RECOMMENDATION FOR SUITABLE HIGH COURT(CIVIL PROCEDURE) RULES FOR OGUN STATE*

1.0 Introduction

Rules of Practice and Procedure in civil matters are, generally, inextricably, linked to

administration of justice, at whatever level.1 This necessary tango between Rules of

Procedure and dispute resolution explains the pertinence and strategic nature of Rules of

Practice and Procedure in adjudication. Since 19452 when the defunct Supreme Court of

Justice for the Colony and Protectorate of Nigeria was established,3 Rules of Practice and

Procedure have been a constant feature of administration of justice in High Courts in

Nigeria.4 In relation to the High Court of a State, Ogun State High Court, inclusive, Rules of

Practice and Procedure are, particularly, significant because of the enormity of jurisdiction

that the Constitution of the Federal Republic of Nigeria, 1999 (“CFRN”) now bestows on the

Court.5

1 *Olusesan Oliyide; Associate Professor, Dept. of Business and Industrial Law, Olabisi Onabanjo University, Ago-Iwoye, Ogun State, Nigeria and Taiwo Odumosu; Lecturer, Dept. of Public Law, Olabisi Onabanjo University, Ago-Iwoye, Ogun State, Nigeria.

2 1.This is true even in relation to primordial adjudication and has become entrenched in relation to customary law. Fidelis Nwadialo articulates this point when he posits that “civil proceedings are mainly regulated in all courts by Rules of Court” and further that “each court has its own set of rules. In this regard, there are the Magistrates’ Courts Rules, the Customary Courts Rules, the District Courts’ Rules and the High Courts Rules. At the appellate level there are the Court of Appeal Rules ... and the Supreme Court rules ... ”; see, Nwadialo, Fidelis, Civil Procedure in Nigeria (MIJ Professional Pubs Ltd., Lagos, 1990), 3 and Uzo, Ike D., Motions and Applications Front-Loaded (Law Digest Pub., Lagos, 2011), 1.

2. 1945 remains watershed in the annals of the Nigerian Court system, owing, primarily, to a far-reaching restructuring of the previously existing courts (excluding the native courts of the South and the Moslem courts of the North) that took place in that year and a novel two-tier court system that emerged from this re-organization, consisting of the following: (i) magistrates’ courts system, made-up of a chain of courts covering the whole country and divided into magisterial districts; and (ii) the Supreme Court of Justice for the Colony and Protectorate of Nigeria, whose jurisdiction covered the whole country and which was a merger of the then existing High Courts of both Protectorates of Nigeria and the then existing Supreme Court of Nigeria; see, Aguda, T. Akinola, Practice and Procedure of the Supreme Court, Court of Appeal and High Court of Nigeria (2nd ed., MIJ Professional Pubs., Lagos, 1995), 1.

3 3.By virtue of Supreme Court Ordinance, 1943 (otherwise known as Ordinance No. 23, 1943), which came into force on 1 June, 1945 as amended by Supreme Court (Amendment) Ordinance (otherwise known as Ordinance No. 33, 1943).

4 4 .The Supreme Court Ordinance, 1943 (as amended), supra, and all subsequent laws creating, first, regional High Courts in 1954, and then, States’ High Courts, much later, always, made provisions for the powers of the Chief Justice or Chief Judge (as the case may be) and one of the powers that have, always, been reserved for the Chief Justice or Chief Judge is power to make Rules of Practice and Procedure for the Courts; see, for instance, section 53 (1), Ogun State Court Law, infra and section 274 of CFRN, infra. It should be noted, however, that in the case of Ogun State, the power of the State Chief Judge in this regard, must, by virtue of section 53 (1), Ogun State Court Law, infra , be exercised, at any point in time, with the approval of the Ogun State Executive Council.

5 5.It is noteworthy, here, that the contemporary High Courts of States in Nigeria, which are a creation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), evolved from the defunct Supreme Court of Justice for the Colony and Protectorate of Nigeria, supra but the jurisdiction of the former courts is much wider than that of the latter. For instance, whereas the defunct court did not have original jurisdiction

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Unarguably, the success of the Court in discharging its constitutional duty of dispute

resolution and the efficiency that the Court deploys in the process of carrying out its

responsibility, depend, largely, on the suitability of the Rules of Practice and Procedure

adopted.

The thrust of this paper is to appraise the extant Ogun State High Court (Civil Procedure)

Rules; that is, High Court of Ogun State (Civil Procedure) Rules, 2008, with a view to

determining whether in its current form, it is capable of aiding the success of Ogun State

High Court in discharging its Constitutional duty and in an efficient, admirable and

exemplary manner; and in case, it is found incapable of so doing, to make recommendations

for a suitable High Court of Ogun State (Civil Procedure) Rules. The Paper is divided into

five parts. This introductory part forms Part 1. Conceptualization of key words is engaged-in

in Part 2. Aspects of the 2008 Rules which require reform are highlighted in Part 3. The

nature of reforms advocated are discussed in Part 4; and as is traditional, the Paper ends, in

Part 5, with concluding observations and recommendations.

2.0 Conceptualization of Key Words

The impact of conceptualization in the understanding of an intellectual discourse is

monumental, indeed. The word “conceptualization is synonymous with “philosophy”,6

“jurisprudence”, “theory” or “deep thinking”, which underscores a subject in discourse.

From the foregoing, it becomes imperative that we engage in conceptualization of certain

words or terms that are central to bringing the issues in discourse in this paper in proper

perspective and which will aid the clear appreciation and understanding of those issues.

These key words are “Rules”, “Ogun State”, “Ogun State High Court”, “Ogun State High

Court Civil Procedure Rules” and “suitable”. Conceptualization of these words shall,

therefore, now, engage our attention.

in land disputes, the contemporary States’ High Courts do. Conversely, while the jurisdiction of the defunct court covered the whole country, that of the contemporary States’ High Courts is limited within the territorial limits of the States of Nigeria; see, section 270 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), infra; see, however, section 251 of the Constitution, infra.

6. “Philosophy” originated from the Greek Language. Its Latin translation is “philosphia”, which means “love of wisdom”. Descartes describes “philosophy” as “nothing but the study of wisdom and truth”; see, Descrates, Principal Philosophae (1644), at IXB14 (SM 1186, Paris). Rene Descartes, who was one of the most influential thinkers in human history, was born on 31 March, 1566, in La Haye, France; see also, G. Berkeley, Three dialogues: 103 Between Hydas and Philonous (1977), both cited by J.D. Ogundere, The Nigerian Judge and His Court (University Press Plc. Pub., 1994), 103. See, generally, Olusesan Oliyide, “The Nigerian Judiciary and the Nigerian Banking Sector” (2011) Vol. XXXVII, Nos. 1 & 2, Indian Socio-Legal Journal, 1, at 1.

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Rules

The learned authors of Black’s Law Dictionary, defines “rules”, in general terms, as “an

established and authoritative standard or principle; a general norm mandating or guiding

conduct or action in a given type of situation”.7 The word has also been defined as “principle,

regulation, order or direction which governs or controls action, function, form, use …”8

Elsewhere, it has been defined as “a regulation, an order; a principle, a standard …”9 Finally,

it has been defined as “an official instruction that says how things must be done or what is

allowed …, regulation ….”1010

As helpful as all foregoing definitions are in understanding the meaning of “rules”, a

common denominator in all of them is the inappropriate and unacceptable equation of “rules”

with “principles”. As similar as “rules” and “principles” are, there is a line of demarcation

between them. Ronald Dworkin underscores this when he describes “rule” as “… a normative

proposition making certain legal results depend upon the establishment of certain factual

situations stipulated in the antecedent part of the rule”.1111 In this context, “rules” is

analogous to “conditions-precedent”, which, if not met, deprives of a legal right.

In appraising the distinction between “rules” on the one hand and “principles” on the other,

the Court of Appeal in Achodon & Another v. Akagha & Another1212 emphasized that

“principles”1313 are “broader statements of conduct and they do not necessarily decide the

outcome of the dispute. They merely incline the decision one way or the other depending on

the facts and surrounding circumstances of the case in hand”.1414

It is also inapt, as is done in the definitions, to equate “rules” with “regulation”. This is

because “regulation” differs from “rules” in that the latter is the objective or the end-result of

the former. In other words, “rules” is the means by which the object of “regulation” is

attained. Learned author, Fidelis Nawadialo seems to accord with this reasoning when he

7 7.Black’s Law Dictionary, see, Garner, Bryan G., Black’s Law Dictionary (9th ed., West Pubs., Minnesota, 2004), p. 1446.

88. See, Chamber’s 21st Century Dictionary (Allied Chambers (India) Ltd., New Delhi, 2007), 1229. 99. See, Webster’s Universal Dictionary and Thesaurus (Greddes and Grosset, Scotland, 2003), 411. 10 10.See, Longman Dictionary of Contemporary English (4th ed., Pearson Educational Services Ltd., Essex,

2008), 1439. 11 11.Cited in Oshisanya, ‘Lai Oshitokunbo, An Almanac of Contemporary Judicial Restatements (Spectrum

Books Ltd., Ibadan, 2008). 423. 1212. [2003] F.W.L.R. (Pt. 186) 621.1313. Or “regulations”. 14 14.Supra, 629 - 630; see also, the Supreme Court decision in Shitta-Bey v. Federal P.S.C. [1985] 2

N.W.L.R. 599, 618. 3 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

submits that “Civil Procedure”1515 is “the body of rules that regulate the conduct of civil

proceedings”.1616

Ogun State

Ogun State is one of the three States1717 created in February, 1976 from the defunct Western

State of Nigeria.1818 It is also one of the nineteen States that were created out of the twelve

States which had been created in May, 1967, shortly after the end of the civil war. 1919 The

uniqueness of Ogun State, whose current nickname is “Gateway State”2020 is the enormity of

reverence which it continues to attract, essentially, because several of its citizens have

brought glory to Nigeria, Africa and the entire black race by unequalled laurels which they

have won in different endeavours in life.2121 Because of the rare attainments of Ogun State

indigenes in the Judiciary and indeed the Legal Profession, in Nigeria, the Legal Profession,

including the Judiciary, has become synonymous with the State.2222 In this era when two of

the other States in the South-West Geo-Political Part of Nigeria have been re-nicknamed,2323

and bearing in mind the monumental spiritual and psycho-physiological impact of name,

Ogun State ought to be appropriately re-nicknamed: “Ipinle Awon Adari24 24or “Ipinle Awon

Asaaju”.2525 Not only that, Ogun State must, thereafter live and act as the true leader of all

1515. Or Rules of Civil Procedure. 1616. See, Nwadialo, Fidelis, supra, 2. 17 17.The other States so created are Oyo and Ondo States. It is important to note that two more States have,

since 1976, been created out of Oyo and Ondo States. These two States are Osun which was created out of the former Oyo State and Ekiti State, which was created out of the former Ondo State.

1818. See, Wikipedia, Ogun State, http://en.wikipedia.org/wiki/Ogun_State, accessed on 12 March, 2012, 2. 19 19.See, Onlinenigeria, Ogun State, http://www.onlinenigeria.com/links/ogunstateedu.asp, accessed on 12

March, 2012, 1. It was created by virtue of State (Creation and Transitional Provisions) Decree, No. 14, 1967, which, simply restructured Nigeria’s federalism into twelve states; see, Wikipedia, Lagos State, http://en.wikipedia.org/wiki/Lagos_State, accessed on 12 March, 2012, 1.

2020. See, Wikipedia, Ogun State, supra, 2. 21 21.Most of the foremost leaders in Nigeria and indeed Africa, in the professions, business, politics,

ecclesiastics, academics, music, and so on, are Indigenes of Ogun State; see, Wikipedia, Ogun State, supra, 2.

22 22.Also, most of the finest Legal Practitioners and jurists that have ever emanated from the African Continent are Ogun State indigenes; See, Wikipedia, Ogun State, supra, 2. For instance, out of the twelve indigenous Chief Justices of Nigeria so far, Ogun State has produced three; see, Yusuf, Fassy A.O. (ed.), The Nigerian Judiciary: Perspectives and Profile (FHL Publishers, Lagos, 2006), 736 - 742. Also, the longest-serving Chief Justice of Nigeria, who spent twelve years in office, also originated from Ogun State; see, Yusuf, Fassy A.O. (ed.), supra, 738 - 739. The first Nigerian Legal Practitioner in history originated from Ogun State. Also, the first Nigerian to be appointed a Judge was an indigene of the State; see, Yusuf, Fassy A.O. (ed.), supra, 737 - 738. About eight percent of the Supreme Court Justices so far are Ogun State indigenes.

23 23.For instance, Osun State’s new nickname is “Ipinle Omoluabi” and Ekiti State’s ne nickname is “ile iyi, ile eye”.

24 24. Literally meaning, “State of Directors”. 2525. Literally meaning, “State of Foremost Leaders”. 4 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

States in Nigeria. It must, simply, be primus inter peres2626 or “nulli secundus”.2727 It must

begin this process with the fashioning of Rules of Procedure that will be exemplary and

simply, a model.

The other peculiarity of Ogun State is that it is one of the few States in Nigeria that shares

international boundaries because it shares boundary with the Republic of Benin to the

West.2828 It also shares interstate boundaries with Ondo State in the East, Oyo and Osun

States in the North and Lagos State in the South.29 29This peculiarity is accentuated by the

fact that Ogun State in sandwiched between two most cosmopolitan cities in South-Western

Nigeria; that is, Lagos3030 and Ibadan.3131

Ogun State High Court

Ogun State High Court was established upon the creation of Ogun State in 1976,32 32by virtue

of simple adaption of the High Court Law of Western Nigeria, 1955.33 33This was done in

High Court Law of Ogun State, 1976.3434 The Law was stated to relate “to the high Court of

Ogun State of Nigeria and to the administration of Justice and for purposes incidental thereto

….”3535 In terms of jurisdiction, the Court is a superior court of record with jurisdiction

conferred on it by the Ogun State High Court law and any other Law as well the jurisdiction

vested in or capable of being exercised by Her Majesty’ High Court of Justice in

England.3636

As indicated earlier,3737 the civil jurisdiction of the Court is enormous. This is stated to

include3838 all civil jurisdiction … exercisable in Ogun State for the judicial hearing and 2626. That is, first among equals. 2727. That is, second to none. 2828. See, Wikipedia, Ogun State, supra, 1 and Onlinenigeria, Ogun State, supra, 1. 29 29 . See, Wikipedia, Ogun State, supra, 1 and Onlinenigeria, Ogun State, supra, 1.30 30.Lagos is the largest urban centre in Nigeria, having a population that is five per cent (17 million) of the

national estimate (of 150 million) and the most economically significant; see, Wikipedia, Lagos State, supra, 1 and The Official Website of Lagos State, http://www.lagosstate.gov.ng/index, accessed on 12, 1. March, 2012, 1. It is also the third largest mega city in the world after Tokyo in Japan and Bombay in India; see, The Official Website of Lagos State, supra, 1.

31 31.Ibadan, which is the capital of Oyo State is the third metropolitan city in Nigeria, after Lagos and Kano; see, Wikipedia, Ibadan, http://en.wikipedia.org/wiki/Ibadan, accessed on 12 March, 2012, 1.

32 32 . Supra.33 33 . Cap. 44, Laws of Western Region, 1955.3434. Cap. 44, Laws of Ogun State, 1978. 3535. See, the Long Title to the Law. 3636. See, section 9 of the Law.37. Supra (see, fn. 5). 37 38.Note that with the use of the word: “include”, here, the civil jurisdiction of the court, subject to section

251, CFRN, supra, and the hierarchy of courts, is open-ended. 38

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determination of matters in difference, or for the administration or control of property and

persons…”3939 as well as “such jurisdiction as may be vested in it by Federal Law”.4040

Ancillary to this, the Court has power to apply customary law without prejudice to the

repugnancy test;4141 and to administer both law and equity, concurrently.4242 It is noteworthy

that High Court Law of Ogun State, 19784343 has now been repealed and replaced by High

Court Law of Ogun State, 2006,44 44which, nonetheless, retained the essence,4545

responsibility and power4646 of the Ogun State High Court.

The jurisdiction of the High Court of Ogun State as contained in High Court Law of Ogun

State, 2006,47 47compliments the provision of section 270 of CFRN.48 48First, it is one of the

Courts in which omnibus judicial powers are vested, by virtue of section 6 (2) of the

CFRN.4949 In specific terms, it is one of the Courts established by virtue of section 270 (1) of

CFRN. Its profound and expansive original jurisdiction, in civil causes, as contained in

section 272 (1) of CFRN, is to “hear and determine any civil proceedings in which the

existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or

claim is in issue ….. ”.5050 Its appellate jurisdiction is no less extensive. It covers “… civil …

proceedings which …. are brought before the High Court to be dealt with by the court in the

exercise of its appellate or supervisory jurisdiction”.5151

3939. See, section 10 (1) of the Law. 4040. See, section 10 (2) of the Law. 4141. See, section 13 of the Law. 4242. See, section 14 of the Law. 4343. See, section 14 of the Law. 44 44 . Laws of Ogun State, 2006.4545. See the Long Title to the Law. 4646. Supra. 47 47 . Supra.48 48 . Supra (see, fn. 5).49 49.See, generally, Olusesan Oliyide, “The Nigerian Judiciary and the Nigerian Banking Sector”, supra (fn.

6), 8. 50 50.The jurisdiction includes entertaining an action for the enforcement of fundamental human right; see,

Federal Minister of Internal Affairs and Others v. Shugaba Darman [1982] 3 N.C.L.R. 915 but excludes adjudication on all matters relating to the administration, management and control of the Federal Government and its agencies arising within the territorial jurisdiction of the High Court, such matters having been reserved, exclusively, for the Federal High Court; see, Ali v. Central Bank of Nigeria [1997] 4 N.W.L.R. (Pt. 498) 192, 204, Paras. G - H; Olusesan Oliyide, “The Nigerian Judiciary and the Nigerian Banking Sector”, supra (fns. 6 and 47), 8; Smith, I.O., The Constitution of the Federal Republic of Nigeria Annotated (Ecowatch Publications, Lagos, 2005), 296 - 297; Lagos State Development and Property Corporation v. Foreign Finance Corporation [1987] 1 N.W.L.R. (Pt. 50) 413, 461; and Aqua Limited v. Ondo State Sports Council [1988] 1 N.W.L.R. (Pt. 91) 622. Wherever there is a conflict between CFRN and a State High Court Law in relation to the establishment or jurisdiction of the State High Court, the provision of CFRN prevails; see, Famubo v. Adekunle [1988] 2 N.W.L.R. (Pt.79) 723.

5151. See, section 272 (2), CFRN. 6 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

Ogun State High Court (Civil Procedure) Rules

Learned author, Fidelis Nwadialo identifies “Civil Procedure Rules” or “Rules of Court”,5252

as one, and, indeed, the first, of eight sources of Civil Procedure. The other seven sources he

identifies as: (i) the statutes creating the court; (ii) the Constitution: (iii) the Sheriff and Civil

Process Act/Law and the Judgement Enforcement Rules made thereunder; (iv) Rules of

Practice and Procedure of the High Court of Justice in England; (v) other Statutes; (vi)

Decisions on Superior Court on Procedural Matters; and (7) Practice Directions.5353

The learned author also defines “Civil Procedure Rules”5454 as Rules which, mainly, regulate

civil proceedings5555 and which lay down the procedure to be followed in those

proceedings.5656 Elaborating on this definition, the learned author opines that “Civil

Procedure Rules” “lays down the methods whereby such proceedings are commenced, the

steps that are to be taken at any particular stage thereof and how such steps are to be

taken”.5757 He concludes by stating that “it also provides for the modes of enforcing the

resultant judgement”5858 and that “Civil Procedure Rules” regulates not only proceedings at

court of first instance in civil matters but also on appeals in such matters.5959

As immensely profitable as the learned author’s definitions are,6060 the pitfall therein is the

omission to state that the Rules must, necessarily, be made by the Chief Judge of a State and

that the making of the Rules is in pursuance of both the Constitution and the law establishing

the State High Court.6161

In this context, “Ogun State High Court (Civil Procedure) Rules” refers to Rules made by the

Chief Judge of Ogun State, pursuant to section 274, CFRN6262 and section 53 (1) of the High

Court Law of Ogun State63 63 and approved by the Ogun State Executive Council, also, in

line with section 53 (1) of the High Court Law of Ogun State,64 64for the purpose of

5252. As the learned author calls it. 5353. See, Nwadialo, Fidelis, Civil Procedure in Nigeria, supra (fn. 1), 3. 5454. Or Rules of Court, supra (fn. 52). 5555. Nwadialo, supra, 3. 5656. Supra, 3. 5757. Supra (fns. 55and 56). 5858. See, Nwadialo, supra , 2. 59 59.See, supra, 2. 6060. Supra. 6161. Supra. 6262. Supra. 63 63. Supra. 64 64. Supra.

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regulating civil proceedings at the Ogun State High Court and laying down the exact

procedure to be followed in relation to such proceedings.

It is pertinent to emphasise that Ogun State High Court (Civil Procedure) Rules is specie of

extant law6464 in Ogun State being a type of adjective law.6565 It is, therefore, veritable for

the purpose of advancing socio-economic engineering. Efficiency of the whole body of

substantive law in the State, as enlivened by the pronouncement of Ogun State High Court, is

largely, influenced by the degree of suitability, workability and efficiency of the Ogun State

High Court (Civil Procedure) Rules.66 66This assertion compels us to also conceptualize law

and this will, now, engage us.

Law

As uncompromising as they, generally, are, Jurists, nevertheless, unite on the position that the

noun-word, “law” defies any satisfactory specific definition.167 This is because the word is so

intrinsic as to have attracted differing definitional perspectives.6868 However, for the purpose

of this work, “law” may be defined as the various basic, minimum or acceptable rules, norms

and societal idiosyncracies which have become entrenched for the purpose of guiding actions,

decisions, activities and interactions of the people of a particular society. This working

definition is, largely, inspired by the wisdom of Nwokedi expressed as follows:

“People generally group themselves into societies for the general

welfare of the members thereof. For this purpose, organs are devised to

achieve this. These organs are guided by rules of conduct and are

enjoined to enforce rules of conduct approved by the society. These

rules are made to safeguard the collective and individual interests of

64 64.Law is divided into two broad categories: (i) substantive law; and (ii) adjective law. While the latter, in general terms, refers to legal rights, duties and liabilities of parties to an action, the former is the machinery by which the latter is applied in practice; See, Nwadialo, Fidelis, supra, 2.

65 65.See, supra (fn. 1). Components of adjective law are Rules of procedure and evidence. The former is, in turn, divisible into two; namely: (i) Civil Procedure; and (ii) Criminal Procedure; see, Nwadialo, Fidelis, supra, 2 - 3.

66 66 . Supra (p. 2, para. 1).1 67.Adaramola, F. reveals that the effort of Jurists at defining ‘law’ with certainty is so demanding that it has

been termed, “Armagedon of jurisprudential controversy”; see, Adaramola, F., Basic Jurisprudence (Raymond Kuz. Comm., 3rd ed., 2004), 8; in the context of this profound controversy, Freeman, M.D.A. also enthused that “philosophers are still seeking after… unifying concepts of law”; see, Freeman, M.D.A., Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, London, 7th ed., 2001), 13-14; as regards the contents of the controversy, see, Harts, H.L.A., The Concept of Law (1961), Austin, John, The Province of Jurisprudence Determined (1832), Dworkings, Ronald, Law as Empire.

6868. Supra. 8 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

the members of the society and for the preservation and progress of the

society.”6969

From the above, four deductions can be made. First, the basic rules, norms and standards that

guide people in a society constitute the law of that society. Second, those basic rules, norms

and standards are enforced. Third, the interpretation and enforcement of those basic rules,

norms and standards are done by certain organs charged with the sole responsibility for doing

so. Fourth, and perhaps most important, the chief purport of those basic rules, norms and

standards is to safeguard both the collective and the individual interests of members of that

society and, ultimately, for the preservation and progress of that society. Eso posits that law

“regulates the domestic life of the individual, his liberty, his moral nature, his stature, his

economic growth, his very involvement in the law of his country, his interrelationship with

others” but he submits that in order for the foregoing regulation, through law, to gain

acceptability, there must be justice.7070

Justice

Aristotle posits, rightly in our view, that “justice” is the antithesis of “injustice” and that

whereas the latter means something that is “both unlawful and unfair”, the former means

something that is “lawful” and “fair”.7171 Justice is encapsulated in virtue7272 and virtue can,

truly, be regarded as someone else’s virtue because it secures advantage for another

person.7373 The objective of justice is promotion of utmost fairness in connection with

relations in society and the essence of promotion of utmost fairness is, invariably, removal of

ill-feelings, rancour, perils, violence, poverty, stagnation, anarchy and other ills within that

society and the entrenchment of peace, stability and progress, instead.74 74In determining a

nation's rank in socio-political civilization, no test is mere decisive than the degree in which

justice, as defined by the law, is actually realized in its judicial administration.

Interrelationship between Law and Justice69 69.See, Nwokedi, P.K. (Rtd. J.S.C.), “Enforcement of Court Orders and Stability of Government and

Society”, 1992 Judicial Lectures: Continuing Education for the Judiciary (MIJ Profess. Pubs. Ltd., 1992), 109, 109.

70 70.See, Eso, K., (Rtd. J.S.C.), “Concept of Law and Justice under the Nigerian Constitution”, 1991 Judicial Lectures: Continuing Education for the Judiciary (MIJ Profess. Pubs. Ltd., 1992), 1, 1.

71 71.Thompson, J.A.K. (trans.), Aristotle: The Nicomachean Ethics (Penguine Classics, 1955), 14; cited by Ogundere, supra, 105.

7272. Ogundere, supra, 105. 7373. Supra, 105. 74 74.Nwokedi, P.K., supra, 109; see also, Ogundere, supra, 106 and Ajayi, J.O., “Issues in Justice

Administration”, Issues in Justice Administration in Nigeria (VDG International, Lagos, 2008), 202 - 215. 9 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

Although different concepts, law and justice are, nonetheless, necessarily, interrelated.

Without the one, the other exists merely in vacuo. Eso put the integrated nature of law and

justice in graphic form when he likened law to “a social modulator” whose only object is to

advance justice. The interrelationship between law and justice occupies a unique position in

both the jurisprudence and operations of any legal system. The very essence of justice is

ensuring that law is protected in safety and peace. Again, Eso provides a veritable guide to

the understanding of the relationship between law and justice when the erudite jurist

thundered as follows:

“For Law to be justified in any society it must be just. It is justice that

enables law to appear in any society as an acceptable norm, or an

agreeable concept and it is justice that could even give law a socially

and culturally high significant meaning. And so, whether law is

examined from the background of the harsh Code of Hammurabi, or

the background of the ancient American realists, … it is the concept of

justice, which could be attainable thereby, that gives the concept life”.

From the expose above, it is safe to conclude that law is morbid unless there exists justice

which, alone is “the blood” necessary and capable of giving life to law.

Judiciary

The principle of separation of powers has become entrenched as a hallmark of any civilized

society, Nigeria inclusive.7575 Since political independence in 1960,7676 Nigeria has,

repeatedly, acknowledged the loftiness in the tenet of separation of powers by constantly

making the tenet a feature of each of its Constitutions.7777 The argument of Obaseki cannot

be faulted - that in Nigeria, as in any other civilized nation, separation of powers, as a

doctrine, is an integral part of the Rule of Law, which presupposes that governance must be

only in accordance with the dictates of law, particularly, of the Constitution of the nation.7878

75 75.Obaseki, J.A.O. (Rtd. J.S.C.), “Jurisdiction of the Courts under the 1989 Constitution of the Federal Republic of Nigeria”, 1992 Judicial Lectures: Continuing Education for the Judiciary (MIJ Profess. Pubs. Ltd., 1992), 1, 3.

7676. Nigeria obtained political independence from Great Britain on 1 October, 1960. 77 77.See, Obaseki, J.A.O., supra; the Constitutions referred to, are the 1960 Constitution, the 1963

Constitution, the 1979 Constitution, the 1989 Constitution, and the 1999 Constitution. 7878. Obaseki, supra, 2. 10 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

Eso describes the Constitution as the grundnorm which is the only source from which flows

all the powers relating to governance7979 and submits that, anyhow, “both law and justice

will only be valid if neither offends the Constitution”.8080 For the purpose of effective rule,

the Constitution prescribes three categories of powers of the State; namely; Legislative

Powers, Executive Powers, and Judicial Powers.8181 While Legislative Powers enable the

State to legislate and enact laws, Executive Powers enable the State to execute and maintain

the Constitution and all laws passed by the State, and Judicial Powers enable the State to

adjudicate, effectively, on disputes or controversies.8282

Again, Eso put the enshrinement of the Separation of Powers doctrine in an unparalleled

perspective when he likens it to the creation of a “tripartite government” which acts as “three

in one” and which can be equated, mathematically, to “a triangle, each angle providing the

apex but not one angle nor apex is meaningful without the other two”.8383 The sage

concludes that by this arrangement, the Constitution provides the sine non qua of justice.8484

According to him, this arrangement is, for instance, contained in sections 4 to 6 of the 1999

Constitution of Nigeria. Section 4 vests the Executive Powers in the President, section 5 vests

the Legislative Powers in the Legislature, and section 6 vests the Judicial Powers in the

Judiciary.

Perhaps most alluring is the allusion of Eso to Roscoe Pound’s postulation that the Judiciary,

like both the Executive and the Legislature, is a Sovereign.8585 Eso adds that out of these

three Sovereigns, however, the Judiciary is the most important because its decision, in any

dispute, is final, and can only be overruled by an Act of the Legislature assented to by the

Executive. In this connection, the Judiciary is the chief-actor in the theatre of interpretation of

law and the doing of justice. Of course, the Judiciary is made of both the Judge8686 and the

7979. Eso, supra, 5. 8080. Supra, 5. 8181. Obaseki, supra, 2. 8282. Supra, 2. 83 83.Eso, supra; see also, Eso, “The Anatomy of Justice”, First Faculty of Law, Ogun State University

Lecture (Fac. of Law, Ogun State Univ. Pub., 1990), 15. 8484. See, Eso, “Concept of Law and Justice under the Nigerian Constitution”, supra, 6. 85 85.See, Roscoe Pound, Legal Essays and Addresses (Cons. University Press, 1933), 72, cited by Eso, supra,

4. Roscoe Pound had observed that “the rise of political interpretation made a new connection between law and politics” and had concluded that this “has to be so since government consists of a combination of legal sovereign and political sovereign” (emphasis supplied).

8686. Or the Judex. 11 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

Lawyer8787 and both have the complimentary and integrated role of dispensing justice

according to law.

Suitable

The word: “suitable” is synonymous with being “right or appropriate for a particular

purpose…”8888 In this context, the word is the antonym of “unsuitable”, which has also been

defined as “ill-adapted”, “inappropriate”, “unfit”, “unsuited”, “improper”, “inapt”,

“incongruous” and “unfitting”.8989

The merit of the foregoing conceptualization endeavour is that it, clearly, underscores five

incontrovertible facts that are central to this Paper; namely: (i) Ogun State High Court,

because of its pervasive original and appellate jurisdictions,9090 is, invariably, the heart-beat

of Ogun State being very strategic to the sustenance of order, peace, good neighbourliness,

unimpaired co-existence, which are a necessity for stability and for economic growth and

development;9191 (ii) whereas “rules” determine the outcome of a dispute, “principles” which

is broader, although may incline the decision one way or the other, depending on the facts,

does not; (iii), flowing from (ii) above, the primary objective of “Rules of Procedure” is to

entrench a culture in which stakeholders in adjudication in civil matters will adhere, strictly,

to the “conditions-precedent” to the legal redress that is sought from the Court while this does

not, necessarily, promote “slavery to Rules”,9292 it, nonetheless, advances due process in all

aspects relating to adjudication in civil matters and ensures inviolability or sacredness of

“Rules” in the adjudication process; (iv) unless Rules of Procedure adopted by Ogun State is

suitable for the purpose of ensuring that the Court dispenses justice in an efficient, exemplary

and admirable manner, whatever Rules of Procedure adopted will, definitely, be an inhibition

in the Court process of the Court discharging its responsibility to Ogun State; (v) flowing

87 87.Occupational Outlook Handbook 1996-97, http://www.umsl.edu/services/govdocs/ooh9697/71.htm, accessed on 11 March, 2012.

88 88. See, Wehmeier, Sally (ed.), Oxford Advanced Learner’s Dictionary (7th ed., Oxford Press, London); see, similar definitions in, Chamber’s 21st Century Dictionary, supra (fn.8), Webster’s Universal Dictionary and Thesaurus, supra (fn. 9) and Longman Dictionary of Contemporary English, (fn. 10).

8989. See, Webster’s Universal Dictionary and Thesaurus, supra (fns. 9 and 87). 9090. Supra. 91 91.Though similar and often used interchangeably, the words “economic growth” and “economic

development”, nevertheless, differ. While the former refers, mainly, to sector-contribution to Gross Domestic Product (“GDP”), the latter refers to value-addition to quality human of human life, measured, in the main, through availability of infrastructure, such as good education facilities, quality health care system, good road network, and so on.

92 92.In Union Bank of Nigeria Plc. v. Ekulo Farms Limited and Another [2000] F.W.L.R. (Pt. 67) 1019, 1031, the Court of Appeal pronounced that Rules of Procedure are aid to courts and not masters and that courts should refrain from reading rules in the absolute without recourse to justice.

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from (iii) in order to be potent, the High Court Civil Procedure Rules adopted must be

suitable in terms of ensuring - (a) clarity and ease of understanding, (b) promotion of

efficiency and uninhibited administration of justice, (c) that parties are on equal footing in

terms of allocation of the time and other resources of the court, and (d) that its objective is to

aid the dispensation of justice, and for this purpose, striking a balance between guiding

against delayed justice one the one hand because “justice delayed is justice denied”9393 and

preventing inordinate speed in adjudication on the other hand because “justice hurried is

justice buried”.9494

3.0 High Court of Ogun State (Civil Procedure) Rules, 2008:The Good and the Bad

At the inception of Ogun State High Court in 1976,9595 Ogun State High Court (Civil

Procedure) Rules, 19769696 (“the 1976 Rules”) were applicable. These were, more or less, an

adaptation of the former Western Region (Civil Procedure) Rules, 1958.97 97The 1976 Rules

were replaced in 1987 by the Ogun State High Court (Civil Procedure) Rules, 198798 98(“the

1987 Rules”). Again, the 1987 Rules were replaced by the Ogun State High Court (Civil

Procedure) Rules, 2008 (“the 2008 Rules”),9999 which are the extant Rules. While these

Rules contain manifest lofty and commendable provisions, in terms of suitability, they also

contain latent and patent incongruous and condemnable provisions. These two categories of

provisions shall, now, be discussed, in sequence, under the head: The Good and the Bad.

The Good93 93.See, The Chairman, National Population Commission v. The Chairman, Ikere Local Goverment &

Others [2001] 7 S.C. (Pt. iii) 90, 97 - 98, 100. 9494. Supra. 9595. Supra. 9696. This was annexed as a subsidiary legislation to Ogun State High Court Law, 1976, Cap. 44, supra. 97 97.These Rules were amended, once; by High Court of Ogun State (Civil Procedure) (Amendment) Rules,

1984. The amendment was signed by the Chief Judge of Ogun State in office then and by the Secretary to the Ogun State Executive Council, indicating the approval of the Council to the amendment.

98 98 .In disregard for the rule of law and in contravention of section 53 (1) the Ogun State High Court Law, 1976, supra, these Rules were made by a former Military Governor of Ogun State. It is noteworthy that the Rules were amended, twice; by High Court of Ogun State (Civil Procedure) (Amendment) Rules, 1997 and High Court of Ogun State (Civil Procedure) (Amendment) Rules, 2004. As if to cure the anomaly in the 1987 Rules, each of these amendments was signed by the Chief Judge in office at the time it was made and by the amendment was signed by the Chief Judge of Ogun State in office then and by the Secretary to the Ogun State Executive Council, indicating the approval of the Council to the amendment.

99 99.These Rules, which were signed by the Chief Judge then in office, became operational on 15th September, 2008.

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Front-Loading

The most visible good in the 2008 Rules is the front-loading mechanism, which the

Rules100 100provide for. By this mechanism, Legal Practitioners are compelled to place before

the court, in advance, and together with the Writ of Summons or Originating Summons (as

the case may be), Statement of Claim, List of Witnesses that would be called at trial, Written

Statement on Oath of the Witnesses and copy of each document to be relied upon at trial.

This is in a situation in which a civil action is commenced by Writ of Summons. Where a

civil action is commenced by Originating Summons, the Claimant’s Lawyer is compelled to

accompany the Originating Summons with the following: (i) Affidavit setting out the facts

relied upon; and (ii) All Exhibits that would be relied upon.

Front-loading mechanism also manifests in relation to Motions and other Applications. In this

regard, by virtue of Order 39, Rule 1 (2) of the Rules, every Motion must be accompanied by

a Written Address and Order 39, Rule 2 (2) mandates that Motion on Notice for

interlocutory Injunction must accompany an application for Ex-Parte Injunction.

Undoubtedly, through this mechanism, the doors of the court, are shut against several causes

undeserving of the court’s attention. The consequences of this are many: (i) de-congestion of

the court’s Cause List; (ii) ensuring that only cases with merits are allowed to have the

attention of the court; (iii) ensuring that the court’s limited resources are properly channelled

towards dolling justice to only the needy, (iv) allowing for speedy and expeditious

dispensation of justice, and so on. Also, by ensuring that Motions are accompanied by

Written Addresses, unnecessary time-waste is discouraged and this quickens the process of

dispensation of justice.

It is gratifying, too, that in order to ensure compliance with the Rules on the necessary

documents that must accompany the Writ of Summons, the Court registry is empowered to

reject non-conforming Writs.101101

Time-Bar

The second noticeable merit in the 2008 Rules is the limitation of time that the Rules allow

for doing several actions. Examples of this include the following compulsion: (i) for every

Motion to be served within five days of filing;102102 (ii) for a respondent to a Motion to file 100 100. See, generally, Order 3,Rules 2 and 8 (3) of the 2008 Rules. 101101. See, Order 3, Rule 2 (2). 102102. See, Order 39, Rule 1(1). 14 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

Written Address within seven days of service of the motion on him;103103 (iii) for an

Applicant to file Written Address in Reply on Points of Law (if he has any) within seven days

of being served with the Applicant’s Written Address;104104 (iv) to bring application to set

aside for irregularity within a reasonable time;105105 (v) that the life-span of an originating

process is one year and that the process may be renewed maximum of two times for good

cause, so that the cumulative life-span is extended to two years;106106 (vi) that a defendant

entering appearance to an originating process must do so within seven days;107107 (vii) that a

Defendant must file his Statement of defence within sixty days afters the service on him of

the Claimant’s originating process;108108 (viii) that a Claimant must file his Reply (if he has

any) within 30 days of the service on him of the Statement of Defence and Counter-

Claim;109109 (ix) that a Claimant in an Originating Summons should file his reply to the

respondent’s Counter-Affidavit within seven days or within such other time as the court may

allow;110110 and (x) a party requiring that a document be admitted must do so not later than

seven days before the first Pre-Trial Conference.111111

Non-Compliance With Rules As Mere Irregularity

The third beauty in the 2008 Rules is the provision of Order 5, Rule 1 (1) which stipulates

that non-compliance with the Rules are mere irregularity which is incapable of nullifying

proceedings in an action. This rule is commendable because it accords with the law on the

point. As we indicated earlier, as pertinent as they are, Rules are aid to the court and not

103103. See, Order 39, Rule 1 (3). 104104.See, Order 39, Rule 1 (4). 105. See, Order 5, Rule 2 (1).

105106. See, Order 6, Rule 6 and 7.106107.See, Order 6, Rule 9 (1) (3).108.See, Order 15, Rule 1 (2).109.See, Order 15, Rule 1 (3). This Rules, however, seems to conflict with See, Order 18, Rule 1, which creates

a dichotomy by making this Rule applicable only in land-related causes and limiting the time in other actions to fourteen days; see, Order 18, Rule 1.

110.See, Order 18, Rule 3.111.See, Order 19, Rule 1.112.See, for instance, Union Bank of Nigeria Plc. v. Ekulo Farms Limited and Another, supra.

107

108

109

110

111

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master to it; as such, the court must refrain from absolute insistence on Rules at the expense

of justice.112112

Costs

The Rules are replete with several provisions imposing penalties and costs for non-

compliance with the Rules. Examples are Order 5, Rule 1 (2) relating to non-compliance with

any part of the Rules and Order 4, Rule 4 (2), which even allows costs to be subjected to

taxation.

The Bad

Pre-Trial Conference

Arguably, one of the most prominent demerits of the Rules is the Pre-trial Conference. The

Conference, which is provided for in Order 25, is, admittedly, well-intentioned, its objective

being to facilitate reconciliation of parties to a dispute and in so doing, expedite the process

of obtaining justice. Ironically, however, this lofty objective cannot be achieved through Pre-

Trial Conference. The process of the Conference is cumbersome and tortuous. First, it must

be commenced within fourteen days of completion of pleadings.113113 Second, it may last for

as long as three months.114114 Third, it is doubtful if statics at the Court would show that

substantial number of causes has been disposed through the process to warrant its being

retained. Fourth, although intended to last for three months, it raises equivocation if few

causes that undergo the process last for a shorter period than one year. This submission is

exacerbated by the compulsion to renew the life of the Conference by a prior approval of the

Chief Judge. Application for such approval contributes to elongating the process and in the

end the process delays justice rather than speedy it.

Fifth, the provision of Oder 25, Rule 5 (2), which states that the Pre-trial Conference Judge

shall also be the Trial Judge is inappropriate, with respect. This is because the nature of pre-

Trial Conference is that is tempting for the Court to be prejudiced by the conduct of a party

during Pre-Trial and this prejudice may be carried-over to trial.

Furthermore, Order 25 contains nebulous provisions. For instance, what is the meaning of

“the parties and their Legal Practitioners shall cooperate with the Judge in working within

this timetable”, contained in Order 25, Rule 4?

112

113113. See, Oder 25, Rule 1 (1). 114114. See, Oder 25, Rule 4.16 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

The Order also contains some provisions that make it impracticable and so doomed to fail

from the start. An example is the provision that the Conference shall adjourn from-day-to-

day, as far as that is practicable115115 and the provision compelling the tenure of the

Conference is three months.116116 It is submitted that in our view, the only credit in the Pre-

Trial Conference is the summary judgement mechanism, stated in Order 25, Rule 6. But even

this is not exceptionally cheering because there are several other avenues for summary

judgement provided in the Rules.117117

As far as advancing amicable settlement of causes, it is submitted that there need not be any

special procedure for this. This is because parties must be encouraged to reconcile at any time

during the pendency of an action.

Omission to distinguish between Non-Compliance that Is Mere

Irregularity and that Will Annul Proceedings

As commendable as Order 5, Rule 1 (1) is, there is a fatal omission in it to state that where

non-compliance bothers on the jurisdiction of the Court, such as failure to effect personal

service of originating process or ensure service of same by substituted means (with the

permission of Court) will annul subsequent proceedings as held in Household Utensils

Dealers and Another v. Ifeanyichukwu Ventures Nigeria Limited and Another.118118

Inconsistency in Provisions on Non-Compliance

Order 5, Rule 1(1) which forbids non-compliance with Rules from amounting to irregularity

conflicts with Order 5, Rule 2 which envisages applications to set aside for irregularity

appear conflicting and this inhibits understanding of the provisions.

Abolition of Demurrer

Demurrer is one of the most potent avenues for ensuring that worthless cases are barred from

the Courts, that litigation costs are minimised and that Courts treat cases with dispatch.119119

This is because the process allows for an application to be brought to dismiss an action where

the defendant conceives that he has a good legal or equitable defence to the action brought

115115. See, Oder 25, Rule 4, supra.

116116. See, Oder 25, Rule 4, supra.117.See, for example, Order 10 (Default of Appearance), Order 19 (Admission) and Order 20 (Default of

Pleadings). 117118. [2005] All F.W.L.R. (Pt. 257) 1573, 1582 - 1582. 118 119.See, Karibi-Whyte, A.G., The Federal High Court Law and Practice (Fourth Dimension Pubs., Enugu,

1984), 249.119120. See, Stokes v. Grant [1878] 4 C.P.D., 28.17 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

against him.120120 Admittedly, demurrer has been abolished by most high Courts in Nigeria;

but, is this enough reason for Ogun State to do the same?

Oral Arguments

As indicated earlier, part of the worth of the Rules is that it allows for written arguments to be

“front-loaded” in respect of Motions.121121 This worth is, however whittled-down by the

provision giving counsel the liberty to still canvass oral arguments to explain his written

brief.122122

Rejection of Non-Conforming Processes Limited to Originating Processes

Also, as valuable as the Rules are for empowering Registry Staff to reject processes for non-

compliance with Rules, as it is, this power can only be exercised in relation to originating

processes, only.

“Plaintiff” or “Claimant”

The words: “Plaintiff” and “Claimant” are used, interchangeably, throughout the Rules. This

inconsistency is improper and needs to be addressed.

Nebulous Words

The Rules also indicate the use of some nebulous and vague words. These words, sometimes

create lacunae and sometime hinder ease of understanding. An example are the words:

“within seven days”, contained in Order 18, Rule 3. The question is: within seven days of

what?

Typography and Grammar Errors and Print Quality

The Rules also contain some errors bothering on typography and on few occasions, on

grammar. An example is the word: “given” in Order 19, Rule 2 (1). The words employed in

the rules can, also, be simpler and more comprehensible. The print quality of the rules may

also be better.

The above expose indicates that the merits of the 2008 Rules are far less than the demerits

and it is our opinion that the Rules are, therefore, unsuitable if Ogun State High Court is to

succeed in discharging its vast adjudication challenges now and in the future. This conclusion

then imposes an obligation on us to make some recommendations for the correcting the

120

121121. Supra. 122122. See, Order 11, Rule 7. 18 | P a g e R e f o r m i n g t h e N e w O g u n S t a t e H i g h C o u r t C i v i l P r o c e d u r e R u l e s , 2 0 0 8

anomaly in the Rules, with a view to making them appropriate for the discharge of the

monumental task of the court. To this activity we shall, now turn.

4.0 Nuggets for Removing Anomalies in High Court of Ogun State(Civil Procedure) Rules, 2008

Front-Loading

As indicated earlier, front-loading is about the most appreciable initiative in the Rules. It is

submitted, therefore, that it should be retained in the proposed Rules. However, not only

originating processes, but also, Motions and other processes must be rejected for non-

compliance with the Rules, when such are presented for filing at the Registry. Because Legal

Practitioner may find it easier to discover that non-compliance, than those without legal

training, it is submitted that more Legal Practitioners must be employed as Registry Staff.

Such Legal Practitioners will sift through the processes and ensure that only proper ones get

the attention of the Courts.

Also, oral arguments must be discouraged, as much as is practicable, in the new Rules.

Written submissions, certainly, aid speedy dispensation of justice and they must be

thoroughly encouraged.

Penalties and Costs

With the law remaining that most non-compliance with the Rules of Court amount to

irregularity that will not annul proceedings, cost must be used in the new Rules to ensure that,

Legal Practitioners, who, as we indicated earlier, are an important arm of the Judiciary,

comply with the Rules. Penalties and costs for infraction must therefore, increase, sharply, in

the new Rules.

Where costs have been awarded in the course of proceedings, the new Rules must make them

payable on or before the next adjournment in the case. The Rules should also compel Legal

Practitioners to file an Affidavit of Compliance with Costs Order.

It is apposite to canvass, here, that the Court must lead the way in ensuring the sacredness

and inviolability on Rules of Court, insisting, in the process that Lawyers must inculcate and

exhibit the right attitude. Little wonder that in Dalko v. Union Bank of Nigeria Plc.,123123 the

123 123. [2000] F.W.L.R. (Pt. 150), 1500. 1519. Note, however, the opinion of the Supreme Court in Chief Ojah and Others v. Chief Eyo Ogboni and Others [1976] 4 S.C. 69, 76 - 77, citing, with approval, Cooper v. Smith [1884] 26 Ch.D. 700, 710, 711 that the Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy.

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Court of Appeal describes Rules of Court as exemplifying “the discipline of law and its

administration”.

Demurrer

It is submitted that demurrer must be re-introduced in the new Rules. This is because of the

three-pronged potency of saving litigation cost, ensuring speedy dispensation of justice and

putting parties on equal pedestal in the process of adjudication.

“Plaintiff” or “Claimant”

It is submitted that in the new Rules, one of the words: “Plaintiff” and “Claimant” must be

chosen and there must be consistency throughout the Rules in the use of whichever word that

is chosen. However, because the word: “Claimant” better describes the aggrieved party who

seeks the intervention of the Court, this word should be preferable.

Language and Print Quality

The new Rules must be meticulously crafted so as to prevent vagueness, lacunae and

equivocation. The diction used must be simple and easily understandable. It must, also, be

error-free, in terms of typography and grammar. The print must, equally, be of high quality.

5.0 Conclusion

We have, in this paper, emphasised the entanglement between Rules of Practice and

Procedure in civil matters and administration of justice and have explained that this

integration is the explanation for the strategic positioning of Rules of Procedure in dispute

resolution. In this connection, it has been asserted that the there exists a direct correlation

between the success of the Court in discharging its constitutional duty of dispute resolution

and the suitability of the Rules of Practice and Procedure adopted by the Court.

Recognising that laying proper philosophical foundation will profit the entire process of

reviewing the Ogun State High Court (Civil Procedure) Rules, in the Paper, we have engaged

in the process of conceptualization of the various terms that are deemed germane. This

theoretical exploration has, for instance, substantiated that Ogun State is, arguably, the

foremost State in Nigeria, in terms of the excellence and dexterity that its indigenes have

brought-to-bear in all spheres of life, the Judiciary and Legal Profession, inclusive and that

the Ogun State High Court must, therefore, come up with Rules of Court that will be a model

for all other States to copy. It is submitted, here, that anything less than this is unacceptable.

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As far as Ogun State High Court is concerned, we have accentuated that it is a Court of law

and equity as well as of justice. It is now submitted that its Rules of Practice and Procedure

must be fashioned with the sole objective of doing substantial justice. This is bearing in mind

the immense responsibility that will be foisted on the Court in years to come arising from

increased urbanisation and industrialization of the State.

Very importantly, we have stressed that there are two main branches of the Judiciary;

namely: (i) the Judge; and (ii) the Lawyer. We now add that both must, uncompromisingly,

work together towards ensuring the success of the Judiciary. It is submitted that a third

important unit can be identified; namely: the Court Support-Staff. It is important to share the

vision of the Court with this branch and ensure that they imbibe the vision and work,

continually, towards its actualization. They should also be trained and re-trained, including in

the art of Information and Communications Technology (ICT).

It has been asserted that the primary objective of “Rules of Procedure” is to entrench a culture

in which stakeholders in adjudication in civil matters will adhere, strictly, to the “conditions-

precedent” to the legal redress that is sought from the Court and that the Court should lead-

the-way in ensuring that this is so and that the potency of the High Court Civil Procedure

Rules adopted must depend on its suitability.

We have appraised the Ogun State High Court (Civil Procedure) Rules, 2008, noting that

they contain two categories of provisions - the good and the bad and have inferred that the

demerits of the Rules are far more than the merits and that the Rules are, therefore,

unsuitable, if Ogun State High Court is to succeed in discharging its vast adjudication

challenges now and in the future. Finally, we have canvassed a five-tier recommendation

towards the making of a new set of Rules, which we all desire must be suitable.

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