Area: Litigation
The issuance of a court order in Nigeria is dependent on the
nature of the proceeding, the phase of the proceeding, and lastly,
the procedure that governs such proceeding before the court. A
court order is usually a written directive or an oral delivery by
the judge that will be later transcribed into writing. A court
order is a written direction, decision, or command delivered by a
court and signed by the judge. It is the determination of the court
upon a matter that arose from a cause of action. A court order can
be identified by the seal of the court impressed on it and the
signature of the judge who delivered it.
Procedure for Instituting a Court Action in Nigeria
Instituting a court action is a means of enforcing one’s
right against a wrong action done to a party and it is the first
time for obtaining a court order; it involves filing the process in
court and paying the requisite fees at the registry of the court,
which will entitle the case file to be assigned to a judge. Before
instituting an action, there must be a valid cause of action and
not a frivolous one, contained in the statement of claim or motion
or petition which would influence the court order sought. To
determine the court order to be granted by the cause of action, the
party must be directly affected by the facts or series of facts
that led to the rise of the cause of action. Also, the party
instituting the action must have the capacity to sue, the party
must be a natural (human) or juristic (company) person.
Court actions are instituted by the various forms of court
processes such as a writ of summons, originating summons,
originating motions and petitions, accompanied with all documents
such as the list of witnesses to be relied on, list of documents,
written statement on oath of the witnesses and all court documents
filed by the claimant to be relied on in the suit.
Jurisdiction of Court
A very important factor to consider before instituting a court
action is the jurisdiction of the court. The jurisdiction of where
the cause of action arose confers on the court the right to
determine the matter, provided the subject matter also falls under
the jurisdiction of such a court. Filing court action in the wrong
jurisdiction will render any court proceeding a nullity and such
matter will be struck out. Jurisdiction of a court may be
territorial or subject matter one.
Judicial Determination
The court in the determination of the suit considers all the
evidence before it, the claims of parties and prayers sought by
each party to the suit. In the conclusion of the matter, the court
awards judgment in favour of the deserving party who has adduced
credible evidence.
The court is empowered to grant orders directing the parties to
the suit on what to do or refrain from doing. A court order or
directive issued by the court must be strictly adhered to by
parties or any disobedience will result in a contempt of
court. Usually, court orders are granted at the end of the
case after consideration of the representation of parties to the
suit, it may be granted before or during the commencement of action
where an urgent matter is involved.
Majorly, court orders obtainable from courts in Nigeria may be
classified into three types; these orders are peculiar to the cause
of action and nature of the proceedings. The types of orders issued
in Nigerian courts will be briefly discussed below.
- An Interim Court Order– this type
of Court Order is enforceable orders issued and delivered by the
Court during the pendency of the suit and to protect the interest
of parties to the litigation. The rights of parties to the suit are
yet to be finally determined. Some of the forms of interim orders
that can be issued by the court include interlocutory injunction,
an order of preservation, order of status quo, Mareva injunction,
Anton pillar injunction in intellectual property case among
others.
Injunction orders are issued to restrain a party from acting in
a particular manner or a directive to do a specific act during the
pendency of an existing suit.
To be entitled to an interim order of the court, the applicant
has to establish some ground matters, such as;
- That seeking damages as reliefs in the prayer contained in the
court process filed would not be an adequate remedy for the damage
the claimant/applicant claims will be suffered if the interim
relief is not granted by the court. - The claimant/ applicant has to also prove that the risk of
irreparable damage being suffered by the applicant far outweighs
the damage that the interim order sought would do to the
defendant. - In respect of a freezing order or Mareva injunction, the
claimant/applicant has to prove to the satisfaction of the court
that the defendant has assets within Nigeria, which are likely to
be moved by the defendant out of the jurisdiction, to avoid the
assets being put out of the claimant/applicants reach.
- Final Orders- this form of a court order is
issued when the court has adjudicated on a matter and decided in
favour of a party to the suit. This form of order can be in
form of enforceable orders and non-enforceable orders. Example of
the final orders are; summary judgments, default judgments, orders
as to payment of money as damages, orders as to dissolution on
marriage, also declaratory judgments in favour of the party which
does not require enforcement but merely declares the rights of
parties in the matter. - Enforcement Orders- in most
cases, where the court has given a final order, another order may
be required to enforce such order or judgement. This type of order
is also termed an executory order, which declares the rights of
parties and subsequently orders the defendant to act in a
particular way. This order is usually required for the enforcement
of a final order. In some cases, the order of enforcement or
execution comes together with the final judgement.
Enforcement of Court Orders in Nigeria
The pronouncement of the court in the determination of a court
matter through orders and judgments does not bring an end to the
litigation because these orders and judgments require enforcements
for the closure of the suit.
One of the responsibilities of the court is to ensure that its
orders and decisions are enforced to ensure speedy resolution of
the matter and closure of the dispute. The power of the court to
enforce a judgment is enshrined in the Sheriff and
Civil Process Act LFN 2004.
The Sheriff and Civil Process Act provides various means and
procedure by which a judgement of the court can be enforced
throughout the country. The Act provides for the condition
precedent for the enforcement of judgment and court orders. Section
3 and 4 of the Act makes provision for the offices of the sheriff
and the deputy sheriff for each state. The conditions under which a
judgment creditor can enforce a judgment against the judgment
debtor under the Act are stipulated in the Act.
Application for Court Order of Enforcement
When the required conditions are present, the judgment creditor
is entitled to make an application to the court that determined a
matter or any other court within the jurisdiction for enforcement
of such a judgement. The Registrar prepares the praecipe form and
seeks the approval of the judge for his endorsement and
subsequently transmitted the same for execution. When a praecipe
form is not necessary, then the judgment creditor files a written
request for the issue of the process stating the suit number, title
of the suit, the date judgment was delivered, the nature of the
process, name of the party against whom judgment is delivered and
the amount for which is to be executed.
There are various methods by which a judgement or order of the
court can be enforced in Nigeria. In the case of OKOYA V
SANTILLI (1990) LPELR- 2504 (SC), the
Supreme Court highlighted the methods of enforcing different kinds
of judgments in Nigeria as follows;
- “A judgment/order for payment of money may be
enforced by a writ of fierifacias, garnishee proceedings, a
charging order, a writ of sequestration, or an order of committal
on a judgment debtor’s summons. - A judgment for possession of land may be enforced
by a writ of possession, a writ of sequestration, or a committal
order. - A judgment for delivery of goods may be enforced by
a writ of specific delivery or restitution of their value, a writ
of sequestration, or writ of committal. - A judgment ordering or restraining the doing of an
action may be enforced by an order of committal or a writ of
sequestration against the property of the disobedient
person.”
Section 20 of the Sheriff and Civil Process Act
also provides that “any sum of money payable under
the judgment of the court may be recovered in case of default or
failure of payment thereof forthwith or at the time or times and in
the manner thereby directed, by execution against the goods and
chattels and the immovable property of the judgment debtor in
accordance with the provisions of this Act”.
The essence of enforcing court orders is for the successful
litigant to enjoy the fruit of his judgment and to ensure every
person is subject to the rule of law in the country
In conclusion, a court order can be in form of a ruling or
direction to a party or parties to a suit. Once it issued, it is
binding on parties and no authority can act contrary to the order.
It comes into effect from the date the order was issued by the
court. The court order can be enforced in any part of the
federation by any authority.
Failure to obey the court order as directed by the Judge implies
that the party who fails to obey it is in contempt of court, and
this offence can be punishable with a fine or imprisonment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Source: www.mondaq.com
