CROSS RIVER – STATE PROCEEDINGS LAW
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LAWS OF CROSS RIVER STATE
STATE PROCEEDINGS LAW
ARRANGEMENT OF SECTIONS
PART I
Claims by and against the Government
CHAPTER S16
SECTION
- Claims by Government against persons or other Government.
- Right to sue Government.
- Civil liability of the Government.
- Action to be brought in the High Court and Attorney-General to be defendant.
- Service of document.
- Judgment and proceedings thereon.
- Practice and procedure.
PART II
Prerogative orders of mandamus, certiorari and prohibition
- Order of mandamus, prohibition and certiorari to be substituted for prerogative writ of mandamus, prohibition and certiorari.
- Abolition of information in the nature of quo warranto.
- Rules of court.
PART III
Habeas corpus
- High Court to have jurisdiction to issue writ of habeas corpus.
- Return to be made to writ of habeas corpus within time prescribed.
- How writ to be marked.
- Issue of writ during vacation.
- Penalty for neglect or refusal to make return to writ.
- Prisoner set free not to be recommitted or imprisoned save in certain cases.
- After notice of date of assize, prisoner to be brought before the judge of assize.
- Provision as to persons committed to prison by civil process.
- Issue of writ during vacation in matters other than criminal matters or in civil proceedings.
- Writs issued late in vacation returnable in term or vice versa.
- Service of writ.
- Disobedience to writ to be a contempt of court.
- Examination of facts set forth in return to writ.
- Interpretation.
- Short title.
CHAPTER S16
STATE PROCEEDINGS LAW
(20th December, 1991)
[Commencement.]
PART I
Claims by and against the Government
- Claims by Government against persons or other Government
Claims by the Government or by any of its departments against any person or other Government shall be brought by the Attorney-General or by any officer authorised by law to prosecute such claims on behalf of the Government.
- Right to sue Government
Where any person has a claim against the Government for the determination of any question, to the civil rights and obligations of that person, the claim may be enforced as of right, and without the fiat of the Government, by proceedings taken against the Government for that purpose in accordance with the provisions of this Law.
- Civil liability of the Government
(1) Subject to the provisions of the Constitution and this Law, the Government shall be subject to all those civil liabilities to which, if it were a private person of full age and capacity, it would be subject.
(2) No proceeding shall be brought against the Government by virtue of subsection (1) in respect of any act or omission of a servant or agent of the Government unless the act or omission would apart from the provisions of this Law have given rise to a cause of action against that servant or agent or his estate.
(3) Where any functions are conferred or imposed upon an officer of the Government, either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.
(4) Any enactment which negatives or limits the extent of liability of the Government department or officer of the Government in respect of any actionable wrong committed by the department or officer shall, in the case of proceedings against the Government under this section in respect of an actionable wrong committed by that department or officer, apply in relation to the Government as it would have applied in relation to that department or officer if the proceedings against the Government had been proceedings against that department or officer.
(5) Subject to the provisions of the Constitution, no proceedings shall lie against the Government by virtue of this section in respect of anything done or omitted to be done in good faith by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.
- Action to be brought in the High Court and Attorney-General to be defendant
An action brought under the provisions of sections 2 and 3 shall be brought in the High Court and the Attorney-General shall be or be joined as a defendant as the case may be.
- Service of document
All documents which in a suit of the same nature between private parties would be required to be served upon the defendant shall be delivered at the office of the Attorney-General or other officer designated as aforesaid.
- Judgment and proceedings thereon
(1) Whenever in any such suit an order is made against the Government, no execution shall issue thereon, but a copy of such order under the seal of the Court shall be transmitted to the Attorney-General and the Accountant-General respectively and if the order is for the payment of money, the Attorney-General shall by warrant under his hand direct the amount awarded by such order to be paid, and in the case of any other order shall take such measures as may be necessary to cause the same to be carried into effect; or, in case he shall think fit, he may direct that any competent appeal shall be entered and prosecuted against any order.
(2) Nothing in this section shall preclude the judgment creditor from recovering the judgment debt from the Government by way of a garnishee proceeding:
Provided that no such proceeding shall be commenced before the expiration of 90 days after the date of the judgment and provided that no appeal has been lodged against the judgment.
- Practice and procedure
Subject to the provisions of this Law, in all suits and proceedings by and against the Government—
(a) a court shall have all the powers in authority conferred upon it by law in relation to civil proceedings;
(b) the law and rules of court relating to practice and procedure of the court for the time being in force shall apply;
(c) costs may be awarded in the same manner as in suits between private parties.
PART II
Prerogative orders of mandamus, certiorari and prohibition
- Order of mandamus, prohibition and certiorari to be substituted for prerogative writ of mandamus, prohibition and certiorari
(1) The prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the High Court.
(2) In any case where the High Court would, but for the provisions of the last foregoing subsection, have had jurisdiction to order the issue of a writ of mandamus prohibiting any proceedings or matter, or a writ of certiorari removing any proceedings or matter into the High Court for any purpose, the Court may make an order requiring the act to be done, or prohibiting or removing the proceedings or matter, as the case may be.
(3) The said orders shall be called retrospectively—
(a) anorderofmandamus by which the High Court orders an inferior court to perform a duty;
(b) an order of prohibition by which the High Court restrains an inferior court from exceeding its jurisdiction;
(c) anorderofcertiorari by which the High Court removes proceedings from an inferior court to the High Court for the purpose of being quashed on the ground that justice is not being done.
(4) No return shall be made to any such order and no pleadings in prohibition shall be allowed, but the order shall be final, subject to any right of appeal therefrom.
(5) In any enactment, references to any writ of mandamus, prohibition or certiorari shall be construed as references to the corresponding order and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order.
(6) The jurisdiction vested in the High Court under this section in respect of the orders of mandamus, prohibition and certiorari shall be exercised at the discretion of the Court.
(7) In this section—
“inferior court” includes any public bodies or officers purporting to exercise power which involves a duty to decide or any body of persons having a legal duty to act judicially or fairly;
“lack of jurisdiction” and “excess of jurisdiction” include error of the inferior court which involves doing something which is contrary to the general law of the land or which violates some fundamental principles of justice.
- Abolition of informations in the nature of quo warranto
(1) Informations in the nature of quo warranto are hereby abolished.
(2) In any case where any person acts in an office in which he is not entitled to act and an information in the nature of quo warranto would, but for the provisions of the last foregoing subsection, have lain against him, the High Court may grant an injunction restraining him from so acting and (if the case so requires) declare the office to be vacant.
(3) No proceedings for an injunction under this section shall be taken by a person who would not immediately before the commencement of this Law have been entitled to apply for an information in the nature of quo warranto.
- Rules of court
(1) Rules of court may be made—
(a) prescribing the procedure in cases where an order of mandamus, prohibition or certiorari is sought, or proceedings are taken for an injunction under the last foregoing section;
(b) requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order before any such proceedings are commenced;
(c) requiring that, where leave is so obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made.
(2) Until rules of court are made by virtue of the provisions of subsection (1) of this section, the procedure for the time being applicable in the High Court in relation to the matters specified in that subsection shall continue to apply.
PART III
Habeas corpus
- High Court to have jurisdiction to issue writ of habeas corpus
The High Court shall have jurisdiction to issue a writ of habeas corpus and make an order thereon in accordance with the provisions of this Part of this Law.
- Return to be made to writ of habeas corpus within time prescribed
Upon the issue of any writ of habeas corpus directed to any person to produce the body of any prisoner in his custody for any criminal or supposed criminal matter and the said writ being served in accordance with the provisions of this Law, the person to whom the writ is directed shall, within three working days after the service of the writ, make return thereto or bring or cause to be brought the body of the prisoner before the court by which the writ was issued or before any judge before when the writ is made returnable and shall then certify the true cause of the prisoner’s commitment and detention:
Provided that the person to whom the writ is directed shall not be required so to produce the body of the prisoner unless the person applying for the writ pays or tenders the charges of bringing the body before such Court or judge (to be determined by the judge by whom the writ is issued and endorsed upon the writ), and upon security given by bond by that person to pay the charges of carrying back the prisoner if he is remanded by the court or judge before whom he is brought in pursuance of this Law and that he will not make any escape on the way:
Provided also that unless the Court extends the time, where the place in which the prisoner is in custody is more than twenty kilometres but not more than one hundred kilometres from the court or place to which he is to be brought, return to the writ shall be made within five working days from the service thereof, and, where more than one hundred kilometres, then one working day from such service.
- How writ to be marked
Every writ of habeas corpus shall be marked “Issued under the State Proceedings Law” and shall be signed by the judge issuing the same.
- Issue of writ during vacation
(1) If any prisoner is committed or in custody as aforesaid during a vacation, he or any person on his behalf may apply to any judge, who shall, upon production of a copy of the warrant of commitment, or of any affidavit that a copy thereof was refused to be given to the applicant by the person by whom the prisoner is detained, and upon a request in writing by the applicant attested and subscribed by two witnesses present at the making thereof, issue a writ of habeas corpus under the seal of the court, directed to the officer or person in whose custody the prisoner is detained, and if any judge refuses to issue any writ or habeas corpus required by this section to be issued upon being made for as aforesaid, the refusal may be reported to the Chief Judge who shall take appropriate action.
(2) Such writ shall be returnable before the judge issuing the same and upon service thereof in the manner prescribed by this Law, the person to whom it is directed shall within the times prescribed by this Law bring such prisoner before the judge to whom the writ is returnable or, in the case of his absence, before any judge of the Court, with the return to such writ and the true cause of the prisoner’s commitment and detention.
(3) Unless it appears to the judge before whom the prisoner is brought that the prisoner is detained upon legal process, order or warrant issued by a court of competent jurisdiction in criminal matters, or by some warrant, signed by a judge, magistrate or justice of the peace, for some matter or offence for which by law the prisoner is not liable, the judge shall, within two days after the prisoner is brought before him, discharge the prisoner from his imprisonment upon his entering into a recognisance with one or more surety or sureties in any sum which the judge shall think sufficient, conditioned for his appearance before the Court at the next session or at the next assizes in the place where the warrant of commitment was issued or where the offence was committed or at such other court of competent jurisdiction and shall then certify the said writ, with the return thereof and the said recognisance, to the court where such appearance is to be made:
Provided that if any prisoner has wilfully neglected for the space of two whole sessions after his imprisonment to apply for a writ of habeas corpus for his release such prisoner shall not have any such writ issued to him in vacation in pursuance of this section.
- Penalty for neglect or refusal to make return to writ
(1) If any person to whom a writ of habeas corpus is directed or his representative neglects or refuses to make due return to the writ of habeas corpus or to bring the body of the prisoner according to the demand thereof within the time prescribed by this Law, or upon demand made by the prisoner or any person on his behalf refuses to deliver or within six working hours (or any longer period as the court may determine) after such demand does not deliver to the person so demanding a true copy of the warrant of commitment of such prisoner, every such person in whose custody the prisoner is detained shall forfeit to the prisoner or person aggrieved the sum of one hundred naira for every working day during which the neglect or refusal continues, and if the refusal continues for more than seven working days, he shall in addition be liable to conviction for fourteen days.
(2) The penalties of forfeiture prescribed in subsection (1) may be recovered by the prisoner or person aggrieved, his executors or administrators, by an action as for debt in any court of competent jurisdiction.
- Prisoner set free not to be recommitted or imprisoned save in certain cases
No prisoner delivered or set free from upon any writ of habeas corpus shall at any time be again committed or imprisoned for the same offence by any person whatsoever other than by lawful order and process of such court wherein he may be bound by recognisance to appear or other court having jurisdiction in the cause, and if any person shall, contrary to this Law, knowingly recommit or imprison or knowingly procure or cause to be recommitted or imprisoned for the same offence or pretended offence any prisoner delivered or set free as aforesaid, or knowingly aid or assist therein, he shall forfeit to the prisoner or person aggrieved, notwithstanding any colourable pretence or variation in the warrant of commitment, the sum of one thousand naira to be recovered by an action as for debt in any court of competent jurisdiction.
- After notice of date of assize prisoner to be brought before the judge of assize
After due notice has been given of the day upon which assizes will be opened in the district within which the prisoner is detained he shall not within the two weeks preceding such day be removed from the prison in which he is in custody upon any writ of habeas corpus issued in pursuance of this Law, but upon any such writ he shall be brought before the judge of assize in open court who shall thereupon do what he considers just:
Provided that after the assizes are ended any person detained may be granted a writ of habeas corpus in accordance with the provisions of this Law.
- Provision as to persons committed to prison by civil process
Nothing in this Part shall affect the discharge from prison of any person committed thereto by process in any civil suit, but when any such person is discharged from imprisonment in respect of any criminal or supposed criminal matter he shall thereafter be kept in custody therefor according to law.
- Issue of writ during vacation in matters other than criminal matters or in civil proceedings
Where any person is in custody or restrained of his liberty (otherwise than for some criminal or supposed criminal matter or by process in any civil suit) a judge shall, upon complaint made to him by or on behalf of the person so in custody or so restrained, and if it shall appear by affidavit that there is probable and reasonable ground for such complaint, issue in vacation time a writ of habeas corpus ad subjuciendum under the seal of the Court directed to the person in whose custody or power the person so complaining shall be, returnable before the judge issuing the writ or before any other judge.
- Writs issued late in vacation returnable in term or vice versa
(1) If any writ of habeas corpus is issued, in accordance with the provisions of this Law, so late in the vacation that in the opinion of the judge it cannot be conveniently obeyed during such vacation, the writ may, at his discretion, be made returnable in the Court upon a day certain in the next session and the Court may proceed thereon in like manner as if the writ had originally been issued by the Court.
(2) If such writ is issued in session but so late that, in the judgment of the Court it cannot be conveniently obeyed during such session, the writ may at the discretion of the Court, be made returnable upon a day certain in the next vacation before any judge who shall proceed thereon in such manner as by this Law is provided concerning writs issued in and made returnable during vacation.
- Service of writ
Every writ of habeas corpus issued in accordance with the provisions of this Law shall be served either by actual delivery to the person to whom such writ is directed or by leaving the same with any officer or representative of such person, at the place where the prisoner is confined or restrained, who is, or appears to be, in position to bring the writ to the notice of the appropriate person for necessary action.
- Disobedience to writ to be a contempt of court
(1) If any person to whom a writ of habeas corpus is directed, upon service of such writ in accordance with the provisions of this Law wilfully neglects or refuses to make a return to, or obey such a writ he shall be deemed guilty of contempt of the Court.
(2) In any such case it shall be lawful for the judge before whom such writ is returnable, upon proof by affidavit of wilful disobedience of the said writ, to issue a warrant under his hand and the seal of the Court for apprehending and bringing before him or some other judge the person so wilfully disobeying the said writ in order that he may enter into a recognisance with two sufficient sureties in such sum as shall be expressed in the warrant; conditioned for his appearance in the Court at a day in the ensuing session to be mentioned in the said warrant, to answer the matter of contempt with which he is charged.
(3) If any person so apprehended neglects or refuses to enter into such recognisance the judge before whom he is brought may commit him to prison, to remain there until he enters into such recognisance or is discharged by order of the Court in session or by a judge in vacation.
(4) Any recognisance entered into in accordance with the provisions of this section shall be entered and filed in the Court and shall continue in force until the matter of such contempt as aforesaid has been heard and determined, unless sooner ordered by the Court to be discharged.
- Examination of facts set forth in return to writ
(1) In all cases provided for by this Law, although the return to the writ is good and sufficient in law, it shall be lawful for the judge before whom such writ is returnable to proceed to examine into the truth of the facts set forth in such return by affidavit and to do as the justice of the case shall demand.
(2) Where any such writ is returned before a judge and it appears doubtful to him on such examination as aforesaid whether the material facts set forth in the said return, or any of them, is true or not, in such case it shall be lawful for the said judge to admit to bail the person confined or restrained upon his entering into a recognisance, in a reasonable sum, conditioned for his appearance in court before the said judge or some other judge upon a day certain in the ensuing session and so from day to day as the Court may deem fit in the circumstances.
(3) In any such case the judge shall transmit to the court the said writ and return, together with such recognisance and affidavits, and thereupon it shall be lawful for the Court to proceed to examine into the truth of the facts set forth in the return in a summary way touching the discharging, bailing or remanding of the person on whose behalf the writ of habeas corpus has been issued.
(4) The like proceeding may be held in the Court for controverting the truth of the return to any such writ of habeas corpus, notwithstanding that such writ has been awarded by the Court itself or is returnable therein.
- Interpretation
(1) In this Law, unless the context otherwise requires—
“agent”, when used in relation to the Government, includes an independent contractor employed by the Government;
“civil proceedings” include civil proceedings in the High Court and any other court of competent jurisdiction for the recovery of fines or penalties, but does not include proceedings of a criminal nature;
“claims against the Government” includes claims against a Ministry, Department, servant, officer or agent of the Government;
“court” when used in Part III means the High Court;
“Government” means the Government of Cross River State;
“judge” means a judge of the High Court;
“officer”, when used in relation to the Government, includes any servant of the Government;
“order” includes a judgment, decree, rule, award, declaration;
“prescribed” means prescribed by rules of Court;
“proceedings against the Government” include proceedings against a Ministry, Department, servant, officer or agent of the Government, and also a claim by way of set-off or counterclaim raised in proceedings by the Government;
“session” means any period during which the court is open for the transaction of general legal business;
“vacation” means any period during which any vacation is observed by the court.
- Short title
This Law may be cited as the State Proceedings Law.
CHAPTER S16
STATE PROCEEDINGS LAW
SUBSIDIARY LEGISLATION
No Subsidiary Legislation
