By Abubakar-D.-Sani
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Introduction
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A peculiar exception to our otherwise adversarial civil
jurisprudence is the provision for non-suiting parties under the
Civil Procedure Rules of the High Courts and Magistrate Courts
across the country. To the extent that those Rules purport to deny
either or both parties to a civil action a clear-cut verdict on the
ground – usually – of insufficiency of evidence, it seems that they
lay down a separate standard of proof other than the well-known one
of a balance or probabilities or a preponderance of evidence under
the Evidence Act.
I believe that this is problematic, because under the
Constitution, only the National Assembly is competent to enact
rules of substantive and procedural evidence. If this view is
correct, it follows that those provisions of the High Court (and
Magistrate Court) Civil Procedure and Rules are ultra vires and
invalid. Am I right? You be the judge. But, first . . .
What is Non-suit and under what circumstances can it be
ordered?
According to Nolo’s Plain English (Online) Law Dictionary, a
Non-Suit is “a court’s dismissal of a case because the
plaintiff does not provide sufficient legal showing for the judge
to rule in (his) favour”. Another online medium, US Legal.com,
defines non-suit as “a termination of a legal action without an
actual determination of the controversy on the merits . . . it is
(usually) a ruling that in the judge’s opinion, there is no
evidence which could prove the plaintiff’s case”.
In Nigeria, the various uniform Civil Procedure Rules of the
High Courts contain virtually identical provisions on the
circumstances in which a court can order a non-suit. For instance,
Order 34 Rule 1 of the Kano High Court Rules 2014,
provides that:
“Where satisfactory evidence is not given entitled the
plaintiff or defendant to the judgement of the court, the judge may
suo motu or on application, non-suit the plaintiff, but the
parties’ legal practitioners shall have the right to make
submissions about the propriety or otherwise of making such
order”.
These provisions were interpreted, albeit inferentially, in
OKPALA vs. IBEME (1989) 1 NSCC 567 @ 587, where
the Supreme Court held that an order of non-suit is appropriate
where there is no satisfactory evidence that will enable the court
to enter judgement for either of the parties. For the court to
enter such a verdict, it must appear on the record, taken as a
whole, that the plaintiff has not failed in toto and that
the defendant should not in any event, be entitled to judgement:
A.C.B vs. YESUFU (1980) 1 – 2 S.C. 49.
It is important to emphasize the foregoing, because, as we shall
soon see, the power of a court to order a non-suit is entirely
statutory, and any order of non-suit made in the absence of a
specific statutory authority to do so is made without jurisdiction
and will be a nullity: KAURA vs. U.B.A. PLC (2005)
8 NWLR pt. 926 Pg. 24 @ 38, C.A.; ELIAS vs.
OMO-BARE (1982) 5 S.C. 25.
Status of the Statutory Provisions
From the ippssisima verba of the various provisions of
the High Court Rules which deal with non-suit, I humbly submit that
they encroach on the rights of the citizen to have his cause
determined by a court definitively and unambiguously. See
Article VII of the African Charter on Human and Peoples’
Rights. Such statutes are required to be interpreted
strictly (or contra proferentum), i.e., in favour of the
subject and against the interest of the lawmaker: EZE vs.
GOV. OF ABIA STATE (2010) 15 NWLR pt. 1216 pg. 324.
Secondly, the said statutes are also clearly evidentiary in intent
and purport. This is because, they expressly allude to the quality
of evidence adduced by a plaintiff (or, in appropriate cases,
Counter-claimant) and purport to prescribe its seeming
insufficiency as the basis for driving him from the
judgment-seat.
I believe that the National Assembly has already covered the
legislative field in this regard by prescribing a single standard
of proof for resolving civil cases. That provision is contained in
Section 134 of the Evidence Act, 2011, which
states unambiguously that “the burden of proof shall be
discharged on the balance of probabilities in all civil
cases”. This provision was enacted pursuant to Section
4(3) and Items 23 and 68 of the Exclusive Legislative List
as well as Paragraph 2b of Part III of the 2nd
Schedule to the 1999 Constitution, which confer on the
National Assembly the exclusive power to enact rules of both
substantive and procedural evidence.
This interpretation is without prejudice to Section 274
of the Constitution which empowers State Chief Judges to
enact rules of practice and procedure applicable in State High
Courts. This is because not only are those provisions general
whilst those of Items 23 and 68 of the Exclusive List of
the Constitution et al are specific, the
Constitution itself expressly states that the said powers of State
Chief Judges are to be exercised “subject to any law made by
the State House of Assembly”.
Using Kano State as a template, the relevant statutory
provisions are Sections 103 and 116(1)(q) of the State High
Court Law. A cursory look at both provisions shows that
they clearly encroach on the exclusive constitutional power of the
National Assembly to regulate rules of procedures relating to
evidence as aforesaid. The former, i.e., Section
103, provides that: “Nothing in this law and nothing
in the rules of court made or to be made under this Law shall
affect the mode of giving evidence by the oral examination of
witnesses, or the rules of evidence: provided that nothing in this
Section shall:-
- “prejudice the operation of any rules of court made in
pursuance of the express power conferred by this law to make rules
of court for regulating the means by which particular
facts may be proved and the mode in
which evidence thereof may be
given; - affect the power of the court, for special reasons, to
allow depositions or affidavits to be read”.
The latter, i.e., Section 116(1)(q) of the Law,
provides that “(the Chief Judge of the State may make rules)
subject to the provisions of Section 103, regulating the means by
which particular facts maybe proved and the mode in which evidence
thereof maybe given, in any proceedings or on any application in
connection with or at any stage of any proceedings”.
Beyond the foregoing provisions of the High Court Law, none of
the 21-odd Sections of this Law prescribes non-suit as an option
for determining civil suits. However, assuming without conceding,
that they can be so construed, I submit that to the extent that the
Constitution has specifically conferred that power exclusively on
the National Assembly, the said provisions of the State
High Court Law as well as Order 34 Rule 1 of the
High Court Rules 2014 are ultra vires the State
House of Assembly and the State Chief Judge, respectively.
Accordingly, they are invalid, null and void. This is because the
effect of entrenching a provision in the Constitution is that it
overrides all contrary provisions in any other law, be they
substantive or adjectival: UNIBIZ vs. C.B.C.L
(2003) 5 S.C.M 191.
This fact is driven home by Section 4(5) of the
Constitution which provides that “If any law enacted
by the House of Assembly of a State is inconsistent with any law
validly made by the National Assembly, the law made by the National
Assembly shall prevail, and that other law shall, to the extent of
the inconsistency, be void”.
Conclusion
To the extent that the Evidence Act, 2011 made
by the National Assembly does not prescribe non-suit as the penalty
for a plaintiff who fails to cross the evidentiary threshold, the
various provisions of the High Court (and Magistrate Court) Rules
which stipulate that outcome in such circumstances are simply a
Constitutional travesty. This is because where the Constitution or
a Federal enactment has already covered a particular legislative
field, no State or even Local Government Law can be enacted to
cover the same field already covered by the Constitution or Federal
enactment: MIN. OF JUSTICE & ATT-GEN. OF THE FED. vs.
ATT-GEN. OF LAGOS STATE (2013) All FWLR pt. 704, pg. 1,
S.C.
The only standard of proof recognised by the Evidence
Act 2011 for resolving civil cases is a balance of
probabilities or the preponderance of evidence. Accordingly, any
order of non-suit made by a court against a party on the alleged
ground of insufficiency of evidence proffered by that party, would
have been made without the requisite statutory authority, and would
be a nullity: ELIAS vs. OMO-BARE, supra. In case
the situation is perceived as presenting an anomaly of sorts, the
way out is to amend the Evidence Act, by incorporating the
provisions of the extant High Court Rules which prescribe non-suit
in certain circumstances. Only the National Assembly possess that
power – not State Chief Judges.
Abubakar D. Sani, Esq.
Kano.,14th April,
2019
By Abubakar-D.-Sani
Introduction
A peculiar exception to our otherwise adversarial civil
jurisprudence is the provision for non-suiting parties under the
Civil Procedure Rules of the High Courts and Magistrate Courts
across the country. To the extent that those Rules purport to deny
either or both parties to a civil action a clear-cut verdict on the
ground – usually – of insufficiency of evidence, it seems that they
lay down a separate standard of proof other than the well-known one
of a balance or probabilities or a preponderance of evidence under
the Evidence Act.
I believe that this is problematic, because under the
Constitution, only the National Assembly is competent to enact
rules of substantive and procedural evidence. If this view is
correct, it follows that those provisions of the High Court (and
Magistrate Court) Civil Procedure and Rules are ultra vires and
invalid. Am I right? You be the judge. But, first . . .
What is Non-suit and under what circumstances can it be
ordered?
According to Nolo’s Plain English (Online) Law Dictionary, a
Non-Suit is “a court’s dismissal of a case because the
plaintiff does not provide sufficient legal showing for the judge
to rule in (his) favour”. Another online medium, US Legal.com,
defines non-suit as “a termination of a legal action without an
actual determination of the controversy on the merits . . . it is
(usually) a ruling that in the judge’s opinion, there is no
evidence which could prove the plaintiff’s case”.
In Nigeria, the various uniform Civil Procedure Rules of the
High Courts contain virtually identical provisions on the
circumstances in which a court can order a non-suit. For instance,
Order 34 Rule 1 of the Kano High Court Rules 2014,
provides that:
“Where satisfactory evidence is not given entitled the
plaintiff or defendant to the judgement of the court, the judge may
suo motu or on application, non-suit the plaintiff, but the
parties’ legal practitioners shall have the right to make
submissions about the propriety or otherwise of making such
order”.
These provisions were interpreted, albeit inferentially, in
OKPALA vs. IBEME (1989) 1 NSCC 567 @ 587, where
the Supreme Court held that an order of non-suit is appropriate
where there is no satisfactory evidence that will enable the court
to enter judgement for either of the parties. For the court to
enter such a verdict, it must appear on the record, taken as a
whole, that the plaintiff has not failed in toto and that
the defendant should not in any event, be entitled to judgement:
A.C.B vs. YESUFU (1980) 1 – 2 S.C. 49.
It is important to emphasize the foregoing, because, as we shall
soon see, the power of a court to order a non-suit is entirely
statutory, and any order of non-suit made in the absence of a
specific statutory authority to do so is made without jurisdiction
and will be a nullity: KAURA vs. U.B.A. PLC (2005)
8 NWLR pt. 926 Pg. 24 @ 38, C.A.; ELIAS vs.
OMO-BARE (1982) 5 S.C. 25.
Status of the Statutory Provisions
From the ippssisima verba of the various provisions of
the High Court Rules which deal with non-suit, I humbly submit that
they encroach on the rights of the citizen to have his cause
determined by a court definitively and unambiguously. See
Article VII of the African Charter on Human and Peoples’
Rights. Such statutes are required to be interpreted
strictly (or contra proferentum), i.e., in favour of the
subject and against the interest of the lawmaker: EZE vs.
GOV. OF ABIA STATE (2010) 15 NWLR pt. 1216 pg. 324.
Secondly, the said statutes are also clearly evidentiary in intent
and purport. This is because, they expressly allude to the quality
of evidence adduced by a plaintiff (or, in appropriate cases,
Counter-claimant) and purport to prescribe its seeming
insufficiency as the basis for driving him from the
judgment-seat.
I believe that the National Assembly has already covered the
legislative field in this regard by prescribing a single standard
of proof for resolving civil cases. That provision is contained in
Section 134 of the Evidence Act, 2011, which
states unambiguously that “the burden of proof shall be
discharged on the balance of probabilities in all civil
cases”. This provision was enacted pursuant to Section
4(3) and Items 23 and 68 of the Exclusive Legislative List
as well as Paragraph 2b of Part III of the 2nd
Schedule to the 1999 Constitution, which confer on the
National Assembly the exclusive power to enact rules of both
substantive and procedural evidence.
This interpretation is without prejudice to Section 274
of the Constitution which empowers State Chief Judges to
enact rules of practice and procedure applicable in State High
Courts. This is because not only are those provisions general
whilst those of Items 23 and 68 of the Exclusive List of
the Constitution et al are specific, the
Constitution itself expressly states that the said powers of State
Chief Judges are to be exercised “subject to any law made by
the State House of Assembly”.
Using Kano State as a template, the relevant statutory
provisions are Sections 103 and 116(1)(q) of the State High
Court Law. A cursory look at both provisions shows that
they clearly encroach on the exclusive constitutional power of the
National Assembly to regulate rules of procedures relating to
evidence as aforesaid. The former, i.e., Section
103, provides that: “Nothing in this law and nothing
in the rules of court made or to be made under this Law shall
affect the mode of giving evidence by the oral examination of
witnesses, or the rules of evidence: provided that nothing in this
Section shall:-
- “prejudice the operation of any rules of court made in
pursuance of the express power conferred by this law to make rules
of court for regulating the means by which particular
facts may be proved and the mode in
which evidence thereof may be
given; - affect the power of the court, for special reasons, to
allow depositions or affidavits to be read”.
The latter, i.e., Section 116(1)(q) of the Law,
provides that “(the Chief Judge of the State may make rules)
subject to the provisions of Section 103, regulating the means by
which particular facts maybe proved and the mode in which evidence
thereof maybe given, in any proceedings or on any application in
connection with or at any stage of any proceedings”.
Beyond the foregoing provisions of the High Court Law, none of
the 21-odd Sections of this Law prescribes non-suit as an option
for determining civil suits. However, assuming without conceding,
that they can be so construed, I submit that to the extent that the
Constitution has specifically conferred that power exclusively on
the National Assembly, the said provisions of the State
High Court Law as well as Order 34 Rule 1 of the
High Court Rules 2014 are ultra vires the State
House of Assembly and the State Chief Judge, respectively.
Accordingly, they are invalid, null and void. This is because the
effect of entrenching a provision in the Constitution is that it
overrides all contrary provisions in any other law, be they
substantive or adjectival: UNIBIZ vs. C.B.C.L
(2003) 5 S.C.M 191.
This fact is driven home by Section 4(5) of the
Constitution which provides that “If any law enacted
by the House of Assembly of a State is inconsistent with any law
validly made by the National Assembly, the law made by the National
Assembly shall prevail, and that other law shall, to the extent of
the inconsistency, be void”.
Conclusion
To the extent that the Evidence Act, 2011 made
by the National Assembly does not prescribe non-suit as the penalty
for a plaintiff who fails to cross the evidentiary threshold, the
various provisions of the High Court (and Magistrate Court) Rules
which stipulate that outcome in such circumstances are simply a
Constitutional travesty. This is because where the Constitution or
a Federal enactment has already covered a particular legislative
field, no State or even Local Government Law can be enacted to
cover the same field already covered by the Constitution or Federal
enactment: MIN. OF JUSTICE & ATT-GEN. OF THE FED. vs.
ATT-GEN. OF LAGOS STATE (2013) All FWLR pt. 704, pg. 1,
S.C.
The only standard of proof recognised by the Evidence
Act 2011 for resolving civil cases is a balance of
probabilities or the preponderance of evidence. Accordingly, any
order of non-suit made by a court against a party on the alleged
ground of insufficiency of evidence proffered by that party, would
have been made without the requisite statutory authority, and would
be a nullity: ELIAS vs. OMO-BARE, supra. In case
the situation is perceived as presenting an anomaly of sorts, the
way out is to amend the Evidence Act, by incorporating the
provisions of the extant High Court Rules which prescribe non-suit
in certain circumstances. Only the National Assembly possess that
power – not State Chief Judges.
Abubakar D. Sani, Esq.
Kano.,14th April,
2019
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