CROSS RIVER – MAGISTRATES’ COURTS LAW

Published by Law Nigeria Admin at 16th April 2018

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LAWS OF CROSS RIVER STATE

CHAPTER M1

MAGISTRATES’ COURTS LAW

ARRANGEMENT OF SECTIONS

PART 1

Preliminary

SECTION

Short title.
Interpretation.

PART 2

Establishment of Magistrates’ Courts

Power to divide Cross River State into Magisterial Districts.
Establishment of Magistrates’ Court in each District.
Presiding magistrate.

PART 3

Officers of the Court

Appointment and qualification of Magistrates.
Territorial jurisdiction of Magistrates.
Magistrates ex officio justices of the peace.
Duties of a Chief Magistrate.
Appointment and removal of Justices of the Peace.
Powers and functions of Justices of the Peace.
Governor may confer powers of Magistrate on Justice of the Peace.
Appointment of registrar.
Control of registrar.
Transfer of officers from one court to another.
Duties of registrar.

PART 4

Jurisdiction

Original jurisdiction of Chief Magistrates in civil causes or matters.
Civil jurisdiction of Senior Magistrates.
Civil jurisdiction of Magistrates Grade One or Magistrates Grade Two.
Civil jurisdiction of Magistrates Grade Three.
Jurisdiction of Magistrate where there is set-off.
Jurisdiction of Chief Magistrates in criminal causes and matters.

SECTION

Jurisdiction of Senior Magistrate in criminal causes and matters.
Power to inquire into indictable offences.
Jurisdiction of Magistrates Grade One or Magistrates Grade Two in criminal causes and matters.
Jurisdiction of Magistrates Grade Three in criminal causes and matters.
Criminal jurisdiction of court in certain cases.
Civil jurisdiction of court in certain cases.
Judgments of the Supreme Court, the Court of Appeal or of other State Courts may be pleaded as defence.
Criminal jurisdiction of Magistrate where offence only partially committed within jurisdiction.
Power of Governor to increase jurisdiction of Magistrates.
Appellate jurisdiction.
General powers of Magistrate.
Acts of a magistrate not affected by error as to venue.
Case stated during hearing of case.
General power of Attorney-General to request a case to be stated.
Contents of case stated.
Division and consolidation.
Abandonment of part of claim to give jurisdiction.
Executor may sue and be sued.
Action by infant for wages.
Procedure when persons jointly liable.
Suits by infants and persons of unsound mind.

PART 5

Laws to be Administered

How far law of England in force.
Rules as to the application of statutes of general application.
Law and equity to be concurrently administered.
Application of local customs.
Reconciliation in civil causes or matters.
Reconciliation in criminal cases.

PART 6

Sittings and Distributions of Business

Venue in civil proceedings.
Transfer between Magistrates in the same District.
Magistrate may report civil proceedings for transfer.
Transfer to customary court.
Restriction on retransfer.

SECTION

Power of judge to transfer.
No appeal from an order of transfer.

PART 7

Appeals

Right of appeal in civil cause or matter.
Appeals from ex parte orders.
Practice and procedure in civil appeals.
Right of appeal in criminal cases.
Revisional jurisdiction of High Court over Magistrates’ Courts.
Appeal against acquittal or dismissal.

PART 8

General Provisions as to the Trial and Procedure

Times and places for Court.
Courts open at all times for general business.
Adjournment of the Court.
Practice and procedure.
Completion by Magistrate of process begun by predecessor.
Process of Magistrate valid.
Issue of process.
In which cases prisoners may be brought by warrant to give evidence.
Administration of oaths in proceedings.
Inspection.
Magistrates to have process of High Court executed.
Procedure when Magistrate is personally interested in case before him.
Duty of constables to obey orders.
Fees and costs.
By whom fees payable.
All moneys received in Court to be subject to foregoing provisions.
Protection of judicial officers and persons executing warrants, etc.

PART 9

Representation of Parties

Right of audience.
Representation of the State and Government Department.

PART 10

Transitional Powers

References in Law to Magistrates’ Courts to be references to Magistrates’ Courts established under this Law.

PART 11

Rules of Court

SECTION

Rules Committee.
Power of Rules Committee.

CHAPTER M1

MAGISTRATES’ COURTS LAW

A Law for the establishment of Magistrates’ Courts for Cross River State and for the appointment of Magistrates, Justices of the Peace and other officers of Court and for other purposes relating to the Administration of Justice.

[E.N. 1963, Cap. 82, 1969 No. 11. 1971 No. 6. 1971 N0. 9. 1973 No. 4. 1974 No. 18. 1976 No. 4. 1977 No. 9. 1978 No. 11]

(3rd January, 1956)

[Commencement]

PART I

Preliminary

Short title

This Law may be cited as the Magistrates’ Courts Law.

Interpretation

In this Law—

“Attorney-General” means Attorney-General of the State;

“cause” includes any action, suit or other original proceeding between a plaintiff and a defendant and any criminal proceeding;

“Chief Judge” means the Chief Judge of Cross River State;

“committed for trial” includes every case of a person ordered to be tried on information, whether imprisoned or admitted to bail;

“court” means a Magistrate’s Court established in a District under the provisions of this Law;

“Court of Appeal” means the Federal Court of Appeal established by the Constitution of the Federal Republic;

“defendant” includes every person served with any writ of summons, or process, or served with notice of, or entitled to attend, as a defendant any proceedings in a civil cause, and also every person charged under any process of the Court with any crime or offence;

“District” means a Magisterial District constituted under the provisions of this Law;

“High Court” means the High Court of Cross River State of Nigeria;

“judge” means a judge of the High Court and includes the Chief Judge;

“Justice of the Peace” means a Justice of the Peace appointed under the provisions of this Law;

“law officer”, where used with reference to criminal proceedings, means the Attorney-General; civil proceedings, means the Attorney-General, the Solicitor-General, a Senior State Counsel or a State Counsel;

“local custom” includes a rule which in a particular area or among the members of a tribe or clan or class of persons, has, from long usage, obtained the force of law, and also local customary law;

“magistrate” includes a Chief Magistrate, a Senior Magistrate Grade One, a Senior Magistrate Grade Two, and any Justice of the Peace on whom any powers of a Magistrate have been conferred under section 12;

“Magistrate’s Court” includes the Court of a Chief Magistrate, the court of a Senior Magistrate, and the court of a Justice of the Peace;

“matter” includes every proceeding in a Court not in a cause;

“plaintiff” includes every person asking any relief (otherwise than by way of counterclaim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise;

“registrar” means a Registrar of the Court and includes an assistant registrar;

“the State” means Cross River State;

“suit” includes action, and means a civil proceeding commenced by writ of summons, or in such other manner as may be prescribed by rules of court;

“summary conviction offence” includes any offence punishable on summary conviction before a court, and any cause or matter in respect of which a court has power to make an order in the exercise of its summary jurisdiction;

“Supreme Court” means the Supreme Court established by the Constitution of the Federal Republic.

PART 2

Establishment of Magistrates’ Courts

Power to divide Cross River State into Magisterial Districts

The Chief Judge may divide the State or any portion thereof, into Magisterial Districts for the purposes of this Law; constitute any part of the State a Magisterial District for the purposes of this Law; distinguish such Districts by such names or numbers as he may think proper; and vary the limits of any such Districts.

Establishment of Magistrates’ Court in each District

In each District there shall be and there is hereby established a court to be called the Magistrates’ Court.

Presiding Magistrate

(1) Subject to the provisions of this Law any Magistrate assigned to a District shall be the presiding Magistrate of the Court of such District wherein he shall have and exercise all the jurisdiction and powers conferred upon him by this appointment.

(2) When the Chief Judge assigns two or more Magistrates to any District and when a Magistrate is directed to assist another Magistrate in his District under the provisions of subsection (2) of section 9, each such Magistrate shall be a presiding Magistrate of the Court of such District and each sitting separately shall have and exercise all the jurisdiction and powers conferred upon him by his appointment.

PART 3

Officers of the Court

Appointment and qualification of Magistrates

(1) The Judicial Service Commission shall appoint magistrates who shall be styled— Chief Magistrates, Senior Magistrates Grade One, Senior Magistrates Grade Two, Magistrates Grade One, Magistrates Grade Two, and Magistrates Grade Three.

(2) No person shall be appointed to a be a Chief Magistrate, a Senior Magistrate Grade One or a Senior Magistrate Grade Two unless he is qualified to practice as an advocate or solicitor in a court of unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth for not less than seven years in the case of a Chief Magistrate, five years in the case of a Senior Magistrate Grade One or four years in the case of a Senior Magistrate Grade Two.

(3) No person shall be appointed to be a Magistrate Grade One or a Magistrate Grade Two unless he is qualified to practice as an advocate or solicitor in a court having unlimited jurisdiction in not less than three years in the case of a Magistrate Grade One or on year in the case of a Magistrate Grade Two.

(4) Notwithstanding anything to the contrary contained in this or any other written law in force in the State, a person shall be eligible for appointment as a Magistrate Grade Three if at the time of such appointment he is a retired police officer of or above the rank of Deputy Superintendent of Police; or a retired Administrative Officer who had had experience in judicial work; or retired Army Officer of or above the rank of Major.

(5) In computing for the purposes of subsection (2) and (3) of this section the period during which any person has been qualified to practice as an advocate or solicitor any period during which he has held judicial office after becoming so qualified shall be included.

Territorial jurisdiction of magistrates

(1) Every Magistrate shall have jurisdiction throughout the State but may be assigned to any specified District or transferred from one District to another by the Chief Judge.

(2) The Chief Judge may assign a Chief Magistrate to a specified District and, in addition, to a Group of Districts of which such specified District forms part.

Magistrates ex officio justices of the peace

Every magistrate shall be ex officio a justice of the peace for the State.

Duties of a Chief Magistrate

(1) In addition to any other duty conferred by this Law it shall be the duty of a Chief Magistrate who is assigned to a Group of Districts to ensure as far as is practicable the even distribution of work and the expeditious disposal of all legal business pending in the Districts within his Group and to take such steps as may be necessary to relieve congestion in any court within such Group.

(2) A Chief Magistrate who is assigned to a Group of Districts shall, notwithstanding the provisions of subsection (1) of section 7, have power to direct when necessary a Magistrate in one District in his Group to assist another Magistrate in another District within his Group and to direct to the best advantage the movements of any additional Magistrate within the Group who is assigned to assist in the disposal of any arrears of cases.

Appointment and removal of Justices of the Peace

(1) The Attorney-General may appoint any person to be a Justice of the Peace in and for the State or in and for such part of the State as the Attorney-General may specify, and the Attorney-General may remove any person so appointed from the office of Justice of the Peace.

(2) Every administrative officer shall be ex officio a Justice of the Peace for the area of the State to which he is for the time being appointed as such officer.

Powers and functions of Justices of the Peace

Subject to the provisions of this Law or to any other written law—

(a) every Justice of the Peace shall, subject to any exceptions which may be contained in his appointment within the area in and for which he holds such office have power to preserve the peace, to suppress riots and affrays and to disperse all disorderly and tumultuous assemblages, and for any of these purposes to call in the aid and assistance of police officers and others who shall severally be bound to obey all such lawful commands;

(b) all the powers, rights and duties of a Magistrate under this Law or any other written law to issue summonses and warrants for the purpose of compelling the attendance of accused persons or persons as witnesses before a court; issue writs of summons and summonses in civil causes or matters; remand to a Magistrates’ Court persons who are accused, but not convicted of crime or admit them to bail; issue search warrants; take solemn affirmations and statutory declarations; and administer any oath which may be required to be taken before him in the exercise of any of the jurisdiction and power conferred upon him by law.

Governor may confer powers of Magistrate on Justice of the Peace

The Governor on the recommendation of Attorney-General may by appointment confer upon any person being a Justice of the Peace such powers and jurisdiction of a Magistrate as he shall think fit and until the Governor revokes the appointment such person shall be deemed to be a Magistrate with such powers and jurisdiction.

Appointment of registrar

The Judicial Service Commission may appoint a fit and proper person to be a registrar of a court.

Control of registrar

A registrar appointed to a court under the provisions of section 13 shall, subject to the general supervision and control of the Chief Judge, be under the immediate direction of the magistrate presiding in the court to which he is appointed.

Transfer of officers from one court to another

The Chief Judge may at any time transfer a registrar or any other officer of any Magistrates’ Court from that court to any other court.

Duties of registrar

The duties of the registrar shall be to attend at such sittings of the Court as the Magistrate shall direct; to fill up or cause to be filled up summonses, warrants, orders, convictions, recognisances, writs of execution and other documents, and submit the same for the signature of the Magistrate; to make or cause to be made copies of proceedings when required to do so by the Magistrate, and to record the judgments, convictions and orders of the Court; to receive or cause to be received all fees, fines and penalties and all other moneys paid or deposited in respect of proceedings in the Court, and to keep or cause to be kept accounts of the same; and to perform or cause to be performed such other duties connected with the Court as may be assigned to him by the Magistrate.

PART 4

Jurisdiction

Original jurisdiction of Chief Magistrates in civil causes or matters

(1) Subject to the provisions of this Law and to any other written law a Chief Magistrate shall have and exercise jurisdiction in civil causes or matters—

(a) in all personal suits, whether arising from contract, or from tort, or from both, where the debt or damage claimed whether as balance claimed or otherwise, is not more than one thousand naira;

(b) in all suits between landlord and tenant for possession of any lands or houses claimed under agreement or refused to be delivered up, where the annual value or rent does not exceed one thousand naira;

(c) in all actions for the recovery of any penalty, rates, expenses, contribution or other like demand which is recoverable by virtue of any written law for the time being in force, if—

(i) it is not expressly provided by that or any other written law that the demand shall be recoverable only in some other court; and

(ii) the amount claimed in the action does not exceed one thousand naira: Provided for the purposes of this paragraph the expression “penalty” shall not include a fine to which any person is liable on conviction—

(d) to appoint guardians ad litem and to make such orders and to issue and give directions relating thereto;

(e) to grant in any suit instituted in the Court injunctions or orders to stay waste or alienation or for the detention or preservation of any property the subject of such suit, or to restrain breaches of contracts or torts;

(f) in an appeal from a decision of an Assessment Committee constituted under a written law: Provided that, except in so far as the Governor may by order otherwise direct, and except in suits transferred to a Magistrates’ Court under the provisions of section 45 (1) (b) of the Customary Courts Law a Chief Magistrate shall not exercise original jurisdiction in suits in which the validity of any devise, bequest or limitation under any will or settlement is or may be disputed or in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.

[Cap. C21.]

(2) (a) Notwithstanding anything in subsection (1), a Chief Magistrate shall not have jurisdiction in any action between landlord and tenant in respect of residential accommodation in the scheduled areas.

(b) In this subsection, “residential accommodation” and “the scheduled area” have the same meaning as in the Rent Control and Recovery of Premises Law.

[Cap. R3.]

Civil jurisdiction of Senior Magistrates Grade One and Senior Magistrates Grade Two

A Senior Magistrate Grade One or Senior Magistrate Grade Two shall have and exercise jurisdiction in civil causes or matters similar in all respects to that set out in section 17 save that such jurisdiction, in causes or matters where the subject matter in dispute is capable of estimation at a money value, shall be limited to causes or matters in which subject does not exceed in amount or value six hundred naira:

Provided that, except in so far as the Governor may by order otherwise direct, and except in suits transferred to a Senior Magistrates’ Court order section 45 (1) (b) of the Customary Courts Law, a Senior Magistrate Grade One or Senior Magistrate Grade Two shall not exercise original jurisdiction in suits which raise any issue as to the title to land or as to the title to any interest in land, or in which the validity of any devise, bequests or limitation under any will or settlement is or may be disputed or in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.

Civil jurisdiction of Magistrates Grade One or Magistrates Grade Two

A Magistrate Grade One or Magistrate Grade Two shall have and exercise jurisdiction in civil causes or matters similar in all respects to that set out in section 17 save that such jurisdiction, in causes or matters where the subject matter in dispute is capable of estimation at a money value, shall be limited to causes or matters in which such subject matter does not exceed in amount or value four hundred naira:

Provided that, except in so far as the Governor may by order otherwise direct, and except in suits transferred to a Magistrates’ Court under the provisions of section 45 (1) (b) of the Customary Courts Law, a Magistrate Grade One or a Magistrate Grade Two shall not exercise original jurisdiction in suits which raise any issue as to the title to land or as to the title to any interest in land, or in which the validity of any devise, bequest or limitation under any will or settlement is or may be disputed or in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.

Civil jurisdiction of Magistrates Grade Three

A Magistrate Grade Three shall have and exercise jurisdiction in civil causes or matters similar in all respects to that set out in section 17 save that such jurisdiction, in causes or matters where the subject matter in dispute is capable of estimation at a money value, shall be limited to causes or matters in which such subject matter does not exceed in amount or value two hundred naira:

Provided that, except in so far as the Governor may by order otherwise direct, a Magistrate Grade Three shall not exercise jurisdiction in civil causes or matters relating to trespass to land or in suits which raise any issue as to the title to land or as to the title to any interest in land, or in which the validity of any devise, bequest or limitation under any will or settlement is or may be disputed or in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death or in causes or matters mentioned in paragraph (b) of subsection (1) of section 17 of this Law.

Jurisdiction of Magistrate where there is set-off

Where in any action the debt or demand consist of a balance not exceeding one thousand naira or six hundred naira or four hundred naira or two hundred naira, as the case may be, after an admitted set-off of any debt or demand claimed or recoverable by the defendant from the plaintiff, a Chief Magistrate or a Senior Magistrate Grade One or Grade Two, or a Magistrate Grade One or Grade Two or a Magistrate Grade Three shall have jurisdiction and power to hear and determine such action within the limits of his personal jurisdiction and power.

Jurisdiction of Chief Magistrates in criminal causes and matters

(1) Subject to the provisions of this Law or any other written law a Chief Magistrate shall have full jurisdiction in criminal causes for the summary trial and determination of criminal causes as follows—

(a) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is in any case punishable either by fine not exceeding one thousand naira or by imprisonment not exceeding five years or by both; power to impose the punishment specified by law:

Provided that no Chief Magistrate shall be required to comply with the provisions of section 300 of the Criminal Procedure Law when trying any offence under this paragraph;

(b) (i) where any person is charged with committing an offence or with doing any or omitting to do any act required by law, the commission or omission of which is stated by the enactment declaring such to be both an offence and to be one punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner; power to award the maximum sentence of imprisonment and to order the payment of the maximum fine or penalty or forfeiture provided by such enactment or both such imprisonment and such fine or penalty or forfeiture where by law both may be imposed;

(ii) where any enactment provides that an order for the payment of money may be made on summary conviction or summarily or in a summary manner in respect of any act or omission; power to order the payment of the sum enactment providing for the making of the order;

(c) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is an offence not stated to be punishable on summary conviction or triable summarily or in a summary manner, and it is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding one thousand naira or by imprisonment exceeding five years or both, but taking into account the circumstances of the particular offence with which such person is charged and the character and antecedents of the accused himself the Chief Magistrate is of opinion that the charge then before the Court appears to become of such a nature that, if proved, it would be adequately punished by any of the following punishments—

(i) imprisonment for not more than five years;

(ii) a fine not exceeding one thousand naira, such fine to be enforced in default of payment by distress or by imprisonment for not more than five years;

(iii) in each of the above cases with or without any additional or alternative punishment in respect of offences for which such punishment may legally be inflicted;

(iv) in the case of a juvenile offender with or without a whipping in respect of offences for which a whipping may legally be inflicted;

(v) any lesser penalty or order which a Chief Magistrate in the exercise of his summary jurisdiction may impose or make, power to impose such punishment:

Provided that the person so charged, if the Chief Magistrate decides to proceed in accordance with paragraph (c) shall be informed by the Chief Magistrate before any evidence is taken of his right to be tried in the High Court and such person consents to be tried by the Chief Magistrate:

Provided further that if the Chief Magistrate shall not so inform the person charged the trial shall be null and void ab initio unless the person charged consents at any time before being called upon to make his defence to be tried by the Chief Magistrate, in which case the trial shall proceed as if the person charged had consented to being tried by the Chief Magistrate before the Chief Magistrate proceeded to hear evidence in the case.

(2) Where any person is charged with committing the offence of burglary or housebreaking or stealing or a combination of any two or more of those offences involving in each case or any combination thereof property of a value not exceeding three thousand naira the Chief Magistrate shall have full jurisdiction to hear and determine summarily any such criminal cause or matter and shall have power to impose punishment for the offence not exceeding the maximum punishment which he may impose under the Criminal Code Law of Cross River State:

[Cap. C16.]

Provided that the person charged shall be informed by the Chief Magistrate before any evidence is taken of his right to be tried in the High Court and such person consents to be tried by the Chief Magistrate:

Jurisdiction of Senior Magistrate Grade One or Senior Magistrate Grade Two in criminal causes and matters

Subject to the provisions of this Law or any other written law a Senior Magistrate Grade One or Senior Magistrate Grade Two shall have full jurisdiction in criminal causes for the summary trial and determination of criminal causes as follows—

where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is in any case punishable either by fine not exceeding six hundred naira or by imprisonment not exceeding three years or by both; power to impose the punishment specified by law;

(b) (i) where any person is charged with committing an offence or with doing any act or omitting to do any act required by law, the commission or omission of which is stated by the enactment declaring such to be both an offence and to be one punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner; power to award the maximum sentence of imprisonment and to order the payment of maximum fine or penalty or forfeiture provided by such enactment or both such imprisonment and such fine or penalty or forfeiture where by law both may be imposed;

(c) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is an offence not stated to be punishable on summary conviction triable summarily or in a summary manner, and it is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding six hundred naira or by imprisonment exceeding three years or both, but taking into account the circumstances of the particular offence with which such person is charged and the character and antecedents of the accused himself the Senior Magistrate Grade One or Senior Magistrate Grade Two is of opinion that the charge then before the Court appears to be one of such a nature that if proved, it would be adequately punished by any of the following punishments—

(i) imprisonment for not more than three years;

(ii) a fine not exceeding six hundred naira, such fine to be enforced in default of payment by distress or by imprisonment for not more than three years;

(iii) in each of the above cases with or without any additional or alternative punishment in respect of offences for which such punishment may legally be inflicted;

(iv) in the case of a juvenile offender with or without a whipping in respect of offences for which a whipping may legally be inflicted;

(v) any lesser penalty or order which a Senior Magistrate in the exercise of his summary jurisdiction may impose or make, power to impose such punishment:

Provided that the person so charged, if the Senior Magistrate Grade One or Senior Magistrate Grade Two decides to proceed in accordance with paragraph (c), shall be informed by the Senior Magistrate Grade One or Senior Magistrate Grade Two before any evidence is taken of his right to be tried in the High Court and such person consents to be tried by the Senior Magistrate Grade One or Senior Magistrate Grade Two:

Provided further that if the Senior Magistrate Grade One or Senior Magistrate Grade Two shall not so inform the person charged the trial shall be null and void ab initio unless the person charged consents at any time before being called upon to make his defence to be tried by the Senior Magistrate Grade One or Senior Magistrate Grade Two, in which case the trial shall proceed as if the person charged had consented to being tried by the Senior Magistrate Grade One or Senior Magistrate Grade Two before the Senior Magistrate Grade One or Senior Magistrate Grade Two proceeded to hear evidence in the case.

Power to inquire into indictable offences

Subject to the provisions of this Law or any other written law a Chief Magistrate shall have power to receive and inquire into all charges of indictable offences, and to make such orders in respect thereof as may be required by the provisions of any written law for the time being in force in relation to procedure in respect of indictable offences.

Jurisdiction of a Magistrate Grade One or a Magistrate Two in criminal causes and matters

Subject to the provisions of this Law or any other written law, a Magistrate Grade One or a Magistrate Grade One or a Magistrate Grade Two shall have full jurisdiction in criminal causes for the summary trial and determination of criminal cases as follows—

(a) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is in any case punishable either by fine not exceeding four hundred naira or by imprisonment not exceeding two years or by both; power to impose the punishment specified by law;

(b) (i) where any person is charged with committing an offence or with doing any act or omitting to do any act required by law, the commission or omission of which is stated by the enactment declaring such to be both an offence and to be one punishable or triable or liable to bee dealt with on summary conviction or summarily or in a summary manner; power to award the maximum sentence of imprisonment and to order the payment of the maximum fine or penalty or forfeiture provided by such enactment or both such imprisonment and such fine or penalty or forfeiture where by law both may be imposed;

(c) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is an offence, not stated to be punishable on summary conviction or triable summarily or in a summary manner, and it is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding four hundred naira or by imprisonment exceeding two years or both, but taking into account the circumstances of the particular offence with which such person is charged and the character and antecedents of the accused himself the Magistrate is of opinion that the charge then before the Court appears to be one of such a nature that, if proved, it would be adequately punished by any of the following punishments—

(i) imprisonment for not more than two years;

(ii) a fine not exceeding four hundred naira, such fine to be enforced in default of payment by distress or by imprisonment for not more than two years;

(iii) in each of the above cases with or without any additional or alternative punishment in respect of the offences for which such punishment may legally be inflicted;

(iv) in the case of a juvenile offender with or without a whipping in respect of offences for which a whipping may legally be inflicted;

(v) any lesser penalty or order which a Magistrate Grade One or a Magistrate Grade Two in the exercise of his summary jurisdiction may impose or make; power to impose such punishment:

Provided that the person so charged, if the Magistrate Grade One or Magistrate Grade Two decides to proceed in accordance with paragraph (c), shall be informed by the Magistrate Grade One or Magistrate Grade Two before any evidence is taken of his right to be tried in the High Court and such person consents to be tried by the Magistrate Grade One or Magistrate Grade Two:

Provided further that if the Magistrate Grade One or Magistrate Grade Two shall not so inform the person charged the trial shall be null and void ab initio unless the person charged consents at any time before being called upon to make his defence to be tried by the Magistrate Grade One or Magistrate Grade Two, in which case the trial shall proceed as if the person charged had consented to be tried by the Magistrate Grade One or Magistrate Grade Two before the Magistrate Grade One or Magistrate Grade Two proceeded to hear evidence in the case.

Jurisdiction of Magistrate Grade Three in criminal causes and matters

Subject to the provisions of this Law or any other written law, a Magistrate Grade Three shall have full jurisdiction in criminal causes or matters for the summary trial and determination of criminal cases as follows:

(a) Where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is in any case punishable either by fine not exceeding two hundred naira or by imprisonment not exceeding one year or by both; power to impose the punishment specified by law;

(b) (i) where any person is charged with committing an offence or with doing any act or omitting to do any act required by law, the commission or omission of which is stated by the enactment declaring such to be both an offence and to be one punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner; power to award the maximum sentence or imprisonment and to order the payment of the maximum fine or penalty or forfeiture provided by such enactment or both such imprisonment and such fine or penalty or forfeiture where by law both may be imposed;

(ii) where any enactment provides that an order for payment of money may be made on summary conviction or summarily of in a summary manner in respect of any act or omission; power to order the payment of the sum which may be ordered according to the provisions of the enactment providing for the making of the order;

(c) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law; the commission or omission of which is an offence not stated to be punishable on summary conviction or triable summarily or in a summary manner, and it is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding two hundred naira or by imprisonment exceeding one year or both, but taking into account the circumstances of the particular offence with which such person is charged and the character and antecedents of the accused himself the Magistrate Grade Three is of opinion that the charge then before the Court appears to be one of such a nature that, if proved, it would be adequately punished by any of the following punishments—

(i) imprisonment for not more than one year;

(ii) a fine not exceeding two hundred naira, such fine to be enforced in default of payment by distress or by imprisonment for not more than one year;

(iii) in each of the above cases with or without any additional or alternative punishment in respect of offence for which such punishment may legally be inflicted;

(iv) in the case of juvenile offender with or without a whipping in respect of offences for which a whipping may legally be inflicted;

(v) any lesser penalty or order which a Magistrate Grade Three in the exercise of his summary jurisdiction may impose or make, power to impose such punishment:

Provided that the person so charged, if the Magistrate Grade Three decides to proceed in accordance with paragraph (c), shall be informed by the Magistrate Grade Three before any evidence is taken of his right to be tried in the High Court and such person consents to be tried by the Magistrate Grade Three:

Provided further that if the Magistrate Grade Three shall not so inform the person charged the trial shall be null and void ab initio unless the person charged consents at any time before being called upon to make his defence to be tried by the Magistrate Grade Three, in which case the trial shall proceed as if the person charged had consented to be tried by the Magistrate Grade Three before the Magistrate Grade Three proceeded to hear evidence in the case.

Criminal jurisdiction of court in certain cases

Where an offence is committed or any cause or matter arises, over which a Chief Magistrate or a Senior Magistrate Grade One, a Senior Magistrate Grade Two, a Magistrate Grade One, a Magistrate Grade Two or a Magistrate Grade Three has jurisdiction, in any ship, boat or canoe, such offence may be prosecuted and such cause or matter heard and determined either in the Court of the District in which the ship, boat or canoe may be at the time when the offence was committed or the cause or matter arose, or in the court of the District where the ship, boat or canoe may call at after the commission of the offence or the arising of the cause or matter.

(1) Subject to any limit imposed upon his jurisdiction by this Part, a Magistrate shall have jurisdiction to hear and determine any suit for specific performance or any suit founded upon contract if the contract was made within the jurisdiction of the Court though the breach occurred elsewhere or if the breach occurred within the jurisdiction though the contract was made elsewhere, or if the contract ought to have been performed within the jurisdiction or if the defendant or one of the defendants resides within the jurisdiction.

(2) A Magistrate shall have jurisdiction to hear and determine civil cause or matter other than one referred to in subsection (1) in which—

(a) the defendant or one of the defendants resides or carries on business within the jurisdiction; or

(b) where the cause of action arose wholly or in part within the jurisdiction of the Court; or

Judgments of the Supreme Court, the Court of Appeal or of other State Courts may be pleaded as defence

A judgment of the Supreme Court, of the Federal Court of Appeal, of the High Court of any State of Nigeria or of the Federal territory or of a Magistrates’ Court which is or may be established within the State of Nigeria or the Federal territory in favour of either a plaintiff or a defendant in any cause or matter before a court may in respect of the same subject matter be pleaded as a defence to any proceedings commenced in the State by the unsuccessful party.

Criminal jurisdiction of Magistrate where offence only partially committed within jurisdiction

Subject to any limitations imposed upon his jurisdiction by his appointment or this Part, a magistrate shall have jurisdiction to hear and determine any criminal cause notwithstanding—

(a) that it is uncertain whether an offence committed in Nigeria was committed within the jurisdiction of the Court or not; or

(b) that an offence is committed in Nigeria partly within the jurisdiction of the Court and partly outside such jurisdiction;

(c) that an offence committed in Nigeria is a continuing one and continues to be committed partly within the jurisdiction of the Court and partly outside jurisdiction; or

(d) that an offence committed in Nigeria consists of several acts some of which are committed within the jurisdiction of the Court and some of which are committed outside such jurisdiction.

Power of Governor to increase jurisdiction of Magistrates

(1) The Governor may by order on the recommendation of the Chief Judge authorise an increased jurisdiction in civil or criminal matters, or in both, to be exercised by any Magistrate Grade One, any Magistrate Grade Two or any Magistrate Grade Three to such an extent as the Governor may on such recommendation specify. Such authority may be revoked by the Governor by order at any time.

(2) Any order by the Governor made under subsection (1) of this section authorising an increased jurisdiction in civil matters shall specify the maximum amount which is to replace the amount mentioned in sections 19 and 20.

(3) An order by the Governor under subsection (1) of this section authorising an increased jurisdiction in criminal matters shall specify the maximum fine and maximum period of imprisonment which is to replace the maximum sums and periods mentioned in section 25 or section 26 and may authorise such increased jurisdiction in respect of a particular offence for which a person is or persons are then charged, or of specified offences under a particular Act or Law, or of offences under a specifically named Act or Law.

(4) Upon an order being made under this section the jurisdiction of the Magistrate under section 19, 20, 21, 25 or 26 as the case may be shall be deemed to be increased by the substitution of the maximum amount or the maximum fine and period of imprisonment so specified at each of the places where a particular amount, fine or period of imprisonment is mentioned in the said sections.

Appellate jurisdiction

Subject to the provisions of this Law, a Magistrate shall, within the limits of his jurisdiction, hear and determine—

(a) appeals from customary courts in accordance with the provisions of the Customary Courts Law as modified by any other Law; and

(b) appeals from the decision of an Assessment Committee.

General powers of magistrate

Every Magistrate shall have power to issue writs of summons for the commencement of actions in the High Court, to administer oaths and take solemn affirmations and declarations, to receive production of books and documents, and to make such decrees and orders and issue such process and exercise such powers, judicial and administrative, in relation to the administration of justice as shall from time to time be prescribed by rules of court or, subject thereto, by any order of the Chief Judge.

Acts of a Magistrate not affected by error as to venue

(1) No act done by or under the authority of any magistrate shall be void or impeachable by reason that such act was done or that any act, offence or matter in respect of or in relation to which such act was done occurred or was situated beyond the limits of the District of the jurisdiction of such Magistrates’ Court.

(2) If the defendant in any civil or criminal cause or matter wherein such objection might but for this section be of force shall at or before, but not after the time when he is required to state his answer or to plead in such cause or matter before the court, allege specifically any such objection, the Magistrate shall consider the same and if there is a prima facie proof of the objection the Magistrate shall report such cause or matter to a judge of the High Court who shall make an order directing where the cause or matter shall be heard and determined, and such order shall not be subject to appeal.

Case stated during hearing of case

At any time during the hearing of a criminal case in a Magistrates’ Court and before the decision of such Court has been pronounced the presiding Magistrate may, and when so required by the Attorney-General shall, state a special cause on a point of law for the opinion of the High Court.

General power of Attorney-General to request a case to be stated

In any criminal case in which no public officer is a party where the Attorney-General is of the opinion that any decision of a Magistrate is erroneous in law he may, at any time within six months from the date of the decision, require the Magistrate to state a case thereon for the opinion of the High Court.

Contents of case stated

A case stated under the provisions of section 35 or 36 shall set out—

(a) the charge, summons, information or complaint;

(b) the facts found by the Magistrates’ Court to be admitted or proved;

(d) any submission of law made by or on behalf of the accused during the trial or inquiry;

(e) the finding and, in the case of conviction, the sentence of the Magistrates’ Court;

(f) any question of law which the presiding magistrate desires to be submitted for the opinion of the High Court; and

(g) any question of law which the Attorney-General requires to be submitted for the opinion of the High Court.

Division and consolidation

(1) A plaintiff may not split or divide any cause of action for the purpose of bringing two or more actions in any court.

(2) Causes or matters pending in the same court may be consolidated by order of a Magistrate of his own motion or on the application of any party on notice whether or not such Magistrate be the Magistrate who finally adjudicates thereon:

Provided that causes or matters may not be consolidated if the effect of such consolidation is to bring the total of the consolidated actions or matters above the jurisdiction of the Magistrate adjudicating.

(3) Where several actions or matters by different plaintiffs against the same defendant are proceeding in the same Court, in respect of causes or matters arising out of the same breach of contract, wrong or other circumstances, the defendant may, on filing an undertaking to be bound so far as his liability in the several actions or matters is concerned, by the decision in such one of the actions or matters as may be selected by the Court, apply to the Court for an order to stay the actions or matters other than the one selected, until judgment is given in the settled action or matter and application under this subsection shall be made on notice to the plaintiffs who would be affected by any order made thereon.

Abandonment of part of claim to give jurisdiction

(1) Subject to the provisions of this Law, where a plaintiff has a cause of action for more than the amount of the jurisdiction of the Magistrate adjudicating, in which, if it were not for more than such jurisdiction, the plaintiff may abandon the excess, and thereupon the Court shall have jurisdiction to hear and determine the action, so, however, that the plaintiff shall not recover in the action an amount exceeding the amount of the jurisdiction of the Magistrate concerned.

(2) Where a court has jurisdiction to hear and determine an action by virtue of this section, the judgment of the Court in the action shall be in full discharge of all demands in respect of the cause of action, and entry of the judgment shall be made accordingly.

Executor may sue and be sued

Any executor or administrator may sue and be sued in the Court in like manner as if he were a party in his own right, and judgment and execution shall be such as, in the like case, would be given or issued in the High Court.

Action by infant for wages

Any person under the age of twenty-one years may bring any action in the Court for any sum of money, not exceeding two hundred naira, which may be due to him for wages or piece of work or for work as a domestic servant, in the same manner and in all respects as if he were of full age.

Procedure when persons jointly liable

(1) Where a plaintiff has a demand recoverable under this Law against two or more persons jointly liable, it shall be sufficient to serve any of those person with process, and judgment may be obtained and execution issued against any person so served, notwithstanding that others jointly may not have been served or sued or may not be within the jurisdiction of the Court.

(2) Where judgment is obtained against any person as aforesaid and is satisfied by that person, he shall be entitled to recover in a court contribution from any other person jointly liable with him.

(3) The provisions of this section shall not be deemed to affect the civil rights or liabilities between joint tort feasors.

Suits by infants and persons of unsound mind

Subject to the provisions of section 41 an infant may sue by his next friend and may defend by his guardian ad litem and a person of unsound mind, if so found by inquisition, may sue and defend by his committee, and if not so found, may sue by his next friend and may defend by his guardian ad litem on such terms as the liability for costs as the Court shall deem just.

PART 5

Law to be Administered

How far law of England in force

Subject to this Law and to any other written law, the common law, the doctrines of equity, and the statutes of general application which were in force in England on the first day of January, 1900, shall be in force within the jurisdiction of the Courts established by this Law.

Rules as to the application of statutes of general application

(1) All statutes of England of general application which apply within the jurisdiction of the Courts established by reason of this Law or any other written law shall be in force so far only as the limits of the local jurisdiction and local circumstances permit.

(2) It shall be lawful for a court to construe such statutes with such verbal alternations, not affecting the substance, as may be necessary to make the same applicable to the proceedings before the Court.

(3) Every Magistrate or officer of the Court, having or exercising functions of the like kind or analogous to the functions of the Magistrate or officer referred to in any such statute, shall be deemed to be within the meaning of the enactments thereof relating to such last mentioned Magistrate or officer.

(4) In matters of practice all documents may be written on ordinary paper, notwithstanding any practice or direction as to the printing or engrossing on vellum, parchment or otherwise.

Law and equity to be concurrently administered

(1) Subject to the provisions of this Law or of any other written law in every civil cause or matter which shall be commenced in any court established by this Law, law and equity shall be administered concurrently.

(2) The Court, in the exercise of the jurisdiction vested in it by this Law, shall have power to grant and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or reliefs whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim or defence properly brought forward by them respectively, or which shall appear in such cause or matter, so that, as far as possible, all matters in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.

(3) In all matters in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail.

Application of local custom

(1) Every Magistrate shall observe and enforce the observance of every local custom and shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity and good conscience or incompatible, either directly or by necessary implication, with any Law for the time being in force.

(2) Such local custom shall be deemed applicable in any civil cause or matter where the parties thereto are persons of Nigerian descent, also in any civil cause or matter between persons of Nigerian descent and persons who are not of Nigerian descent where it may appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of any law or laws other than local custom.

(3) No party shall be entitled to claim the benefit of any local custom if it shall appear, either from express contract or from the nature of the transaction out of which any civil case, matter or question shall have arisen, that such party agreed or must be taken to have agreed that his obligations in connection with any such transaction should be regulated exclusively by some law or laws other than local custom, or that such transaction is one which is unknown tolocal custom.

Reconciliation in civil causes or matters

In civil causes or matters a Magistrate may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.

Reconciliation in criminal causes

In criminal causes a Magistrate may promote reconciliation, and encourage and facilitate the settlement, in an amicable way, of proceedings for common assault or for any other offence not amounting to a felony and not aggravated in degree, on terms of payment or compensation or other terms approved by the Court, and may thereupon order the proceedings to be stayed.

PART 6

Sittings and Distribution of Business

Venue in civil proceedings

Subject to the provisions of section 52 and section 55 of this Law, all civil proceedings in any court established by this Law shall be instituted and commenced in the Court of a Magistrate, having jurisdiction in the District within which—

(a) the defendant, or any one of the defendants, resides or carries on his trade or profession at the time of commencing the action; or

(b) the cause of action or claim arose, wholly or in part; or

Transfer between Magistrates in the same District

Any Magistrate may, at any stage of the proceedings before final judgment, transfer any cause or matter before him to another Magistrate of competent jurisdiction assigned to the same District and such cause or matter shall be commenced de novo, inquired into, tried and disposed of by the Magistrate to whom it has been transferred as if it had been instituted before him:

Provided that no cause or matter which has been specifically transferred by a judge of the High Court for inquiry or trial by a particular Magistrate shall be so transferred without leave of the Chief Judge.

(1) Where, in respect of any civil proceedings pending before him, a Magistrate shall be of the opinion that, for any reason, the same ought to be transferred to the Court of a Magistrate assigned to another District or to the High Court, the Magistrate may, of his own motion or upon the application of any party to such proceedings, setting forth the reasons for his opinion in writing, report their pendency to a judge.

(2) Upon receiving such report, the judge shall make such order transferring the proceedings or otherwise as he deems to be expedient in the interest of justice.

Transfer to Customary Court

Subject to the provisions of section 54, a Magistrate may at any stage of the proceedings before final judgment by order direct that any cause or matter pending before him be transferred to a customary court having jurisdiction in such cause or matter. The Magistrate shall inform such customary court in writing of his reasons for making such order.

Restriction on retransfer

A Magistrate shall not transfer to a customary court any cause or matter which has been transferred to his court by the High Court.

Power of judge to transfer

(1) A judge may, at any time or at any stage of the proceedings before final judgment, transfer any civil cause or matter pending before a Magistrates’ Court to another Magistrates’ Court or to the High Court, and such cause or matter may be transferred either entirely or in respect of any part thereof or proceeding to be taken thereon.

(2) The power of transfer conferred by subsection (1) of this section shall be exercised by means of an order under the hand of the judge and the Seal of the High Court, and may be so exercised in respect of any particular cause or matter or in respect of all such causes or matters generally as may be specified in the order and, in the latter case, may extend to future causes or matters as well as to such as may be before the Court at the making of the order.

(3) The judge may at any time vary, add to or amend such order.

(4) The judge may if it appears expedient telegraph in the first instance the contents of any such order made by him, and such telegram shall, until receipt of the said order, have the same validity and effect as if it were the said order.

Effect of order of transfer

Every order of transfer made under the provisions of section 55 shall operate as a stay of proceedings in the Court to which it may be addressed in any cause or matter to which the order extends or is applicable, and the process and proceedings in every such cause or matter, and an attested copy of all entries in the books of the Court relative thereto, shall be transmitted to the Court to which the same shall be transferred and thenceforth all proceedings in the cause or matter shall be taken in such court as if the cause or matter had been commenced therein.

No appeal from an order of transfer

No order made under the provisions of section 51, 52, 53 or 55, of this Law shall be subject to appeal.

PART 7

Appeals

Rights of appeal in civil cause or matter

(1) Where in any civil cause or matter a decision, judgment or order of a Magistrate—

(a) is given in respect of a sum of twenty naira and upwards; or

(b) determines directly or indirectly a claim or question respecting money, goods or other property or any civil right or other matter of the amount or to the value of twenty naira and upwards, any person aggrieved may appeal there from to the High Court.

(2) Where in any civil cause or matter a decision, judgment or order of a magistrate—

(a) is given in respect of a sum less than twenty naira; or

(b) determines directly or indirectly a claim or question respecting money, goods or other property or any civil right or other matter of the amount or to the value of less than twenty naira, any person aggrieved may, with leave of the High Court, appeal there from to the High Court.

(3) An appeal under this section shall not operate as a stay of execution but the Magistrate or the High Court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed by rules of court made under the provisions of the High Court Law or of this Law.

Appeals from ex parte orders

An appeal shall not lie directly from an order made ex parte but any person aggrieved by such order may apply to the Court to vary or discharge it and an appeal will lie from the decision on such application in like manner as an appeal from any other civil cause or matter.

Practice and procedure in civil appeals

Subject to provisions of this Law, the practice and procedure in civil appeal from Magistrates’ Courts shall be in accordance with rules of court made under the provisions of the High Court Law or of this Law.

[Cap. H2.]

Right of appeal in criminal cases

(1) An appeal lies as of right to the High Court by a person sentenced by a Magistrates’ Court in a criminal proceeding.

(2) An appeal from decisions in criminal proceedings does not operate as a stay of execution but the Magistrate or the High Court may order a stay of execution either—

(a) unconditionally; or

(b) upon the performance of such conditions as may be imposed by rules of court made under this Law or the High Court Law.

Revisional jurisdiction of High Court over Magistrates’ Courts

(1) The High Court may call for and examine the record or any certified copy thereof of any criminal proceedings before any Magistrates’ Court which is within the area of jurisdiction of the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any such proceedings of any such Magistrates’ Court.

(2) Upon calling for the record of any criminal proceedings or at any time subsequent thereto the High Court may, in its discretion, order the release of any convicted person upon bail pending the final decision of the High Court:

Provided that if the final decision of the High Court is that the convict ed person shall undergo the sentence of imprisonment imposed by the Magistrates’ Court, or any part of it, the time he has spent on bail shall be excluded in computing the balance of that sentence.

(3) On receipt of the record or a certified copy thereof the High Court may—

(a) subject to any enactment fixing a minimum penalty, reduce a sentence or modify an order in such form as it thinks fit; or

(b) set aside a conviction and order the release of the person convicted if he is in custody or in the case of a fine which has been paid order the fine to be refunded or if security has been required and given order that the person concerned be freed from such security; or

(c) set aside the conviction and convict the accused of any offence of which he might have been convicted on the evidence, and sentence him accordingly; or

(d) set aside the conviction and substitute a special finding to the effect that the accused was guilty of the act or omission charged, but was insane so as not to be responsible for his action at the time when he did the act or made the omission, and order the accused to be confined as a criminal lunatic in a lunatic asylum, prison, or other suitable place of safe custody and shall report the case for the order of the Commissioner for Justice;

(e) set aside the conviction and order that the person convicted be retried by a court of competent jurisdiction; or

(f) order further evidence to be taken either generally or on some particular point by the Court which passed sentence or by any other court, and order in the meantime any person who shall have been convicted and imprisoned to be liberated on bail or on his own recognisance; or

(g) where the Magistrates’ Court has failed to impose the minimum penalty required by the provisions of any Law, or has failed to make an order which under the provisions of any Law it was the duty of such court to make, order the Magistrates’ Court to impose the minimum penalty or to make the necessary order, or may itself impose the minimum penalty or make the necessary order; and

(h) make any order as justice may require, and give all necessary and consequential directions:

Provided that when a person convicted shall have appealed against such conviction, or when the Magistrate shall have reserved any point of law for the consideration of the High Court and shall have stated a case thereon, the High Court shall not exercise the power by this section conferred until after the conclusion of the proceedings upon such appeal or stated case:

Provided further that the powers conferred upon the High Court by subsections (1) and

(3) shall not be exercised after the expiration of six months from the termination of the criminal proceedings in the Magistrates’ Court.

(4) No party shall have any right to be heard either personally or by solicitor before the High Court when exercising its powers under subsection (3), but the High Court may, if it thinks fit, hear any party either personally or by solicitor.

(5) Where an appeal lies, or has lain, from any finding, conviction or order and no appeal has been brought, no motion or proceeding requesting the exercise of the powers of the High Court under this section at the instance of the party who has the right to appeal, or who has had that right, shall be entertained by the High Court.

(6) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.

(7) All the powers conferred by this section upon the High Court may be exercised by a single judge.

(8) When the High Court has exercised any of the powers conferred by subsection (3), it shall certify its decision or order to the Magistrates’ Court concerned and the Magistrates’ Court shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, shall amend its record in accordance therewith.

Appeal against acquittal or dismissal

The prosecutor may appeal to the High Court from an acquittal or dismissal where—

(a) an accused person has been acquitted; or

(b) an order of dismissal has been made by a Magistrate.

PART 8

General Provisions as to Trial and Procedure

Times and places for court

(1) The Chief Judge may by order appoint the places within any District and the times at which a magistrate shall sit for the trial of criminal and civil causes and matters and the disposal of any other legal business pending.

(2) All criminal causes shall as far as practicable and subject to the provisions of any written law be tried and determined in priority to other business.

Courts open at all times for general business

Subject to the provisions of section 66, all Magistrates’ Courts shall be open throughout the year except on Sundays and public holidays for the transaction of legal business.

Adjournment of the Court

(1) A Magistrate may adjourn the court from day to day or to any convenient day.

(2) If the Magistrate is not present at the time and place appointed for any sitting of the Court, an officer of the Court or any other person authorised in that behalf by a Magistrate may adjourn the sitting until such time and to such place as may have been communicated to him by the Magistrate to be convenient and all persons bound to be present at the sitting so adjourned shall be equally bound to be present at such time and place.

(3) In the absence of any notification to the contrary, all such persons shall be bound to be present at the next succeeding time appointed as aforesaid or otherwise for the sitting of the Court in the same place.

Practice and procedure

The jurisdiction vested in Magistrates’ Courts shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of court as may be made pursuant of this Law or any other written law.

Completion by Magistrate of process begun by predecessor

Where a Magistrate has issued any summons or warrant or otherwise taken or commenced any proceeding, cause or matter whether civil or criminal, under any authority however conferred, and subsequently ceases to act as such Magistrate, it shall be lawful for the person in whose hands such summons or warrant may be to execute or serve the same in the same manner as if the Magistrate who issued such summons or warrant had not ceased to act as such Magistrate and any successor of such Magistrate or any person acting for such Magistrate, may hear, determine, execute, enforce and carry to completion any proceeding, cause or matter so commenced as aforesaid save that such Magistrate shall commence the trial of any such proceeding, cause or matter ab initio.

Process of Magistrate valid

All summonses, warrants, orders, judgments, writs of execution, or other process or proceedings, whether civil or criminal issued or taken by or by the authority of any Magistrate respecting any cause or matter within his jurisdiction shall have full force and effect, and may be served or executed anywhere within the State by a bailiff of the Court or by the member of the police force to whom the same are directed or by any other member of the police force.

(1) All summonses, warrants, orders, convictions, recognisances and other process in criminal proceedings shall, subject to the provisions of section 11 of this Law, be signed by a Magistrate.

(2) Every summons or other process in a civil proceeding shall, subject to the provisions of section 11 of this Law, be signed either by a Magistrate or by the registrar of the Magistrates’ Court.

In which cases prisoners may be brought by warrant to give evidence

A Magistrate may issue a warrant under his hand for bringing up any person confined as a prisoner under any sentence or order of confinement for trial, or otherwise, or under civil process to be examined as a witness in any case pending or to be required of in the court:

Provided that such warrant shall not be granted unless the Magistrate shall have reasonable grounds for believing that the evidence of the prisoner is likely to prove material.

Administration of oaths in proceedings

Every Magistrate is hereby authorised to administer all oaths which may require to be taken before him in the exercise of any of the jurisdiction and powers conferred upon him by this Law or any other written law.

Inspection

In any cause or matter a court may on the application of either party, or of its own motion, make such order for the inspection by the Court, the party or witnesses, of any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute, and give such direction respecting such inspection as to the Court may seem fit.

Magistrates to have process of High Court executed

Every magistrate shall, when required by the High Court, cause to be executed any writ or order or process issuing from the High Court, and shall take security from any person named in a writ or order for his appearance in the High Court, and shall, in default of security being given or where the High Court so orders, send the person to the place named in such writ.

Procedure when magistrate is personally interested in case before him

Where a Magistrate is a party to any cause or matter or is unable, from personal interest or for any other sufficient reason, to adjudicate on any cause or matter, the Chief Judge shall direct another Magistrate to act for the hearing and determination of such cause or matter, or may direct that any such cause or matter shall be heard and determined in a court of any other District.

Duty of constables to obey orders

Subject to the provisions of any written law, all police officers are hereby authorised and required to obey the warrants, orders and directions of a Magistrate in the exercise of his criminal jurisdiction, and, so far as such obedience may be authorised and required by any written law in that behalf, in the exercise of his civil jurisdiction.

Fees and costs

The fees and costs set forth in the rules of court made under this Law may be demanded and received by the registrars or other persons appointed to receive such fees and costs for and in respect of the several matters therein mentioned.

By whom fees payable

All fees and costs payable under or by virtue of this Law shall in the first instance be paid by the party applying for the summons, warrant or other process or document in respect whereof the same are payable:

Provided that no fees or costs shall be payable in any case instituted by a public officer when acting in his official capacity or in any case where a magistrate or a Justice of the Peace indorses on the document in respect of which the same is payable that no such fees or costs should be paid on account of the poverty of the party or for other sufficient reason ; and in every such case such fees and costs shall, in the discretion of the Magistrate, be recoverable from the party against whom the decision is given.

All moneys received in court to be subjects to foregoing provisions

The provisions of sections 77 and 78 shall apply to all moneys received by the registrar or other person of the Court, under this Law or any other written law, whether the same be fees, costs, fines, forfeitures, penalties, or money paid into Court for any purpose, or received or recovered under or by virtue of any process of execution of distress.

Protection of judicial officers and persons executing warrants, etc.

(1) No Magistrate or justice of the peace shall be liable for any act done or thing said by him in the course of any proceedings before him, provided that at time he, in good faith, believed himself to have jurisdiction in such proceedings.

(2) No person required or bound to execute any warrant or order issued by a magistrate or Justice of the Peace shall be liable in any action for damages in respect of the execution of such warrant or order unless it be proved that he executed either in an unlawful manner.

PART 9

Representation of Parties

Right of audience

Subject to the provisions of any written law any person entitled to practice in the Supreme Court or any High Court of any State of Nigeria shall be entitled to practice in any Magistrates’ Court or before a Justice of the Peace.

Representation of the State, Government Departments and Local Governments

(1) Subject to this section, in the case of a prosecution—

(a) by or on behalf of the State; or

(b) by a public officer in his official capacity, the State or that public officer may be represented by—

(i) a law officer;

(ii) a police officer;

(iii) or a legal practitioner duly authorised in that behalf by the Attorney-General, or in revenue cases authorised by the head of the department concerned.

(2) In a civil cause or matter in which—

(a) the State; or

(b) a public officer in his official capacity is a party, or in a civil cause or matter affecting the revenues of the State, the State or that public officer may be represented by—

(i) a law officer; or

(ii) a legal practitioner duly authorised in that behalf by the Attorney-General or the head of the department concerned.

(3) In the case of—

(a) a prosecution by or on behalf of a local government; or

(b) a suit brought by or against that local government, the local government may be represented in court, at any stage of the proceedings, by—

(i) a legal practitioner; or

(ii) an officer or employee of the local government who shall satisfy the Magistrate that he has the authority to represent the local government.

(4) Where the State is concerned in right of the Government of the Federal Republic the reference in this section to—

(a) the Attorney-General; and

(b) a law officer, shall be construed, as the case may be, as a reference to—

(d) a Federal law officer.

PART 10

Transitional Powers

References in Law to Magistrates, Courts to be references to Magistrates’ Courts established under this Law

Wherever in any law or any document reference is made to a Magistrate’s Court, such reference shall be read, in so far as the context will permit, to mean a reference to a Magistrates’ Court established under the provisions of this Law and where in any such Law or document reference is made to any Magistrate, registrar or other officer of a Magistrates’ Court, such reference shall be read so far as the context will permit, to mean a Magistrate, registrar or other officer aforesaid of a Magistrates’ Court established under the provisions of this Law.

PART 11

Rules of Court

Rules Committee

(1) There shall be established for the purposes of this Law a Committee hereinafter called “the Magistrates’ Courts Rules Committee” consisting of the Chief Judge and of a Magistrate appointed by the Chief Judge, a law officer nominated by the Attorney-General and appointed by the Chief Judge and an advocate appointed by the Chief Judge.

(2) The term of office of any person who is a member of the Magistrates’ Courts Rules Committee by virtue of appointment shall be such as may be specified in the appointment.

(3) No rule shall be valid except it has been made by the Chief Judge and not less than two other members of the Magistrates Courts Rules Committee.

Power of Rules Committee

(1) The Magistrates’ Courts Rules Committee may make rules for all or any of the following purposes—

(a) regulating the practice and procedure of Magistrates’ Courts in civil causes and matters including the division and consolidation of causes and matters and the abandonment of part of a claim to give the Court jurisdiction;

(b) regulating the forms to be used, and all matters connected therewith, in such civil proceedings and civil appeals and the fees payable in respect of such proceedings and appeals;

(c) the reference of civil proceedings in Magistrates’ Courts to arbitration and all matters relating and incidental thereto, including the remuneration and fees of arbitrators and referees;

(d) the form in which civil proceedings in Magistrates’ Courts and arbitrations arising out of such proceedings are to be recorded;

(e) the preservation of records of civil proceedings and the destruction of such records;

(f) the forms and books of account to be used in Magistrates’ Courts and the keeping of the same;

(g) the form of and the times of forwarding returns of criminal cases decided in Magistrates’ Courts to the Chief Judge or to a Judge of the High Court;

(h) the costs, fees and amounts which may lawfully be demanded and received in respect of the service of process relating to civil proceedings in Magistrates’ Courts;

(i) the acceptance, retention and disposal of fees and costs, whether in civil or criminal proceedings, in Magistrates’ Courts;

(j) the receipt of moneys paid into Magistrates’ Courts, and moneys received or recovered under or by virtue of any process, execution or distress;

(k) the payment out of Magistrates’ Courts of all moneys to persons entitled to receive the same;

(l) the fees payable in respect of the inspection and copying of records of civil proceedings and documents and other matters relating to such records;

(m) the fixing of scales of fees and costs recoverable in respect of the appearance and services of solicitors in civil proceedings in Magistrates’ Courts and the taxation of the same;

(n) the waiving and remission of fees payable by poor persons and the admission of persons to sue in forma pauperis; the service and execution of orders, writs, warrants and other process issued by customary courts and transmitted to Magistrates’ Courts, the conditions precedent to such service or execution either in respect of such process, the procedure to be followed after the service or execution of such process and the payment of mileage allowances to persons effecting such service or execution;

(o) the imposition of penalties on any person who fails to take any action required by a rule of court or who disobeys any rule of court;

(p) generally, for the better carrying into effect of the purposes of this Law.

(2) Rules of Court made under this section shall apply to all proceedings by or against the State.

CHAPTER M1

MAGISTRATES’ COURTS LAW

SUBSIDIARY LEGISLATION

List of Subsidiary Legislation

Magisterial Districts (Cross River State) Order.
Magistrates’ Courts (Appointment of Places of Session) Order.
Magistrates’ Courts Rules.

MAGISTERIAL DISTRICTS (CROSS RIVER STATE) ORDER 1979

(1st April, 1979)

[Commencement]

Magisterial Districts

The Cross River State of Nigeria is hereby divided into Magisterial Districts, the respective areas of which are specified in the first column of the Schedule hereto, and each of the Districts shall be distinguished by the name shown against it in the second column thereof.

Citation

This Order may be cited as the Magisterial Districts (Cross River State) Order.

SCHEDULE

Magisterial Districts Name

Local Government Area of Akamkpa Akamkpa Magisterial District
Local Government Area of Calabar Municipality Calabar Magisterial District
Local Government Area of Ikom Ikom Magisterial District
That part of the Calabar Local Government Area East of the Qua River, covering Atimbo, Ikot Edem Odo, Esuk Mba, Ikot Nakanda, Ikang, and that part of the Odukpani Local Government Area covered by Aningeje, Qua Falls, Oban, Ikpai and bordering on the Cameroons
Local Government of Obubra Obubra Magisterial District
Local Government of Obudu Obudu Magisterial Distict
Local Government of Ogoja Ogoja Magisterial Distict
That part of the Obubra Local Government Area which covers Ugep, Mkpani, and bordering on the Local Government Area of Akamkpa

MAGISTRATES’ COURTS (APPOINTMENT OF PLACES OF SESSION) ORDER 1979

(1st April, 1979)

[Commencement]

Appointment of places of session

The places mentioned in the second column of the schedule opposite the respective Magisterial Districts mentioned in the first column thereof are hereby appointed as the places, within the respective Magisterial Districts, at which Magistrates shall sit for the trial of criminal and civil causes and matters and the disposal of any other legal business pending.

Citation

This Order may be cited as the Magistrates’ Courts (Appointment of Places of Session), Order.

SCHEDULE

Magisterial Districts Name

Akamkpa Magisterial District Akamkpa
Calabar Magisterial District Calabar Municipality: Creek Town, and Akpap-Okoyong
Ikom Magisterial District Ikom
Ikot Nakanda Magisterial District Ikot Nakanda
Obubra Magisterial District Obubra
Obudu Magisterial District Obudu
Ogoja Magisterial District Ogoja
Ugep Magisterial District Ugep, Itigidi, Ediba and Ekureku

MAGISTRATES’ COURTS RULES

ARRANGEMENT OF RULES

RULE

Title and definitions.
Institution of actions.
Parties.
Interlocutory applications.
Injunctions, etc.
Service of process.
Default summonses.
Confessing and entering up judgment.
Procedure at hearing.
Absconding defendant.
Addresses.
Evidence.
Judgment.
Costs.
Setting aside of Judgment and new trial.
Transfer of causes or matters.
Appeals from customary courts.
Financial provisions.
Fees of court and allowances to witnesses.
Miscellaneous.

FIRST SCHEDULE

Forms

SECOND SCHEDULE

Fees of Court and Allowances to Witnesses

MAGISTRATES’ COURTS RULES

(3rd January, 1956)

[Commencement]

ORDER 1

Title

These rules may be cited as the Magistrates’ Courts Rules.

Definitions

In these rules—

“civil proceedings” means all civil actions triable by a Magistrate and all proceedings in relation to the making of an order for the payment of any sum of money or for the doing or abstaining from doing any act or thing not enforceable by fine or imprisonment in the first instance; “claim” means any debt, demand, or damage or relief claimed or any claim for the recovery of any chattel or thing sought to be recovered;

“counter-claim” includes a claim by way of cross-action;

“judgment” includes the dismissal of a claim as well as any other adjudication, order, or decision of a magistrate;

“the Law” means the Magistrates’ Courts Law;

[Cap. M1.]

“sheriff” means a sheriff appointed under the Sheriffs and Civil Process Law and includes a deputy-sheriff and any person authorised by the sheriff or a deputy-sheriff to execute process of a court;

“solicitor” means any legal practitioner entitl ed to practice before the Court and also the Attorney-General, the Solicitor-General, the Legal Draftsman or any State Counsel.

ORDER 2

CIVIL PROCEEDINGS TO BE SUMMARY

Institution of Actions

All civil proceedings within the jurisdiction of a Magistrates’ Court shall be heard and determined in a summary manner under the provisions of these rules.
(1) On the application of any person desirous of instituting civil proceedings and on payment of the prescribed fees, the registrar of the Court 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, every one of which 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.

[Plaint. Form 11]

(2) The Court shall refuse to entertain a plaint where such plaint, on the face of it, discloses no cause of action, or is in respect of a matter not within the jurisdiction of the Court, and the registrar shall enter such refusal together with the grounds thereof in the Civil Cause Book.

(3) Any person aggrieved with a decision of the Court under subsection (2) may appeal against such decision as if it were an order.

(4) The refusal to entertain a plaint under this section shall not by reason only such refusal preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

(5) In the event of any plaint not being lost or destroyed a duplicate thereof may be issued from time to time upon proof by affidavit to the satisfaction of the Court of the loss or destruction of the document.

[Form 12.]

Issue of summons to defendant

Upon entering a plaint the Court shall thereupon, subject to the provisions of rule 2 of this Order, issue a summons directed to the defendant, requiring him to appear at a certain time being not less than seven days from the date of the service of such summons, and at a certain place, before the Court to answer to the plaint.

[Form 13.]

Duration of summons

In case a summons issued for the commencement of a cause or matter is not served within a year from the date thereof, the same shall become void; but the Court may, at any time before the expiration of the current period, from time to time renew the same for a further period and not exceeding six months at any one time.

Effect of misnomer in plaint or summons

No misnomer or inaccurate description of any person or place in any such plaint or summons shall vitiate the same, so that the person or place is therein described so as to be commonly known:

Provided that if any such misnomer or inaccurate description appears to the Court at the hearing to be such that the defendant has been thereby deceived or misled, the Court may make any necessary amendments, and, if it is expedient to do so, adjourn the further hearing of the case, upon such terms as it may think fit.

Address for service

Where a plaintiff, taking out a summons either alone or jointly with any other person, is ordinarily resident out of the particular jurisdiction of the Court, or only temporarily therein, he shall inform the Court of an address within the district of the Court where notices and other papers issuing from the Court may be served upon him.

Joinder of causes of action

A plaintiff may unite in the same suit several causes of action, but the Court, if it thinks that such causes of action or some of them cannot be conveniently tried together, may order separate trials.

ORDER 3

Parties

Joinder of parties

(1) All persons may join as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative.

(2) All persons may be joined as defendants against whom the right to any relief claimed is alleged to exist, jointly, severally or in the alternative.

(3) The Court may, at any stage, strike out the names of any parties improperly or unnecessarily joined, and may, after due notice given to the parties affected, add the names of parties whose presence is essential to a just decision of the matter in dispute, and on proof of such notice, the parties so served, whether they shall have appeared or not, shall be bound by the proceedings in the action.

(4) Where a person has jointly with other persons a ground or instituting a suit, all those other persons ought ordinarily to be made parties to the suit.

(5) Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court, be authorised by the other persons interested to sue or todefend in such suit, for benefit of or on behalf of all parties so interest ed.

Partners

Any persons claiming or being liable as partners may sue or be sued in the name of their respective firms and any party to a suit may in such case apply to the Court for statement of the names of the persons who are partners in any such firm, and the Court shall order such names to be given.

Representative capacity

If the plaintiff sues, or any defendant is sued in any representative capacity, it shall be expressed on the summons. The Court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.

Alternative of parties

(1) Where after action brought any change or transmission of interest or liability occurs in relation to any party to the suit , or any party to the suit dies or (being a woman) marries, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the Court any order requisite for curing it defect, or enabling proper parties to carry on the proceedings.

(2) Any person served with such an order may, within such time not exceeding fourteen days as the Court in the order or otherwise directs, apply to the Court to discharge the order.

ORDER 4

Interlocutory Applications

(1) Interlocutory applications may be made orally to the magistrate in whose court a cause or matter is pending: Provided that the Magistrate shall have power—

(a) to direct the application to be reduced to writing; to direct notice thereof to be given to any person affected thereby;

(b) to direct in what manner evidence relating to the application shall be given by the applicant or any person affected thereby.

(2) Where an application is not summarily disposed of, the Magistrate or registrar shall appoint a day for the hearing thereof, and, where notice of the application is to be given to another person, such notice shall specify the date on which the application will be heard and the manner in which evidence relating thereto shall be given by the applicant or any person affected thereby.

(3) Any order made ex parte on an interlocutory application may be discharged or varied by the Magistrate at any time on application made by any person aggrieved thereby, after notice given to the party who obtained the order.

ORDER 5

Injunctions, etc

(1) In all cases in which it may appear necessary, the Court may appoint a receiver or manager of any property in dispute in a suit, and if need be commit the same to his possession or custody and grant him power to manage or preserve and improve the same and collect the rents and profits thereof and apply or dispose of them as may seem fir and power to sell perishable goods.

(2) The Court may authorise any person to enter upon or into any land or building in the possession of any party for purposes of any appointment or order made as aforesaid.

(3) In making an injunction or order, under section 17 (e) of the Law, the Court may grant the same on such terms as to its duration the keeping of an account, the giving of security or otherwise, as may seem just.

(4) Where application is made for an interlocutory injunction or order under section 17 (e) of the Law, the Court may direct notice thereof to be given to any person affected thereby.

(5) Any such interlocutory injunction or order made ex parte shall be for a limited time only to be therein stated, and be served on the person affected thereby, but the Court may extend the time if service has not been possible within such time.

(6) Where an interlocutory injunction or order is mad ex parte, the same may be discharged or varied by the Court at any time on application made by person aggrieved thereby, after notice given to the party who obtained the injunction or order.

ORDER 6

Service of Process

Manner of addressing process for execution

All summonses or other process of whatever description shall be sufficiently addressed for execution by being directed—

(a) to the sheriff; or

(b) to a person by name; or

(d) to officers of the High Court or Magistrates’ Courts; or

(e) to a local government; or

(f) to a customary court.

Special bailiff

The Court may in any case, for reasons which shall seem to it sufficient, direct summons to be served or process to be executed by a special bailiff, who for the time being shall have the privileges and liabilities of an officer of court. The expenses of such special bailiffs shall be defrayed by the party on whose application he is appointed, unless the Court in any case sees reason to order otherwise.

Normal mode of service

(1) Subject to the provisions of the Law and of these rules, service of a summons shall be effected by delivering the summons together with a copy of the plaint annexed thereto—

[Form 14]

(a) if on an individual to him personally;

(b) if on a firm or corporation—

(i) to one of the partners; or to a director; or to the secretary; or to the chief agent within the jurisdiction; or by leaving the same at the principal place of business in the State of the firm or corporation; or

(ii) to any one having at the time of service, control of the business of the firm or corporation;

[Cap. L16.]

(2) Where service has been effected by leaving a summons to be served at an address given by the plaintiff and the Court is doubtful that the defendant has actual knowledge of such summons, the Court may require the plaintiff to satisfy it that the summons has in fact come to the knowledge of the defendant.

(3) The provisions of this rule shall, with the necessary modifications as to the document, apply to any process of whatever description.

Substituted service

Where it appears to the Court, either with or without an attempt at service in accordance with the provisions of rule 3 of this Order, that for any reason such service in respect of any process whatsoever cannot conveniently be effected the Court, after being satisfied by affidavit that it is necessary so to do, may order that service be effected—

[Forms 15, 16 and 17.]

(a) by delivery thereof to some person being an agent of the person to be served, or to some other person on it being proved that there is reasonable probability that the document would in the ordinary course, through the agent or other person, come to the knowledge of the person to be served; or

[Form 16.]

(b) by advertisement in the Cross River State Gazette, or in some newspaper circulating within the jurisdiction; or

(c) by notice put up at the Court house or some other place of public resort of the district wherein the proceedings in respect of which the service is made have been instituted, or at the usual or last known place of abode, or of business, of the person to be served; or

(d) be affixing the document to the usual or last known place of abode or business of the person to be served; or in such other manner as the Court may direct, and upon compliance with such order such service shall be deemed to be good and sufficient service of the said document upon the person to be served.

Service on Government officers

When a party to be served is in the service of the Government, the Court may transmit a duplicate of the document to be served to the head officer of the Ministry or non-Ministerial department in which such party is employed, for the purpose of being served on him, if it shall appear to the Court that it may be most conveniently so served, and such head officer shall cause the same to be served on the proper party accordingly.

Service out of the jurisdiction

(1) No summons for service on a defendant out of the district of the Court issuing the summons shall issue without the leave of the particular Court.

(2) The application for such leave to issue shall be by application in chambers and where such application is granted an entry to the effect shall be made by the registrar in the Civil Cause Book.

Mode of service out of the jurisdiction

(1) When an application for served out of the district of the Court issuing the summons has been granted the Court granting such application shall cause a copy of the plaint and the summons and a copy thereof directed to the defendant to be sent for service to a court within the District in which service is to be effected.

(2) When any order as to any particular form of service has been made a copy of such order shall be sent with the summons.

(3) The Court effecting service shall indorse the summons for service and such summons shall be served accordingly and shall return the copy to the issuing Court duly indorsed in accordance with the provisions of rule 11 of this Order and countersigned by the Magistrate.

Varying order of service

An order for service may be varied from time to time with respect to the mode of service directed by the order.

When service may be effected

Service shall not be made on a Sunday nor on a public holiday, nor before 6 a.m. nor after 6 p.m. on any other day unless the Court directs otherwise by order indorsed on the document to be served.

Record and evidence of service

A book shall be kept at every court for recording service of process, in such form as may be prescribed, in which shall be entered by the officer serving the process, or by the registrar, the names of the plaintiff or complainant and defendant, the particular Court issuing the process, the method, whether personal or otherwise, of the service, and the manner in which the person serving ascertained that he served the process on the right person, and where any process shall not have been duly served, then the cause of failure shall be stated; and every entry in such book or an office copy of any entry shall be prima facie evidence of the several matters therein stated.

Proof of service

(1) Where any summons or other process issued from a court is served by the sheriff or such other person as is appointed by the Court, the service may be proved by endorsement on a copy of the summons or process under the hand of the person showing the fact and the mode of service, and where service has been effected under the provisions of rule 7 of this Order countersigned by the Magistrate of the Court effecting service.

[Forms 14, 18 and 19.]

(2) Any such person effecting service who willfully indorses any false statement on a copy of a summons or other process shall be guilty of a misdemeanour, and, on conviction thereof, shall be removed from his office or employment and shall be liable on two hundred naira, or to both such imprisonment and fine.

ORDER 7

Default Summonses

In action for debt plaintiff may require defendant to give notice of intention to defend on pain of judgment by default.

(1) In any action for a debt or liquidated money demand the plaintiff may, at his option, cause to be issued a summons in the ordinary form or, upon filing an affidavit to the effect set forth in Form 20 in the First Schedule and subject to the provisions of paragraph (3) a summons in the form or to the effect given in Form 21 in the First Schedule, and if such last mentioned summons be issued it shall, unless otherwise ordered by the Court, be personally served on the defendant and if the defendant shall not within sixteen days after the service of the summons, inclusive of the day of service, give notice in writing, signed by himself or his solicitor to the registrar of the Court from which the summons issued, of his intention to defend, the plaintiff may, after sixteen days and within two months from the day of service, upon proof of its service or of an order for leave to proceed as if personal service had been effected, have judgment entered up against the defendant for the amount of his claim and costs.

[Forms 20, 21, 22 and 23. First Schedule.]

Payment forthwith or by installments may be ordered

(2) The order upon such judgment shall be for payment forthwith or at such time or times and by such installments, if any, as the plaintiff or his solicitor shall in writing have consented to take at the time of the entry of the plaint or of the judgment.

Limitation on issue of summons in Form 21

(3) A summons in the form or to the effect given in Form 21 in the First Schedule shall not be issued, without leave of the Magistrate, where the amount claimed exceeds forty naira, unless the action is for the price, value or hire of goods which, or some part of which were sold and delivered or let on hire to the defendant to be used or dealt with in the way of his trade or profession or calling.

Where defendant gives notice to defend notice of day of hearing to be served on both parties

Where the defendant shall have given notice of defence the registrar of the Court shall, immediately upon the receipt of such notice, serve notice on the plaintiff or his solicitor, stating therein that the defendant has given notice of his intention to defend and shall send to both plaintiff and defendant notice of the day upon which the Court shall have fixed that the hearing shall take place, at least six clear days before the day so fixed.

Leave to defend my be given after failure to give notice

Where the defendant shall neglect to give such notice of defence the Magistrate shall, upon an affidavit disclosing a legal defence or a defence upon the merits and satisfactorily explaining the defendant’s neglect, allow the defendant to defend upon such terms as he may think just.

ORDER 8

Confessing and Entering up Judgment

Confessing of debts or parts of debts and judgment thereon

Any person against whom a plaint shall be entered in any court may, if he thinks fit, whether he be summoned upon such plaint or not, in the presence of any registrar or solicitor sign a statement confessing and admitting the amount of the claim, or part of the amount of the claim, for which such plaint shall have been entered; and it shall be the duty of the registrar of the Court in which the plaint was entered, as soon as conveniently may be after receiving such statement, to send notice thereof to plaintiff by post, or by causing the same to be delivered at the address, and thereupon it shall not be necessary for the said plaintiff to prove the claim as confessed and admitted as aforesaid; but the Court, at the next sitting thereof, whether the parties or either of them attend such court or not, shall, upon proof by affidavit or otherwise of the signature of the party, if such statement was not made in the presence of the registrar, enter up judgment for the claim so confessed and admitted.

Agreement as to amount of debt and conditions of payment

If the person against whom a plaint shall be entered in a court can agree with the person on whose behalf such plaint shall have been entered upon the amount of the claim in respect of which such plaint shall have been entered, and upon the terms and conditions upon which the same shall be paid and satisfied, such persons respectively may, in the presence of the registrar of the Court in which such plaint shall have been entered, sign a statement of the amount of the claim so agreed upon between such persons respectively, and of the terms and co nditions upon which the same shall be paid or satisfied, and such registrar shall receive such statement, and the Court shall at its next sitting enter up judgment for the plaintiff for the amount of the claim so agreed on, and upon the terms and conditions mentioned in such statement, and such judgment shall to all intents and purposes be the same and have the same effect, and shall be enforced and enforceable in the same manner as if it had been a judgment of the Magistrate of the said Court.

Payment into court by defendant and notice to plaintiff

(1) The defendant may, at any time before the hearing, file a consent in writing to judgment or he may pay into court such sum of money as he may think a full satisfaction for the claim of the plaintiff, together with the costs incurred by the plaintiff up to the time of such payment.

(2) Notice of such payment shall without delay be communicated by the registrar to the plaintiff either personally or in accordance with the provisions of Order 6.

[Form 24.]

(3) The money so paid shall without delay be paid by the registrar to the plaintiff; but if the plaintiff elects to proceed and recovers no further sum in the action than has been so paid into court, he shall pay to the defendant the costs incurred by him in the action after such payment into court, together with compensation, not exceeding ten naira, if the Magistrate thinks fit; and an order shall thereupon be made by the Magistrate for the payment of such costs, or costs and compensation, by the plaintiff, to be recovered as in the case of a judgment against him.

ORDER 9

Procedure at Hearing

Public or private sittings of the court

The sittings of the Court for the hearing of causes shall ordinarily be public; but the Court may, for special reasons, hear any particular cause or matter in the presence only of the parties, the solicitors representing them, if any, and the officers of court.

Right of audience

In any proceedings in a court any of the following persons may address the Court, namely—

(a) any party to the proceedings; or

(b) a solicitor retained by or on behalf of any party; or

Enlargement or abridgement of time

(1) The parties may not by consent enlarge or abridge any of the times fixed by the rules for taking any step, or filing any document, or giving any notice.

(2) The Court may, as often as it thinks for, and either before or after the expiration of the time appointed by any judgment, order, or the rules, extend or adjourn the time for doing any act of taking any proceedings.

Adjournment of court

A Magistrate may, from time to time, adjourn any civil proceedings held by him and shall note such adjournment in the book or draw up a formal order.

Powers of amendment

(1) A Magistrate may at all times before judgment amend all defects and errors in any proceeding in the Court, whether the defect or error is that of the party applying to amend or not, and, if duly applied for, may make all such amendments a may be necessary for the purpose of determining the real question in issue between the parties.

(2) All such amendments may be with or without costs and upon such terms as the Magistrate may think just.

Court may appoint guardians ad litem to infant defendants and persons of weak mind

(1) Where on default made by a defendant in answering or otherwise defending the suit after service of the writ, it appears to the Court that he is an infant or a person of weak or unsound mind so that he is unable of himself to defend the suit, the Court may, if it thinks fit, on the application of the plaintiff or of its own motion, appoint by order some fit person to be guardian of the defendant for the purposes of the suit.

[Forms 25 and 26.]

(2) Before such an order is made the Court shall cause such notice as it thinks reasonable to be served on, or left at the dwelling-house of the person with whom, or under whose care, the defendant is, and also, unless the Court sees good reason to the contrary, in the case of an infant not residing with or under the care of his guardian to be served on or let at the dwelling-house of his guardian.

Notice of special defence

(1) Subject to the power of amendment conferred by this Order, no defendant shall be allowed to set off or set up by way of counter-claim any debt or demand claimed or recoverable by him from the plaintiff, or to set up by way of defence, and to claim and have the benefit of, infancy, or limitation of action, or his discharge under any written law relating to bankruptcy or insolvency, without the consent of the plaintiff, unless seven clear days’ notice thereof has been given to the registrar.

[Form 4.]

(2) The registrar shall, as soon as conveniently may be after receiving any such notice, serve the same on the plaintiff either personally or in accordance with the other provisions of Order 6 and shall file an endorsement of service with the record of proceedings.

Magistrate to keep notes of evidence and minutes of proceedings

(1) At the hearing of any proceedings the Magistrate shall take notes in writing—

(a) of any question of law or equity raised at the hearing; and

(b) of any legal submission made, together with any authorities quoted in support of the same; and

(d) of his decision thereon and of his determination of the proceedings, in a book to be kept for that purpose, and such book shall be signed by the Magistrate at the conclusion of each days’ proceedings.

(2) Where such a note has been taken, the Magistrate shall, whether notice of appeal has been given or not, on the application of any party to the proceedings, and on payment by that party of such fee as may be prescribed, furnish him with a copy of the note, and shall sign the copy, and the copy so signed shall be admitted as evidence of such proceedings and of the statements made by the witnesses.

[Form 27]

(3) The registrar shall enter into a book to be kept for this purpose in his office and called the Record Book, particulars of all proceedings heard and determined by the Magistrate. Such particulars shall include the number of the plaint, the date of filing plaint, the name of the plaintiff, the name of the defendant, the substance of the substance of the plaint, the names of the witnesses tendered and examined or rejected, with the reasons of such rejection, the date of the judgment, a minute of the judgment, the name of the Magistrate adjudicating and the costs and such Record Book shall be checked and signed by the Magistrate.

[Form 28.]

Procedure when both parties appear

(1) If on the day of hearing both parties appear, the plaint shall be read to the defendant and the Magistrate shall require him to make his answer or defence thereto, and, on such defence or answer being made, the Magistrate shall immediately record the same and shall, except where the Court considers it necessary to order otherwise, proceed in a summary way to hear and determine the case, without further pleading or formal joinder of issue.

(2) The Court may if it considers it necessary order parties to state more fully their respective cases and may thereupon frame issues before hearing and determining the cause and, in cases in which owing to their difficulty, complicated nature or the important points of law involved pleadings are required, the Court shall adjourn the matter and report to the Chief Judge with a view to the case being transferred to the High Court.

Witnesses in general to be out of hearing

Immediately prior to the hearing of any cause or matter in which witnesses are to be examined, the Magistrate shall direct that all witnesses shall leave the Court and upon such direction the provisions of section 186 of the Evidence Act, shall apply:

[Cap. E14 LFN.]

Provided that the Magistrate may, in his discretion, permit professional and technical witnesses to remain in court: And provided further that failure to comply with the provisions of this subsection shall not invalidate the proceedings.

Examination of witnesses

(1) The Magistrate, after an opening address, if any, shall then proceed to hear the plaintiff and such witness as he may examine and such other evidence as he may adduce in support of his plaint and also to hear the defendant and such witnesses as he may examine and such other evidence as he may adduce in his defence and also to hear such other witnesses as the plaintiff may, with leave of the Court, examine in reply.

Addresses

(2) Addresses shall be made in accordance with the provisions of Order 11

Procedure when plaintiff fails to appear or to prove his cause

(1) If, on the day of hearing or at any continuation or any adjournment of the Court or cause, the plaintiff shall not appear or sufficiently excuse his absence, the cause shall, unless the Court sees good reason to the contrary, be struck out except as to any counter-claim by the defendant; and if the plaintiff appears but does not make proof of his claim to the satisfaction of the Court, the Magistrate may non-suit him or give judgment for the defendant; and in either case, where the defendant appears and does not admit the claim, the Magistrate may award the defendant, in addition to costs, such further sum, not exceeding ten naira, by way of compensation for his trouble and attendance, as the Magistrate, in his discretion, may think just. Such sum shall be recoverable from the plaintiff in like manner as any debt or damage ordered to be paid by the Court can be recovered; and no action shall be brought by the plaintiff in respect of the same cause of action until such sum and costs have been paid.

(2) If the plaintiff does not appear when called upon, but the defendant appears and admits the cause of action to the full amount claimed, the Magistrate may, if he thinks fit, proceed to give judgment, with or without costs, as if the plaintiff had appeared.

Counter-claim where plaintiff does not appear

Where the defendant to a cause which has been struck out under rule 12 of this Order has a counter-claim the court may, on due proof service on the plaintiff of notice thereof, proceed to hear the counter-claim and give judgment on the evidence adduced by the defendant, or may postpone the hearing of the counter-claim and direct notice of such postponement to be given to the plaintiff.

Costs defendant where plaintiff does not appear

In every case where the plaintiff shall not appear on the day of hearing, or at any continuation or adjournment of the Court or cause and the defendant shall appear, the Court may award the defendant such sum as the Court shall think just, such sum to include an amount by way of compensation for the defendant’s trouble and attendance, and the sum so awarded shall be recoverable from the plaintiff in like manner as any debt or damage ordered to be paid the Court can recovered.

Procedure when defendant fails to appear

(1) If on the day of hearing or at any continuation or adjournment of the Court or case the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence or neglects to answer when called in court, the Magistrate may, on due proof of service of the summons, and upon his being satisfied that the time between the date of service and the date of hearing was sufficient for the defendant to have appeared had he wished so to do, proceed to the hearing and determination of the cause on the part of the plaintiff only, and the judgment thereon shall be as valid as if both parties had appeared.

(2) When the Magistrate is not so satisfied that the defendant has had such reasonable time, the Magistrate shall adjourn the hearing to a convenient date and notify the defendant of the adjournment.

(3) When the Magistrate has heard and determined any cause or matter in the absence of the defendant under the provisions of paragraph (1) and the defendant has filed a counter-claim, the counter-claim shall, unless the Court sees good reason to the contrary, be struck out.

Power of Magistrate to refer to arbitration

(1) The Magistrate may, with the consent of the parties to any proceedings, order the proceedings to be referred to arbitration, whether with or without other matters within the jurisdiction of the Court in dispute between the parties, to such person or persons and in such manner and on such terms as he thinks just and reasonable.

[Form 29.]

(2) No such reference shall be revocable by any party except with the consent of the Magistrate.

(3) On any such reference the award of the arbitrator, arbitrators or umpires shall be entered as the judgment in the proceedings and shall be as binding and effectual to all intents as if given by the magistrate:

Provided that the Magistrate may, if he thinks fit, on application made to him at the first convenient Court held after the expiration of one week after the entry of the award, set aside the award, or may, with the consent of the parties, revoke the reference or direct another reference to be made in the manner aforesaid.

(4) In this rule the expression “award” includes an interim award.

Power of Magistrate to refer to reference

(1) The magistrate may refer to a referee for inquiry and report—

(a) any proceedings which require any prolonged examination of documents or any scientific or local investigation which cannot, in the opinion of the magistrate, conveniently be made before him;

(b) any proceedings where the question in dispute consists wholly or in part of matters of account;

(c) with the consent of the parties in respect of any other matter arising out of the proceedings before him in which, for reasons to be recorded by him, he is satisfied it is proper so to do.

[Form 30.]

(2) Where any proceedings or question are referred as aforesaid, the Magistrate may direct how the reference shall be conducted, and may remit any report for further inquiry and report, and on consideration of any report or further report may give such judgment or make such order in the proceedings as may be just.

(3) The Magistrate may refer to the registrar any mere matter of account which is in dispute between the parties and when the Magistrate reaches judgment he may use the report presented to him by the registrar as if such report were facts found by him in the course of the trial.

(4) Subject to any order to be made by the Court ordering the inquiry, evidence shall be taken at any inquiry before a reference or the registrar, and every such inquiry shall be conducted in the same manner as nearly as circumstances will admit as trials before a court, but not so as to make the tribunal of the referee or registrar a public court of justice.

(5) For the purpose of an inquiry under this rule the referee or the registrar shall have power to issue summonses to enforce the attendance of witnesses and compel the production of documents, and if any such summons is disobeyed or if a witness so summoned refuses to answer questions or give evidence at all, the referee or the registrar shall report the matter to the magistrate concerned, who may take any action as he may deem necessary as if any such summons had issued from his court of if such witness had refused to answer questions or give evidence in his court.

How security is to be given and enforced

(1) When either party to a cause or matter makes an application to the Magistrate that the other party shall give security whether with or without sureties and the magistrate is of the opinion, after hearing the parties, that such security should be given, he shall specify the amount of security and direct whether with or without sureties and whether such security shall be given by way of a cash deposit.

[Form 31.]

(2) Where a party is required to give security and such security is by way of a bond with or without sureties or by any way other than a cash deposit such security shall be at the cost of the party giving it.

(3) Where the Court has ordered that the security, other than a cash deposit, be given such security shall be given to the satisfaction of an officer of the Court unless the Court directs that such security be to the satisfaction of the other party.

(4) In any case where security, other than a cash deposit, is required to be given, the officer of the Court or the party to whose satisfaction the security is to be given may require the Magistrate to direct that the value of the security offered or the standing of the sureties, if any, be verified by affidavit of the party offering the security or by some other person with a knowledge of the security or the sureties.

(5) The Court to which any action on the security shall be brought may, by order, give such relief as may be just and such order shall have the effect of a defeasance of such bond or the fulfillment of such security.

Magistrate may direct security to be by deposit of money or otherwise

The Magistrate may, if he thinks it expedient, direct that a party required to give security may, instead of entering into a bond, give such other security, by deposit of money with the registrar or otherwise, as the Magistrate may deem sufficient.

Where security is required to be given, a deposit of money may be made in lieu thereof

When a party is required to give security by bond, he may, in lieu thereof, deposit with the registrar, a sum equal in amount to the sum for which he would be required to give security and the registrar shall give to the party paying a written acknowledgement of such payment; and the Magistrate, when the money shall have been deposited in the Court, may, on the same evidence as would be mentioned, order such sum so deposited to be paid out to such party or parties as he shall think just.

Service of summons to witnesses

Either of the parties to any cause or matter may obtain from the registrar of the Court summonses to witness, with or without a clause requiring the production of the books, deeds, papers, and writings in the possession or control of the person summoned as a witness and such summons shall be served in accordance with the provisions of Order 6.

[Forms 32, 33 and 34.]

(1) Subject to the provisions of the Evidence Law, any person summoned as witness in court who—

(a) refuses or neglects, without sufficient cause, to appear or to produce any documents required by the summons to be produced; or

(b) refuses to be sworn to make an affirmation or give evidence; shall forfeit such sum not exceeding forty naira as the Magistrate may direct:

Provided that no person so summoned shall forfeit a sum as aforesaid unless there has been paid or tendered to him at the time of the service of the summons such amount in respect of his expenses, including in such cases as may be prescribed compensation for loss of time, as may be prescribed for the purposes of this rule.

(2) Any person present in court who is required to give evidence, but refuses without sufficient cause to be sworn or make an affirmation or to give evidence shall forfeit such sum as aforesaid.

(3) The Magistrate may, in his discretion, direct that the whole or any part of any such sum, after deducting the costs shall be applicable towards indemnifying the party injured by the refusal or neglect.

Evidence of prisoners

(1) In any proceedings pending before a court, the Magistrate may, if he thinks fir, upon application either orally or in writing by any party, issue an order under his hand for bringing up before the Court any person, hereafter in this rule referred to as a “prisoner”, confined in any place under any sentence or under commitment for trial or otherwise, to be examined as a witness in the proceedings.

[Forms 37 and 38.]

(2) The prisoner mentioned in any such order shall be brought before the Court under the same custody, and shall be dealt with in the same manner in all respects as a prisoner required by warrant to be brought before the High Court and examined therein as a witness:

Provided that the person having the custody of the prisoner shall not be bound to obey the order unless there is tendered to him a reasonable sum for the conveyance and maintenance of a proper officer or officers and of the prisoner in going to, remaining at and returning from the Court.

ORDER 10

Absconding Defendant

Apprehension of absconding defendant and procedure thereon

(1) Where the plaintiff, at any time before final judgment, proves, by evidence upon oath or affirmation to the satisfaction of a Magistrate, that the plaintiff has a good cause of action against the defendant for an amount within the jurisdiction of the Court, and that there is probable cause for believing that the defendant is about to quit Nigeria unless he is apprehended, and that the absence of the defendant from Nigeria will prejudice the plaintiff in the recovery of what is claimed, the Magistrate shall issue a warrant for the apprehension of the defendant, who, if arrested, shall be served with a duplicate of the plaint at the time of arrest, unless he has been previously served therewith.

(2) The defendant shall, on his arrest, be brought as soon as practicable before a Magistrate and, subject to the provisions of rule 2 of this Order, the action shall then be heard and determined and all proceedings consequent thereon be immediately taken, or the Magistrate may, if he thinks fit, adjourn the hearing for a reasonable time, whereupon he may liberate the defendant in either of the following cases, but not otherwise, that is to say—

(a) if the defendant deposits with the Magistrate, by way of security, a sum equivalent to the sum claimed, and the costs of the action and otherwise; or

(b) if the defendant gives security to the plaintiff by bond of the defendant and one sufficient surety, to be approved of by a Magistrate, in a penalty double the sum claimed and costs, conditioned for the defendant’s appearance at the hearing; and the bond shall remain in the custody of the registrar.

(3) If an adjournment is made and the defendant fails to make the deposit or to give the security aforesaid, then the Magistrate may commit him to prison for safe custody until the action is finally heard and determined:

Provided that—

(a) no such commitment shall be for a term exceeding seven days, but without prejudice to the power of the magistrate to remand the defendant from time to time, but so that no such imprisonment shall exceed one month; and

(b) upon the final adjudication of the action the Magistrate shall order the liberation of the defendant if he is then in custody.

(4) If judgment is given for the plaintiff at the hearing, the Magistrate may pay to the plaintiff out of the sum, if any, deposited as security by the defendant, the amount of the debt and costs and shall repay the surplus, if any, to the defendant.

(5) If a bond is given as aforesaid and the defendant does not appear at the hearing, then, if judgment is given for the plaintiff, execution may be levied on the bond to recover the amount of the judgment and costs awarded by the Magistrate:

Provided that, if the defendant appears at the hearing of the action, the Magistrate shall in such case, when judgment has been given, cancel the bond and deliver it up to the defendant.

Defendant may be freed by nearest Magistrate if arrested outside of jurisdiction

If the defendant is arrested outside the district of the Magistrate who issued the warrant to arrest him, he shall on his application be brought as soon as practicable before the nearest Magistrate and such Magistrate may liberate him if he complies with the provisions of paragraphs (2) and (3) of the last preceding rule. The Magistrate by whom the defendant has been librated shall cause the deposit made or the bond entered into by the defendant to be sent with all convenient dispatch to the Magistrate of the Court which has jurisdiction to hear and determine the case.

ORDER 11

Address

Addresses

(1) The party on whom the burden of proof lies shall be entitled to address the Court at the commencement of the case. When the party who began has closed his case to meet, announce whether he intends to adduce evidence or not; and if he announces that he does not intend to call evidence the party beginning shall be entitled to address the Court for a second time, for the purpose of summing up his evidence, and his opponent shall have a right to reply.

(2) When the party beginning has concluded his case, if the opponent decides to call witnesses, he shall be at liberty in his turn, to open his case, call his witnesses and sum up and comment not only on his own evidence but on the whole cause.

(3) If the party opposed to the party who begins adduces evidence, the party beginning shall be at liberty to reply generally on the whole cause.

ORDER 12

Evidence

Affidavits

(1) A affidavit shall be made by some person who has knowledge of the facts stating—

[Form 2.]

(a) the deponent’s residence and occupation; and

(b) what facts are within his own knowledge and his means of knowledge; and

(2) Where a party desires to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party the following provisions shall apply:

(a) He may serve on the opposite party a notice requiring the production of the deponent for cross-examination at hearing.

(b) If the party served with the notice does not produce the deponent at the hearing, he shall not be entitled to use the affidavit as evidence without leave of the Court.

A witness summons may be issued on the application of the party served with the notice for the purpose of summoning the deponent to attend for cross-examination.

(3) Unless the Court otherwise orders, no affidavit shall be filed or used in any proceedings—

(a) which is blotted so as to obliterate any word; or

(b) which is illegibly written; or

(d) which is so imperfect, by reason of having blanks therein or if there is any interlineation, alteration or erasure in the body of the affidavit or jurat, unless the person before whom the affidavit was sworn has initiated the interlineation or alteration, and in the case of an erasure has re-written and signed in the margin of the affidavit any words or figures written on the erasure.

(4) Where it appears to the person administering the oath that the deponent is illiterate or blind, he shall certify in the jurat that—

(a) the affidavit was read or interpreted in his presence to the deponent; and

(b) the deponent seemed perfectly to understand it; and

(d) the affidavit shall not be used in evidence without such a certificate, unless the Court is otherwise satisfied that it was read over to and appeared to be perfectly understood by the deponent.

(5) The Court may allow an affidavit to be used in evidence, notwithstanding any defect by mis-description of parties or otherwise in the title of jurat or any other irregularity in the form of the affidavit.

Taking evidence in certain cases

(1) At any time after a cause or matter is begun and before the trial, the Court may take the evidence of a witness who is about to leave the district, or who, from illness or old age or any other sufficient cause, is not likely to be able to be present at the trial.

(2) The note of the evidence shall be signed at the time by the Magistrate taking the same.

(3) The evidence so taken and recorded may not, except for special reasons to be recorded in the Court note book, be admitted as evidence at the trial unless it is shown that the party against whom it is offered had an opportunity of cross-examining the deponent.

Documentary evidence

(1) Every document admitted in evidence shall be put in and read or taken as read by consent and shall be marked by the Court, or registrar, with a distinguishing mark or letter, and a note of the date and character of all material documents, admitted in evidence, shall be made by the Court in the record of the case, and each document admitted shall be retained by the Court until the end of the proceedings, or in the case of an appeal until the final determination of the cause or matter, when it shall be returned to the party who put it in, or from whose custody it came, unless the court, for any reason, orders it to be detained in the custody of the Court.

(2) Where a document is produced and tendered in evidence, and rejected by the Court, the document shall be marked as having been so tendered and rejected:

Provided always that this rule shall not apply when the rejection has been made on the grounds that the document is irrelevant or that a sufficiency of documents to a similar effect has already been admitted by the Court.

ORDER 13

Judgment

Giving of judgment on conclusion of hearing

On the conclusion of the hearing the Court shall either at the same or at a subsequent sitting deliver judgment in the cause and formal judgment shall be entered in the appropriate form, and shall, if so required by the plaintiff or defendant and on payment of the prescribed fee, cause to be delivered to the plaintiff or defendant, as the case may be, a certified copy of the judgment so delivered.

[Forms 39 and 40.]

Judgment in action for recovery of chattel

If the plaintiff in an action for the recovery of any chattel or thing establishes his claim, judgment shall be given either for the delivery of the chattel or thing or for payment of the value thereof as proved at the hearing, as the Court may think fit, and in either case the Court may award in addition such damages as the justice of the case may require.

[Form 41.]

What orders to be made

Subject to particular rules, the Court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.

Decree to be obeyed without demand

A person directed to pay money or do any other act is bound to obey the order without any demand for payment or performance, and if no time is therein expressed he is bound to do so within two days after the order has been made, except as to costs if the amount thereof may require to be ascertained by taxation, unless the Court shall enlarge the time by the same or any subsequent order.

Payment and suspension of judgments and orders

(1) When a judgment is given or an order is made by a court under which a sum of money of any amount is payable, whether by way of satisfaction of the claim or counter-claim in the proceedings or by way of costs or otherwise, the court may, as it thinks fit, order the money to be paid either—

(a) in on sum, whether forthwith or within such period as the Court may fix; or

(b) by such installments payable at such times as the Court may fix.

[Form 42.]

(2) If at any time it appears to the satisfaction of the Magistrate that any party to any proceedings is unable from any cause to pay any sum recovered against him, whether by way of satisfaction of the claim or counter-claim in the proceedings or by way of costs or otherwise, or any installment thereof, the Magistrate may, in his discretion, suspend or stay any judgment or order given or made in the proceedings for such time and on such terms as the Magistrate thinks fit, and so from time to time until it appears that the cause of inability has ceased.

Execution and power to stay execution

(1) The issue of any execution in any proceedings shall be in accordance with the provisions of the Sheriff and Civil Process Law.

[Cap. S5.]

(2) If at any time it appears to the satisfaction of the Magistrate that any party to any proceedings is unable from any case to pay any sum recovered against him, whether by way of satisfaction of the claim or counter-claim in the proceedings or by way of costs or otherwise, or any installment thereof, the Magistrate may, in his discretion, stay any execution issued in the proceedings for such time and on such terms as the Magistrate thinks fit, and so from time to time until it appears that the cause of inability has ceased.

Judgments how far final

Every judgment and order of the Court shall, except as provided by these rules or any other written law, be final and conclusive between the parties; but the Court shall have power to non-suit the plaintiff in every case in which satisfactory proof shall not be given entitling either the plaintiff or defendant to judgment.

ORDER 14

Costs

Apportionment and payment of costs

(1) All the fees and costs of any action or proceeding in the Court, including any arbitration, not herein otherwise provided for, shall be paid by or apportioned between the parties in such manner as the Court may think fit, and, in default of any special direction, shall abide the event of such action or proceeding.

(2) Execution may issue for the recovery of any such fees and costs in like manner as for the amount of any judgment obtained in the said Court.

(3) The Court shall have power to refuse costs in whole or in part to either party.

Security for costs

In all proceedings the Court may, either of its own motion or on the application of any defendant, if it sees fit, require any plaintiff to any suit, either at the commencement or at any time during the progress thereof, to give security for costs to the satisfaction of the Court, by deposit or otherwise, or to give further or better security, and may likewise require any defendant to give security, or further or better security, for the costs of any particular proceeding undertaken in his interest.

Case of second action for same cause

If any party sues another in any court for any cause of action for which he has already sued him and for which judgment other than a judgment of non-suit has been given in the same or any other court, upon proof of such former action having been brought and judgment having been given, the party so suing shall not be entitled to recover in such second action, and may, if the Court thinks fit be adjudged to pay three times the costs of such second action to the opposite party.

Proceedings my be stayed

Where the Court orders costs to be paid, or security to be given for costs by any party, the Court may, if it thinks fit, order all proceedings by or on behalf of that party in the same suit or proceeding, or connected therewith, to be stayed until the costs are paid or security given accordingly, but such order shall not supersede the use of any other lawful method of enforcing payment.

Employment of solicitors

The provisions of the High Court Law and the Rules made thereunder regulating the employment of solicitors, their relationship with their clients, the recovery of their fees or costs from their clients, and the payment out to them of money which has been paid into court, shall, in so far as they are not incompatible with the rules of this Order, apply mutatis mutandis to any solicitors engaged in any proceeding in a Magistrates’ Court.

[Cap. H2.]

Agreements made by solicitors and clients

(1) Any agreement made by a solicitor with his client for an inclusive fee for the conduct of a case in a Magistrates’ Court shall, if the client is illiterate, be null and void unless it shall have been made in duplicate and the solicitor and his client shall have signed and made their mark, or sign or signature, respectively or both copies in one and the same transaction and in the presence of a witness, other than an employee or casual employee of the solicitor, who understood the language and script in which the agreement was written and explained its terms to the client and was present at the transaction of the signing and marking thereof an set his signature also the agreement and unless one of the copies so signed shall also have been given to the client in the presence of the same witness and as part of the same single transaction of signing and marking them.

(2) The onus of proof that the requirements of this rule have been complied with shall be on the solicitor seeking to enforce any such agreement.

(3) For the purpose of this rule the word illiterate shall include any person, who may be able to read but may nevertheless not be able to understand the purport of such an agreement, and the onus of proof that a person is not illiterate in this sense shall be upon the solicitor.

When costs are paid to solicitor

When any solicitor has conducted a case under an agreement for an inclusive fee, or has conducted a case not under an inclusive charge but has presented his bill, and the fee or bill has been paid in full and costs awarded to his client by the Court are subsequently paid, the solicitor shall refund to the client an amount equal to the costs received; if the fee or bill has not been paid in full but the receipt of the costs awarded causes an excess, an amount equal to the excess shall be refunded to the client. When no excess is caused, the amount of costs received shall be deducted in computing the balance due from his client under the agreement or on the bill.

Inclusive fee

In any suit brought by a solicitor to recover from his client any sum of money due under an inclusive agreement for conducting a proceeding in a Magistrates’ Court, the Court may reduce the amount claimed if it thinks the same or any part thereof to be harsh and unreasonable, but before doing so shall have regard to the degree of skill, labour and responsibility involved and to the nature of the practice of the solicitor.

Solicitor to be an officer of the Court

Every solicitor while retained for a case in a Magistrates’ Court shall be an officer of the Court and when retained for a matter other than a proceeding in court, which subsequently developed into a proceeding in court, he shall be deemed to have been an officer of the Court from the date of his original retainer.

ORDER 15

Setting Aside of Judgment and New Trial

Setting aside of judgment given in absence of party

The Magistrate, at the same or any subsequent sitting of the Court, may set aside any judgment or order given or made against any party in the absence of such party, and the execution thereupon, and may grant a new trial or hearing, upon such terms, if any, as he may think just, on application and on sufficient cause shown to him for that purpose.

[Form 43.]

Relisting of causes struck out

Any case struck out may, by leave of the Court, be replaced on the case list on such terms as to the Court may seem fit.

ORDER 16

Transfer of Causes or Matters

Transfer of causes or matters

(1) An application under section 52 or 55 of the Law for the transfer of a cause or matter shall be made to a judge of the Judicial Division within which is situated the Magistrates’ Court in which the cause or matter is pending:

Provided that where the application requests a transfer of the cause or matter to a court in another judicial division of the High Court, the application shall be made to a judge of such other judicial division:

Provided also that in the absence of a judge from the appropriate judicial division, the application may be made to the Chief Judge.

(2) The application shall be made in writing and state the grounds on which it is based.

Application to be filed

(1) The application shall be filed in the Magistrates’ Court in which the cause or matter is pending, by which it shall be transmitted to the registrar of the appropriate judicial division or the Chief Registrar, as the case may be, with a statement of the Magistrate’s views thereon. In case of urgency the Magistrate shall by telegraph inform the registrar aforesaid or the Chief Registrar of the title of the cause or matter, the name of the applicant, the grounds on which the application is based, and the Court to which transfer is requested, and state his views on the application.

(2) The hearing of the cause or matter affected by the application shall not be proceeded with until the decision of the appropriate judge or the Chief Judge has been communicated to the Magistrates’ Court in which the cause or matter is pending.

(3) The magistrate shall inform the parties concerned of the judge’s or the Chief Judge’s decision on the application.

ORDER 17

Appeals from Customary Courts

Appeal to be entered

When an appeal is made from any order or decision of a customary court to a Magistrates’ Court, in accordance with the provisions of the Customary Courts Law, such appeal shall be entered at the Magistrates’ Court in that district in which is the customary court from which the appeal is made.

[Cap. C21.]

An appellant shall enter his appeal within thirty days of order or decision appealed against.
Form of Appeal

(1) Every appeal shall be entered in the form of a petition in writing presented by the appellant or some one on his behalf, unless the Magistrates’ Court permits the appellant to dictate his prayer to the registrar or other officer of the Court. The petition as presented or dictated shall state the grounds of appeal, and the appellant shall (unless the Magistrates’ Court otherwise directs) attach to the petition, or produce to the registrar or court, a copy of the order or judgment appealed against. The petition as presented or recorded shall be filed by the registrar.

(2) Every appellant shall when entering his petition give a postal address to which notices may be sent to him, or if unable to do so shall from time to time call at, or send his agent to, the Court to collect any notices awaiting him, and any notice or other communication addressed accordingly or left at the Court, as the case may be, shall be deemed to have reached the appellant.

Summary dismissal

(1) On receiving the petition and copy of the order or judgment, the Magistrates’ Court shall peruse the same and if it considers that there is not sufficient ground for interfering, it may dismiss the appeal summarily, provided that no appeal shall be dismissed under this rule unless the appellant, or his solicitor (if the Magistrates’ Court has been notified that he has a solicitor) has had a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under the last preceding rule, the Magistrates’ Court may call for the record of the case, and may call and examine any person or persons, whether they gave evidence before the customary court or not, whose testimony may be material in deciding whether to dismiss the appeal summarily or not, but shall not be bound to do either.

Security may be ordered

If the Magistrates’ Court decides not to dismiss the appeal summarily, it may order the appellant to find within one month security for any costs, which may be given against him, and for the making of copies of the petition and record of the case for the respondents, and for the translation thereof, if necessary, or for any of these purposes. The Magistrates’ Court shall then call for the record of the case and cause notice of appeal and of the time and date fixed for the hearing thereof to be given to the appellant and to the respondents, or other person, if any, who may be entitled to appeal and oppose the appeal, and shall cause the appeal to be set down for hearing, and if the appellant is in custody shall require the keeper of the goal to produce him before the Court on the day fixed for the hearing, provided then when a solicitor is to appear for him the Court need not give such notice to the keeper of the gaol.

Witnesses may be called with leave of the court

At the hearing of the appeal the Magistrates’ Court may allow, or require, witnesses to be called, whether or not they gave evidence before the customary court, and may order any reference to be made, and call for any document or other exhibit, and may inspect any object or place and may call for and examine the original customary court records and adjourn the hearing from time to time and place to place and may do or order to be done anything which it would have had power to do or order had the case been before the Magistrates’ Court in the exercise of its original jurisdiction and may at the determination of the hearing exercise any of the powers given to it by sections 50 or 51 of the Customary Courts Law.

[Cap. C21.]

Suspension of order or decision

At any time after an appeal has been entered until the determination thereof by the Magistrates’ Court, the Magistrates’ Court may, on the application of the appellant or of its own motion, order that the execution of the order or decision appealed from be suspended, either with or without security for the eventual performance thereof should the appeal fail, and if the appellant is in customary may order his release on bail or on his own bond, and shall send notice of all such orders to the Court of first instance or to the person or authority empowered to put into execution such court’s order or decision, provided that, if the order or decision was for the payment of a fine or penalty and the same has been paid, the Magistrates’ Court shall not order the same to be refunded pending the determination of the appeal unless the Court of first instance did, or had power to, order a sentence of imprisonment should the fine not have been paid.

When an appeal is entered out of time, the petition, dictation of statement required by Rule 3 of this Order shall also state the grounds on which the appellant bases his prayer for leave to appeal out of time, and the Magistrates’ Court may summarily refuse such leave, without hearing the appellant or his solicitor in support thereof.
Fees

No appeal shall be entered except upon payment of the prescribed fee, and thereafter no step shall be taken in an appeal until the prescribed fee therefore has been paid by the appellant, and if any fee shall not be paid within thirty days after it became due, extend the time on sufficient cause being shown. An application for such extension, which may be made after the appeal shall have so lapsed, shall be made in the manner and on payment of the fees, prescribed by the rules for making interlocutory applications.

Forms

Any notice, order communication, which a court is required or empowered by these Rules to give to a customary court or person, may be in the following form:

In the Magistrates’ Court …………………………. held at …………………………………

In the matter of – (civil) appeal from the order of (Customary Court) a (criminal) decision of the of ……………………………….. by ……………………………………….. appellant ( ……………………… respondent).

Magistrates’ Court No ……………………….

Customary Court ………………………………

To –

TAKE NOTICE

…………………………………………… Date………………………………,20………… Magistrate

ORDER 18

Financial Provisions

Registrar to take charge of fees and other payments

All fees payable in respect of civil proceedings under these rules and all penalties, forfeitures and fines imposed under these rules, if not by these rules directed to be otherwise applied, shall be paid to the registrar and accounted for by him to the Accountant-General.

Registrar to account to Accountant-General

The registrar of every court from time to time, as often as he shall be required so to do by the Accountant-General, shall account in full to the Accountant-General for all moneys which have been received by him under these rules and shall produce for examination all books and papers which the Accountant-General shall consider necessary for the elucidation of such accounts and the proper checking thereof.

Audit of registrars accounts

All accounts kept by a registrar shall be audited at such time and in such manner as the Auditor-General may direct.

Registrar to enter all moneys in Cash Book

All moneys coming into the hands of the registrar of every court in the course of the business of the court shall be entered into a book to be kept for that purpose, distinct from the Civil Cause Book, to be called the Cash Book. Every entry therein shall show whether the payment is made by plaintiff or defendant, and whether for fees on process into court, award, or costs as the case may be.

Registrar to comply with financial instructions

All moneys coming into the hands of the registrar of every court in the course of the business of the Court shall be retained, deposited and paid out in accordance with the provision of the Government financial instructions or regulations for the time being in force.

Suitors money unclaimed for six years to be forfeited and go to general revenue

(1) The registrar of every court shall in the month of March in each year make out a correct list of all sums of money belonging to suitors in the Court which shall have been paid into court and which shall have remained unclaimed for five years before the first day of January then last past, specifying the names of the parties for whom or on whose account the same were so paid into court.

(2) A copy of such list shall be put up and remain during court hours in some conspicuous part of the most convenient court house within the relative district.

(3) All sums of money which shall have been paid into any such court to the use of any suitors thereof, and which shall have remained unclaimed for a period of six years on the first day of January next after the said list shall have been put up as aforesaid, shall be accounted for by the registrar to the Accountant-General, and all such moneys which shall have remained so unclaimed shall be transferred by the Accountant-General to the credit of the general revenue.

ORDER 19

Fees of Court and Allowances Witnesses

Person responsible for fees

The fees prescribed in Part 1 of the Second Schedule to these Rules shall be payable by the party prosecuting a proceeding or asking for a service as therein provided in respect of the proceedings or services to which they relate, and such fees may afterwards be recovered as costs of cause if the Court so orders.

Transfer from customary court

When a case has been transferred from a customary court to a Magistrates’ Court the same fees shall be chargeable in connection with the proceedings before the Magistrates’ Court as would have been charged if the case had been begun in the Magistrates’ Court beginning with the fee chargeable for the summons as if the case had so begun.

The last mentioned fee shall be payable in the first instance by the party first taking any step in the Magistrates’ Court, and other fees in such court shall be payable by the party chargeable under rule 1.

In an appeal from a customary court to a Magistrates’ Court the same fees shall, subject to the special fees contained in the Second Schedule in respect of such appeals, be charged as would have been charged if the appeal had been an original proceeding before the Magistrates’ Court.
Allowances

Persons required to attend or to be examined as witnesses may, where the Court so orders, be allowed expenses and compensation for loss of time at the rates set out in Part II of the Second Schedule.

ORDER 20

Miscellaneous

Magistrate may suspend payment of fees

Notwithstanding anything contained in this Law or the rules a Magistrate may, in any proceeding in which good cause appears to him for so doing, either remit any fees payable therein or suspend payment of any fees until the conclusion of such proceeding, in which case he may then direct such fees to be paid as costs by any party to the proceeding by whom he has power to order costs to be paid.

Custody of records

All books and records kept for the purposes of this law shall remain in the custody of the Court, but may be removed by leave of the Court.

Use of forms in Schedule

Subject to the express provisions, if any, of the rules, the forms contained in the First Schedule may, in accordance with any instructions contained in the said forms, and with such variations as the circumstances of the particular case may require, be used in the cases to which they apply, and, when so used, shall be good and sufficient in law.

[Order 20.]

FIRST SCHEDULE

FORM 1

General Form of Title of Proceedings

(WHERE NOT OTHERWISE PROVIDED IN THIS SCHEDULE)

(FOR USE IN RESPECT OF ACTIONS)

In the Magistrates’ Court of the ……………………………………… Magisterial District No. of Plaint ………………………………..

BETWEEN

…………………………………………. Plaintiff and

.………………………………………. Defendant

(FOR USE IN RESPECT OF MATTERS)

In the Magistrates’ Court of the ……………………………………… Magisterial District No. …………………………………… In the matter of (here state the title of any Law or Act other than the Magistrates’ Courts Law by which this Court is given power to entertain the proceedings).

And in the matter of (here refer to the matter in respect of which the proceedings are brought).

Between ………………………………………………………………………………. Applicant

…………………………………………………………………………………… (or Petitioner)

…………………………………………………………………………………….. Respondent (or as the case may be).

FORM 2

General Form of Affidavit

[Order 12]

(GENERAL TITLE – FORM 1)

I, (full names of deponent) of (residence of deponent, followed by his occupation) make oath and say as follows—

(Here set out in numbered paragraphs, the facts deposed to.)

Sworn at ……………………………. in the district of ……………….. this ………… day of ……………………………………….., 20 …………

Before me Signed ……………………………………. Deponent

This affidavit is filed on behalf of …………………………………………………………….

Signed ……………………………………. Person taking Affidavit

FORM 3

General Form of Conclusion of Notices

[Order 20]

(WHERE NOT OTHERWISE PROVIDED IN THIS SCHEDULE)

DATED this ……….. day of ……………………………… , 20 …………

……………………………………………….. Magistrate (or person giving notice)

To (the person to whom notice is given)

FORM 4

Notice of Set-off or Counter-Claim

[Order 20]

In the Magistrates’ Court of the ……………………………………… Magisterial District

Suit No. ………………………………………….

Between …………………………………………………………… Plaintiff

and

………………………………………………………………. Defendant

and

Suit No. …………………………………………….

Between ……………………………………………………….. Plaintiff

and

…………………………………………………………… Defendant

(Add the plaint numbers and titles of all the actions or matters to be consolidated.)

IT IS ORDERED that these actions or matters be consolidated and do proceed as one action or matter (add any special terms).

NOTE: Actions or matters cannot be consolidated if the effect of such consolidation is to bring the total of the consolidated actions or matters above the jurisdiction of the Magistrate adjudicating.

FORM 5

Order for Consolidation

[Order 20]

In the Magistrate’s Court of the ……………………………………… Magisterial District

Suit No. ……………………………………………

Between …………………………………………………….. Plaintiff

and

…………………………………………………………… Defendant

and

Suit No. …………………………………………….

Between ……………………………………………………. Plaintiff

and

…………………………………………………………….. Defendant

(Add the plaint numbers and titles of all the actions or matters to be consolidated.)

IT IS ORDERED that these actions or matters be consolidated and do proceed as one action or matter (add any special terms).

NOTE: Actions or matters cannot be consolidated if the effect of such consolidation is to bring the total of the consolidated actions or matters above the jurisdiction of the Magistrate adjudicating.

FORM 6

Undertaking by Defendant applying for Stay of Proceedings

[Order 20]

(GENERAL TITLE OF ACTION TO WHICH THE UNDERTAKING RELATES)

WHEREAS the above-mentioned actions have been brought in this court by the said ……………………. and ……………………….. against me ………………………………..

And the several causes of action arise out of the same alleged breach of contract (or wrong or other circumstances).

NOW THEREFORE, I undertake to be bound, so far as my liability in the said actions is concerned, by the judgment of the court, in such one of the actions as may be selected by the Court.

DATED this………… day of ………………………………………. , 20 …………

……………………………………………. Defendant

FORM 7

Order to Stay Proceedings

(TITLES AS IN FORM 6)

WHEREAS the above actions have been commenced in this court against the said ………………………………… in respect of causes of action arising out of the same alleged breach of contract (or wrong or other circumstances):

ANDWHEREAS the said ………………………………………………………… has filed an undertaking to be bound, so far as his inability to the plaintiffs ……………………………………… and ……………………………………………… in the said actions is concerned, by the decision of the court in one of such actions:

IT IS ORDERED that the second-mentioned action be stayed until judgment shall have been given in the first-mentioned action.

AND IT IS FURTHER ORDERED that the costs of this application and of the order thereon be costs in the first-mentioned action.

AND IT IS FURTHER ORDERED that this order shall be served on the said …………………………………….. and ………………………………………………….

FORM 8

Notice to Plaintiffs in other Actions of Judgment in Selected Action

[Order 20]

(TITLES AS IN FORM 6)

WHEREAS on the ………….. day of ……………………………. , 20 …………….. it was ordered that the above-mentioned action of ………………………………………………

………………………………………………………… should be stayed until judgment should have been given in the above-mentioned action of ……………………………. v …………………………….

TAKE NOTICE that on the …………. day of …………………. , 20 ………………………

AND FURTHER TAKE NOTICE that the said defendant will be entitled to his costs of the abovementioned action of ………………………… v…………………………….. up to the date of the said order of the ……………. day of ………………….., 20 ……….. , unless you, the said …………………….. shall on or before the …………….. day of ………………………………… , 20 ……………… (one month from date of judgment in selected action) give to me written notice to set down the action of………………..

v………………………… for hearing. (Or, if judgment in selected action was given to plaintiff, proceed as follows)

TAKE NOTICE that on the …………. day of …………………………… , 20 ………… v……………………………….. ………………………………… in favour of the plaintiff.

AND FURTHER TAKE NOTICE that you will be at liberty to proceed with the action of ………………….. v……………………………… for the purpose of ascertaining and recovering the debt (or damages) and costs, and that if you desire to proceed you must, on or before the …………. day of …………………., 20 …………………………. (one month from date of judgment in selected action) give to me written notice to get down the action of ……………………………………………… for hearing.

………………………………………. Magistrate

FORM 9

Third Party Notice

[Order 20]

In the Magistrates’ Court of the ……………………………………… Magisterial District

No. of Plaint ………………………………………..

Between ……………………………………………………… Plaintiff

and

……………………………………………………………….. Defendant

and

………………………………………………………………… Third Party.

TAKE NOTICE that this action has been brought by the plaintiff against the defendant for ………………………………………………………………. and that the defendant claims against you—

(a) that he is entitled to contribution from you to the extent of ………………….. or

(b) that he is entitled to be indemnified by you against liability in respect of ………………………… or

(c) that he is entitled to the following relief or remedy relating to or connected with the original subject matter of the action, namely …………………………………….. or

(d) that the following question or issue relating to or connected with the subject matter of the action should properly be determined as between the plaintiff and the defendant and the third party namely ……………………………………………………………………. The grounds of the defendant’s claim are—

AND TAKE NOTICE that if you dispute plaintiff’s claim against the defendant or the defendant’s claim against you must within eight days after the service of this notice upon you, inclusive of the day of service deliver to the Registrar by post or otherwise a defence, together with a copy thereof and appear on the day fixed for the hearing of the action when the plaintiff’s claim against the defendant and the defendant’s claim against you will be heard and determined.

In default of your appearing on the day of hearing you will be deemed to admit —

(a) the plaintiff’s claim against the defendant; and

(b) the defendant’s claim against you; and

(c) your liability to (contribute to the extent claimed) or (indemnify the defendant) or the defendant’s right to the relief or remedy claimed in paragraph (b) above; and

(d) the validity of any judgment in the action; and

(e) you will be bound by the judgment in the action which may be enforced by execution against your goods.

FORM 10

Undertaking by Next Friend of Infant or Committee of Persons of Unsound Mind to be Responsible for Defendant’s Costs

[Order 20]

I, the undersigned ……………………………… of ………………………………….. being the next friend (or Committee) of …………………………………………… , who is an infant (or a person of unsound mind), and who is desirous of commencing an action in this court, against …………………………………. of ………………………….. hereby undertake to be responsible for the costs of the said …………………………… in those proceedings in manner following; namely, if the said ……………………………. fail to pay to the said ………………………………….. when and in such manner as the court shall order, all such costs of the proceedings as the court shall direct him to pay to the said …………………………………. I will forthwith pay the same to the Registrar of the Court.

DATED this ……….. day of ………………………………………. , 20 …………

Signed …………………………………………….

FORM 11

Plaint Note

[Order 2]

(ORDINARY ACTION OR MATTER)

In the Magistrates’ Court of the ……………………………………… Magisterial District

No. of Plaint ……………………………………..

Between ………………………………………. and ………………………………… Plaintiff

No. of Plaint or	Defendant	FEES PAID
No. of Plaint or	Defendant	Plaint	Hearing

The above action (or actions) or matter (or matters) was (or were) entered this day, and will be heard at ……………………………………… on …………………….. the ………… day of ………………… 20, …………. at the hour of …………………… in the ………………… noon.

DATED this ……….. day of ………………………………………. , 20 …………

…………………………………………. Registrar

The Hearing Fee must be paid before an action or matter is called on. Bring this plaint note with you when you come to the court or to the Court Office for any purpose connected with these proceedings.

On the day of hearing bring all books and papers necessary to prove your claim.

Money will be paid out of court only on production of this Plaint Note and on your or your agent’s personal attendance if you reside within five miles of the Court Office.

If you obtain a judgment against the defendant all moneys ordered to be paid there-under must be paid into court and must not be received by you from the defendant unless the court directs payment to be made to you.

FORM 12

Affidavit on Application for Issue of Duplicate Plaint Note

[Order 20.]

(GENERAL TITLE – FORM 1)

I, ……………………….. of …………………………….. make oath and say as follows—

I am (the solicitor for) the plaintiff in this action ……………………………… or I am a ……………………………………………….. in the employ of (the solicitor for) the plaintiff in this action and in such capacity have had in my custody the plaint note issued in this action.
I have made diligent search for the said plaint note but have been unable to find it and to the best of my belief the said plaint note has been accidentally lost or destroyed.
There has been no change in my interest in the subject matter (or the judgment obtained) in this action and I am lawfully entitled to receive any money paid into court by the defendant.
(Add if the deponent is not the plaintiff.) To the best of my knowledge and belief there has been change in the plaintiff’s interest in the subject matter (or the judgment obtained) in this action and the plaintiff is lawfully entitled to receive any money paid into court by the defendant.
I am duly authorised by the plaintiff to apply for and receive on his behalf a duplicate of the said plaint note as appears by the authority at the foot hereof, signed by the plaintiff.

LEAVE GRANTED to issue duplicate plaint note.

…………………………………….. Magistrate

I, …………………………………………, the above-named plaintiff, hereby authorise …………………………………, of ……………………………………………… to apply for and receive on my behalf a duplicate of the plaint note issued in this action.

……………………………………. Plaintiff

FORM 13

Ordinary Summons

[Order 20.]

(GENERAL TITLE – FORM 1)

You are hereby summoned to appear at a court to be holden at ………………………. on the ………… day of ……………………………………….., 20 ………… at the hour of ………………………………………. in the ……………….. noon, to answer the plaintiff’s claim for …………………………………………. (the particulars of which are hereto annexed).

Claim …………………..

Fee ………………………

Total

Amount

of claim

and

costs

₦

If the claim is for money only and you

pay into court the total amount of the claim and costs within…………days after the…….

If you dispute the claim or have a counter-claim you should, within eight days inclusive of the day of service, send to the Registrar a defence or counter-claim for which the form below may be used. If you dispute part only of the claim you may pay of claim into court the amount admitted.
If you admit the whole or part of the claim and desire time for payment you should within the said eight days send to the Registrar an admission (for which the form below may be used).

Sending the form to the Registrar does not relieve you from appearing in court on the day named but delay in sending a defence or admission or in paying into court may add to the costs to the Defendant.

DATED this………………… day of ………………………………. , 20 …………

……………………………………. Registrar

FORM 14

Service Endorsement on any Document of which personal Service is effected (except a Witness or Judgment Summons).

[Order 6 r. 3 and 11.]

The summons (or as the case may be) of which this is a true copy was served by me, on the defendant personally, at …………………………………………. on the ………….. day of ………………………………… 20 ……….

………………………………… Person effecting Service

FORM 15

Order for Substituted Service

[Order 6 r. 4.]

(GENERAL TITLE – FORM 1)

UPON READING the Affidavit of ………………………….. of …………………………. sworn the …………………………. day of ……………………….. , 20 ……………………

IT IS ORDERED (that a copy of the ……………………………………………….. issued in this action (or matter) together with a copy of this order be served on some inmate of or above the apparent age of eighteen years at …………………………….. being the usual (or last known) place of residence (or business) of ………………….. (name of plaintiff, defendant, witness or party).

(Or that a copy of the ………………………………. issued in this action (or matter) together with a copy of this order, be sent by registered post addressed to ………………………………… (name of plaintiff, defendant, witness or party) at ……………………………………………… being the usual (or last known) place of residence (or business) of the said …………………………………………………..)

(Or that notice of the …………………………………….. be published in the Gazette.)

(Or that notice of the …………………………………….. be published in the ………………………….. newspaper in (number) separate issues.)

(Or that a copy of the ………………………………………. in this action (or matter) shall be affixed to premises at …………………………………………………… being the usual (or last known) place of residence (or business) of ……………………………. the (plaintiff, defendant, witness or party.)

(Or as may otherwise be ordered by the court.)

ORDERED this …………. day of ………………………………… , 20 …………

……………………………….. Magistrate

FORM 16

Substituted Service Notice in the Cross River State of Nigeria

[Order 6 r. 4.]

GAZETTE OR NEWSPAPER

In the Magistrates’ Court of the ……………………………………… Magisterial District TAKE NOTICE that an action (or matter) has been commenced against you in the above court by…………………. of …………………….. for ………………………. and an order has been made that publication of a notice of the entry of such action (or matter) in the Gazette (or the …………………………………………….. newspaper) shall be deemed to be good and sufficient service of the proceedings on you. The action or matter will be heard at ……………………… on …………………………. the ………….. of day ………………………., at the hour of ……………………… in the ………………………………… noon, on which day you are to appear, and if you do not appear either in person or by your legal practitioner at the time and place above-mentioned, such order will be made as the court thinks just.

DATED this ……….. day of ………………………………… , 20 …………

…………………………………….. Registrar

To ……………………………..

of ………………………………

FORM 17

Service Endorsement of Substituted Service

[Order 6 r. 4.]

(GENERAL TITLE – FORM 1)

The summons of which this is a true copy was served by me on the ……………….. day of ……………………… 20 ………….. by ………………………………………………. ……………………………………………………………………………………………………………………………………………………………………………………………………………. in accordance with the terms of the order for such substituted service.

………………………………………….. Person effecting service

FORM 18

Service Endorsement on Summons to Witness

[Order 6 r. 11]

The summons of which this is a true copy was served by me on the within-named …………………………….. personally, at …………………………………… on the ……. day of …………………………… 20 ……, and the sum of ……………………………. ₦ ………………………………… was at the same time paid or tendered by me to the said ………………………………. for his expenses and loss of time.

……………………………………….. Person effecting service

FORM 19

Service Endorsement of Ordinary or Default Summons

[Order 6 r. 11.]

(GENERAL TITLE – FORM 1)

I, …………………………………….. of …………………………………. state as follows—

That I on a bailiff of this court (or as the case may be).
That I did on the …………. day of …………………………………., 20 …….. serve the summons, a true copy whereof is hereunto annexed marked “A”, on the defendant …………………………………… by delivering the same to the said defendant personally, (or by delivering the same at ……………………….. to …………………. who stated that he was a partner in the defendant firm) (or who carries on) (or who stated that he carried on) business in the name of the defendant firm). (Or by delivering the same at ………………………………….. being the principal place of business of ………………………….. the defendant firm within the jurisdiction of this court to ……………………………….. the person who had or appeared to have the control or management of the business there). (Or by leaving the same at …………………………..) (or by posting the same on the …….. day of ………………………………………. , 20 …………. , in a registered envelope addressed to the defendant Company ………………………………… at ……………………………. the address stated in the summons to be the registered office of the Company). (Or by delivering the same at ………………………………. to ……………………………. a solicitor who represented that he was authorised to accept service on behalf of the defendant and who at the time of such delivery indorsed upon the copy summons retained by me a memorandum that he accepted service thereof on behalf of such defendant) (or by sending the same on the …………………….. day of …………………………………., 20 ………. by registered post together with a copy of the order for substituted service of the said summons, addressed to the defendant in accordance with the said order).

………………………………………………. Person effecting service

Indorse the copy summons thus – This copy summons marked “A” is the paper referred to in the annexed endorsement.

This endorsement must be filed within three days after the day of service.

FORM 20

Affidavit to Ground Default Summons

[Order 7 r. 1.]

I, A.B. of …………………………………………. make oath and say that C.D., of ……………………………………….. (address, occupation and description) is indebted to me in the sum of …………………………………………. for twenty pounds), and I further say that the ………………………………………………. were sold and delivered (or let on hire) to the said C.D., to be used or dealt with in the way of his trade (or profession or calling) of a………………………………………………. SWORN at …………………………… ………………………………………………. Signed A.B.

NOTE: When affidavit is made by a clerk, alter the form accordingly, and add the following: That I am a person in the employ of A.B., and that I am duly authorised by him to make this affidavit, and that it is within my own knowledge that the aforesaid debt was incurred, and for the consideration above stated, and that such debt, to the best of my knowledge and belief, still remains unpaid and unsatisfied.

FORM 21

Summons to obtain Judgment by Default on Personal Service

[Order 7 r. 1.]

(GENERAL TITLE – FORM 1)

TAKE NOTICE, that unless within sixteen days after the service of this summons on you, inclusive of the day of such service, you pay into court the total amount of the plaintiff’s claim and costs or return to the registrar, at the office of the Court, by post or otherwise, the notice given below dated and signed by yourself or your legal practitioner, you will not afterwards be allowed to make any defence to the claim which the plaintiff makes on you, as per margin. Particulars of the claim are hereto annexed.

But the plaintiff may, in the absence of

Claim …………………..

Fee ………………………

Total

Amount

of claim

and

costs

₦

such notice and without giving further proof in support of such claim, than the affidavit filed in court, obtain judgment and proceed to execution for the full amount claimed and Fee for costs forthwith.

If within the time limited you return such notice to the Court, the registrar will send you notice of the day on which the action will be tried.

If you dispute part only of the claim you may pay into court the amount admitted.

Delay in payment of an amount admitted of claim may add to the costs.

To the defendant …………………………………………..

DATED this ……….. day of ………………………………………. , 20 …………

………………………………………… Registrar

NOTE: See endorsement on back hereof.

Notice of Intention to Defend

In the Magistrates’ Court of the …………………………………… Magisterial District

Suit No. ……………………., 20 …………..

I dispute the plaintiff’s claim because (1) …………………………… (or, I admit the plaintiff’s claim) (or, I admit ₦ ………………………. part of the amount, on, the ……………………………… day of ……………………………………….. 20 …………., or by installments of ₦ …………………………………. because (2) …………………….. or I have counter-claim against the plaintiff for ₦ ……………… for (3) ………………….

(1) State shortly the facts relied upon to support the defence.

(2) Admission. State why you cannot pay at once.

(3) Counter-claim.

To be signed here –

………………………………………….. Defendant

To be indorsed on the back of summons.

If you pay the debt and costs, as per margin on the other side, into the Registrar’s office, within sixteen days after the service of this summons, and without returning the notice of intention to defend, you will avoid further costs.

If you do not return the notice of intention to defend, but allow judgment against you by default, you will save half the hearing fee, and the order upon such judgment will be to pay the debt and costs forthwith (or by installments, to be specified as in plaintiff’s written consent).

If you admit a part only of the claim, you must return the notice of intention to defend within the time specified on the summons; and you may, by paying into the Registrar’s office at the same time the amount so admitted, together with costs proportionate to the amount you pay in, avoid further costs, unless the plaintiff at the trial shall prove a claim against you exceeding the sum so paid.

If you intend to dispute the plaintiff’s claim on either of the following grounds—

(a) that the plaintiff owes you a debt which you claim should be set off against it; or

(b) that you were under twenty-one when the debt claimed was contracted, you must, in addition to the notice of intention to defend, give to the Registrar notice of such special defence; and

(d) you must deliver to the Registrar as many copies of such notice as there are plaintiffs, and

(e) an additional copy for the use of the Court.

If your defence be a set-off, you must, with the notice thereof, also deliver to the Registrar a statement of the particulars thereof.

If your defence be a tender, you must pay into court, before or at the trial, the amount tendered.

FORM 22

Plaint Note

[Order 7 r. 1]

(DEFAULT ACTION)

In the Magistrates’ Court of the ……………………………………… Magisterial District Between ……………………………………. and ………………………………….. Plaintiff

No. of Plaint	Defendant	FEES PAID
No. of Plaint	Defendant	Plaint	Judgment Hearing

The above action (or actions) was (or were) entered this day and you will be entitled to judgment at the expiration of sixteen days and within two months from the date of the service of the summons, inclusive of the day of service, unless the defendant within such period of sixteen days pays into court the total amount of the claim and costs or delivers at the Court office a notice of his intention to defend. If payment is made or a defence or admission is delivered you will be informed thereof by post, and unless payment is made in full, of the day and hour when the action will be heard or disposed of.

If no defence or admission is delivered judgment must be entered within two months from the date of service of the summons after which period the action will be struck out.

DATED this………… day of ………………………………………. , 20 …………

………………………………………… Registrar

To the plaintiff.

Bring this plaint note when you come to the Court or to the court office for any purpose connected with these proceedings.

On the day of hearing bring all books and papers necessary to prove your claim.

Money will be paid out of court only on production of this plaint note and on your or your representative’s personal attendance if you reside within five miles of the Court.

If you obtain a judgment against the defendant all money ordered to be paid there-under must be paid into court and must not be received by you from the defendant unless the Court directs payment to be made to you.

FORM 23

Praecipe for Entry of Judgment in Default Action

[Order 7 r. 1.]

(GENERAL TITLE – FORM 1)

I hereby request you to enter judgment by default against the defendant (name the defendant, or if there are more defendants than one and it is desired to enter judgment against some or one only, name them or him) payable forthwith or on the ……………………………….. day of ……………………………………………., or by installments of ₦ …………….. for every …………………………………….. , the first installment to be paid on the ………………. day of ………………………, 20 …………

₦ k

Amount of claim as stated in Summons …………………………..

Amount, if any, since received by plaintiff …………………………

Balance of claim for which judgment to be entered ………………

₦ k

Court fees entered on summons ……………………………………..

Court fees on entering judgment ……………………………………..

Total ………………………………………. …………. ₦

DATED this………… day of ………………………… , 20 …………

To the Registrar of the Court.

……………………………………………… Plaintiff or Plaintiff’s Legal Practitioner

FORM 24

Notice to Plaintiff of Payment into Court of whole Claim with or without Costs

[Order 8 r. 3.]

(GENERAL TITLE – FORM 1)

Take notice that the defendant ……………………….. has paid into court ₦ ……………. being the full amount of your claim in this action (together with the costs entered on the summons).

NOTE: When applying for the above amount you must produce the plaint note issued to you on the entry of the plaint.

FORM 25

Affidavit on Application on behalf of Infant or Person of unsound Mind for Appointment of Guardian ad litem

[Order 9 r. 6.]

(GENERAL TITLE – FORM 1)

I ………………………………. of ………………………. make oath and say as follows—

The defendant was served with the ……………………………………………… in this action (or matter) on the ………………. day of ………………………………………. , 20 ………….
The defendant ……………………………………….. is an infant (or person of unsound mind not so found by inquisition).
……………………………………. is a fit and proper person to act as guardian ad litem of the said defendant and has no interest in the matters in question in this action (or matter) adverse to that the said ……. ………………………………… defendant, and the consent of the said …………………………………… to act as such guardian is hereto appended.

I, ……………………………………….. of ……………………………….. consent to act as guardian ad litem of …………………………………………. an infant (or a person of unsound mind not so found by inquisition), a defendant in this action (or matter).

……………………………………………………………….. Signature of person consenting to act as Guardian

FORM 26

Order Appointing Guardian ad litem

[Order 9 r. 6.]

(GENERAL TITLE – FORM 1)

On the application of ……………………………………. and on reading the affidavit of ……………………………… sworn on the …………….. day of ……………………………………………. , 20 ………….. , and the consent thereto annexed.

IT IS ORDERED that ………………………… of ……………………………. be appointed to act as guardian ad litem of the defendant ………………………………………….. an infant (or person of unsound mind not so found by inquisition).

FORM 27

Certificate of Judgment or Order

[Order 9 r. 8.]

(GENERAL TITLE – FORM 1)

Copy of the judgment (or order) relating to action (or matter) of …………………….. (No. of Plaint …………………………………………..) in which judgment was entered (or order was made) in this court on the …………… day of …………………………………. , 20 ………… (Here set out a copy of judgment or order.)

I CERTIFY that the above is a true copy of the judgment (or order) of this court relating to the action (or matter) above-mentioned.

CERTIFIED a true copy this ……………… day of …………………………… , 20 ……………….

…………………………………………………….. Registrar

FORM 28

Record Book of Magistrates’ Court

[Order 9 r. 8.]

CROSS RIVER STATE OF NIGERIA

Record Book of Civil Causes in the ………………………………….. Magistrates’ Court from the …………. day of ……………………………………….., 20 ………… to the …….. day of …………………………………., 20 ……………

FORM 29

Order of Magistrate, referring proceedings to Arbitration

[Order 9 r. 16.]

(GENERAL TITLE – FORM 1)

IT IS ORDERED with the consent of all parties that these proceedings be referred to the arbitration of ………………………………………… whose award, to be made on or before the …………………………………….. day of ……………………………………….., 20 …………, shall be entered as the judgment in this action. (Add any further directions given by the Magistrate.)

FORM 30

[Order 9 r. 17.]

Order of Reference of Proceedings, or Question, for Inquiry and Report

(GENERAL TITLE – FORM 1)

IT IS ORDERED that the following question arising in these proceedings, namely (state the question) …

……………………………………… be referred to Mr ……………………………… of …………………………………………

for inquiry and report pursuant to Order 9 rule 17 of the Magistrates’ Courts Rules.

(Add directions, if any, as to how reference is to be conducted.)

AND IT IS ORDERED that the referee is to complete his inquiries and file his report and give notice to the parties by the ………………………… day of …………………………… , 20 …………. unless the time is further

enlarged by the Court.

AND IT IS FURTHER ORDERED that these proceedings stand adjourned for the consideration of the report until the ……………….. day of …………………………… , 20 ………… at the hour of …………………….. in the …………………. noon or, if the time for filing the report be enlarged, to such later day as may hereafter be fixed.

FORM 31

Bond by Person giving Security

[Order 9 r. 8.]

(GENERAL TITLE – FORM 1)

KNOW ALL MEN by these presents that we ……………………………………………. of ………………………. and ………………………….. of ……………………… and ……………………… are jointly and severally held and firmly bound to …………………… in the sum of ₦ …………………… to be paid to the said ………………………. or his certain attorney, executors, administrators or assigns; for which payment to be well and truly made we bind ourselves, and each and every one of us, in the whole, our and each of our heirs, executors, and

administrators jointly and severally, firmly by these presents.

SEALED with our seals, and dated this …………… day of ……………………………….., two thousand and ………………………………..

WHEREAS (here recite the circumstances in which the bond is required):

NOW THE CONDITION of this obligation is such, that if the above bounden ………………………………….. do (here state the obligation undertaken), then this obligation shall be void and of none effect, otherwise the same shall remain in full force and virtue.

Signed, sealed and delivered by the above bounden ……………………….. in the presence of …………..(L.S.)

FORM 32

Summons to Witness to give Oral Evidence

[Order 9 r. 21.]

(GENERAL TITLE – FORM 1)

YOU ARE HEREBY summoned to attend at ………………………………… on …………………….. the ……. day of …………………………………. , 20 ………… at the hour of ………………………. in the …………… noon, and so from day to day, until the above action or matter is tried, to give evidence in the above action or matter.

IN DEFAULT of your attendance you will be liable to forfeit a fine of ₦40 if there was paid or tendered to you at the time of the service of this summons your reasonable expenses of travelling to and from the court together with a sum as compensation for loss of time according to the prescribed scale.

(Where the summons is issued to a judgment debtor the words “together with a sum as compensation for loss of time according to the prescribed scale” should be omitted.)

DATED this ……….. day of ………………………………………. , 20 …………

………………………………………. Magistrate

To …………………………………………………………… of ………………………………………………………………….

This summons was issued on the application of the plaintiff or defendant.

Sum to be paid or tendered to the witness: ₦ ……………….

FORM 33

Summons to Witness to Produce Documents

(GENERAL TITLE – FORM 1)

YOU ARE HEREBY summoned to attend at ………………………………… on …………………….. the ……. day of …………………………………. , 20 ………… at the hour of ………………………. in the …………… noon, and so on from day to day, until the above action or matter is tried, to give evidence in several documents hereunder specified.

(Here insert list of documents required to be produced.)

IN DEFAULT of your attendance or of production by you of the several documents hereinbefore specified or any of them you will be liable to forfeit a fine of ₦40 if there was paid or tendered to you at the time of the service of this summons your reasonable expenses of travelling to and from the Court together with a sum as compensation for loss of time according to the prescribed scale.

(Where the witness is merely required to produce documents the words “to give evidence in the above action or matter and also” should be omitted.)

DATED this ……….. day of ………………………………………. , 20 …………

………………………………………………. Magistrate

To ……………………………………………………………….. of ………………………………………………………………….

This summons was issued on the application of the (plaintiff or defendant).

Sum to be paid or tendered to the witness: ₦: ………………

FORM 34

Notice to Produce Documents at Hearing

[Order 9 r. 21]

(GENERAL TITLE – FORM 1)

TAKE NOTICE, that you are hereby required to produce and show to the court on the hearing of this action (or matter) all books, papers, letters, copies of letters, and other writings and documents in your custody, possession, or power, containing any entry, memorandum or minute relating to the matters in question in this action (or matter) and particularly (specify them).

FORM 35

[Order 9 r. 22.]

Order of Forfeiture for Non-Attendance of Witness or for Witness Refusing to be Sworn or give Evidence

(GENERAL TITLE – FORM 1)

WHEREAS …………………………………………………… of ………………………………………………………… was duly summoned to appear as a witness in this action at a court holden on the ……………………………………… day of …………………………………………………… , 20 …………… and at the time of being so summoned, was paid (or tendered) his travelling expenses (add, if witness was not a judgment debtor on a judgment summons and compensation for loss of time according to the scale of allowances prescribed by the rules of court).

AND WHEREAS he has refused or neglected without sufficient cause shown to appear at the court (or produce (describe what he was required by the summons and bound to produce)).

Or WHEREAS he has refused (to be sworn) or (to give evidence)—

Or WHEREAS ……………………………………….. of ………………………………………………. being this day present in court, and being required by the Court to give evidence in this action refused to be sworn (or to give evidence).

IT IS HEREBY ORDERED that the said ………………………….. do forfeit a sum of: ₦ ………………………… for such refusal or neglect.

AND IT IS ORDERED that the said …………………………………………………………… do pay the said sum of ₦ ……………………… to the registrar of this Court on the ………….. day of …………………………… 20 ……..

DATED this ……….. day of ………………………………………. , 20 …………

……………………………………………….. Magistrate

FORM 36

Notice to show Cause why Forfeit Should not be Ordered

TAKE NOTICE that if you have any cause to show why you should not be required to pay a forfeit under Order 9, rule 22, of the Magistrates’ Courts Rules for your non-attendance as a witness summoned to attend this court this day you may show cause in person or by affidavit or otherwise at the sitting of this court at …………………………… on the ……………………………………….. day of ……………………………. , 20 ……………….., at the hour of ……………………………………. in the ………….. noon.

FORM 37

Application to obtain Order to bring up Prisoner to give Evidence

(GENERAL TITLE – FORM 1)

I, …………………………………………. of ……………………………………… , the plaintiff (or defendant), state as follows—

That the above action is appointed to be heard at this court on the …………… day of ………………………., of ……………………………., 20 ……….. and that ……………………………………………, now a prisoner confined in ………………………………………………………… prison, will be a material witness for me at the said hearing.
That I (am advised and) verily believe that I cannot safely proceed to the hearing of the said action without the testimony of the said ………………………………………………………………………………………………………………

AND I HEREBY MAKE APPLICATION to his Worship the Magistrate of this court for an order under Order 9, rule 23 of the Magistrates’ Courts Rules that the said ………………………………………………………… may be brought before this court to be examined as a witness on my behalf.

………………………………………………… Applicant

FORM 38

[Order 9 r. 23.]

Order to bring up Prisoner to give Evidence

(GENERAL TITLE – FORM 1)

To (Officer who has custody of Prisoner)

WHEREAS the …………………………. has made application to me for the order under Order 9, rule 23 of the Magistrates’ Courts Rules to bring up before this court ………………………………………………, who it is said is detained as a prisoner in your custody, to be examined as a witness on behalf of the said in the above action.

YOU ARE THEREFORE, by this order issued pursuant to the said order required upon tender made to you of a reasonable sum for the conveyance and maintenance of a proper officer or officers, and of the said ………………………………………… in going to, remaining at, and returning from this court, to bring the said ……………………………… before this court at …………………………….. , on hour of ………………. in the ………………………… noon, then and there to be examined as a witness on behalf of the said …………………………. and immediately after the said ……………………………… shall have given his testimony before this court, you are required safely to conduct him, the said ……………….., to the place from which he shall have been brought under this order.

DATED this………… day of …………………………………. , 20 …………

…………………………………………….. Magistrate

FORM 39

Judgment for Plaintiff (Single Payment)

[Order 13 r. 1]

(GENERAL TITLE – FORM 1)

FORM 40

Judgment where Counter-claim Has Been Made

[Order 13 r. 1.]

(GENERAL TITLE – FORM 1)

(or that judgment be entered for the plaintiff on the defendant’s counter-claim (or that the counter-claim be struck out) and that the defendant do pay the sum of ₦ ……………………………… for the plaintiff’s costs of the said counter-claim).

(If the same party succeeds both in the action and on the counter-claim proceed as follows) and it is ordered that …………………………….. do pay to the Registrar of this court the sum of ₦ ………………….. , being the total amount adjudged against him as aforesaid in this action.

(Or if one party succeeds in the action and the other on the counter-claim proceed as follows) and it is ordered that the …………………….. do pay to the Registrar of this court the sum of ₦ …………………….. being the balance in favour of ……………………………………………… after deducting the amount adjudged to the ……………………. as foresaid.

AND IT IS ORDERED that the said sum be so paid on the …………….. day of …………….., 20 ………….. , or by installments of ₦ …………………….. for every ………………………..; the first installment to be paid on the …………. day of ……………………….. , 20 …………

In case default be made in payment of any installment, according to this order, execution or successive executions may issue for the whole of the said sum and costs then remaining unpaid, or for shall portion thereof as the Court shall order.

FORM 41

Judgment for Delivery of Goods [Order 13 r. 2.]

(GENERAL TITLE – FORM 1)

IT IS ADJUDGED that the plaintiff do recover against the defendant the following goods of the plaintiff wrongfully detained by the defendant; that is to say (specify the goods which the court decides have been detained) of the value of ₦ ………………………….. (and also the sum of ₦ ………………………. for costs.

AND IT IS ORDERED that the defendant do return the said goods to the plaintiff, or do pay the said sum of ₦ ………………. their value to the Registrar of this court on the ……………………. day of ………………… , 20 …………

(If the Magistrate makes an order for the return of the goods without giving the defendant the option of paying their value, omit the last preceding paragraph and substitute.)

AND IT IS ORDERED that the defendant do return the said goods to the plaintiff on the …………….. day of ………………………, 20 ……………, and that in default thereof a warrant of delivery do issue.

AND IT IS FURTHER ORDERED that the defendant do pay the said sum of (₦ …………………. damages and the said sum of) ₦ ………………… for costs to the Registrar of this court on the …………………. day of ………………………., 20 …………

FORM 42

Judgment for Plaintiff (Payment by Installments)

[Order 15 r. 1]

(GENERAL TITLE – FORM 1)

IN CASE DEFAULT is made in payment of any installment according to this order; execution or successive executions may issue for the whole of the said sum and costs then remaining unpaid, or for such portion thereof as the court shall order.

FORM 43

Notice of Application for a New Trial

[Order 15 r. 1.]

(GENERAL TITLE – FORM 1)

TAKE NOTICE that I intend to apply to the Magistrate of this court at …………………………….. on ……………………… the ………… day of ……………….. , 20 ………., at the hour of ……………………………………. in the ……………. noon for an order that the judgment in this action and all subsequent proceedings thereon be set aside and a new trial be had between the parties. The grounds of the application are—

……………………………………………………………………………………………………………………. as the case may be. DATED this………… day of ………………………………………. , 20 …………

…………………………………………………. Applicant

To the Registrar of the Court and to the defendant (or plaintiff).

SECOND SCHEDULE

Fees Payable in the Magistrates’ Courts

[Order 19]

For the recovery of a specified sum ₦ k

(a) Not exceeding ₦10 …………………………………………….. 75

(b) Exceeding ₦10 but not ₦20 ………………………………….. 1 25

(d) Exceeding ₦50 but not ₦100 ………………………………… 3 00

(e) Exceeding ₦100; per ₦100 or part thereof ……………….. 3 75

For possession of property, as between landlord and tenant: at the rates under Item 1 reckoned on the annual rent or value.
For the appointment of a guardian ad litem ……………………… 1 00
For an injunction or order to stay waste or alienation or for the detention and preservation of any property the subject of a suit, or to restrain breach of contract or tort, if an ancillary claim in the suit; three-fifths of the fee payable on the primary claim but not exceeding ………… 3 75
For any other relief or assistance not specially provided for ……… 5 00

NOTES ON ITEMS 1 – 5

(a) Item 1: The sum claimed as debt or damages shall be specified.

(b) Item 2: The annual rent or value to be specified shall be that which is payable under the lease granted to the tenant sued or the lease last granted to any person before the bringing of the action whichever be the greater. If it is something other than money whether wholly or in part, its nature and annual value shall be specified. If the annual rent or value was understated, the Court may order the balance of the fee chargeable to be paid; and if it was understated knowingly or negligently, the Court may also order a sum equal to such balance to be paid as penalty. In either case the Court may direct that the proceedings shall not continue until the balance and penalty (if any) are paid.

(i) Where two or more claims are joined the highest fee under any relevant Item shall be charged and in addition three-fifths of the fee under any other; provided however that no reduction shall be made in the fee chargeable under Item 4.

(ii) A set-off or counter-claim shall be charged as if an action therefor were taken.

(iii) Where a case is adjourned through a party’s fault, such party may be ordered to pay three-fifths of the fees charged under Item 1 to 5 before the case is set down again. which was struck out or to the reopening of a case in which judgment was given by default.

Applications, Affidavits, Orders, Security Bonds, Warrants and Writs

₦ k

On application for warrant to arrest an absconding defendant or for interim attachment of property ……………………………………………………………. 2 00
On filing any other application …………………………………………………… 1 00
On filing a security bond ………………………………………………………….. 1 50
On filing any other paper ………………………………………………………….. 25
On justification of sureties: for each surety ………………………………………………. 25
For drawing up any order or judgment …………………………………………………….. 1 00
For the issue of a warrant to detain an absconding defendant …………………….. 2 00

Civil and Criminal Appeals from Customary Courts

Entering petition of appeal:

(a) if in time ………………………………………………………………………………. 1 50

(b) if out of time ………………………………………………………………………….. 2 50

If petition not dismissed summarily, on setting down for hearing ……………………. 1 50
Giving notice to a respondent (plus service and mileage fees) ……………………….. 1 50
Copies of native court record or petition of appeal whether for use of court or of respondent per folio of 72 words ………………………………………………………… 10
For proceedings or services other than those provided for in Items 13 to 16 the same fee as is chargeable in a case begun in a Magistrate’s Court ………………. 10

Miscellaneous Service

For a special interpreter of a language not in common use – per day or part thereof, as the court may order but not exceeding ……………………………………… 5 00
For any inquiry by a court officer where so ordered: for each sitting…………………. 5 00
For an account taken by court officer where so ordered: per ₦100 or part thereof found to have been received …………………………………………………………………. 1 00
For taking down a person’s statement where so ordered: as the court may direct but not exceeding ……………………………………………………………………… 1 50
For searching the archives for each period of six months or part thereof ……………. 1 00
For drawing up a bill of costs where so directed: per folio of 72 words …………….. 10
For taking costs where so ordered: per ₦10 or part thereof …………………………. 80
For preparing a copy where so authorised per folio of 72 words …………………….. 10
For every subpoena …………………………………………………………………………… 50
On warrant for prisoner to give evidence ………………………………………………….. 50
For attesting the execution or signature of an instrument (other than an agreement under the Labour Decree 1974) or any instrument regarding payment of pension by a Government not otherwise provided for …………………….. 50
For swearing an affidavit or making a declaration (other than under Auctioneer’s Law or section II of the Marriage Act or one required by the regulation of a Government Department) per deponent ……………………………………………………………………………. 50
For marking any paper annexed to an affidavit or declaration …………………………………. 15
For sealing any document not in a proceeding ………………………………………………… 1 73
For certifying a copy as a true – per folio of 72 words or per thereof …………………………. 10
For payment into court (except when ordered by the court or proceeds of execution):

(a) Not exceeding ₦100: per ₦20 or part thereof ……………………………………………. 25

(b) Exceeding ₦100: per ₦100 or part thereof ………………………………………………… 5 00

` On every petition to a Magistrate or his Registrar (not being an application otherwise provided for) unless waived by the Magistrate ………………………………………………………………. 1 00
For the service of any document or process Initial Fee (plus mileage) ……………………..…. 20

(a) If within a mile from the court ………………………………………………………………… 20

(b) If beyond one mile but not beyond five ………………………………………………………. 5 00

(i) for the first mile …………………………………………………………………………………… 20

(ii) for every subsequent mile or part thereof (one way) …………………………………. 10

NOTES: Where an officer serves more than one document or writ on the same route one mileage rate only is to be charged, and apportioned upon the document or writs.

Where the sheriff, deputy sheriff or a Registrar executes any duty in person by direction of the court he is entitled, instead of mileage fees, to his actual expenses and such travelling allowance as the court may allow.

When a service is rendered by a person, who is not an officer of the Court or in the service of the Government or of a native authority or customary court, the court may direct that the fee paid for such service be paid out of revenue to the person who has rendered the service.

In addition to the above fees, the party on whose behalf such services are to be performed shall be liable to pay such expenses or transport as the court may think reasonable.

For the performing of any other duty not herein expressly provided for the officer may receive such fee as the court may allow.

Per diem

₦ k

Professional men, mercantile agents, bank managers, surveyors, and any other officer of the

public service whose salary is not less than ₦1200 a year ……………………………………………… 3 00

Merchants, captains of ships, mercantile assistant and officers in the public service whose

salary is ₦600 but less than ₦1200 ……………………………………………………………….. from 1 50 to 3 00

Auctioneers, Chiefs, master tradesmen, pilots, clerks and the like …………………………… from 75 to 1 50

Officers in the public service whose salary is less than ₦400 …………………………………. from 20 to 1 00

Artisans, journeymen and the like ………………………………………………………………….. 40

Servant, labourers, canoe men and the like ………………………………………………………. from 20 to 1 00

Women, according to station ………………………………………………………………………… from 20 to 1 00

NOTE: The travelling expense of witnesses shall be allowed according to the sums reasonably and actually paid.

No allowance, other than those authorised by General Orders, is made to an officer of the public service who is summoned as a witness by the State or by any department of the Government. In all other cases he is allowed costs and travelling expenses as if he were not in the public service.

Fees, costs and expenses payable to an officer in the public service shall be paid into revenue unless otherwise ordered.

The Court shall have the authority to disallow in proper cases the payment of any of the allowances to witness aforesaid.

CROSS RIVER – MAGISTRATES’ COURTS LAW

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LAWS OF CROSS RIVER STATE

Law Nigeria Admin

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