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.
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.