*CIVIL PROCEDURE IN NIGERIA*

*Definition*
Civil Procedure refers to the entire mechanism used to enforced private rights. It
connotes the stipulated procedures by which an injured party who has been
wronged by an action of another could be compensated or seek redress by the
action of the law. It consists mainly of rules of practice and procedure applying to
conflicts involving disputes in which legal rights and legal duties are in issue.
*Parties To Suit*
Any juristic person may sue or be sued. However, a non juristic person cannot
bring action or have an action bought against it. Parties to a suit / action are persons
who have bring an action against another subject to the court decision. In
*FAWEHINWI V. NIGERIAN BAR ASSOCIATION,* the Supreme Court affirms this
principle by the following persons who can sue or be sued;
. natural persons, companies incorporated under the Company and Allied Matters
Act, corporations aggregate (collection of individuals) and corporations sole (e.g the
Bishop or diocese) with perpetual succession.
*Commencement of Civil Proceedings*
Actions in a Civil Proceedings are generally commenced by Originating summons,
Applications /Originating motion, petition, and writ of summons.
. Originating summons: This is adopted where the main reason is to determine the
interpretation of a written law or instrument, deed, will, contract, or other
documents or where there is a special existence of statutory provisions for it's use.
This form is not adopted where there is a dispute in fact. Where there is a dispute in
fact, the complaints can only come through writ of summons. This however, got a
judicial blessings in *NWABUEZE V. OKOYE* where the Supreme Court held: that
the process should only apply to situations where there is likely to be no dispute as
to facts.
. Applications / Originating Motions: This application has to do with certain
proceedings like actions for prerogative, orders of mandamus, certiorari, habeas
corpus and actions that has to do with violation of human rights.
. Petition: Petition are special prayers framed in a special form supported with facts
and often adopted in election, divorce and winding - up proceedings.
Writ of summons: writ of summons is the most common method of commencing
civil actions, and is generally recommended for all civil actions unless expressly
excluded by a provision. A writ of summons is an order from a court issuing it
commanding the defendant to cause an appearance either personally or through a
solicitor.
Service Of Writ And Judgement In Default Of Appearance:
The service is done by the sheriff or other officer of the court or by any other
person appointed for that purpose unless where a different mode is prescribed. The
service may be served to the defendant personally or through his solicitor. The
court may also serve it to any person who may bring it to the notice to the
defendant.
Once the served, an appearance is cause to enter by the defendant and failure to do
so the plaintiff may urge the court to give judgement on his absence unless there is
a reasonable excuse over his absence.
Pleadings:
Pleadings are written statements which both parties in an action/suit served to each
other stating summarily the material facts on which each party relies in support of
his claim or defence. Pleadings are not used in actions commenced by an
originating process other than the writ of summons.
Pleadings are done after the service of the writ of summons on the defendant and
the entry of appearance by him except in causes where the defendant fails to enter
appearance thereby causing judgement to be enter on his absence. It consists of a
statement of claim, a statement of defence, and a reply.
*. a statement of claim: is served by the plaintiff alleging all the material facts on
which he lays claims against the defendant and specifies remedies, or reliefs sorted.
The facts which the plaintiff should allege must be facts that established his cause
of action. The statement of claim is filed in Court and a copy is served to the
defendant.
*. a statement of defence: this is filed by the defendant in response to the plaintiff.
It states the facts on which the defendant will be relying for his defence to the
plaintiff's claim. He may admit wholly, partially, or deny most of the claims of the
plaintiff. The defendant may raise objection urging the court to strike out the
plaintiff's action, raises his own pleadings or even his own version that transpired
the dispute.
*. a reply: prior to this, the plaintiff may file and serve on the defendant a second
pleading following the defendant's statement of defence.
The original copy of every documents filed is retained in Court. A copy of every
document filed must be served in the opposite side by the sheriff, deputy sheriff,
officer of the court, police or other persons specially appointed and in manner
directed by the court. The counsel may also serve. Any writ filed, signed, and sealed
must be served within twelve months, but may be extended by six months. After
service, the serving officer sends to the court certificate of service, affidavit of
service or certificate of posting as the case may be. Then, the defendant has specific
period to respond the complaints against him / her and the remedy sought. He may
admit wholly, partially or deny with reasons.
At this stage the issues are said to be joined. Each side has the other's case, claim
and defence and is able to determine the area admitted or disputed. A time for trial
is thereby set by the court subject to the parties in dispute. Parties then notify their
witnesses, the Counsels hold with their clients pre - trial interviews to acquaint
them with court procedures, how to give evidence and what evidence he/she may
be required to give.
The Trial
On trial date, the court is set the case is called and the parties make opening
statements. The plaintiff calls his/her first witness and leads him/her in evidence -
in - chief. The other party cross - examines the witness after the plaintiff has
examined and the plaintiff re - examined. After the last witness for the plaintiff has
been re - examines, the plaintiff closes his/her case while the defence opens.
An opening speech may or may not be made, after which witnesses for the
defendant are called one after the other. Each of the defence witness gives evidence
- in - chief, cross - examination and then re - examination until the last witness has
been re - examined. The defence then closes his case. The counsel for either of the
parties may request to enter a verdict, depending on the state of evidence.
Alternatively, both Counsels may address the court. The court adjourns for
judgement.
Final Judgement:
On the appointed date, the judge/magistrate reads the judgement of the court. A
judgement is last part of civil proceedings. It is the final decision of the court
resolving the dispute and determining the rights and obligations of the parties.
Judgement may be given immediately at the hearing or the court may adjourn for a
latter date.
The Time Limit To Deliver Judgement:
*Section 294(1) of the 1999 Constitution of Nigeria (As Amended)* provided inter
alia;
" _Every court established under this Constitution shall deliver its decision in writing
not later than ninety days after the conclusion of evidence and final addresses and
furnish all parties to the cause or matter determined with duly authenticated copies of
the decision within seven days of the delivery thereof._"
In *ODI V. OSAFILE,* the court held: that a court had no Jurisdiction to recall
parties to further address it after the ninety days limit and judgements given
outside the ninety days were void. The Supreme Court further stated in *IFEZUE V.
MBADUGHA* that under that provision failure to deliver the judgement in writing
within the time limit nullifies the judgement. The supreme court further held that a
court may however reopen a case for further argument after it had reserved
judgement provided it is within the ninety days limit.
However, by the provisions of *section 294(5) of the 1999 Constitution (As
Amended) occasions that where the Court decision is delivered outside ninety days
is will not invalidate the proceedings rather a reasonable examination should be
conducted to the delay whether it occasioned miscarriage of justice.
Appeal
A party to an action who is dissatisfied may decide to have the decision reviewed by
a higher court. Judicial review should not be missed with an Appeal. While the
latter focuses on the legality of the decision complained, an Appeal concerned with
the correctness or otherwise of the decision. The Supreme Court defined appeal in
*OREDOYIN V. AROWOLO* as;
" _An invitation to a higher court to review the decision of a lower court to find out
whether on the proper consideration of the facts placed before it and the applicable
law that court arrived at a correct decision._"
Court of Appeal
Is created by section 237(1) of the 1999 Constitution (As Amended) and next to
Supreme Court. It's Jurisdiction is extended to appeals from Federal High Court,
High Court of FCT, State High Court, National Industrial Court, Customary Court of
Appeal, Sharia Court of Appeal, Court Martial, Tribunals such as Code of Conduct
Tribunal, National Assembly and State House of Assembly Election Tribunals,
Governorship Election Tribunals and any other tribunal prescribed by the National
Assembly.
Right Of Appeal
This is provided in section 241(1) of the 1999 Constitution (As Amended).
Appeal with Leave
Where judgement is entered with the consent of the parties, there shall be no
appeal without leave (see section 241(2) c) of the Constitution. Section 242(1)
further stated that appeals shall lie from the High Court to the Court of Appeal with
leave of either of High Court or Court of Appeal.
No Right of Appeal
Section 241(2) a & b of the Constitution provided where there is no right of appeal
to the Court of Appeal.
Time Frame of Appeal
This depends on whether the decisions sort to be appealed is a final decision or any
interlocutory decision. Section 24 of the Court of Appeal Act provides that an
appeal against a final decision must be filed within 3 months of the decision
whereas an interlocutory decision must be filed within 14 days.
Commencement of Appeal
An appeal commenced at the Court of Appeal by the party filling a Notice and
Grounds of Appeal.
Compilation of the record of Appeal
After the service of Notice of Appeal, the Registrar of the Court below shall within
60 days, compile and transmit the Record to the Court of Appeal. This was provided
in *Order 8 Rule 1 of the Court of Appeal Rules 2016. The Registrar shall compile the
records within 7 days if the decision sought to be appealed is an interlocutory
decision.
Cross Appeal
A cross appeal is filed by a dissatisfied respondent. A respondent who is not
satisfied with a specific finding of the Court below, because the finding is adverse to
his interest which is crucial to the case and desires to have it set aside may file a
cross appeal.
Respondent's Notice
This is a respondent's Notice who desires to dispute that the decision of the lower
court should be changed either in the event of the appellant's appeal being allowed
in whole or part. In doing this, the respondent must specify the grounds of the
contention and the precise form of the order which he proposes to ask the court to
make. By Order 9 Rule 4 of the Court of Appeal Rules 2016, a respondent's Notice
must be filed within 15 days in the case of an interlocutory order and within 30
days in other cases.
Notice of Preliminary Objection
A respondent who wishes to raise a preliminary Objection to the hearing of an
appeal, shall file a formal notice of objection with 20 copies as provided in Order 10
Rule 1 of the Court of Appeal Rules 2016. The Notice shall set out the grounds of
the objection and shall be filed and served within 3 days before the date for
hearing.
Brief Of Argument
Order 18 Rule 2 of the Court of Appeal Rules 2016 defines a brief of argument as
a clear statement of argument in an appeal. An Appellant in an appeal is required
to file 20 copies of his brief of argument within 45 days of his receipt of the records
of appeal in accordance with the Rules; failure to do so, the Respondent may apply
to the court for the dismissal of such appeal for want of prosecution. However, the
Respondent is required to file his own brief of argument within 30 days of receiving
the Appellant's brief of argument. The Respondent 's brief should answer all the
material points raised in the appellant's brief, and the points he (the respondent)
wishes to concede and also reasons why the appeal should be dismissed as
provided by *Order 18 Rule 4 of the Court of Appeal Rules 2016.* Where the
Response failed to file his brief of argument, the Appellant may apply for the appeal
to be heard based on the Appellant brief of argument alone. The Appellant may also
within 14 days of the service on him of the Respondent's brief, file a reply to deal
with any new points raised therein.
Hearing Of Appeal
After filing their respective briefs, the parties to the appeal are giving a date by the
Appellate Court when they shall appear before it to adopt their various briefs of
argument. After this, Counsels are allowed 40 minutes on both sides for
adumbration, emphasis, and clarify the written argument in the briefs.
Judgement
At end of the hearing, the Court will adjourn for it's judgement which shall be
delivered in an open court and in accordance with section 294(1) of the 1999
Constitution (As Amended). The judgement of the Court of Appeal is determined
by the majority of the juris presiding (PJs). Immediately the judgement is delivered,
the Registrar of the Appellant Court will notify the Registrar of the lower court of
the judgement and such judgement may be enforced by the Appellate Court or the
lower court.
Conclusion
This forensic note serve as a guide to every Law Students, Lawyers, and persons
that is interested in the practice and knowledge of Civil Litigation in Nigeria.
WRITTEN BY
M. V. Ugochukwu (200L)
Faculty of Law, Imo State University
09068012501(WhatsApp)