The following are the various sources of civil litigation
- Rules of courts
In practice, every court has its own rules that guide practice and procedure of such court. In this like, there is the Supreme Court Rules, Court of Appeal Rules, Federal High Court Rules, State High Court Rules, down to Sharia and Customary Court Rules. - The Constitution
The function of the constitution as it relate to it being a source of civil litigation can be divided into the following:
• The constitution creates the court. Section 230(1), 237(1), 249(1), 270(1) of CFRN 1999 creating the Supreme Court, Court of Appeal, Federal and State High Court respectively.
• The constitution gives power to the courts.
• The constitution prescribes the authority to make rules. Section 236 CFRN conferring power on the CJN to make rules regulating the practice and procedure in the Supreme Court.
• The constitution also has rule on civil litigation. Section 36 CFRN on fair hearing; section 233 on appeal to the Supreme Court.
- Statutes creating courts
Rules of court are also made pursuant to statutes creating the courts. Also there are certain provisions in the statute directly on procedure. For instance, s. 7 & 25 of Supreme Court and Court of Appeal Act respectively on time within which an appeal can be made. 14 days for interlocutory judgments and 3 months for final judgments. - Special statutes on procedure (civil)
Aside from the rules of court, there are statutes which have provisions on civil litigation. These statutes can cover an aspect of civil litigation. E.g. Admiralty. These special statutes include the following:
• The Sheriffs and Civil Process Act/Law and The Judgment (Enforcement) Rules. This is an Act of the National Assembly by virtue of the fact that the subject matter of the Act is found in item 57 of the exclusive legislative list, thus applicable in the whole federation. Hence, any law of a state in that respect is only applicable to Magistrate (South), District (North), Customary and Sharia Courts.
• Foreign Judgments (Reciprocal Enforcement) Act. It gives procedure on how a foreign judgment is to be enforced.
• Companies and Allied Matters Act. Under CAMA there are the Companies Winding up Rules 2001 and Companies Proceedings Rules 1992. There are rules on civil litigation but apply only to companies or entities under CAMA.
• Companies Income Tax Act under it, the Federal High Court (Tax Appeals) Rule 1992 was enacted.
• Admiralty Jurisdiction Act under it the Admiralty Jurisdiction Procedure Rules was made.
• Matrimonial Causes Act and Matrimonial Causes Rules, all on practice and procedure for matrimonial causes. - Practice direction
These are rules and guidelines given by the necessary or appropriate authority when a lacuna exists in procedure. Examples are:
• A multi-door court rules is a practice direction.
• In election petition s, the 1st schedule to the Electoral Act had nothing like front loading but a practice direction was issued to that effect.
• In the National Industrial Court, the president introduced front loading based on practice direction.
Whenever the rules may be short or inadequate the appropriate authority can quickly issue guideline. It is pertinent to note that a practice direction is not expected to depart from or be inconsistent with the rules of court, because it is not an enactment therefore has no force of law. As between the statute creating court and rules of court, the statute creating court is superior and as between the statute and the constitution, the constitution is superior, as between the rule and practice direction, the rule prevails. UNILAG V AIGORO.
6 Decisions of courts on procedure
There are some rules of procedure that are derived from decision of courts. For instance, the rules relating to grant of injunctions were developed by the court through it decision. Also the rule that require addressing the court before ordering a non-suit. For instance, where there are two motions before the court of which one will render the suit competent or preserve the suit and the other would strike it out, the rule is that the court would first hear the motion that would make the suit competent before the other. NALSA TEAM AND ASSOCIATES V NNPC.
The question has been asked as to the relevance of English rules in civil litigation. Section 26 of Lagos High Court Act, the position then was that when there is a lacuna, the English rules should be referred to. However, the position now is that where there is a lacuna, the court would take steps to do substantial justice. In this like, the court shall decide to go to England (English rules) when substantial will be done. SEE ORDER 1(2)HCCPR(ABUJA), ORDER 1 R 1(3) HCCPR(LAGOS)