Are The ‘Front-Loading’ Provisions Of The High Court Civil Procedure Rules Valid?


By Abubakar Sani Esq

  1. It is common knowledge that the so-called ‘font-loading’ provisions of High Court Rules, e.g. Order 3 Rules 2(2)(b),(c) &(d) and Order11 Rules 1 & 4(b)&(c) of the Lagos State High Court Rules, 2012, require all Writs of Summons and defenses to claims for summary judgment to be  accompanied by the Plaintiff’s (or Defendant’s) list of witness, written   statement on oath of those witnesses as well as the list of documents which they intend to rely upon at the trial, be filed and served  and served at the  start of proceedings. A witness statement on oath is an affidavit: E. INT. OPERATIONS vs Q-O & G. SERVICES (2014) All FWLR pt. 761 pg. 1509@1526C, 1527E & 1530E per Eko, JCA. An affidavit is evidence: BABALE vs EZE (2012) All FWLR pt.635 pg. 287@ 329F per Tur, JCA.
  2. Evidence is Item 23 on the Exclusive Legislative List of the 1999 Constitution of the Federal Republic of Nigeria. By virtue of Section 4(3) of the Constitution only the National Assembly is competent to legislate on any matter on that List. This power is not confined to substantive law, but includes rules of practice and procedure as well: Paragraph 2(b) of Part III of the Second Schedule to the Constitution.
  3. To the extent that the said front-loading provisions of the Rules regulate the practice and procedure of the court in matters of evidence as aforesaid, I believe that they are ultra vires the Sate Chief Judges. This is because, in my view, by the combined effect of the aforesaid provisions of the Constitution, only the National Assembly is competent to enact them. It follows that those rules are invalid, null and void.
  4. The foregoing applies, in my view, to the following provisions of the Rules (all references are to the High Court of Lagos Rules 2012):

  • Order 33: Titled “Affidavits”;
  • Order 30 Rules 7 & 9 to 15: Titled “Proceedings at the Trial”;
  • Order 32: Titled “Evidence in General”

Rule 1(3) of this last Order restricts a witness’ examination-in-chief to simply confirming and adopting his statement on oath or deposition and tendering documents referred to therein; I submit that this contradicts the provisions of Section 215(2) of the Evidence Act 2011 which merely require such testimony to “relate to relevant facts”. It is trite law that a subsidiary legislation cannot curtail a principal legislation: OLANREWAJU vs. OYEYEMI (2001) 2 NWLR pt. 696 pg.229 @  255 per Tabai, JCA (as he then was); AKANI vs. ODEJIDE (2004) All FWLR pt. 218 pg. 827 @ 853E per Ibiyeye, JCA.

  1. In addition, I believe that the under-listed provisions of the Rules are also inconsistent with relevant provisions of the 1999 Constitution, as follows:
  2. Order 8 Rules 5 & 6: which deal with serve in Lagos State of the processes of foreign courts. I believe they are inconsistent with Item 57 of the Exclusive Legislative List of the Constitution which confers the National Assembly with sole power to legislate on such matters.
  3. Order 13 Rules 14 to 28: which deal with actions by or against firms or persons carrying on business in names other than their own. This is the subject matter, inter alia, of Item 43 of the Exclusive Legislative list of the Constitution. By virtue of Item 68 of that List as well as Paragraph 2 (b) of Part II of the Second Schedule to the Constitution, only the National Assembly is competent to legislate on the practice and procedure of courts of law in such matters.
  • Order 51 and 53 titled “Proceedings for Foreclosure and Redemption under a Mortgage” and “Summary Proceedings for Possession of Landed Property”, respectively. I submit that they are ultra vires the State Chief Judges because their subject-matter – land, its tenure, acquisition and the practice and procedure of courts of law relating thereto – are the exclusive preserve of the National Assembly by virtue of Section 315(5)(d) & (6), Item 68 of the Exclusive Legislative List and Paragraph 2(b) & (c) of Part III of the Second Schedule to the 1999 Constitution.
  1. In making the foregoing submission, I concede that Section 274 of the 1999 Constitution empowers State Chief Judges to enact rules of practice and procedure as follow:

“Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State”.

However, it can be seen that its provisions are general while those of Constitution and the Evidence Act referred to in Paragraphs 2-5 above are specific. To that extent, I submit that the latter overrides the former, as generalia specialibus non derogant – special things derogate from general things: ATT-GEN. OF THE FED. vs. ABUBAKAR (2007) All FWLR pt.375 pg. 405 @ 472E per Onu, JSC & @pg.524 per Tabai, JSC; SCHROEDER & CO. vs. MAJOR & CO. (1989) 2 NWLR pt. 101 pg.1 @21 per Agbaje, JSC; GOVT. OF KADUNA STATE vs KAGOMA (1982) 6. S.C 87@107-8 per Fatai -Williams, CJN

  1. This means that because the provisions of Section 274 of the Constitution are general, while those of Sections 315(5)(d) and Items 2, 43, 57, & 68 of the Exclusive list as well as Paragraph 2(b) & (c) of Part III of the Second Schedule to the Constitution are special, the subject matter of the latter are excluded from the power given by Section 274 of the Constitution to State Chief Judges.

Conclusion

I submit that it is imperative to revisit the affected provisions of the Rules with a view to bringing them into conformity with the Constitution. This would accord with the principle of the rule of law and constitutional supremacy enshrined in Section 1(3) of the 1999 Constitution, and would entail amending the following statutes enacted by the National Assembly:

  1. The Evidence Act – to provide for front loading of evidence;
  2. The Sheriffs & Civil Process Act, to provide for service of foreign processes in Nigeria;
  • The Companies & Allied Matters Act – Part B thereof, dealing with business names to provide for the procedure in actions by or against firms or persons carrying on business in names other than their own; and
  1. The Land Use Act – in this particular case, by amending the Constitution itself, as provided by Section 315(5)(d) of the Constitution.
  1. The foregoing solution, and none other, in my view, is apposite because the law-making power of the National Assembly is required to be exercised directly by the Assembly itself, and not delegated as “delegation by the National Assembly of its essential legislative function is precluded by the Constitution”: per Obaseki, JSC, in ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE FED. (1981) 10 S.C. 131

Written By Abubakar Sani, Esq.,Kano.

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