By Abubakar-D.-Sani

Introduction

A peculiar exception to our otherwise adversarial civil jurisprudence is the provision for non-suiting parties under the Civil Procedure Rules of the High Courts and Magistrate Courts across the country. To the extent that those Rules purport to deny either or both parties to a civil action a clear-cut verdict on the ground – usually – of insufficiency of evidence, it seems that they lay down a separate standard of proof other than the well-known one of a balance or probabilities or a preponderance of evidence under the Evidence Act.

I believe that this is problematic, because under the Constitution, only the National Assembly is competent to enact rules of substantive and procedural evidence. If this view is correct, it follows that those provisions of the High Court (and Magistrate Court) Civil Procedure and Rules are ultra vires and invalid. Am I right? You be the judge. But, first . . .

What is Non-suit and under what circumstances can it be ordered?

According to Nolo’s Plain English (Online) Law Dictionary, a Non-Suit is “a court’s dismissal of a case because the plaintiff does not provide sufficient legal showing for the judge to rule in (his) favour”. Another online medium, US Legal.com, defines non-suit as “a termination of a legal action without an actual determination of the controversy on the merits . . . it is (usually) a ruling that in the judge’s opinion, there is no evidence which could prove the plaintiff’s case”.

In Nigeria, the various uniform Civil Procedure Rules of the High Courts contain virtually identical provisions on the circumstances in which a court can order a non-suit. For instance, Order 34 Rule 1 of the Kano High Court Rules 2014, provides that:

“Where satisfactory evidence is not given entitled the plaintiff or defendant to the judgement of the court, the judge may suo motu or on application, non-suit the plaintiff, but the parties’ legal practitioners shall have the right to make submissions about the propriety or otherwise of making such order”.

These provisions were interpreted, albeit inferentially, in OKPALA vs. IBEME (1989) 1 NSCC 567 @ 587, where the Supreme Court held that an order of non-suit is appropriate where there is no satisfactory evidence that will enable the court to enter judgement for either of the parties. For the court to enter such a verdict, it must appear on the record, taken as a whole, that the plaintiff has not failed in toto and that the defendant should not in any event, be entitled to judgement: A.C.B vs. YESUFU (1980) 1 – 2 S.C. 49.

It is important to emphasize the foregoing, because, as we shall soon see, the power of a court to order a non-suit is entirely statutory, and any order of non-suit made in the absence of a specific statutory authority to do so is made without jurisdiction and will be a nullity: KAURA vs. U.B.A. PLC (2005) 8 NWLR pt. 926 Pg. 24 @ 38, C.A.; ELIAS vs. OMO-BARE (1982) 5 S.C. 25.

Status of the Statutory Provisions

From the ippssisima verba of the various provisions of the High Court Rules which deal with non-suit, I humbly submit that they encroach on the rights of the citizen to have his cause determined by a court definitively and unambiguously. See Article VII of the African Charter on Human and Peoples’ Rights. Such statutes are required to be interpreted strictly (or contra proferentum), i.e., in favour of the subject and against the interest of the lawmaker: EZE vs. GOV. OF ABIA STATE (2010) 15 NWLR pt. 1216 pg. 324. Secondly, the said statutes are also clearly evidentiary in intent and purport. This is because, they expressly allude to the quality of evidence adduced by a plaintiff (or, in appropriate cases, Counter-claimant) and purport to prescribe its seeming insufficiency as the basis for driving him from the judgment-seat.

I believe that the National Assembly has already covered the legislative field in this regard by prescribing a single standard of proof for resolving civil cases. That provision is contained in Section 134 of the Evidence Act, 2011, which states unambiguously that “the burden of proof shall be discharged on the balance of probabilities in all civil cases”. This provision was enacted pursuant to Section 4(3) and Items 23 and 68 of the Exclusive Legislative List as well as Paragraph 2b of Part III of the 2nd Schedule to the 1999 Constitution, which confer on the National Assembly the exclusive power to enact rules of both substantive and procedural evidence.

This interpretation is without prejudice to Section 274 of the Constitution which empowers State Chief Judges to enact rules of practice and procedure applicable in State High Courts. This is because not only are those provisions general whilst those of Items 23 and 68 of the Exclusive List of the Constitution et al are specific, the Constitution itself expressly states that the said powers of State Chief Judges are to be exercised “subject to any law made by the State House of Assembly”.

Using Kano State as a template, the relevant statutory provisions are Sections 103 and 116(1)(q) of the State High Court Law. A cursory look at both provisions shows that they clearly encroach on the exclusive constitutional power of the National Assembly to regulate rules of procedures relating to evidence as aforesaid. The former, i.e., Section 103, provides that: “Nothing in this law and nothing in the rules of court made or to be made under this Law shall affect the mode of giving evidence by the oral examination of witnesses, or the rules of evidence: provided that nothing in this Section shall:-

“prejudice the operation of any rules of court made in pursuance of the express power conferred by this law to make rules of court for regulating the means by which particular facts may be proved and the mode in which evidence thereof may be given;
affect the power of the court, for special reasons, to allow depositions or affidavits to be read”.
The latter, i.e., Section 116(1)(q) of the Law, provides that “(the Chief Judge of the State may make rules) subject to the provisions of Section 103, regulating the means by which particular facts maybe proved and the mode in which evidence thereof maybe given, in any proceedings or on any application in connection with or at any stage of any proceedings”.

Beyond the foregoing provisions of the High Court Law, none of the 21-odd Sections of this Law prescribes non-suit as an option for determining civil suits. However, assuming without conceding, that they can be so construed, I submit that to the extent that the Constitution has specifically conferred that power exclusively on the National Assembly, the said provisions of the State High Court Law as well as Order 34 Rule 1 of the High Court Rules 2014 are ultra vires the State House of Assembly and the State Chief Judge, respectively. Accordingly, they are invalid, null and void. This is because the effect of entrenching a provision in the Constitution is that it overrides all contrary provisions in any other law, be they substantive or adjectival: UNIBIZ vs. C.B.C.L (2003) 5 S.C.M 191.

This fact is driven home by Section 4(5) of the Constitution which provides that “If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of the inconsistency, be void”.

Conclusion

To the extent that the Evidence Act, 2011 made by the National Assembly does not prescribe non-suit as the penalty for a plaintiff who fails to cross the evidentiary threshold, the various provisions of the High Court (and Magistrate Court) Rules which stipulate that outcome in such circumstances are simply a Constitutional travesty. This is because where the Constitution or a Federal enactment has already covered a particular legislative field, no State or even Local Government Law can be enacted to cover the same field already covered by the Constitution or Federal enactment: MIN. OF JUSTICE & ATT-GEN. OF THE FED. vs. ATT-GEN. OF LAGOS STATE (2013) All FWLR pt. 704, pg. 1, S.C.

The only standard of proof recognised by the Evidence Act 2011 for resolving civil cases is a balance of probabilities or the preponderance of evidence. Accordingly, any order of non-suit made by a court against a party on the alleged ground of insufficiency of evidence proffered by that party, would have been made without the requisite statutory authority, and would be a nullity: ELIAS vs. OMO-BARE, supra. In case the situation is perceived as presenting an anomaly of sorts, the way out is to amend the Evidence Act, by incorporating the provisions of the extant High Court Rules which prescribe non-suit in certain circumstances. Only the National Assembly possess that power – not State Chief Judges.

Abubakar D. Sani, Esq. Kano.,14th April, 2019