When a legal absurdity becomes the tradition…

IT is no longer breaking news that the commencement of a civil action in court in Nigeria by a party called ‘claimant/plaintiff’ against a party called ‘defendant’ for claim or claims is by filing a process referred to as ‘originating process’ provided for under the law or rules of court. Thus, filing of the originating process must be in accordance with the provision of the law or rules of the court. It is an indisputable fact that courts including Magistrate Courts are creatures of statute. All courts in Nigeria derive their power and jurisdiction in particular from either statute or the Constitution which is the supreme organic fundamental law and the grand norm of the country. This principle is fortified by the authority of Nuhu V. Ogele(2003) 18 NWLR (pt. 852) 251.Which Statute then creates the Magistrate Courts in Oyo State?

Oyo State, as one of the 36 states of Nigeria, has several laws passed by its House of Assembly, including the Magistrates’ Courts Laws of Oyo State of the Federation 2000 that created Magistrate Courts in Oyo State. The creation of Magistrate Courts in Oyo State is made by virtue of section 5 of the Magistrates’ Courts Laws of Oyo State of the Federation 2000 and it is the same law that conferred power on the Chief Judge of the state under Section 60 to make rules to regulate,inter alia, the forms to be used in proceedings before the Magistrate Court in Oyo State.

Consequence on the powers conferred on the Chief Judge, the Chief Judge made the rules of court christened Oyo State Magistrate Courts (Civil Procedure) Rules 2012 wherein provision regulating the forms to be used in proceedings before the court is made under Order 2 rule 1. The rule 1 of Order 2 of the Magistrate Courts (Civil Procedure) Rules 2012 makes provision for Plaint, Summons and application as initiating processes to be used by any party who is interested in commencing civil action against any other person for a claim or claims in any civil proceedings before any magisterial district of the Oyo State Magistrate Courts. For easy and quick reference, the provisions of Order 2 rule 1 and Order 3 rule 1 of the Oyo State Magistrate Courts (Civil Procedure)Rules 2012 are hereunder provided.

Order 2 Rule 1 – Form and Commencement of Action says: “On the application of any person desirous of instituting civil proceedings and on payment of the prescribed fees, the registrar shall enter in a book to be kept for this purpose in his office and called the Civil Cause Book a statement in writing, hereinafter called a plaint, stating the names and last known places of abode of the parties and the substance of the action intended to be brought, and every one of such plaints shall be numbered in every  year, according to the order in which it shall be entered, and the registrar shall deliver to the applicant a plaint              note.” Order 3 Rule 1- Summons and Procedure  says:  “After a plaint has been entered, the magistrate or (if the magistrate so directs) the registrar shall issue a  summons in the prescribed form directed to the defendant requiring him to appear at a certain, being not less than seven days from the date of service of such summons, and at a certain place, before the court to answer to the plaint.”

Contrary to the quoted provisions of the Magistrate Courts (Civil Procedure)Rules 2012 made by the Chief Judge of Oyo State, the filing of a process known as ‘Particulars of Claim’ by many litigants through their various counsel as an initiating process to commence a civil action has become a common practice in Oyo State and a tradition in initiating civil proceedings in Ibadan Magisterial District of Oyo State Magistrate Courts as against the provision for Plaint, Summons and Application as initiating processes made under the rules of court.  This practice has become a ubiquitous phenomenon in Ibadan Magisterial District of Oyo State Magistrate Courts, like Tales by the moonlight, a television programme which often rings a bell in the minds of Nigerian children.

With the fact of zero legal backing for the use of process known as ‘Particulars of Claim’ in initiating civil proceedings before magistrate courts in Oyo State, a fundamental question arises, namely: What then is the basis or the legal source of the use of the process known as ‘Particulars of Claim’ as initiating process of Civil Proceedings in the Oyo State Magistrate Courts and justification for such practice by some legal practitioners as tradition despite unequivocal and unambiguous provisions of the Oyo State Magistrate Courts (Civil Procedure) Rules 2012 which provide for Plaint, Summons and Application as initiating processes of any civil proceedings before any magisterial districtof the Oyo State Magistrate Courts?

The Oyo State Magistrate Courts (Civil Procedure) Rules 2012 is the rule of procedure; the lubricant of the machinery of justice which contains minute details of the various steps which a litigant should take in the process of getting the court to hear and determine his case in his favour and it is a pillar upon which a case stands. Filing an action with due process as provided for under the Law or the Rules which give court its power to entertain any case before it in a court of law presupposes that the court has jurisdiction. With the above provisions of the relevant rules extracted from the Oyo State Magistrate Courts (Civil Procedure) Rules 2012, it is safe to say that filing of any process, be it originating or otherwise in any courts in Nigeria which the law or rules of such court do not provide for, automatically ousts the said court of its competence and jurisdiction to entertain such matter.

It is humble advise that the legal practitioner who is desirous of filing any process to commence any civil proceedings for his client for any claim should always endeavour to do so in full compliance with the provisions of the law or the rules of the court. This would save the court of being ousted of its competence and jurisdiction to entertain his matter. It is equally noteworthy that filing due process before the court in accordance with the law or rules of court confers jurisdiction in the court and failure of which would make every step or decision made where a court lacks jurisdiction in a suit a nullity and of no effect.

Hence, once the courts has no jurisdiction, the foundation of the case is not only shaken but also is entirely broken. The case crumbles; in effect, there is no case before the court for adjudication. The parties cannot be heard on the merits of the case. The Supreme Court has restated this principle over times thereby making this issue so notorious. By and large, putting a halt to a tradition that lacks legal backing is imperative to protect the sanctity of the law and ensure due diligence in justice dispensation.

• Giwa, a legal practitioner, writes in via giwa_pentalk@yahoo.com