An Appraisal of Order 6 Rules 2(3) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 on the Judicial Process.

Abstract

The High Court Civil Procedure Rules of Akwa Ibom State of Nigeria and other States of the Federation makes provision for the commencement of every legal action through a court process. A Court Process or Processes is defined to include “writ of summons, originating summons, originating process, notices, petitions, pleadings, orders, motions, summonses, warrants and all documents or written communications of which service is required”^[1]. Originating Process is also defined by the Rules to mean “any court process by which a suit is initiated”. The Rule further provides that all civil proceedings commenced by originating process such as; the writ of summons, shall be accompanied by statement of claim, list of witnesses to be called at the trial, written statements on oath of the witnesses and Copies of every document to be relied on at the trial.^[2] Each copy of the originating process before filing shall be signed and stamped by the Legal Practitioner, or by the Plaintiff or Claimant where he sues in person, and shall be certified after verification by the Registrar as being a true copy of the original process filed.^[3] It would be noted that, most of the originating processes that had hitherto been filed by legal practitioners gave scant regard to this provision not until the recent Supreme Court judgment on the matter.^[4] The resultant effect is that all pending cases that did not comply with the above provision now have been struck out by the court following that judgment as being incurably bad. The ameliorating effect of Order 5 R 1(1), which deals with the effect of non-compliance with any of the provisions in the Rules, is given various interpretations by the court and scholars alike.  The totality is that, a litigant who had/has a good case on the merit is helpless especially where time is of the essence. Where lays substantial justice much talked about by the court, or is the judicial process being fair to the litigant?  Therefore, the main essence of this paper is to examine these various opinions by Scholars. Some belief that such a failure goes to the issue of jurisdiction which affects the foundation of the case while others simply believe that, it is merely a procedural issue which can be cured by the inbuilt mechanism provided in the Rules.^[5] We shall make attempt to reconcile these varied opinions and possibly proffer solutions in this paper. It is recommended that, if justice should form the bulkwalk of our judicial system, strict procedural adherence to the extant rules of court should be whittled down considerably.

[1] Order 1 Rule 2 ) High Court Civil Procedure Rules of Akwa Ibom State of Nigeria 2009

[2] Order 3 R2 (1) High Court Civil Procedure Rules of Akwa Ibom State of Nigeria 2009

[3] Order 6 R 2(3) ) High Court Civil Procedure Rules of Akwa Ibom State of Nigeria 2009

[4] Alawiye v Ogunsanya (2013) ALLFWLR (pt. 668) 800 at 808-809

[5] See Order 5R1(1)