When Legal Absurdity Becomes The Tradition In Oyo State Magistrates’ Court By Sulyman Olaiya Giwa Esq. – TheNigerialawyer

It is no longer a breaking news that 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 and also confers on the court its
jurisdiction. It is therefore convenient to say that all courts in
Nigeria derive their powers and jurisdictions either from statute
or the Constitution which is the Supreme organic fundamental law
and the grundnorm of the country. This principle is fortified by
the authority of Nuhu V. Ogele (2003) 18 NWLR (pt. 852)
251.

 Oyo State is one of the
thirty-six (36) States of Nigeria and has several laws being passed
by its House of Assembly which includes the Magistrates’ Courts
Laws of Oyo State of the Federation 2000 that creates Magistrates’
Court in Oyo State.

The creation of Magistrates’ Court in Oyo State is made by
virtue of section 5 of Magistrates’ Courts Laws of Oyo State of the
Federation 2000 and it is the same law that confers 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.

In consequence of the power conferred on the Chief Judge of the
State under section 60 of Magistrates’ Courts Laws of Oyo State of
the Federation 2000, the Chief Judge did make 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 a civil action against any other person for a claim or
claims in any civil proceedings before 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

‘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.’ The underlines are mine for
emphasis.

 Order 3 Rule 1-
Summons and Procedure   

‘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.’ The underlines
are mine for emphasis.

Contrary to unambiguous above 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 the Magisterial Districts 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 becomes a ubiquitous phenomenon in Ibadan
Magisterial District of Oyo State Magistrate Courts as Tales by
moonlight, a television programme, which often rings bell in the
minds of many Nigerian Children. It is against this background that
this paper is written with a view to examining the use of such
process as initiating process vis-à-vis the Oyo State Magistrate
Courts (Civil Procedure) Rules 2012.

The filing of process known as ‘Particulars of Claim’ or ‘Claim’
in initiating civil proceedings in all personal actions
arising from contract,      tort
etc. before Magistrate Courts in Oyo State has not
only become usual practice of many litigants and their counsel in
Oyo State Magistrate Court, but it has also become usual practice
of filing same in commencing an action in recovery of premises
proceeding in Oyo State Magistrate Courts as against the prescribed
mode provided for in section 10 (1) of Recovery of Premises Law,
Cap. 144, Laws of Oyo State 2000

It is the provision of section 10 (1) of Recovery of Premises
Law, Cap. 144, Laws of Oyo State 2000 that the landlord is to apply
for issuance of a writ or entering a plaint to commence action for
Recovery of Premises in Oyo State. The said provision of section 10
provides thus:

‘Upon the expiration of the time stated in any such
notice of the landlord’s intention to recover possession, if such
tenant or any person holding or claiming by, through or under him,
neglects or refuses to quit and deliver up possession accordingly,
the landlord may apply, according to whether he is taking action in
the High Court or a Magistrate’s Court, for the issue of a writ or
enter a plaint, as in Form F, at his option either against such
tenant or against such person so neglecting or refusing, in the
court of the division or district, as the case may be, in which the
premises are situate for the recovery of the same and thereupon a
summons as in Form G shall issue to such tenant or person so
neglecting’. The underlines are writer’s for
emphasis.

Flowing from the above quoted provision of section 10 is the
deductible fact that the mode of commencing action for recovery of
premises is the issuance of a writ or entering of a plaint as in
Form F upon application after the expiration of the time stated in
the notice of the landlord’s intention to recover possession if the
tenant refuses to deliver possession not filing of a process often
titled: ‘Particulars of Claim’, process not known to law, by many
landlords through their counsel.

It is however pertinently important to pose a fundamental
question that worms its way into writer’s mind that what then is
the basis or the legal source for the use of process known as
‘Particulars of Claim’ or ‘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 District of the Oyo State
Magistrate Courts?

Oyo State Magistrate Courts (Civil Procedure) Rules 2012 is the
rules of procedure; the lubricants of the machinery of justice
which contain 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 quoted provisions of the relevant rules and law
extracted from the Oyo State Magistrate Courts (Civil Procedure)
Rules 2012 and section 10 (1) of Recovery of Premises Law, Cap.
144, Laws of Oyo State 2000, 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 humbly advised 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 from being oust of its competence
and jurisdiction to entertain matter before it.

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.

It is not in doubt that once the court 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. See the cases of
Shelim v Gobang (2009) 12 NWLR (pt.1156) 435 at 460; Utih
Vs. Onoyivwe (1991) NWLR (pt.166) [email protected]^[1] and
Evong V. Messres Obono,Obono & Associate (2012)6NWLR
(Part 1296)[email protected]^[2]
Paras E-G.

It is hereby finally recommended with humility that the filing
of process titled ‘Particulars of Claim’ or ‘Claim’ in initiating a
civil action in Oyo State Magistrate’s Court be put a halt to since
this practice which has become a tradition over the years lacks
legal backing so as to protect the sanctity of the law and ensure
due diligence in justice dispensation. Compliance with the laws and
rules of court is a condition precedent for a valid action and
takes precedence over and above a tradition that has no legal
source.

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