Civil and Criminal Procedures

Outline of Civil Procedure

Civil procedure is the process through which a person whose legal right and interest has been breached may have recourse to the courts of law for the resolution and determination of the controversy or dispute. It consists mainly of rules of practice and procedure applying to conflicts involving disputes in which legal rights and legal duties are in issue. In a broader sense, it refers to the entire mechanism used to enforced private rights.

Parties to a civil suit

Usually, any juristic person May bring an action against any other juristic person. A juristic person is a person, office or organisation which is regarded by law as being capable of bringing an action or having an action brought against it. A non-existent person cannot bring an action or have an action brought against it. The following have been recognized by the Supreme Court in Fawehinmi v Nigerian Bar Association as capable of suing or being sued.

1. natural persons, which refers to any human being.
2. companies incorporated under the Companies Act.
3. corporations aggregate (collection of individuals) and corporations sole (e.g. the Bishop or a diocese) with perpetual succession.
4. certain unincorporated associations granted the status of legal personae like registered trade unions, partnerships, friendly societies and sole proprietorships.

Any person names as a party to a suit may apply to have his name struck out, although such a person would have to show that he was improperly joined. A person may also apply to be joined to an action if the interests of such a person are properly related to that action. Also, while people can naturally sue or be sued, some people are unable to exercise this right due to age, mental state or special circumstances. Infants may only sue through their next friend and defend actions through their guardian ad litem, while lunatics and persons of unsound mind sue by their committees or next friend and defend by their committees or guardian ad litem.

Commencement of Civil Proceedings in the High Court

A civil action may be commenced in the High Court through any of the following processes, depending on the nature of the action.

1. Originating summons
2. Applications/originating motions
3. Petitions
4. Writ of summons

Originating Summons

This form is adopted where the principal reason the action is being brought is to determine the interpretation of a written law or instrument, deed, will, contract or other documents, or where special statutory provisions exist for its use. Where there is likely to be a dispute as to facts, the complainant is better advised to come through writ of summons, as the Supreme Court stated in Nwabueze v Okoye that the process should only apply to situations where there is likely to be no dispute as to facts.

Applications/Originating Motions

Applications are required for certain proceedings like actions for the prerogative orders of mandamus, certiorari, prohibitions and habeas corpus. Under the FREP rules, anyone who alleges than his fundamental rights have been violation may come through an Application.

Petitions

Petitions are special prayers framed in a special form supported with facts and often adopted in election, divorce and winding-up proceedings.

Writ of Summons

This is the most common method of commencing civil actions, and it is generally recommended for all civil actions unless there is an express provision which states otherwise. A writ is an order from the court issuing it commanding the defendant named to enter appearance either personally or through a solicitor.

Service of Writ and Judgment in Default of Appearance

The service is to be done by the sheriff or other officer of the court or by any other person appointed for that purpose unless a different mode is prescribed. The service must be personal, i.e. by serving the defendant himself, unless the defendant has stated that his solicitor may receive service for him. Where it is not possible or practicable to serve the defendant personally, an order may be obtained from the court to serve either someone who can bring it to the notice of the defendant or publicly.

Once served, the defendant is to enter appearance within the stipulated time stated. In the event that the defendant fails to enter appearance, the complainant may get judgment anyway. However, the judge may set the judgment aside if the defendant can give a reasonable excuse as to the reason for absence.

Pleadings

The counsel decides on the appropriate form of action, and gist of complaint. He states expressly and in logical sequence facts upon which the plaintiff or claimant based his/her cause of action and the remedy sought. He files these with the clear of the court, pays the necessary fees as assessed by Court Registrar who signs and seals the form, having been duly completed. It is the plaintiff or claimant who initiated proceedings. Where a matter is limited by a wrong form of action, the case may be struck out.

The original copy of every document filed is retained in court. A copy of every document filed must be served in the opposite side by the Sheriff, Deputy Sheriff, officer of the court, police or other persons specially appointed and in any manner the court may direct. The counsel may himself serve. Any writ filed, signed and sealed must be served within twelve months, but may be extended by six months. After service, the serving officer sends to the court certificate of service, affidavit of service or certificate of posting as the case may be. The defendant or the party against whom action is brought has a specified period within which to answer the complaints against him or her and the remedy sought. There are prescribed rules for doing so. He may deny, admit wholly or admit partially, or otherwise challenge the legal validity of the plaintiff’s claim. He/she may set forth a counter-claim or raise affirmative defence, giving reasons why the plaintiff’s action must be dismissed. Whatever he filed are similarly served in the other and such service is acknowledged as earlier set out. If the other side has any further reply to make to issues raised in answer, he is to do so within the period specified by law.

At this stage, the issues are said to be joined. Each side has the other’s case, claim and defence, and is able to determine the area admitted or disputed. Either party takes out a summon for directions, praying the court to narrow down the areas of controversy and set a time for trial. Parties or their counsels appear before the court. The judge names a date acceptable to both sides for trial. Parties notify their witnesses, the counsels hold with their clients pre-trial interviews to acquaint them with court procedure, how to give evidence and what evidence he/she may be required to give.

The Trial

After the preliminaries are concluded, parties, their counsels or both appear in court and the judge fixes a date acceptable to both sides for the trial. Parties notify their witnesses and arrange for them to be present in court as scheduled. Counsels hold pre-trial interviews with their clients to acquaint them with court proceedings, how to give evidence and what evidence may be required of them. On the trial date, the court is set, the case is called and the parties make opening statements. The plaintiff/claimant calls his/her first witness and leads him/her in evidence-in-chief. The other party cross-examines the witness after the plaintiff has examined, and then the plaintiff re-examines.

After the last witness for the plaintiff has been re-examines, the plaintiff closes his/her case while the defence opens. An opening speech may or may not be made, after which witnesses for the defendant are called one after the other. Each of the defence witness gives evidence-in-chief, cross examination and then re-examination until the last witness has been re-examined. The defence then closes his case.

The counsel for either of the parties may request to enter a verdict, depending on the state of evidence. Alternatively, both counsels may address the court. The court adjourns for judgment. On the appointed date, the judge/magistrate reads the judgment of the court.

Commencement of a Criminal Process

Any police officer may, with or without a warrant, arrest any person who commits an offence in his presence or whom he reasonably suspects of having committed an offence. In certain circumstances, a private person may also arrest another without warrant and as soon as practicable, hand him/her over to the police. Similarly, a judge or magistrate may arrest or order the arrest of any person who commits an offence in his presence or within his/her jurisdiction. A person may also go to the police and lodge a complaint at a charge room that a crime has been committed, whether the person is known or unknown.

The Charge Room

At the charge room, the officer in charge hears the complaint, records it and attaches a label to his summation of facts in the light of his knowledge of law. If the label is other than a crime, he dismissed the complaint. The charge room officer may dismiss any complaint on the ground that it is false, trivial, vexatious, frivolous or civil. Otherwise, he admits the case, records it and refers both the complaint and the suspects, if any, to the crime branch for investigation accordingly. As a matter of practice, the charge room officer must record the name and address of the complainant, the time, date, place and nature of every complaint he/she receives in the course of his/her duty as well as his/her actions and decisions on each.

The Crime Branch

The crime officer received the complaint referred to him/her for investigation. An investigating police officer or a team of investigating police officers will be assigned to it. When a police officer is endeavoring to discover whether or by whom an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. The IPO obtains voluntary statements from the complainant, and from witnesses if there are any. He visits the scene, gathers evidence and tests the evidence at his disposal. He identifies the authors of crime and formally effects arrests. He informs the suspect(s) of the crime for which they are being arrested and informally cautions then that anything said shall be taken down in writing. The phrase “...and may be used in evidence against him/her is not to be used.”

The suspect may make a voluntary statement and lead the IPO to his/her witnesses, if any. The suspect may be released on bail if the crime is bailable or within police powers to grant bail. Otherwise, he may be remanded pending arraignment “as soon as practicable.” Where the arrest is by warrant, it is usual to find the bail terms endorsed on it. Otherwise, he is taken before the issuing magistrate or judge. Complaints against juvenile delinquents or women are generally assigned to female investigating police officers.

In completion of the investigation, the investigating police officer puts up a comprehensive report and recommendation to his/her superior officer who decides the next course of action. He may reduce the case because, in his opinion, there are no credible witnesses, it is false, frivolous, vexatious, trivial, civil or contrary to public policy to prosecute. Certain cases are to be referred to the attorney general for legal advice or prosecution. Where the case diary is not so referred, the police officer may prefer a charge.

A charge means the statement of offence or offences which an accused is charged with in a summary trial before a court.

The Arraignment and Trial Process

A criminal process may be initiated in any of the following ways.

1. Bringing a person arrested without a warrant before a court upon a charge by a police officer.
2. Laying a complaint before a magistrate or high court.
3. Filing information before a high court with the consent of the judge.

The most common approach adopted nowadays is to file an information by the direction or with the consent of a judge. An information is a formal document bearing one or more counts or accusations in a non-summary trial in the High Court, and must contain at least one count charging an indictable offence. It is required to show the names of the parties, the court of trial and judicial division, date, statement of the offence and particulars of offence.

Mode of Trial

A trial may take either of the following forms.

• A summary trial for a summary offence
• A summary trial for an indictable offence
• Trial following a preliminary inquiry

Statutes permit some indictable offences to be tried summarily. The motivation of the prosecutor in this regard may range from convenience, expedition and desire to obtain and plea or guilty.

Appearance in Court

At the court, the registrar calls in the accused who goes to the dock. The registrar then confirms his name, reads the charge aloud, asks him if he understands and wants to be tried summarily or in indictment at the high court, takes his plea if he elects summary trial and confirms that the accused understood the charges. Having elected trial, the accused may plead the following.

1. Guilty

The police prosecutor gives a resume of evidence. The court may confirm the plea and find him guilty if it satisfies itself that the accused clearly understands the meaning of the charge in all its details and essentials and also the consequence of his/her plea. The court may yet find him not guilty despite his admission of guilt in appropriate cases.

2. Not guilty

The court then records it, considers his bail or remand and adjourns for trial.

3. Autrefois acquit

This is pleaded if the accused person has earlier been tried and found “not guilty” for the same offence.

4. Autretois Convict

By this defence, the accused says he has already been tried and convicted for the same offence.

5. Pardon

This is a claim that he has been tried, convicted and pardoned by the state for the same offence.

6. Keeping mute to malice

He may keep mute to malice, which is not saying anything, and the court then enters a plea of not guilty.

The Trial

During the trial, there is a hearing of evidence and a full inquiry into the case culminating in a verdict. Parties and their witnesses are present in the court. The case is called, the accused enters the dock while the witnesses leave the court and out of hearing. The prosecutor opens his case. He may or may not make a statement before he calls his first witness, leads him/her in evidence-in-Chief. The accused or his counsel cross examined and the prosecutor re-examines. The process is repeated for each witness, and at the conclusion of the case for the prosecution, the accused must be warned of his rights. These rights include the following.

1. His right to elect to keep mute, remain where he is at the dock, and to say nothing.
2. His right to elect to give evidence from where he is at the dock and he will neither be sworn nor questioned.
3. His right to elect to testify on oath in the witness box and be cross-examined.

The accused must elect and his election recorded. Where he testifies in the witness box as a witness, he, like any other witness or witnesses, is led in evidence-in-chief, cross examined and re-examines. Should he introduce new matters in the course of re-examination, the prosecutor will be given an opportunity to rebut it. The judge/magistrate has the pioneer to call on an earlier witness.

The court serves as both judge and jury. As a jury, the court must set out the facts of the case as it finds and decide the guilt of the accused. As a judge, the court applies to law to the facts and determines the punishment or otherwise.

The Verdict

The court is to give a verdict of either “guilty” or “not guilty”. Upon a verdict of not guilty, the accused must be discharged and acquitted. Where the court funds that the prosecution has proved its case “beyond reasonable doubt”, it would pronounce a verdict of “guilty”.

The Sentence

Upon finding the accused guilty, the court asks if he/she has anything to say as to why a sentence should not be passed on him/her according to law. This is what us usually referred to as “allocation”. The court receives evidence of the accused’s antecedent, which comprises evidence of anything in the convicted person’s favour like previous conviction, date of birth, education, employment, domestic and family life, circumstances, general reputation and if previously convicted, the date of last discharge. The totality of this information enables the court to arrive at an appropriate sentence. The sentence of the court may be one or more of the following: death sentence, imprisonment, flogging, fines, forfeiture, seizure, disqualification, probation, absolute or conditional discharge, compensation, restitution, costs, damages, reconciliation, deportation, inter alia.

Except where it is mandatory, the choice and question of sentence is discretionary. In theory, the objective of sentence ranges from retribution, deterrence, to reformation and rehabilitation or reparation. In practice, the judge or magistrate would consider such factors as:

Where the crime was planned, whether the offender is a habitual criminal, whether violence was employed, public interest, the nature of the crime and if there are previous convictions of the convicted for a similar offence.

CIVIL AND CRIMINAL PROCEDURES COMPARED

There are both substantive and procedural differences between the civil and criminal processes. Some of the differences are as follows.

Applicable Law

The laws which govern civil procedure include Civil Procedural Laws Rules and practice of court Rules which deal with the rights and duties between individuals and with private disputes and claims arising from contracts or torts. The Criminal Law is the substantive law on crimes and criminal. It applies to wrongs committted against the public as a whole, which wring is proscribed by statute and its punishment is also prescribed.

Parties

In a criminal proceeding, the parties are the state and the offender, with the action being brought by the state or its representatives. Parties in a civil suit are the plaintiff, who is the party who sued, and the defendant, who is being sued. The plaintiff is also called the claimant while the defendant is also called the respondent.

The Objectives

The objective of a criminal process is to punish the offender. However, the main objective of civil cases is to compensate someone who has suffered a legal injury.

Courts

Civil and criminal matters may be administered in different courts or on different principles. A court is a civil or criminal court depending on the matter before it. This, the same court may be criminal on Monday and civil on another day. Sometimes, a court may also be criminal at one hour and civil at another.

Procedure

A civil action is to be initiated through a writ if summons, petition, application or originating summons. Criminal matters, in the other hand, come before the court mainly by way of charge or information. Issues of bail arise only in criminal cases, and parties need not be personally present in civil proceedings. In a criminal proceeding, both parties must be present. Also, while civil cases may be settled out of court, criminal cases are very often not to be settled out of court especially where the crime committed is a felony.

Proof

Generally, whoever brings an action whether in a civil or criminal case bears the burden of proof. However, while the burden in a criminal case is proof beyond reasonable doubt, the proof in a civil case is based on the balance of probabilities.

Verdict

In a criminal case, the verdict is usually “guilty” or “not guilty”, while in a civil case, the verdict is usually “liable” or “not liable”.

Dispositional Method

In a civil matter, the judge is confined to what the plaintiff claims in damages or equitable reliefs. The judge may grant less, but he may not grant more. In a criminal case however, the court is free to choose ranging from absolute or conditional discharge, to probation, to caning, fine, imprisonments, inter alia. Also, while a statute of limitation does not apply in criminal cases unless expressly stated by law, statutes of limitations generally apply in civil cases.