SHERIFF AND CIVIL PROCESS ACT DOES NOT APPLY TO FEDERAL COURTS IN NIGERIA

There is an unfounded presumption, and even belief, that the Sheriff and Civil Process Act of Nigeria regulates, and applies to, all the courts in Nigeria, from the Supreme Court to the Magistrates Court. These presumption and belief have led to numerous arguments in courts where the provisions of the Act were said to have been violated. The right question is to find out if this Act applies to all the courts in Nigeria, starting from the Supreme Court down to the Magistrates Court. Customary Court is also a court in Nigeria. The contention in this article is that the Sheriff and Civil Process Act was specifically enacted to apply and regulate the Magistrates Courts and the High Courts of the different states of the Federal Republic of Nigeria and the Magistrates Court and High Court of the Federal Capital Territory Abuja, only. The activities of the Federal High Court of Nigeria, the National Industrial Court of Nigeria, the Appeal Court and the Supreme Court, are not regulated by this Act.

This discussion shall be taken under the following headings:
1. Commencement
2. Long title
3. Definition sections

Commencement: This Act commenced in 1945, long before the creation of the current Federal Courts in Nigeria, particularly the Federal High Court of Nigeria and the National Industrial Court of Nigeria. The Act did not provide for the inclusion of any of the now Federal Courts under the application of the Act. This clearly shows that the Federal High Court and the National Industrial Court are not within the ambits of that Act.

Long title: The long title of this Act is even more illuminating. The long title states as follows.

An Act to make provision for the appointment and duties of sheriffs, the enforcement of judgments and orders, and the service and execution of civil process of the Courts throughout Nigeria.

This long title envisaged three purposes namely (a) the appointment and duties of sheriffs (b) the enforcement of judgements and orders (c) and the service and execution of civil process of courts throughout Nigeria. The expanded meaning of the long title can be understood by rearranging the three envisaged purposes of the Act thus: (a) the appointment and duties of sheriffs of courts throughout Nigeria (b) the enforcement of judgements and orders of courts throughout Nigeria (c) and the service and execution of civil process of courts throughout Nigeria. Having made the long title clearer, the next port of call is to identify the meaning of court in the Act. Both the Constitution of Nigeria and the Interpretation Act of Nigeria did not define COURT.

The definition sections of the different enabling court Acts and Laws in Nigeria defined the courts only with respect to the court the statute created. This means that the meaning of a court can only be known if the court is mentioned - Expressio Unius Est Exclusio Alterius. However, where no particular court is mentioned in an enactment, then all the courts known to Nigerian laws are implied. This position of the author of this article, which is in line with the positions of the extant laws in Nigeria, takes us to the definition sections of the Sheriff and Civil Process Act (SACPA) in the different parts of that law. The Act has seven Parts.

The applicable courts involved in each Part are specifically mentioned at the interpretation section of that Part. Part 1 provided for the Short Title. Part II provided for the Sheriffs and Bailiffs. Part III provided for the Enforcement of judgments and orders. Part IV provided for the Judgment Summons and Sequestration. Part V provided for the Garnishee Proceedings. Part VI provided for Forms and Rules of Court. Part VII finally provided for Service of the process and enforcement of the judgments of the courts of the Federal Capital Territory, Abuja and the States throughout Nigeria.

It is noteworthy that the Schedules to the Act on Court Forms was subjected to the Rules of Court, thereby making the Act subservient to the Rules of Court. See Section 93 SACPA: Use of forms in First Schedule: (1) Subject to the express provisions, if any, of the Rules, the forms contained in the First Schedule to this Act may, in accordance with any instructions contained in the said forms and with such variations as the circumstances of the particular case may require, be used in the cases to which they apply and, when so used, shall be good and sufficient in law. (2) The forms in the First Schedule may be added to, repealed, replaced or varied by rules of court in all respects as if they had originally been so made.

The definition of court in the different Parts of the SACPA shows clearly that only state High Courts and High Court of the Federal Capital Territory Abuja that are covered by the Act.

Section 2 SACPA (for Part I): In this Part, unless the context otherwise requires- "court" includes a High Court and a magistrate's court.

Section 19 SACPA (for Parts III - VI): (1) In this Part and Parts IV, V and VI, unless the context otherwise requires-"court" includes the High Court of the Federal Capital Territory Abuja or of the State. (2) Nothing in this Part or in Part IV, V or VI of this Act shall be construed to authorise the service or execution outside the State of the process of a court.

Section 95 SACPA (for Parts III - VII): "court" means a court to which Parts III, IV, V, and VI apply.

The above definitions of the applicable courts in Sheriff and Civil Process Act, shows clearly that the Act was enacted to regulate relationships of courts in the different states of Nigeria as it regards their limited territorial jurisdiction in their states of origin. This Act only provided the platform for the effectuation of decisions of a court which has limited territorial jurisdiction in one state of the Federal Republic of Nigeria, in another state where its territorial jurisdiction does not extend. This Act does not apply to a Court that has the whole Nigeria as its jurisdiction, such as the Federal High Court, the National Industrial Court, the Appeal Court and the Supreme Court of Nigeria.

Therefore, whenever counsel on the other side raises Sheriffs and Civil Process Act (like endorsement out of jurisdiction etc) in a Federal Court, kindly draw the attention of the Judge to the hoax. A federal court is not bound by the provisions of the Sheriff and Civil Process Act. Any Federal Court which Rules do not cover all the corresponding provisions of the Sheriff and Civil Process is deficient. The Chief Justice of such Court must make haste and plug the hole. Even the provisions of Section 111 SACPA would not avail such Court because the Power to make rules by the Chief Justice of Nigeria is still limited to making Rules for the courts of the States and the Capital Territory.

Section 111 SACPA: The Chief Justice of Nigeria may make rules with respect to this Part of this Act in￾cluding the making of rules of court for prescribing-[L.N. 47 of 1955.]
(a) the practice and procedure in connection with the execution and enforcement by the courts of a State or the Capital Territory of the process and judgments of the courts of other States and the Capital Territory;
(b) the practice and procedure in connection with the service of the process of the courts of a State or the Capital Territory under this Part;
(c) the fees to be paid in connection with the service of the process of the courts of a State or the Capital Territory under this Part;
(d) the fees to be paid in connection with the execution and enforcement under this Part by courts of a State or the Capital Territory of the process and judgments of the courts of other States and the Capital Territory;
(e) the costs to be allowed to a person upon the execution or enforcement under this Part by the courts of a State or the Capital Territory of a judgment or other process of another State or the Capital Territory; and
(f) the manner of recovery of such fees or costs.

The Federal High Court Rules is subject to the provisions of any Act of the National Assembly which has regulatory potential and effects on the Federal High Court. This flows from section 254 of the Nigerian Constitution which provides thus:

“Subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”.

The import of section 254 is that the Rules of Federal High Court would be subject to the any Act of the National Assembly irrespective of their roots. This however does not in itself imply that the Rules of the Federal High Court is subject to Sheriff and Civil Process Act. This is because Sheriffs and Civil Process Act, by its origin and provisions, regulates State (and FCT) Magistrates Courts and High Courts only. Thus, the Sheriffs and Civil Process Act is not one of the Acts contemplated by section 254 of the Nigerian Constitution. Sheriffs and Civil Process Act was obviously made by the National Assembly pursuant to Item 57 of the Exclusive Legislative List, Part 1 of the 2nd Schedule to the Constitution. Item 57 provides that the National Assembly of Nigeria shall have the exclusive power to enact laws on:

“Service and execution in a State of the Civil and Criminal processes, judgments, decrees, orders and other decisions of any Court of law outside Nigeria or any Court of law in Nigeria other than Court of law established by the House of Assembly of that State.”

The exclusive power of the National Assembly to make laws in Item 57 is limited to making laws respecting the service and execution in a state in Nigeria of the Civil and Criminal processes, judgments, decrees, orders and decisions of a Court established by the laws of another state of Nigeria or from another country all together.


In fact, the Supreme Court has held in Akeredolu v Abraham (2018) LPELR-44067(SC) as follows:

"The submission by counsel for the 1st respondent/cross-appellant that the principal legislation that deals with service of court processes of any court in Nigeria is the Sheriffs and Civil Process Act is therefore not correct as it relates to the Federal High Court. It is only true of the State High Courts and the FCT High Courts because their jurisdiction is circumscribed by the territory each state occupies and the Federal Capital Territory. The service of any process issued by the Federal High Court can be issued under the Sheriffs and Civil Process Act, if such is to be executed outside the territory of Nigeria. Order 6 rule 31 of the Federal High Court Rules interprets outside jurisdiction to mean outside the federal republic of Nigeria. Thus to hold that an Originating Summons which was issued out of the registry of the Federal High Court, Warri which was addressed for service at Abuja outside Delta state where the originating summons was issued from should be nullified because it did not comply with section 97 of the Sheriff And Civil Process Act as this court did in Izeze V INEC (2018) (pt. 1629)110 at 132 did not take cognizance of section 19 of the Act and Order 6 Rule 31. I am of the considered view that the originating summons issued by the Federal Court , Makurdi which is to be served in Abuja cannot be considered to be service outside jurisdiction and therefore does not require to be endorsed as a concurrent writ".

Nonetheless, the Federal High Court has some inherent jurisdiction to enforce its judgement. The comparative assessment between the exercise of this jurisdiction inherently and the regulation of this exercise by law is in miles.

Awkadigwe Fredrick Ikenna (MBBS, LLB, MWACS, DSC)
awkadigweikenna@gmail.com
08039555380