required the application of
customary law in cases between natives, and between natives and non-
natives, where substantial injustice will be done to either party if customary
law is not applied. On the other hand, customary law will not apply when the
parties have expressly excluded it or could not have intended customary law to
apply from the nature of the transaction.

But who is a Native?

Section 34 (2) of the High Court Law of Northern Nigeria and section 27 (2) of
the High Court Law of Lagos State have both classified parties into natives and
non-natives; section 12 (2) of the High Court Law of Western Nigeria used
Nigerians and non-Nigerians to describe parties; while section 22 (2) of the
High Court Law of Eastern Nigeria provided for “persons of Nigerian descent”
and “persons who are not of Nigerian descent.” However, where no express
rule is applicable section 34 (4) of northern states law provided that “the case

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shall be governed by the principles of justice, equity and good conscience”, i.e.
the English law. This provision is important given the fact that the words of the
above statutes are couched to cater for contractual agreements. Other States’
High Court enactments preferred “rules or law other than customary law”,
where no express rule applies.

The term native has also been defined under section 3 of the Interpretation
Act of 1958, now repealed by the Interpretation Act of 1964. The repealed Act
gave a broad definition for native to include a native of Nigeria and a native
foreigner, which, in essence, means Nigerians and Africans and their
descendants. Please note that, except in some few instances under sections
387, 388 and 403 of the Penal Code internal conflict herein discussed only
affects civil cases.

Let us now look at different situations of internal conflict of laws in our law,
viz.,

- Different Systems of Customary Law and Islamic Law

- Conflict between English and Customary Law
- Conflict between English and Islamic Law

Different Systems of Customary and Islamic Law

Before looking at different systems of customary and Islamic law, it will be

appropriate to clarify the inherent differences that exist between customary
law and Islamic law, although, cognizant of the fact that there was a time in
our country’s history when both laws were classified as “native law and
custom.” See section 2 Native Courts Ordinance, 1914 and Niki Tobi, Sources of
Nigerian Law p. 136.

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From the onset, Islamic law is a divine law that guides people of Islamic faith.
See Quran 5:3 and Quran 3:85. For the predominant people of northern
Nigeria, Islam, more than a religion, is a way of life. Customary law, on the
other hand, has been defined by the Evidence Act as a “rule which, in a
particular district, has from long usage, obtained the force of law.” It should be
pointed out that the word district used here means a sub-division of a colony
for purpose of administrative and political control. Otherwise, it means a
community. Customary law has also been judicially defined as “a mirror of
accepted usage” by Bairamian FJ in Owoniyin v Omotosho (1961) I All NLR 304.

Sources of Islamic law are: -

a. Quran
b. Sunnah
c. Ijma
d. Qiyas

Characteristics of Customary law are: -

1. Existence
2. Force of law
3. Acceptability
4. Unwritten
5. Flexibility

It is evident from the foregoing that Islamic law is a corpus of laws comprised
of both substantive and procedural laws. In contrast with customary law,
Islamic law is written, generally accepted and applied strictly.

Conflict Between Different Customary Laws

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As seen in the case of Olowu v olowu, supra, our legal system is so varied that
even after it is finally determined that customary law governs the case at hand,
there remains also the question of the appropriate customary law to be
applied. Although the position of the law on these cases is not always the
same, there has been a large measure of uniformity in the majority of the
cases.

Succession Cases

The generally accepted position in succession cases is that the applicable law is
that which binds the deceased. See the following cases:

Olowu v Olowu, supra.

Tapa v Kuka (1945) 18 N.L.R. 5.

Ghamson and Others v Worbill (1947) 12 W.A.C.A. 181.

Where, however, the personal law of the deceased was not established before
the court, it was held that the lex situs is applicable, see Ekem v Nerba (1947)
12 W.A.C.A. 258. See also Ukeje v Ukeje (2001) 27 W.R.N. 142 CA where the
lex situs was applied to allow the plaintiff share in her father’s estate even
though the parties were Igbos.

As seen in the above authorities, personal law was applied in some cases, while
in others the court instead applied the prevailing law of its area of jurisdiction.
But sometimes the court finds it difficult to determine the prevailing law in a
given area. See R v Ilorin Native Authority, Exparte Aremu (1950) 20 N.R.N.I.R.
39.

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Assignment:

Mr. Kennedy Uba, a native of Abia State has just passed away in Katsina
leaving a house in Sabuwar Unguwa, Katsina. One of his sons has approached
you to apply for a letter of administration in Upper Sharia Court. Advise him.

Read Osagwu v Soldier 1959 N.R.N.I.R. 39.

Land Cases

In land matters the general position of the law is that lex situs apply. With the
proviso that this rule should not deny any party of the right of succession
under customary law. See section 21 (2) of the Area Courts Law, 1968 as
amended.

Other Civil Cases

In the north, it is the customary law agreed to or intended by the parties. See
section 21 (1) of the Area Courts Law, 1968. Read what is obtainable in the
rest of the country. Read also conflict between sources of Islamic law.

Conflict between English and Customary Law: When English Law Apply

As a general rule English law applies (1) in transactions between natives and
non-natives. See Koney v Union Trading Co. Ltd. (1934) 2 W.A.C.A. 183 where
English law was held to apply in a transaction between an African and a
European company. English law will also apply (2) if the party relying on
customary law clearly excluded customary law or is deemed to have done so or
(3) the transaction is not known to customary law. In Green v Owo (1936) 13
N.L.R. 43 the plaintiff’s claim to a portion of land he purchased at a public
auction for which he obtained title documents was held to be statute barred
under the English law, the applicable law in this case. A similar decision was
reached in Apatira and Another v Akande and Others (1944) 17 N.L.R. 149
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where a will made by a native Nigerian was held to have intended English law
to apply. Please see the following cases:

Bakare v Coker (1935) 12 N.L.R. 31

Okoli v Ibo 1958 N.R.N.L.R. 89

Salau v Aderibigbe (1963) W.N.L.R. 80

Smith v Smith (1924) 5 N.L.R. 105

Assignment:

Mallam Dabo, a resident of Kofar Sauri had before his demise assigned in a
deed his property at GRA Katsina to his daughter Laila. Now the rest of the
heirs want you to institute an action in Sharia court and set aside the gift.
Advise them.

Conflict between English and Customary Law: When Customary Law Apply

The general rule in a transaction (1) between natives is that customary law will
apply. See Labinjoh v Abake (1924) 5 N.L.R. 33. Likewise, customary law will
also apply (2) between natives and non-native if its non-application will
occasion substantial injustice to the parties. See the following cases:

Osuro v Anjorin (1946) 18 N.L.R. 45

Ajayi v White (1946) 18 N.L.R. 41

Nelson v nelson (1951) 13 W.A.C.A. 248

Assignment:

Mr. Silvio an Italian is owing John Kasuwa arears of salary for security service.
When Mr. Kasuwa learnt that Mr. Silvio is about to leave the country he
instituted this action in a Customary Court. What are his chances?

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Conflict between English and Islamic Law

The general rule in predominantly Muslim areas of the north is that Islamic law
applies between Muslims. Nonetheless, Islamic law will not apply where the
parties expressly or impliedly exclude Islamic law, see the case of Yinusa v
Adesubokan (1968) N.N.L.R. 97. Where, however, no express rule applies the
court shall be guided by the principles of justice, equity and good conscience
under section 34 (4) of the High Court Law of former Northern Nigeria.

THE JUDICIARY

Introduction

Having seen Conflict of Laws in the last module, our next object of enquiry is
the judicature or judiciary, the body responsible for the administration of
justice. Parties seek redress through the court; wherein disputes are
adjudicated. However, this only occurs when parties set the law in motion to
procure certain remedy. Before treating the role of the judiciary in our
Constitutional democracy let us first consider the history and development of
our courts.

Pre-Colonial Adjudication System

Long before the coming of Europeans to the shores of Africa, the various
communities that now constitute Nigeria had their respective systems of law
and order. This fact is also true for any human community. In fact, the notion
of a human society with no any moral or judicial procedure is inconceivable, as
rightly observed by J.C. McRiver as follows:

But in all forms of government not based on arbitrary force there is a

concept of [law and] justice, and although the concept of [law and]
justice is something that has been evolutionary in character it has had an

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 anchorage of indefinite and eternal moral principles, without which it
would be an empty bark drifting on an uncertain sea of political
expediency. Quoted from J.O. Asein, Introduction to Nigerian Legal
System, 2nd Ed., p. 150.

The judicial system maintained by the traditional African societies was dictated
by their history, political structure and social values. Their legal system was
aimed more at maintaining social order than doing justice, stricto sensu. What
guided them was the desire to be fair and balanced while maintaining their
social equilibrium.

The two different types of political structures of those societies have been
variously described- as monarchical and republican, chiefly and chiefless and
centrally organized and non-centrally organized. However, one thread that
characterize them is that, generally, there was no clear distinction between the
different arms of government.

In the monarchical states like Hausa north and Yorubaland, Emirs and Obas
held sway and occupied the highest stratum of the political hierarchy. They
were assisted by title holders and chiefs in the exercise of powers of
government. Authority of government as well as that of adjudication of
disputes was usually delegated to subordinates, like village and ward heads.
The subordinates attend to and settle minor disputes while appeals and major
disputes were held at the Emir’s or Oba’s court, which were usually the courts
of last resort.

On the other hand, in the non-centrally organized states, found mostly in

Igboland and parts of Middle Belt, there were no heads or chiefs. The societies
were organized around the council of elders, who were usually adult male
members of a clan or village. They also exercised judicial functions of dispute

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settlement as well. Their belief system like ancestral worship and veneration of
the elderly help to sustain this practice.

It must be pointed out that the Hausa north, because of the influence of Islam,
was far ahead of the rest of the country in terms of administrative machinery
of government. The Europeans found the north with a well-developed
administrative and judicial machinery that included civil guards, courts, prisons
and tax system. This environment permitted the successful experiment of
indirect rule in the north.

Pre-Independence Judicial System

The early British type courts founded in Nigeria were the Consular Court,
Equity Court and the Supreme Court established by Ordinance No. 3 of 1863.
The Supreme Court which regulated trade was replaced by the Court of Civil
and Criminal Justice in 1866. Trial was by jury and appeal lay to the West
African court of Appeal situated in Sierra Leone. Final appeal was to the
Judicial Committee of the Privy Council in London.

In 1876, a Supreme Court was re-established for Lagos and other British
territories in the lower Niger. This time to administer the common law of
England, doctrines of equity and statutes of general application in force in
England on July 24, 1874 which was extended to January 1, 1900. As seen in
the last module on conflict of laws, English law was administered side by side
customary law and Islamic law, albeit, subject to the validity test.

Justice was also administered in the name of the crown by some chartered
companies in territories under their control from 1886 until their charter was
revoked in 1889.

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When Northern Nigeria was proclaimed a protectorate on January 1, 1900, a
Supreme Court was established for the north together with provincial,
customary and native courts.

That was our court structure until 1933 when the Protectorate Court
Ordinance introduced Magistrate Court and High Court. The High Court had
the same jurisdiction as the Supreme Court, except in matters of probate,
divorce, matrimonial causes and admiralty matters where the Supreme Court
had exclusive jurisdiction. Magistrate’s Court had both civil and criminal
jurisdictions while the native court exercised jurisdiction on land matters.
Appeals from Native Court lay to Magistrate Court and from Magistrate Court
to High Court. High Court and Supreme Court decisions were appealed to the
West African Court of Appeal and final appeal was to the Judicial Committee of
the Privy Council. Later in 1943 magistrate courts were established throughout
the country with only one Supreme Court for the whole country.

In 1954, when Nigeria was divided into three regions, a High Court was
established for each region and for the territory of Lagos. A Federal Supreme
Court was also established for the country. The precursor of the current Sharia
Court of Appeal, Moslem Court of Appeal was established in 1956 as an
appellate court with original civil and criminal jurisdictions. At independence,
in 1960, its jurisdiction was limited to personal Moslem law. The Court of
Resolution was also established at the same time to resolve any matter of
jurisdiction between High Court and Sharia Court of Appeal.

In 1963, when our colonial ties were finally severed with Britain, the Supreme
Court became the court of last resort and appeal to the Privy Council was
abolished. High Courts were created in all the regions including the Mid-West
region created in 1963. The Federal Court of Appeal was created later in 1976.

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Now the structure of our courts is spelt out in the 1999 Constitution as
amended, shown below:

The Supreme Court

The Court of Appeal

The Federal High Court

The High Court of the F.C.T.

The Sharia Court of Appeal of the F.C.T.

The Customary Court of Appeal of the F.C.T.

The National Assembly Election Tribunal

The Constitution also created the following courts for the States:

The High Court

The Sharia Court of Appeal

The Customary Court of Appeal

Governorship and Legislative Houses Election Tribunal.

All these and more shall be considered in our next module.

Role of Judiciary

As indicated above, the judiciary is the branch of government vested with the
power to interpret and apply the law. This role is discussed below:

Interpretation of Statutes

As rightly observed by Lord Alfred Denning in his book ‘The Discipline of Law’,
“English language is not an instrument of mathematical precision.” More often
than not statutes are not perfectly clear and courts are therefore called upon

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to inquire into the law, make sense of the enactment and interpret it in accord
with reason and justice.

Protection of Liberties

The courts also have the role, as chief trustees and assertors of the liberties of
citizens, to strike a balance between the power of government and individual
liberties of citizens. Any person who feels that his fundamental right is being or
is about to be violated has the doors of the court open to him for redress.

Maintenance of Rule of Law

When judges bound themselves by oath to uphold the Constitution, they

thereby acquired a divine obligation to act in accord with human law. They are
in consequence obliged to enforce the Constitution free from all passion.
Guided by this duty, and sustained by their independent judgment, judges are
able to hold government responsible and declare its act void. By so doing, the
court restrains the government and keeps it within the boundaries of
Constitutionality. This is eloquently described by Robert Jackson thus:

…with all its defaults, delays, and inconveniences, men have discovered
no technique for long preserving the government except that the
Executive be under the law, and that the law be made by parliamentary
deliberations.

To achieve this task, judges have to exercise independent judgment and act
with total freedom from other branches of government.

Judicial Independence

Judicial independence is borne out of the original idea of separation of powers

which is understood as legal protection from both executive and legislative
branches of government. It presupposes the conviction that functions of
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government (legislative, executive and judicial) should be kept apart to guard
against concentration of too much power that inevitably leads to abuse. Thus,
establishing the right balance between the actions of state and the legal
control over those actions.

To effectively exercise this control, the judiciary must be free from dictates and
strictures of the executive. Fortunately, judges now do not hold office or owe
their sustenance at the behest of executive pleasure. Their tenure and salary is
now guaranteed under the Constitution. We shall elaborate on this in our
discussion on judicial officers.

Types and Jurisdiction of Courts

Introduction

In our legal system, courts are generally classified as superior and inferior or of
record and not of record.

Superior and Inferior Courts

Superior courts are so described because of the wide authority they enjoy in
terms of jurisdiction. They have power to hear and determine any civil or
criminal matter with very little limit with respect to the subject matter but not
value. Their jurisdiction is said to be general, unless specifically denied, as seen
under section 251 of the Constitution. Example of a superior court is the High
Court of a State. Superior courts also exercise supervisory authority over
inferior courts, as such may make the following prerogative orders: -

a. Certiorari or a quashing order is the judicial process by means of which

decisions of inferior courts, tribunals or other administrative authorities
are challenged before the High Court. Where any such decision is found
to be invalid, it may be quashed or set aside.

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 b. Order of Prohibition is sought for to prevent any authority from taking
invalid decisions in the first place.
c. Mandamus or a mandatory order is issued by the High Court instructing
or directing an inferior court or a public authority to carry out a duty laid
on them.

Inferior courts, on the other hand, are courts limited in their jurisdiction both
in value and type of subject matter. The Magistrate’s Court is an example of an
inferior court.

Courts of Record and Courts other than of Record

Originally, courts of record are courts wherein acts and judicial proceedings
were enrolled for perpetual memory and testimony and had power to punish
contempt. Now the only remaining feature of a court of record is its power to
punish contempt. Thus, any court that can punish contempt is a court of
record and any court which does not have power to punish contempt is not of
record. Under this analysis, a court of record may be either superior or inferior
court, like a Magistrate’s Court.

At common law, a superior court can punish contempt summarily in facie curia
or ex facie curia. An inferior court, on the other hand, can only punish
contempt summarily in facie curia but may also be able to punish contempt ex
facie curia on a charge under the appropriate Criminal or Penal Code. The
power of courts of record to summarily punish contempt has been preserved
by the proviso to section 22(1) of the Constitution. Next we shall take the
classification in turns but first starting with superior courts.

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Superior Courts

Supreme Court of Nigeria

The Supreme Court is established under section 230 of the Constitution. It

consists of the Chief Justice of Nigeria and other number of Justices as may be
prescribed by the National Assembly, not exceeding 21.

Jurisdiction

The Supreme Court is essentially an appellate court. But it may exercise

exclusive original jurisdiction on disputes between the Federation and a State
or between States inter se under section 232(1). The National Assembly may
also confer the Supreme Court with additional original jurisdiction on civil, not
criminal matters. In exercise of this power, the National assembly has enacted
the Supreme Court (Additional Original Jurisdiction) Act of 2002 conferring on
the Supreme Court additional original jurisdiction. Under section 1(1) of this
Act, the Supreme Court now has original jurisdiction on disputes between:

a. the National Assembly and the President

b. the National Assembly and State Assemblies
c. the National assembly and States

For the appellate jurisdiction of the Supreme Court, please see section 233 of
the Constitution. Section 235 has made the decisions of the Supreme Court
final, albeit, without prejudice to the prerogative of mercy by the President or
Governor of a State as applicable.

Composition

The Supreme Court is duly constituted by no less than five Justices. However, it
shall consist of seven justices, as specified under section 234, in the following
cases:
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 1. on appeal on question of interpretation of the Constitution,
2. on appeal on question of Chapter IV of the Constitution,
3. in its original jurisdiction.

In practice, the Supreme Court also empanels seven Justices on important

cases like on whether or not to overrule its earlier decision or for ceremonial
purposes.

Court of Appeal

The Court of Appeal is established under section 237 of the Constitution and it
comprises of the President of the Court of Appeal and not less than forty-nine
Justices as may be prescribed by an Act of the National Assembly. At least
three of them must be learned in Islamic law likewise at least three must be
learned in Customary law. This arrangement is important given the plurality of
our laws and the fact that the Court of Appeal entertains appeals from both
the Sharia Court of Appeal and the Customary Court of Appeal.

Jurisdiction

The Court of Appeal is fundamentally an appellate court save in its limited

original jurisdiction on election petition cases. The court has exclusive original
jurisdiction to enquire into:

a. the validity of election of the President or Vice-President,

b. whether the term of office of the President or Vice-President has ceased,
c. whether the office of the President or Vice-President has become
vacant.

In its appellate jurisdiction, the Court of Appeal has exclusive appellate

jurisdiction to hear appeals from all the High Courts, all the Sharia Courts of

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Appeals, all the Customary Courts of Appeals, the Courts Martial and other
tribunals as may be prescribed by an Act of the National assembly.

Composition

For the purpose of exercising any jurisdiction conferred upon it, the court is
duly constituted with at least three Justices. In case of appeals from either
Sharia Court of Appeal or Customary Court of Appeal, the court shall consist of
three Justices learned in either Islamic or Customary law as the case may
require.

The President of the Court of Appeal may make rules of practice and
procedure for the court subject to the provision of an Act of the National
Assembly.

Federal High Court

The Federal High Court is established under section 249 of the Constitution and
it consists of the Chief Judge of the Federal High Court and such number of
judges as may be prescribed by the National Assembly. Please note that there
is only one Federal High Court with several judicial divisions as may be
determined by the Chief Judge of the Federal High Court.

Jurisdiction

Pursuant to section 251 of the Constitution and in addition to what may be

conferred on it by the National Assembly, the Federal High Court has exclusive
jurisdiction to hear and determine matters listed under this section relating to
the Federal government and its agencies. In the exercise of its jurisdiction, the
Federal High Court shall have all the powers of the High Court of a State. Read
section 251 of the Constitution.

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Composition

The Federal High Court is duly constituted with one judge.

Subject to the National Assembly, the Chief Judge of the Federal High Court
may make rules of practice and procedure for the court.

High Court of a State

A State High Court is established under section 270 of the Constitution. It is

comprised of a Chief Judge and such other number of judges that may be
determined by the State House of Assembly.

Jurisdiction

Subject to the provision of section 251 of the Constitution, which gave

exclusive jurisdiction to the Federal High Court on matters affecting the Federal
government and its agencies, the High Court of a State has jurisdiction to hear
and determine any civil or criminal matter. Moreover, this jurisdiction includes
original, appellate and supervisory functions. Please note that unlike in the
1979 Constitution, the State High Court is no longer defined by its unlimited
jurisdiction but rather a jurisdiction subject to that of the Federal High Court
under section 251.

Composition

A High Court of a State is duly constituted with only one Judge. Note that this
court has only one jurisdiction across the whole State but it is divided into
several judicial divisions for convenience sake.

Subject to the provision of any law made by the State House of Assembly, the
Chief Judge may make rules of practice and procedure for the court. Please
note also that the High Court of the Federal Capital Territory shares the same

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characteristics with a State High Court except that it is under the legislative
competence of the National Assembly.

Sharia Court of Appeal of a State

Sharia Court of Appeal may be established by any state that requires it under
section 275 of the Constitution. The court is comprised of Grand Kadi and such
other number of Kadis as may be prescribed by the State House of Assembly.
This court, like the Customary Court Appeal is established when a State has
such a need. In the Muslim north, for instance, there is predominance of Sharia
Court of Appeal while Customary Court of Appeal is found mostly in the south.

Jurisdiction

In addition to any jurisdiction that may be conferred on it by the State House

of Assembly, Sharia Court of Appeal shall exercise appellate and supervisory
jurisdiction in civil proceedings bordering on Islamic personal law. It has
jurisdiction in matters that includes, among others, marriage, its validity and
dissolution as well as guardianship of an infant. Others are gift, will or
succession, question of an infant prodigal or person of unsound mind.

Composition

The court is duly constituted with at least three Kadis of the court.

The Grand Kadi may make rules of procedure and practice for the court subject
to any law by the State House of assembly. Please note that Sharia Court of
Appeal of the Federal Capital Territory and Customary Court of Appeal the
Federal Capital Territory are the same as those of States, except for the fact
that those of the Federal Capital Territory are under the National Assembly.

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Inferior Courts

Inferior courts are established at state level, hence their jurisdiction and
composition is entirely dependent on the state concern. Unlike in the case of
superior courts where the courts are more uniform, which permits an ampler
discussion, inferior courts are more varied. Therefore, an exhaustive discussion
on them may be cumbersome and ill-advised for our purpose. Only their
general features examination will be attempted here.

Magistrate’s court

Magistrate’s courts system is found in all states of the federation. These courts
are established by statute such as Magistrate Court Law in the southern states
and the District Courts Law in the north. The magistrate is appointed by the
Governor while State Chief judge is responsible for dividing the state into
magisterial districts. A district so divided usually has one or more magistrate’s
or district court, under the administrative control of a Chief Magistrate.

Jurisdiction

Jurisdiction of a magistrate or district judge is defined by his rank or grade, and

grades of magistrates are not uniform across the states. Structure of three
States is listed below:

Kano State

1. Chief Magistrate
2. Magistrate Grade I
3. Magistrate Grade II
4. Magistrate Grade III

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Katsina State

a. Principal District Judge I

b. Principal District Judge II
c. Senior District Judge I
d. Senior District Judge II
e. District Judge Grade I
f. District Judge Grade II
g. District Judge Grade III

Lagos State

A. Chief Magistrate
B. Senior Magistrate
C. Magistrate Grade I
D. Magistrate Grade II
E. Magistrate Grade III

Magistrate’s Courts in the south exercise both civil and criminal jurisdictions,
and are enjoined to administer the common law and equity together with
customary law. In the north a magistrate only exercises criminal jurisdiction
but may also entertain civil cases in his capacity as a district judge. In principle,
a magistrate has jurisdiction throughout the state, as he may be posted to any
part of the state, but in practice, his jurisdiction is limited to the magisterial
district assigned to him. Although, a breach of the “venue of trial” rule is not
fatal to magistrate’s decision if none of the parties had complained timeously.

The substantive jurisdiction of a magistrate or a district judge is statutorily

defined and cannot be assailed or compromised. Please note that in the south

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where Customary Courts have been abolished, Magistrate’s Courts assume
their jurisdiction.

Magistrate’s Courts have jurisdiction to entertain the following matters:

- Actions arising from contract or tort or both

- Actions for recovery of penalty, rates, expenses, etc.
- Landlord and tenant on possession of land, etc.
- Grant an injunction to protect a property subject of dispute.

The jurisdiction of a magistrate is often subject to a financial limit for his/her

grade. In the case of Lagos State, for example, the financial limit of jurisdiction
of a magistrate is N10.000.000.00 for the time being. However, magistrates do
not have power to enquire into issues of title to land and matters under the
jurisdiction of customary courts.

The same situation as above is obtainable in the north, save that magistrates in
the north have their jurisdiction restricted to only criminal matters but can
attend to civil cases when acting as district judges. Their civil jurisdiction is
governed by the respective northern State enabling statute.

Criminal offences in the south are classified into indictable and summary (non-
indictable) offences. An indictable offence is an offence that attracts a prison
term exceeding two years or a fine of more than 400.00 Naira. Every other
offence is a summary offence.

Above classification of offence does not exist in the north. The Criminal
Procedure Code rather had a tabulation of various offences and the competent
court to try them, as set out under Appendix A to the Criminal Procedure Code.

Composition

A magistrate or district judge sits alone.

23
Magistrate’s or District Courts rules of civil procedure and practice are usually
subsidiary legislations made subsequent to the Magistrate Courts Law of the
relevant State. The criminal procedure and practice, depending on whether the
relevant state is in the north or south, they only follow the Criminal Procedure
Law and Criminal Procedure Code respectively. The appointment of a
magistrate or district judge is made by the State Governor.

Customary and Sharia Courts

As seen in our discussion on our pre-independence judicial system, the native

courts which administered customary laws of various communities that
constitute Nigeria were later restyled Customary Courts in the south and Area
Courts in the north respectively. Many states have enacted new laws on the
subject while some states still retain the old regional laws with minor
modifications. For instance, Area Courts are renamed Sharia Courts in States
where sharia law is now applicable.

It is completely within the prerogative of the legislative authority of the State

concern to prescribe the mode of establishment of these courts. In Lagos
State, for example, Customary Courts are established through warrants issued
under the hand of the Attorney General. Meanwhile, in Katsina State, Sharia
Courts are established under section 3(1) of the Sharia Courts Law 2000.

Jurisdiction

Sharia Courts have jurisdiction in both civil and criminal cases. Their civil
jurisdiction is specified under section 5(1)(b) of the Sharia Courts Law to
include civil proceedings where the right or obligation of a Muslim or the State
is in issue. In criminal matters, the court is to apply the law codified under
Katsina State Sharia Penal Code Law 2001.

24
Composition

Sharia Court is duly constituted by an Alkali sitting with two other members of
the court. An Upper Sharia Court shall consist of an Alkali and two members in
its original jurisdiction but with three members on appeal.

An Alkali should have an LL.B or a Diploma in Sharia with five years’

experience or have considerable knowledge of Islamic law or be a
distinguished scholar of Islam to be so appointed. Alkalis are appointed by the
State Judicial Service Commission.

Under section 3(1) of the Sharia Courts Law of Katsina State, Sharia Courts are
graded as:

a. Sharia Court; and

b. Upper Sharia Court

In Katsina State, the Chief Judge in consultation with Sharia Commission is

empowered to designate and locate the numbers of courts that may be
required. Meanwhile, the Grand Kadi is to make rules regarding practice and
procedure of the Sharia Courts.

Please note that appeals from Upper Sharia Court on matters of Muslim
personal law goes to Sharia Court of Appeal and to the High Court on other
matters.

Special Courts

Tribunals

Generally, tribunal is a body with authority to adjudicate or determine disputes

or claims. Tribunals form part of the adjudicatory system but are called

25
tribunals to distinguish them from formal courts. In fact, judicial tribunals are
required by the Constitution for special purposes, such as election petitions.

At this juncture, it is worthy of note that some tribunals perform

administrative functions, like enquiring into matters of public importance while
others perform judicial functions, like the case of Code of Conduct Tribunal. An
example of a public enquiry is the recently concluded Judicial Commission of
Enquiry on the skirmishes between Shiites and the Nigerian Army in Zaria.

The work of this kind of commission is solely inquisitorial, i.e. to enquire,

ascertain the causes and report its findings and where necessary make
recommendations. It does not include determination of guilt or imposition of
sanctions.

Findings of fact and application of legal rules to them was a preserve of the
court until in the twentieth century when tribunals were accepted as an
exception to the general rule. Early tribunals were only concerned with
administrative matters like collection of revenue and regulation of railways.
Tribunals are now used to expedite the judicial process and reduce legal
formalities. Tribunals may sit with experts in the field of their jurisdiction to
assist the tribunal with their expertise. Examples of judicial tribunals are Code
of Conduct Tribunal and National Assembly Election Tribunals.

Nonetheless, tribunals have been criticized for breach of natural justice

principles and litigants often complain of bias by some members of the
tribunal. Tribunals were more prevalent during the military era.

National Industrial Court

This is another special court created by the National Assembly under section
20 of the Trade Disputes Act. The court is comprised of the President and other

26
four ordinary members who must be of good standing and knowledgeable in
trade and industry. The president and all other members of the court are
appointed by the Nigerian President in consultation with the Federal Judicial
Service Commission.

Jurisdiction

The court is vested with jurisdiction to settle labour and trade disputes. It has
exclusive jurisdiction to make awards for settlements of trade disputes as well
as determine and interpret questions of awards by arbitration tribunals or
courts under Parts 1 and 8 of the Act.

Composition

The court is constituted by the President and all other four ordinary members
or the President and two ordinary members. The court may also be assisted by
assessors.

Juvenile Court

These are special courts established for the trial and welfare of children and
young persons. Juvenile courts were first established in Nigeria under the
Children and Young Persons Ordinance of 1943. Now these courts exist in
different States under a modified but same laws. The courts are none other
than magistrate courts adapted for trial of juveniles.

Under the law, a child is defined as any person under 14 years while a young
person is defined as any person that has attained 14 years but is less than 17
years (in the south) and 18 years (in the north).

For the trial of juveniles, the Chief Judge of a state may appoint any person to
sit with the magistrate to constitute the court. Generally, the court sits either
in different building or at different times and dates when trying juveniles,
27
unless when they are tried together with adults. In practice, the courts have
days reserved for juveniles to protect their interests and welfare. Their
proceedings are also kept out of public view.

When found guilty of an offence, the law forbids the use of words “conviction”
or “sentence” for juveniles. A child should not be imprisoned, although a
young person may be imprisoned when necessary but both may not be
sentenced to death. A juvenile should at all times be separated from adults.

Courts Martial

From the onset, the Courts Martial system was introduced into Nigeria
together with military law. It should be understood that its name is derived
from the old Court of Constable and Marshall and has no connection
whatsoever with martial law, which is the imposition of discretionary law over
ordinary laws of a country.

Courts Martial is now provided for under the Armed Forces Act to try serious
offences committed by members of the armed forces. For the powers,
jurisdiction and composition as well as its procedures, please see the Armed
Forces Act.

Judicial Officers

introduction

As seen in our discussion on role of the judiciary, one of the cardinal principles
of the rule of law is the freedom of the judicial arm of government to perform
its functions without any interference whatsoever from either the executive or
the legislature. In addressing this need, the Constitution has provided for the
appointment, tenure and removal of judicial officers, which shall be taken in
turns hereunder:

28
Appointment

The appointment into the office of the Chief Justice of Nigeria and other
Justices of the Supreme Court together with the President of Court of Appeal,
Chief Judge of Federal High Court, Chief Judge of High Court of the FCT, Grand
Kadi of Sharia Court of Appeal of the FCT, President Customary Court of Appeal
of the FCT are all made by the President on the recommendation of the
National Judicial Council subject to confirmation by the Senate. All other
judicial officers of the aforementioned courts are appointed by the President
alone on recommendation of the National Judicial Council. Please note that in
his appointment of Justices of Supreme Court and Court of Appeal the
President should consider some Justices knowledgeable in Islamic personal law
as well as customary law.

At State level, Chief Judge, Grand Kadi of Sharia Court of Appeal, if any,
President of Customary Court of Appeal, if any, are appointed by Governor of
the State on recommendation of the National Judicial Council subject to
confirmation by the State House of Assembly. All other judicial officers of the
state are appointed by the Governor alone on recommendation of the National
Judicial Council.

Qualifications

To be qualified for appointment into the Supreme Court, the person must have
fifteen years’ post-call experience, twelve years for the Court of Appeal and ten
years for Federal High Court, High Court of the FCT, Sharia Court of Appeal of
the FCT, Customary Court of Appeal of the FCT, State High Court, Sharia Court
of Appeal of State and Customary Court of Appeal of State respectively.

29
Tenure of Office

Pursuant to the provisions section 291(1) and (2) of the Constitution the Chief
Justice of Nigeria, Justices of the Supreme Court, President of the Court of
Appeal and other Justices of the Court of Appeal may retire at 65 years of age
or cease to hold office at 70 years. All other judicial officers may retire at 60
years or cease to hold office at 65 years.

Removal of Judicial Officers

Judicial officers enjoy security of tenure and shall not be removed from office
except on the grounds contemplated by the Constitution. By the provision of
section 292 of the Constitution a judicial officer can only be removed for
inability to discharge the functions of his or her office for infirmity, misconduct
or violation of code of conduct.

They may be so removed by the President on an address to the Senate

supported by two-thirds of the Senate in case of the Chief Justice of Nigeria
and other justices of the Supreme Court, President Court of Appeal, Chief
Judge of the Federal High Court, Chief Judge of the High Court of the FCT,
Grand Kadi of the Sharia Court of Appeal of the FCT and President Customary
Court of Appeal of the FCT.

In the case of State, Chief Judge of the State, Grand Kadi of Sharia Court of
Appeal, if any, President Customary Court of Appeal, if any, may be removed
by the Governor on an address to the House Assembly supported by the two-
thirds of the State House of Assembly.

In any other case, a judicial officer may be removed by the President or

Governor alone acting on the recommendation of the National Judicial Council.

30
To further strengthen the hands of the judiciary, the Constitution has created
the National Judicial Council that is now responsible for the affairs of the
judiciary. Its functions include recommending judicial officers for appointment
and overseeing their discipline. They are also in charge of finances of the
judiciary, which is directly charged upon the Consolidated Revenue Fund of the
Federation.

Other bodies created by the Constitution are the Federal Judicial Service
Commission under section 153 to advice the National Judicial Council on
federal judiciary and State Judicial Service Commission under section 197 to
advice the National Judicial Council on matters of state judiciary.

Outline of Civil and Criminal Procedure in Nigeria

Introduction:

In societies where there is rule of law there cannot be a recourse to self-help.

These societies readily provide the court system where citizens may seek
redress in a legally and orderly manner. As earlier indicated, courts are the
bodies vested with authority to enquire and determine actions relating to
questions of all rights and obligations between individual citizens and between
government and citizens.

It is noteworthy that most conflicts are resolved by parties themselves without

recourse to the courts. However, where controversies do reach the courts,
they are resolved through the application of appropriate substantive laws by
following the proper process known as procedural law.

Substantive and Procedural Laws Differentiated

Substantive law consists of written and statutory laws that govern people’s
behaviour. These laws or rules may define crimes and set forth their

31
punishment, as found in our criminal codes or guide the interaction of citizens
inter se or with their government, as seen in our company law, land law and
matrimonial causes law.

Procedural law, on the other hand, governs the way and manner substantive
law or private right is processed and enforced also known as due process of
law. It involves those parts of the law which are concerned with the process
employed in seeking reliefs from courts.

Substantive law determines whether a crime has been committed or a private

right is infringed while procedural law prescribes the procedure for trial of the
crime or enforcement of those rights. For now, we shall be more occupied with
the latter, our lot to treat in the following paragraphs.

Classification of Procedural Rules

After the Eid interlude, we are returning to the sequel to look at the aggregate
rules of procedure and practice by which justice is administered and enforced
in Nigeria. These rules are broadly classified as either civil or criminal
procedures. We shall begin with civil procedure.

Civil Procedure

Civil procedure may simply be defined as the methods, procedures and

practices that courts follow when adjudicating civil cases.

Purpose of Civil Procedure Rules

Rules of practice and procedure are instruments used by courts to arrive at

justice. They are means to an end, hence must not detract from substantive
law. They regulate the conduct of cases in courts to ensure fair and efficient
practice as well as consistency, but the ultimate aim is to do substantial justice
to the parties in a suit. This point is well adumbrated by Oliver J. when
32
evaluating the rules of practice in English courts in Burston Finance v Wilkins
as follows:

The Rules of Supreme Court are the instruments through which the
courts act to secure justice, their servants not their tyrants. The Times,
17th July, 1975

On a similar note, the Nigerian Supreme Court has warned on numerous

occasions that although rules of procedure should always be observed same
should not be confused with technicality, which must not be allowed to stifle
nor occasion a miscarriage of justice, see Nneji v Chukwu (1988) NWLR Pt 81
p. 184 at 188.

The same point was reiterated in the locus classicus of A-G Federation v A-G
Abia State (2001) 11 NWLR Pt. 725, 689. This is a case concerning the original
jurisdiction of the Supreme Court in which 36 states were sued by the Federal
Government. A preliminary objection was raised by one of the defendants
because the suit was commenced by the A-G Federation by filing a statement
of claim instead of issuing an originating summons. Uwais CJN in rejecting the
preliminary objection ruled as follows:

The objection raises only a procedural irregularity. Despite the

purported irregularity the 27th defendant, like all the other defendants in
the case, has filed a statement of defence in answer to the plaintiff’s
statement of claim. The irregularity does not occasion any
inconvenience to the 27th defendant or any defendant in the case. It is
only an issue of technicality. As argued by the plaintiff, the provisions in
Order 6 rule 3(1) are by the use the word “may” only directive and not
mandatory and so can be overlooked. At any rate, we can waive the
irregularity under order 10 rule 1(1) of the rules, which provide:

33
 The court may where it considers it in the interest of justice so to do,
waive compliance by the parties with these rules or any part thereof.

Lawyers and judges, as ministers of justice, have the responsibility to ensure

that rules and principles of law are consonant with justice. Failure means
forfeiting the confidence of the people.

Sources of Civil Procedure Rules

Nigerian civil procedure rules are to be found from various sources comprising
of the Constitution, statutes, subsidiary legislations, judicial precedents and
English rules. English rules are made applicable by section 32 of the
Interpretation Act, 2004 in case of a gap in our rules, and there is no statutory
provision applicable.

As seen in the module on Judiciary, in creating our courts the Constitution and
other statutes have defined their jurisdictions, compositions as well as made
some provisions regarding matters of procedure. The provision of the
Constitution with respect to fair hearing under section 36 and provisions on
the rights and procedures for appeals from various courts spelt out in sections
233 and from sections 240 to 246 are matters dealing with procedure.

Other examples of procedural matters in substantive laws are found in section

7 of the Supreme Court Act and section 25 of Court of Appeal Act. Both
statutes have respectively prescribed fourteen days for the filing of notice of
appeal in interlocutory decisions and ninety days in final judgements.

These statutes have also given enabling powers for making rules of practice
and procedure. Pursuant to these powers, civil procedure rules in form of
subsidiary legislations have been made for various courts from superior courts

34
like the Supreme Court Rules of 2004 to inferior courts like the Sharia Courts
(Civil Procedure) Rules of Katsina State of 2008.

Another source of procedure rules are decisions of courts, like judge made rule
requiring the court to invite parties to address it on the propriety of nonsuit
before making such an order.

We shall return to rules of procedure in due course, in the interim let us look at
other related terms.

Jurisdiction and Venue

Jurisdiction and venue are often used interchangeably but they do not
necessarily mean the same thing. Jurisdiction is the power and authority
conferred upon a court or Judge to administer justice. It is said to be the first
spring of authority of the court, and strikes at its foundation. Jurisdiction is so
vital that it cannot be implied or assumed by acquiescence of the parties, it is
expressly prescribed in the instrument creating the court, be it the Constitution
or a statute.

The issue of jurisdiction is so fundamental that it can be raised at any stage of

the trial or even on appeal. Any decision reached without jurisdiction, no
matter how well conducted, is void ab initio. This has been clearly stated by
the Supreme Court in Emuze v University of Benin (2003) 30 WRN 91 at 103,
thus:

Jurisdiction is a threshold issue. It is so radical that it forms the

foundation of adjudication. If a court lacks jurisdiction, it also lacks the
necessary competence to try the issue before it. A defect in competence
is fatal for the proceedings are null and void ab initio, however well
conducted and well decided they may otherwise be.

35
Apart from jurisdiction conferred by statute, superior courts also have inherent
jurisdiction i.e. residual and ex officio authority to regulate proceeding before
them including punishing contempt.

Venue, on the other hand, is the geographical location or place of trial of the
case, which is ipso facto dictated by rules of court. Moreover, unlike
jurisdiction, venue of trial is not fatal to all actions and must be raised
timeously. Any objection to venue should be raised before or at the time of
filing a defence otherwise the defendant would be presumed to have
submitted to the jurisdiction of the court.

Please note that jurisdiction with respect to a venue is a matter of procedural

law which can be waived but not a jurisdiction as a matter of substantive law,
see Ndayako v Dantoro (2004) 13 NWLR Pt. 889, 187. For instance, in Umueze
v State (1973) 6 SC 221 it was held that a magistrate has jurisdiction all over
the state irrespective of magisterial district.

Jurisdiction may be in personam or in rem.

In Personam Jurisdiction

Literally, this means “against the person.” This refers to court’s power to
exercise jurisdiction over a person who resides, or maintains connections in
the area of its jurisdiction. A court may exercise jurisdiction over a defendant
if:

a. She/he can be served within the courts area of jurisdiction

b. She/he resides within its jurisdiction
c. In case of juristic person, it is incorporated in, has an office or does
business within the court’s jurisdiction.

36
Meanwhile, the plaintiff is deemed to submit to the court’s jurisdiction once
s/he files the suit

In Rem Jurisdiction

This means “against a thing.” It refers to the power of a court over an item of
property subject matter of an action within its area of jurisdiction. The “thing”
over which the court has power may be a piece of land or a status of a
marriage. In rem jurisdiction follows the thing rather than the person.

Parties

All persons with legal personality, i.e. capacity of holding legal rights and
obligations such as entering into contracts, may commence an action against
another person.

Persons in law are of two kinds, natural persons or human beings and juristic
persons, which are entities treated in law as if they are persons, such as
corporations. The right to sue and be sued may be derived from statute or
rules of court. The Supreme Court in Iyke Medical Merchandise v Pfizer Inc.
(2001) 24 WRN 124 (SC), has enumerated parties as follows:

1. Natural persons
2. Companies incorporated under CAMA
3. Corporations aggregate and corporations sole
4. Certain unincorporated associations like
a. Registered Trade Unions
b. Partnerships; and
c. Friendly societies or sole proprietorships

Any person may protect his/her interest through the appropriate application to
either join or unjoin an action. In legal parlance, this is referred to as non-

37
joinder, i.e. omission of a necessary party in a suit or misjoinder of parties, i.e.
addition of an unnecessary party in a suit.

Where in the course of any action, a party thereto becomes incapacitated by

reason of death or unsound mind, such a person may be substituted by
another competent person so long as the cause of action subsists. For
example, an interest of the deceased in a piece of land or shares may be
pursued by his estate. This scenario is unlikely in personal actions like
defamation. As you know actio personalis moritur cum persona, which means
personal action dies with the person.

Infants may sue by their next friend or be sued through their guardian ad litem
who is different from a “legal guardian.” Guardian ad litem is appointed by
court or social department, usually persons in loco parentis, to protect the
interest of an infant or person of unsound mind.

Trustees, executors and administrators may sue or be sued on behalf or as

representing the estate or property without the need to join any of the
beneficiaries.

Parties in a civil action are referred to as:

Plaintiff (Claimant) and Defendant

Applicant and Respondent: interlocutory, originating motion

Petitioner and Respondent: winding up of companies, election petitions,

dissolution of civil marriages.

Appellant and Respondent: on appeal

38
Commencement of Action

When a counsel and his client are finally decided on commencing a civil action,
they must be guided by rules of the relevant court chosen. In the following
paragraphs we shall be discussing two courts that fairly represent both inferior
and superior and courts, i.e. magistrate court and High Court.

Magistrate Court

Proceedings in a magistrate court can be commenced in two ways:

1. By plaint
2. By Originating application

Plaint

This is an application wherein the plaintiff sets forth his cause of action or
complaint. The application is done by filling and filing Form 1 in Appendix I to
the Magistrate Court Rules. The plaintiff is required to attach to the Form 1 a
note of his particulars of claim.

Upon filling and filing the form and paying the necessary fees at the registry,
plaintiff is deemed to have filed a plaint. In some states the plaintiff is only
required to file particulars of claim and pay the prescribed fees while the
registrar completes the plaint and issues the summons.

Issuance of Summons

Once a plaint is filed, the registrar will enter the plaint in a civil cause book,
stating the particulars of the parties and substance of the action. Under order 2
rule 2(1) DCR (Abuja). The registrar may refuse to register a plaint for the
following reasons:

1. Failure to disclose a cause of action;

39
 2. Subject matter is not within the court’s jurisdiction;
3. Plaintiff unreasonably fails to supply required information.

When a plaint is correctly filed and entered, the magistrate or the registrar if
so directed by her will issue an ordinary summons against the defendant. The
summons is the document inviting the defendant to come and defend the
action.

Steps A Defendant Can Take

On receiving the summons, the defendant may do one of the following:

a. Pay the amount and settle the claim;

b. Admit the claim and ask for time to pay;
c. Admit part of the claim, while the disputed part goes to trial;
d. Defend the claim by pleading set-off or counterclaim;
e. Contest the claim by pleading not liable.

Where the defendant fails to take any of the above steps, upon expiration of
the time limit for appearance, the plaintiff may file a motion on notice for
judgement.

Default Summons

This is the summons applied for in an action for recovery of debt or a

liquidated sum. This method is usually employed to obtain a speedy disposal of
the action. The defendant has 10 days within which to respond to the action.
Where the defendant files defence, the case will proceed like an ordinary
summons. However, when he fails to take steps to defend action, the plaintiff
will file motion for default judgement.

40
Originating summons

This method of commencement of action is seldom used.

High Court

Civil actions in the High Court may be commenced through the following
processes:

1. Originating summons;
2. Applications/Originating motions;
3. Petitions;
4. Writ of summons.

Originating summons

This type of process is used where a dispute is concerned with question of law
and there is no substantial dispute of fact. These may be construction of a
written law or instrument, deed, will, etc.

Applications/Originating motions

This is a procedure required for in certain proceedings. Motion is a written or

oral application made to a court or judge seeking for certain order or ruling,
while originating used here signifies commencing. It therefore follows that
although a motion or application may be brought at any stage of a proceeding,
this time it is the originating process. Originating process being the form by
which an action is commenced. The most typical actions commenced by this
procedure is habeas corpus application or fundamental right enforcement and
the prerogative orders.

41
Petitions

Petitions are special applications made in a special form supported with facts.
It is the originating process required in election, divorce and winding-up
proceedings.

Writ of summons

This is the most used method of commencing civil proceedings. Writ is

recommended for all actions except where otherwise provided. A writ is an
order from a court commanding the defendant to enter appearance in the
action within a stipulated time.

The writ bears the name of the High Court and the judicial division, the suit
number, names of parties and other endorsements. It also contains formal
endorsements like, the plaintiff and his counsel’s address, if he has one, and
the defendant’s address.

A writ may be a generally or specially endorsed. In case of general

endorsement, the writ will contain a summary of the nature of the plaintiff’s
claim and the remedy sought. This endorsement is followed by a more
elaborate statement of claim later. The plaintiff may choose not to separate
the writ and statement of claim by specially endorsing the writ. In that case, a
statement of claim is included in the writ and served with the summons or
accompanies the writ with statement of claim.

A specially endorsed writ is not allowed in claims of malicious prosecution,

allegations of fraud, breach of promise to marry, seduction, libel and false
imprisonment.

A writ has a lifespan of 12 months within which it must be served, although it

may be renewed. An expired writ is invalid for service. When signed and sealed

42
by the registrar a writ is said to be issued. An action is commenced when the
plaintiff has complied with all that is required of him by law.

Service of Processes

Processes are served by the Sheriff or other officer of the court or any other
person so appointed by court. All originating processes require personal
service unless the person undertakes in writing to accept service through his
counsel. All other processes may be served on the party’s clerks or counsel.
Service is made between 6:30 a.m. to 6:30 p.m. Mondays to Saturdays
excluding holidays.

Where personal service is impossible or impracticable a substituted service

may be ordered on the application of the plaintiff. When service is effected, an
affidavit of service is required as a prima facie evidence of service. Please note
that leave of court is required to serve a process outside a state.

Appearances

The defendant may personally enter appearance or through his counsel, by

filing a memorandum of appearance at the court’s registry. Although the
defendant may enter appearance at any time before judgement, he may not
be entitled to further time to file his defence unless the court directs
otherwise. Appearance may also be conditional or unconditional.

Unconditional appearance is when the defendant files a memorandum of

appearance and nothing more. In this kind of circumstance, he is deemed to
have submitted to the court’s jurisdiction and to have waived any irregularity.

Conditional appearance, on the other hand, is when the defendant indicates

his intention to object to the court’s jurisdiction for some irregularity in the
writ or its service.

43
Judgement in Default of Appearance

If a defendant fails to appear in a specially endorsed writ of a liquidated sum,

the plaintiff may apply and obtain judgement. Please note that default
judgement may be set aside or varied by the court on good cause shown by
the defendant. However, the defendant’s application must not be guilty of
inordinate delay.

Summary Judgements Procedures

These are judgements given without a full trial. A plaintiff resorts to this
procedure if he believes his claim is indefensible or unanswerable. These are
procedures known as order 11 applicable only to Lagos State and the
undefended list procedure applied in the rest of the country.

Undefended list

In applying for a writ in an action for a debt or a liquidated sum, the plaintiff
will also apply that the suit be placed under the undefended list. He will
accompany the writ with an affidavit stating forth the grounds for his claim and
in one paragraph stating that he believes there is no defence to the claim.

If the court is satisfied with plaintiff’s application the court shall then mark the
writ accordingly, indicating a date for hearing. On receiving the writ, the
defendant shall deliver within 5 days a notice of intention to defend together
with an affidavit disclosing a defence on the merit. The court may then grant
leave to the defendant to defend the suit and subsequently transfer the case
to ordinary cause list and order pleadings or proceed to hearing.

Where, however, the defendant fails to take steps to defend the claim. The
suit may be heard and judgement given without further proof from the

44
plaintiff. Judgement obtained under this procedure is judgement on the merit
and can only be set aside on appeal.

Pleadings

Pleadings refer to the written statements of facts parties rely on in a suit. This
may be a statement of claim or a statement of defence or a reply. Pleadings
must only contain material facts and not evidence by which the facts are
proved or conclusions of law.

Pleadings are important for the following reasons, they:

a. State the claim of the parties

b. Give notice to the other party
c. Ascertain the dispute between parties
d. Eradicate the irrelevant issues
e. Prevent surprises

Statement of Claim

Pleadings usually begin with plaintiff’s statement of claim. It is the details of

the allegations made against the defendant in the writ. Where the writ is not
specially endorsed, the statement of claim must be served on the defendant
not later than 30 days after he enters appearance, or 60 days in land cases.

Statement of Defence

This is the defendant’s written answer to plaintiff’s statement of claim. In it, all
material allegations of facts in the statement of claim must be specifically
denied or admitted. Denials must not be evasive but must be fully traversed.
The defendant has 30 days or 60 days in land cases to serve this on the
plaintiff. The defendant may include a set-off or a counterclaim in his defence.

45
A set-off is a monetary defence to the whole or part of the plaintiff’s claim
while a counterclaim is a claim for a relief asserted against the plaintiff’s claim.

Reply

The plaintiff is as well entitled to make a reply to any other defence raised by
the defendant

Trial

At the expiration of 30 days after service of reply or a defence to counterclaim

or, if there is none, 30 days after service of the defence, pleadings are deemed
closed. Within 30 days of close of pleadings the plaintiff may apply to the
registrar to set down the case for trial. If the plaintiff fails to do so the
defendant may do so within 14 days after plaintiff’s failure. Where both parties
fail to do so and upon certification of same by the registrar, the case may be
listed for striking out.

Where, however, the case is set down for trial, the plaintiff will open his case,
call witnesses and produce other evidence in support of his claim. The
witnesses are examined in chief, cross examined and where necessary re-
examined.

On close of the plaintiff’s case, the defendant will be asked to open his case.
The defendant may choose to rely on the evidence of the plaintiff and address
the court by summing up and commenting on plaintiff’s evidence. However, if
the defendant elects to call witnesses he will proceed to do the same as
plaintiff did. Then he will close his case and address the court. Thereafter the
plaintiff will have the right of final reply and address.

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After the conclusion of the parties’ case the court may give judgement
immediately or reserve it. In any case, final judgement must be delivered
within 3 months from the last date of final address.

Once delivered, a judgement becomes binding on the parties unless stayed or

reversed on appeal. The judgement creditor may employ the appropriate
measures provided by law to enforce the judgement. Some of these measures
are:

1. Writ of fi.fa. or attachment,

2. Garnishee order,
3. Writ of possession,
4. Writ of delivery, and
5. Writ of sequestration.

Criminal Procedure

Introduction

This refers to the adjudication process of the criminal law. It is a body of rules
regulating the administration of criminal justice or the mechanism through
which the state applies the criminal law to citizens. This process forms part of
the wider criminal justice system that comprises all the agencies responsible
for the application of criminal justice. These are the Police, lawyers, judges,
prison officers and so on.

The criminal process is important because of the high premium civilized

societies place on liberty and security of its citizens. This is evidenced by the
constitutional injunction that every person charged with a criminal offence
shall be presumed innocent until proved guilty. In the following paragraph we

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shall be depicting a sequential process of criminal prosecution from complaint
or arrest to conviction or acquittal.

In our legal system, the prominent statutes governing criminal procedure are
the Criminal Procedure Act applied in the southern states and Criminal
Procedure Code applied in the northern states. Each of these states now has a
procedural law inspired by either of these statutes.

Commencement of a Criminal Process

Majority of criminal cases come before the courts through the Police. Upon a
complaint and upon the officer satisfying himself that the information discloses
a criminal offence deserving further investigation, the officer will admit and
record it as First Information Report (FIR). In the FIR the officer must record
name and address of the complainant, time, date, place and particulars of the
complaint.

Then the case is handed over to the Investigating Police Officer (IPO) who will
proceed by locating and questioning witnesses, visit the scene and where
necessary make arrest. Where arrest is made and the suspect chooses to make
a voluntary statement, he will be cautioned on his rights. The suspect may be
released on bail if the offence is bailable.

Securing the Attendance of Offenders

Attendance of offenders may be secured by summons, a warrant of arrest or

arrest without a warrant.

1. Summons

This is a document directed by the court to an alleged offender to attend and

answer a complaint against him. A summons may be issued any day including
Sundays and holidays. A summons is served personally, and a person refusing
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service may be arrested without a warrant. Where he accepts service but fails
to attend court, he will be liable for arrest with a warrant.

2. A Warrant of Arrest

This is an authority issued by court in writing to the Police to arrest the person
named therein to come and answer the allegation made against him. Like
summons it may issue on Sundays and holidays. But unlike summons, a
warrant is only issued upon a complaint on oath. Once issued, a warrant of
arrest remains in force until executed or vacated.

3. Arrest without a Warrant

Any Police officer may arrest any person who commits an offence in his
presence or whom he suspects of having committed an offence. The power of
arrest by the Police is found under section 10, 11 and 15 of the Criminal
Procedure Act, section 26 of the Criminal Procedure Code and section 20 of the
Police Act.

A judge or magistrate may arrest or order the arrest of any person who
commits an offence in his presence within his jurisdiction. In certain
circumstance, a private person may also arrest a person but must hand him
over to the police as soon as possible.

Bail

This is a temporary release of a suspect or an accused person on the security

that he will appear at a specified place and time. Pursuant to the right to
personal liberty enshrined under section 35 of the Constitution bail is a right
for non-capital offences.

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Summary and Indictable Offences

Criminal offences are tried summarily or on indictment. Indictable offence is an

offence which attracts more than 2 years’ imprisonment or a fine of more than
four hundred Naira upon conviction. Indictable offences are tried in the High
Court upon an information filed by the Attorney General or on his behalf.

Summary offences, on the other hand, are bailable and simple offences or
misdemeanours tried in magistrates’ courts. These offences are also triable by
the High Court on the election of the accused without the need for an
information.

Summary Trial

This is a truncated trial process used in simple offences usually in magistrates’

and inferior courts. This is a method employed for simple crimes or civil claims.

Method of Commencement of Criminal Proceedings

Method of commencing a criminal proceeding is determined by the type of

court the action is brought. For example, in magistrate court, criminal
proceedings are instituted by a charge or FIR signed by a Police officer or a
complainant. In the Federal High Court criminal actions are instituted
summarily by filing a charge.

In the state High Court, the common procedure is to file an information with
the consent of a Judge. The information must be accompanied with proofs of
evidence. An information is a formal document bearing at least one indictable
offence in a non-summary trial in the High Court.

An information usually contains names of the parties, the court and the judicial
division, date, statement and particulars of offence. It is signed by the law

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officer. Please note that the attorney General does not require leave to file an
information or a charge.

Arraignment

This involves the officer of the court calling the accused and reading the charge
to his understanding and asking him to plead to it. The accused may plead as
follows:

a. Autrefois Acquit
b. Autrefois Convict
c. Stand Mute
d. Plead Guilty to a lesser offence
e. Plead Guilty to the Offence Charged
f. Plead not Guilty

Where the accused pleads not guilty issues are said to be joined. The
prosecution will be called to prove the case beyond all reasonable doubt. The
prosecution will call its witnesses and present its evidence. The witnesses are
examined-in-chief, cross-examined and where necessary re-examined and then
close its case. The prosecution must prove actus reus and mens rea, i.e. the
elements of the offence.

The defence may make a no-case submission, rest its case on that of the
prosecution or proceed and make out a defence. Where the defence elects to
proceed to a defence, it will call its witnesses, present its case and then close
its case. Both parties will then address the court unless the prosecution is not
a lawyer, in which case he has no right of reply.

This is followed by the court’s verdict, which may be guilty or not guilty. If the
verdict is guilty, the court will call for mitigation plea or allocutus before

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pronouncing the sentence. Where the accused is found not guilty the court will
acquit the accused.

The court in sentencing may impose a fine, make imprisonment order or even
the death penalty as prescribed by law.

Legal Aid

“Every person charged with criminal offence should be given adequate

facilities for the preparation of his defence and to defend himself in person or
by a legal practitioner of his choice.” This is the Constitutional provision
according to every person access to justice and due process of the law. But
what is the benefit of a right to a person who cannot afford to enforce it?

To ensure that men of straw are not deprived of a fair hearing through
inadequate representation, the Legal Aid Act was promulgated in 1976. The
Act is to ‘operate a scheme for the grant of free legal aid in certain criminal
proceedings to persons with inadequate resources.’

In realization of this objective, the Act established the Legal Aid Council, a body
corporate with perpetual succession, with the responsibility of providing legal
aid and advice to those entitled. These persons are stated under section 1(2) to
be indigent citizens who cannot afford the services of a legal practitioner in
cases specified under the Act. The cases are mostly serious offences like
culpable homicide, rape, assault and breach of fundamental rights, among
others.

Legal practitioners participating under the scheme are drawn from the
Council’s employees distributed across the state offices, volunteer private
practitioners and lawyers serving under the National Youth Service Corps.

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The Act has also guaranteed the confidentiality of beneficiaries of the scheme
under the pain of imprisonment or fine to any person who violates such
confidentiality.

END OF SECOND SEMESTER

DR S. MALLAM ABDUSSAMAD

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