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CIVIL PROCESS AND CIVIL PROCEDURE

SUPREME COURT

THE CIVIL PROCEDURE

First and foremost you need to understand that the civil procedure of the Supreme Court is
subject to the Court Act 1945 and the Supreme Court Rules [SCR] 2000.

How to enter an action before the Supreme Court?

a. Plaint with Summon [Rule 2(1) of the SCR 2000]

b. Motion and Affidavit [Rule 2(2) SCR 2000]
c. Petition

Normally, any action that is brought before the Supreme Court should be by Plaint with Summons
and in certain specific circumstances by Motion and Affidavit.

For Motion and Affidavit:

(a) the action is one for a prerogative order as stipulated by Rule 2(4) SCR 2000 is to the effect
that such an action shall be governed by the practice prevailing for the time being in the Courts
of England and Wales

(b) the circumstances require urgency; [hereby Injunction may be the best example]

(c) it is so prescribed in these rules: the River Rules of 22 October 1886 thus provide that all
applications, other than those relative to the division of rivers, streams or canals, shall be made
by motion to the Supreme Court.

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Petition:

Another way of entering an action before the Supreme Court is by way of Petition. Surely, you
must have hear of divorce petition.

Section 4(1) of the Divorce and Judicial Separation Act thus provides that any proceedings for the
grant of a decree of divorce or judicial separation shall be entered by way of petition to the Judge
in Chambers.

Section 45(1) of the Representation of People Act provides that the election of a member of the
National Assembly or of a municipal or village council can be challenged by way of an election
petition presented to a Judge in Chambers.

Definitely, one may use the wrong pathway to enter an action before the Supreme Court and in
order to preserve the right of any party, the legislator included Rule 5(a) SCR 2000 which provide
that no objection shall be allowed on the ground that the wrong procedure has been adopted for
initiating any process.

However, to ensure that the proper procedure is being used, the Master and Registrar of the
Supreme Court or the Court may direct that the pleadings be redrafted for the purpose of
complying with the correct procedure and of identifying the real issue between the parties. [Rule
5 (b) SCR 2000].

How to enter an action before the District Court?

The District Court and Intermediate Court Act and the District and Intermediate Court Rules
stipulate the Civil Process and Civil Procedure of the District Court.

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DISTRICT COURT

An action is entered before the District Court:

(1) Plaint with Summons (the plaint, in practice, is referred to as the 'Proecipe'): see sections 4 &
seq. of the District and intermediate Courts (Civil Jurisdiction) Act and Rules 18 & seq. of the
District, Industrial and Intermediate Courts Rules 1992;

(2) Claim, under the 'small claims procedure';

(3) Writ of summons in Form A of the Schedule to the Courts (Civil Procedure) Act, for an action
on a bill of exchange or promissory note commenced within 6 months from the date on which
the bill or note became due and payable [section 19(1) of the District and Intermediate Courts
(Civil Jurisdiction) Act is to the effect that sections 2 to 8 of the Courts (Civil Procedure) Act shall
extend to actions brought before a District Court for the recovery of bills of exchange and
promissory notes where the amount claimed is within the jurisdiction of such court.

If the Court is of the opinion that a claim lodged with under section 21 of the DIC (Civil
Jurisdiction) Act is beyond its jurisdiction, it shall discontinue any proceedings already started
and advise the claimant accordingly that a discontinuation of the proceedings shall not debar the
claimant from instituting fresh proceedings according to law.

SETTLEMENT THROUGH COURT

You have to understand that at the beginning parties tend not to settle their case but most of the
time they will definitely do so after that evidence has been disclosed.

Section 21E(2) of the DIC (Civil Jurisdiction) Act provides that where the defendant admits the
claim in full, the Magistrate may give judgment against the defendant in the sum claimed and
may award costs, and the Clerk shall inform the claimant and the defendant accordingly.

The Court has the discretion to convene the parties to the dispute in Chambers for consultation
with a view to effecting a settlement acceptable to all the parties and where a settlement is
reached between the parties, the Court may make such order as it thinks fit to give effect to the
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settlement reached by the parties, which shall have effect as a judgment of the court. [In Court,
after that parties has informed the Court of their agreement, you will hear that parties jointly
move for judgment].

Hearing of claim

You has to understand that sometimes parties are unable to settle their case and therefore the
matter shall fix a date for hearing the claim and the Court shall give notice of hearing to the
parties, and every other person who appears from the claim to have a sufficient interest in the
claim.

The District Clerk shall summon any person to appear before the Court, where the presence of
such person is necessary to enable the Court to determine the questions in dispute in the claim.
Here, both the Claimant and the Defendant will send their list of witnesses to the District Clerk
who shall issue summon. [Section 5, 6, 7 of the DIC (Civil Jurisdiction).

Where Plaintiff does not appear

In case, summon has been issued and the plaintiff does not appear, the Court may struck out his
Plaint with summon or non-suit the Plaintiff and award costs against the Plaintiff. [Section 15 of
the DIC (Civil Jurisdiction) Act.

Where Defendant does not appear [Make Out Case]

Section 16 of the DIC (Civil Jurisdiction) Act provides that where on the day so fixed in the
summons, or at any continuation or adjournment of the Court or cause in which the summons
was issued, the defendant does not appear, or does not sufficiently excuse his absence, the Court
upon the proof of the service of the summons, may give judgment in terms of the plaint or, where
the cause includes a claim for substantial damages, proceed to the hearing of the witnesses and
trial of the cause on the part of the plaintiff only.

You have to understand that Court is alive to the fact that the Defendant might not has received
summon or was not aware of the plaint with summon. In these circumstances, the Court may set
aside the judgment and order a new trial of the cause of action.

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JUDGMENT
You should understand that having a judgment in itself is a great achievement but still one need
to execute the judgment so that one can really enjoy the benefit. Section 22 to 35 of the DIC deal
with how judgment are executed.

Section 22 (1) of DIC provides that:

‘Where the court has made an order for payment of money, the amount shall be recoverable in
case of default or failure of payment forthwith, or at the time and in the manner thereby directed,
by execution against the goods and chattels of the party against whom such order has been
made’.

Section 25 (1) of DIC provides that:

‘Where the amount levied by distress is insufficient, the Magistrate may issue a writ of execution
against any immovable property belonging to the debtor, in whatever district it maybe situate’.

Section 29 of the DIC provides that:

‘No judgment or execution shall be stayed, delayed, or reversed by any writ of error or
supersedeas except where there is an appeal’.

Please note that I have referred to the above section so that you have an idea how a judgment
can be executed. Throughout, this process of execution of judgment, the court usher is the main
actor and the police may be solicited if the need arise.

Of course, one may have no remedy if the debtor is bankrupt and has no property on his name.

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APPEAL
Section 36 (1) (a) of the DIC provide:

‘A party to a suit or action before the Intermediate Court or a District Court, whether such suit or
action has been entered by plaint with summons, or by any other process, may appeal to the
Supreme Court against any final judgment’.

You need to understand that you can only appeal a final decision of the Court and that you have
21 days from the date of the judgment to give notice to the clerk of the court where the judgment
was delivered.