HOW TO INSTITUTE CIVIL AND CRIMINAL ACTIONS IN NIGERIAN COURTS

 

A Presentation by Tunde S. Arowolo (Esq) on the 10th of May, 2020, at the IDISD Training Wing

 

The Overview of the training session is as follows:

1. The Nigerian Legal System,

2.  Litigation,

3. Types/Classifications of Courts in Nigeria with their respective Jurisdiction,

4.  What to consider before instituting civil actions in court,

5. Procedure for instituting Civil and Criminal Actions in Court

 

1.         THE NIGERIAN LEGAL SYSTEM:

The Nigerian Legal System is classified under the common law system. The country also has its rules of Customary law and Islamic law. The Nigerian Legal System emerges as a unique system equipped with all its Laws and necessary legal machinery in a self-contained sovereign state, such as the Constitution of Federal Republic of Nigeria, Acts of the National Assembly, etc.

 

The Nigerian Legal System also provides for what is called Litigation.

 

2.         Litigation:

This means the process of causing a disagreement or dispute to be discussed or adjudicate upon in a court of law in order for an official decision or pronouncement on the matter.

We have two types of litigation in Nigeria;

a) Criminal Litigation and

b) Civil Litigation

 

Criminal Litigation deals with crime related offense which are subject to punishment and usually instituted by the state against the suspect/accused person. Civil litigation on the other hand deals with infringement on rights, claims etc. It is instituted by individuals.

 

In Nigeria parties to litigation are referred to as follows:

 

a) Plaintiff/Claimant vs Defendant (at the Trial courts)

b) Appellant vs Respondent (at Appeal Courts)

c) Petitioner vs Respondent (Matrimonial causes)

d) Applicants vs Respondent (Applications, Motions)

 

However, note that our laws now provide for what is called Alternative Dispute Resolution (ADR) before litigation in court.  Also in addressing all these disputes, a Court is set up to adjudicate on such dispute or matters.

 

3. CLASSIFICATIONS OF COURT IN NIGERIA WITH THEIR RESPECTIVE JURISDICTION

 

a)         Supreme Court of Nigeria:

This Court was established under section (sec) 230 to 236 of the 1999 Constitution of Federal Republic of Nigeria (As Amended). The Court is the Apex and last resort court in Nigeria. The court consists of the Chief Justice of Nigeria and 21 other Justices of the court. The court hears appeals from the Court of Appeal and also exercises a measure of Original Jurisdiction in disputes as to the existence and extent of legal rights between the Federation and a State or between States, so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal rights depends. The Court shall have such Original jurisdiction as may be conferred upon it by any Act of the National Assembly. This was also captured in the case of Attorney (Att.) General (Gen.) of the Federation vs Att. Gen. Abia State (2002) 6 NWLR (Pt 763) 264 @ 367-377

 

The Court also has additional original jurisdiction in any dispute between the National Assembly and the President, the National Assembly and any State House of Assembly and between the National Assembly and a State of the Federation.

The Court also has its Appellate jurisdiction to hear appeals from the Court of Appeal on both Criminal and Civil matters. It’s important to Note that the Court is constituted by a panel of not less than 5 Justices on normal appeals, except when it is exercising her appellate jurisdiction on Constitutional matters or its original jurisdiction in which cases a panel of 7 Justices is required to sit.

 

The Supreme Court of Nigeria is a Superior Court of Record as provided under Sec 6 of the Constitution. To invoke or initiate the Original Jurisdiction of the Supreme Court, it’s only the Attorney-General of the Federation and those of the States that are conferred with the powers to sue or be sued on behalf of their respective government.

 

b) Court of Appeal:

This court is the next on the hierarchy of Nigerian courts. The court is established under Sec 237 to 249 of the Constitution. It is a Superior court of record with supervisory and superior authority over all other courts below it. The court sits in Judicial Divisions and is constituted by at least 3 Justices on Appeal matters except in Constitutional matters where the court will constitute 5 Justices to sit. The court of Appeal has a president as the head and 49 other Justices with not less than 3 shall be learned in Islamic personal law and also 3 shall be learned in customary laws. The court has judicial divisions in the 6 geopolitical zones.

The court has its original jurisdiction to hear and determine under sec 239 (1) & (2) of d constitution any matters/question relating to:

*any person has been validly elected to the office of president or vice-president under the Constitution,

* the term of office of the president or vice-president has ceased,

* the office of president or vice-president has become vacant.

Note that only Court of Appeal while sitting as the Presidential Election Petition Tribunal has the exclusive original jurisdiction to hear and determine election petition and other related matters concerning the office of the president or vice-president any question as to whether such office have become vacant.. See the case of *Att. Gen of Federation vs Atiku Abubakar (2007) FWLR (Pt 375) 1264 at 1289 (C/A)*. The court also has Appellate jurisdiction in matter relating to criminal and civil action emanating from the courts below.

 

c) Sharia Court of Appeal:

Sharia Court of Appeal is established to hear appeals from Sharia Court/Upper Area Court on Islamic Personal Laws. The court is headed by Grand Kadi of the FCT/State with other number of kadis as may be prescribed by an Act of the National Assembly or State House of Assembly.

 

The Constitution provides for the court as follows:

* Sharia Court of Appeal of FCT... Sec 260-264 of the Constitution,

* Sharia Court of Appeal of a State... Sec  275-279 of the Constitution.

 

The Court has jurisdiction to hear and determine Appeal on Civil matters relating to Islamic personal laws, see Sec 277 of the constitution.

 

*Note*

Sharia Court of Appeal only exists in the Northern Nigeria.

Also, Appeal from this court goes to the Court of Appeal.

 

d) Customary Court of Appeal:

This court is established to hear and determine appeals emanating from the Customary Court in respect of matters relating to Native law and Customs (Customary law). The court is headed by a president with other number of Judges as may be prescribed by an Act of the National Assembly or State Assembly.

 

The Constitution provides for the court as follows;

* Customary Court of Appeal FCT... Sec 265-269 of the Constitution,

* Customary Court of Appeal of a State... Sec 280-284 of the Constitution.

 

The Court has jurisdiction to hear and determine Appeal on Civil matters relating to the Native law and customs (i.e customary laws). See Sec 282 of the constitution. This court only exists in the Southern Nigeria.

Also Appeal from this court lies/goes to the Court of Appeal.

 

e) Federal High Court:

This court is established under Sec 249-254 of the Constitution. It’s also a Superior court of Record. The court is headed/presided over by a Chief Judge of the Federal High Court with such number of Judges as may be prescribed by an Act of the National Assembly. The court has its judicial divisions in other state/region.

 

The court has an exclusive jurisdiction as provided under Sec 251 (1) of the Constitution, in matters relating to:

1) Revenue of the Federal government,

2) Taxation of Companies or on Federal taxation,

3) Customs & excise duties,

4) Banking, Banks, other financial institutions between Banks or against CBN arising from foreign exchange, legal tender, bills etc,

5) Companies and Allied Matters Act,

6) Federal enactment relating to copy right, patent, designs, trademarks, etc,

7) Admiralty jurisdiction, shipping and navigation on the River Niger or Benue, carriage by sea etc,

8) Diplomatic, consular, trade representation,

9) Drugs & Poisons,

10) Citizenship, deportation of person, extradition, immigration, passports, visas etc,

11) Aviation and safety of aircraft,

12) Arms, ammunitions, explosives etc,

13) Administration/Management & control of Federal government or any of its Agencies.

Note however, that clause 4 above shall not apply to any dispute between an Individual customer & his bank in respect of transaction. Such is classified as simple contract, and only state high courts have jurisdiction for simple contracts.

It’s important to also note that the court hears and determines matters on pre-election cases.

Federal High Court (FHC) also has criminal jurisdiction over terrorism, treason, fraud, human trafficking, etc. Appeals from FHC go to the Court of Appeal.

 

f) State High Court:

This court is also a Superior court of Record and the Constitution provides as follows;

* High Court of the FCT… Sec 255-257 of the Constitution, and

* State High Court... Sec 270-274 of the Constitution

The FCT and each of the State High courts has a Chief Judge as the head and also has number of Judges of the state as may be prescribed by the National Assembly and laws of respective State House of Assembly.

The State High Court deals with matters relating to legal rights, duty, power, Liability, privilege, interest, obligation or claims etc. The court also has jurisdiction to hear and determine criminal proceedings relating to offences, penalty, forfeiture, punishment etc. The court also hears & determines Appeal from the Magistrate court & Upper Area Court.

Also Appeal from this court goes to the Court of Appeal.

 

g) National Industrial Court of Nigeria (NICN)

This is also a Superior court of Record and has coordinate jurisdiction with the FHC & various state High courts. NICN deals with matters relating to Trade dispute, labour, Industrial trade union, such as labour strike, salary or monetary claim, allowance, pensions, gratuity, benefits arising from any employment etc.

The above are the exclusive jurisdiction of NICN.

The court is established under sec 254 of d Constitution, and it has a president as the head with other number of Judges as may be prescribed by an Act of National Assembly.

NICN has appellate & supervisory jurisdiction over decisions or arbitral tribunal or commissions, administrative body, board of enquirers, Industrial panels all relating to employment/labour.

NICN also has jurisdiction to hear & determine criminal matters as may be prescribed by an Act of National Assembly. See sec 254 (5) of the constitution.

 

h) Tribunals:

These are special courts which are also recognized under the constitution. Examples include Code of Conduct Tribunal (CCT), Election Petition Tribunal etc. These Tribunals have jurisdiction to hear and determine matters as may be prescribed by the Constitution and an Act of the National Assembly.

 

I) Magistrate or District Court

This court is an inferior court and it is bound by the decisions of the Superior court (High Court). The court hears and determines matters relating to both civil and criminal actions, however, there are exceptions to matters the court can handle. In FCT, the court is referred to as Magistrate court when handling criminal matters, while District court is used when handling Civil matters.

 

Note that the court can handle all criminal matters except Rape, Murder, Bigamy, Treason etc. as may be prescribed by the law creating it.

While also there are exceptions in civil matters, and d court cannot hear matters of ownership of Land, Divorce under Matrimonial Causes Act, etc as may be prescribed by law creating it.

The court also has what is called Financial Jurisdiction. However, this depends on the state laws creating it.

 

j) Area Court and Customary Court:

These courts are also inferior courts and are duly bound by the decisions of both Sharia Court of Appeal and Customary Court of Appeal respectively.

Both courts have limited jurisdiction to hear and determine matters relating to civil & criminal actions. However, the limitations are subject to the laws creating the courts. Appeal from Area court goes to d Upper Area court.

 

k) Court Martial:

This court is strictly created to hear and determine matters relating only to the Armed Forces. The court is regulated by the Armed Forces Act. It is a special court for the Armed forces only, and Appeal from this court goes to the Court of Appeal.

 

4.         WHAT TO CONSIDER BEFORE INSTITUTING CIVIL ACTIONS IN COURT

 

Here is the work of a lawyer. In instituting civil actions before the court, the lawyer after proper briefing by the client/litigant must first consider the following:

Locus Standi is the legal right or capacity of the claimant/plaintiff to institute an action in a law court, or to be heard in an action before a court of law

Locus standi is a condition precedent for the competence of a suit, therefore, if the claimant/plaintiff lacks the requisite locus standi to institute the action, the court will also lack jurisdiction to hear and determine the action/claim.

Locus standi can be determined from the averments in the statement of claim and in other to achieve your claims, the pleading must state:

 

a) The Legal and justifiable right,

b) Sufficient or special interest adversely affected, and

c) a justifiable cause of action.

 

Jurisdiction of the Court:

This is very important before instituting both criminal and civil action. The lawyer must first consider which court has the jurisdiction to hear and determine the matter.  It’s important to Note here that Jurisdiction of courts can be classified in terms of category or hierarchy of courts or nature of the subject matter. As provided by the laws that create the courts, we have the following:

 

a) Personal Jurisdiction: relates to the right of a court to be the court of first instance over a subject matter or party,

b) Appellate Jurisdiction: this relates to the supervisory role that a higher court exercises to review the judgment or proceedings of a lower court,

c) Concurrent Jurisdiction: this is when two different courts have same or similar power over a subject matter & party.

d) Exclusive Jurisdiction: this relates to the right of a court over a subject matter or party to the exclusion of other courts. (This is common to all category of courts based on certain subject matter under the statutes and rules of court)

 

Furthermore, when instituting a civil action in court, a lawyer must also consider

a) Personal jurisdiction: this means the jurisdiction of a court over the person.

b) Territorial Jurisdiction this means when court as its jurisdiction (over the person & subject matter) within its territory e.g Kwara State High Court cannot extend his jurisdiction to Osun State.

c) Subject matter: the subject matter in dispute must be within the jurisdiction of the Court.

 

Jurisdiction is the life blood/wire of all trials/matters. It is elementary law that jurisdiction is the superstructure upon which the judicial power of a court of law is founded. Issue of lack of Jurisdiction can be raised at any time (including at Appellate court). However, the components of Jurisdiction of courts got its blessing in the case of *Madukola vs Nkemdilim (1962) 1 All NLR (pt 4) 557*, where the Supreme Court addressed the components of court jurisdiction as follows:

 

a) Properly constituted & qualified members of the bench (Judges),

b) Subject matter of the action must be within the jurisdiction of the court,

c) The action must be initiated by due process of law or condition precedent to instituting the action.

Note that it’s only the court that can determine whether or not it has jurisdiction to hear the matter, but it’s very important to for a lawyer to consider the jurisdiction before instituting an action in court.

 

Cause of Action

This is also very important in civil matters. Cause of action is a set of facts or legal theory that gives an individual or entity the right to seek a legal remedy against another, such as filing for wrongs, damages, personal injury, and monetary loss.  A cause of action may come from an act or failure to act breach of duty or violation of rights. However, it is important to note that there is a Statute of Limitation when instituting matter.

We also referred to it as Limitation of action, for e.g In matter relating to breach of contract, it must be instituted within 6yrs of the breach (cause of action), it will be statute barred after 6yrs. Also for land matters, it must be instituted within 12yrs of the cause of action.

 

5.         PROCEDURE FOR INSTITUTING CIVIL AND CRIMINAL ACTIONS IN COURT:

 

This is also the major duty of a lawyer. First a lawyer must have the instructions of his/her client to commence such actions in court.

 

Mode of commencing civil action at the high court is as follows:

a) Writ of Summons: This is a document which commands the Defendant to enter appearance in court within a specified number of days after service. The Writ is accompanying with a Statement of Claim, Statement of Oath, List of Witnesses, List of documents etc.

b) Originating Summons: This is used if the sole issue is one of construction of a written law or instrument made under any written law or deed, Will, Contract or other documents.

It can also be use if the Rules of Court or any statute specifically direct that the action shall be commenced by originating summons, e.g Fundamental Rights (Enforcement procedure) Rules.

c) Originating Motions: This may be commenced in the following limited circumstances;

> If the Rules of court or any other written law provides that the proceeding may be commenced by originating motion, e.g for judicial review, and also under some certain companies’ proceedings,

>If a statute provides for a right but does not specify the means by which applications may be brought under the statute.

d) Petition: This is used in specific cases as required by statute or the Rules of court, for e.g. Election petition, matrimonial causes (Divorce), and company winding up proceedings.

Also there is an action called *Undefended list*, this is use to recover liquidated money demand.

 

Modes of commencing civil action in *District court* is as follows:

a) Ordinary Summons: Here the claimant applies for a Plaint to be issued against the Defendant. It contains the particulars of claim. It may be use in following cases;

>Ordinary debt case where the Defendant is likely to deny the clam,

> claims for arrears of rent and recovery of possession,

> Unliquidated damages,

>Money lender's action,

>Claim for recovery of goods.

b) Default Summons: This is use for summary judgment. It is usually use to recover liquidated money demand.

Note that an individual can personally file for a plaint at the District court and the court will issue it.

The above depends on the respective laws of each state. It is also important to note that District court lacks jurisdiction to hear and determine the following:

> Ownership of Land,

> Bequest or limitation under Will or Settlement,

> Marriage (Matrimonial causes),

> Inheritance and disposition of property on death,

> Family status or guardianship of children (However, here magistrates in Lagos state have jurisdiction to hear it)

It’s also important to note that District court also have what is called financial jurisdiction and cannot entertain all monetary matters e.g monetary claims not exceeding N10 million in some states.

In Criminal matters, the applicable laws in Nigeria are among the followings:

1) The Panel Code laws for the Northern part of the country,

2) The Criminal Code for the Southern part of d country,

3) The Economic and Financial Crime Commission Act,

4) The Terrorism Act,

5) The National Drug Law Enforcement Agency Act. Etc

The above laws provide for both the offence and punishment as may be prescribed by the laws creating it.

 

It’s also important to note that FCT established what is called Administration of Criminal Justice Act 2015 for the FCT courts and all other Federal Courts. Also some states established their respective Administration and Criminal Justice laws. These Acts and laws regulate the criminal justice sector or proceedings.

Upon the complaint by the victim/normal complainant, it is only the state (AGF or AGS) that can institute a criminal action against the accused person, except if granted a fiat by the AGF.

 

Modes of commencing a criminal action in court are by:

1) A Charge,

2) First Information Report, (mostly at the magistrate court)

3) Information from the Att. General of Fed.

 

CONCLUSION

It is very important that before commencing or instituting an action in court, the litigant must first consult a lawyer for proper advice/litigation.

 

REFERENCES

1. Constitution of the Federal Republic of Nigeria 1999 (As Amended),

2. Penal Code laws of the Northern Nigeria,

3. Criminal Code Laws of the Southern Nigeria,

4. Administration of Criminal Justice Act, 2015,

5. Judicial authorities (Case Laws).

This note is edited and posted by IDISD Editorial Board:

Wahid Damilola Olanipekun (PhD)- Editor

Suleiman Musa-                               - Asst. Editor

Hanafi Olanrewaju Rabiu                - Executive Director