By S.O. Giwa, Esq.
(Ibadan-based Legal Practitioner) a.k.a. Pentalk SSCE, TC II, NCE, LL.B, BL, MBCL & LL.M
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ABSTRACT
There is a process currently in use in Nigerian High Courts that has no legal backing, no seat in the Rules, and no origin in trial court procedure. Yet, it is filed daily, accepted by registries, and entertained by some courts. This paper interrogates that process. It traces its origin to appellate courts and demonstrates how it migrated into trial courts without statutory authority. Using the High Court of Ogun State (Civil Procedure) Rules 2024, High Court of Oyo State (Civil Procedure) Rules 2022 and the Federal High Court (Civil Procedure) Rules 2019 as case studies, the paper argues that the only recognised mode of application in trial courts is by Motion on Notice supported by an affidavit. The paper further examines the normative role of Rules of Court and the mischief caused by this illegal practice: delay, confusion of records, abuse of process, and erosion of procedural discipline. The paper concludes with a call to bury this practice and restore order to trial court procedure.
Keywords: Trial Court, Civil Procedure, Motion on Notice, Jurisdiction, Abuse of Process, Fair Hearing, Rules of Court
1.0 INTRODUCTION: THE VISITOR WHO CAME TO THE WRONG HOUSE
Procedure is the handmaid of justice. But when procedure is ignored, justice becomes a lottery.
In Nigerian High Courts today, there is a “visitor” that walks into court every day. It has no invitation in the Rules. It has no seat assigned to it. Yet, it sits down, speaks, and sometimes the court listens to it.
This visitor is not named in any High Court Civil Procedure Rules in Nigeria. From Ogun 2024 to Oyo 2022 to FHC 2019, the Rules are clear: applications shall be by Motion. Only Motion on Notice. Only Motion Ex Parte.
So, where did this visitor come from? Why is it here? And what damage is it doing?
This paper answers those questions. By the end, you will know the name of the visitor, where it came from, and why it must be shown the door.
2.0 THE STATUTORY FRAMEWORK: WHAT THE RULES ACTUALLY SAY
2.1 High Court of Ogun State (Civil Procedure) Rules 2024
Order 39 Rule 1 is mandatory, and Rules 1, 2, 3 and 4 provide thus:
(1) Where, by these Rules, any application is authorised to be made to a Judge, such application shall be made by motion, which may be supported by affidavit, and shall state under what Rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.
(2) Every such application shall be accompanied by a written address in support of the relief sought.
(3) Where the other party intends to oppose the application, he shall, within 7 days of the service on him of such application, file his written address and may accompany it with a counter-affidavit.
(4) The applicant may, on being served with the written address of the opposing party, file and serve an address in reply on points of law within 7 days of being served. Where a counter-affidavit is served on the applicant, he may file a further affidavit with his reply.
Order 39 Rule 2(1) provides that, except where an application ex parte is required or permitted under any law or Rules, every motion shall be on notice to the other party.
Practical effect:
Order 39 Rules 1 and 2 then classify motions into:
- Motion on Notice
- Motion Ex Parte
Order 39 Rule 1(3) adds timelines: a party opposing has 7 days to file a Written Address and Counter-Affidavit.
That is the entire universe of applications in the High Court of Ogun State. No third category exists.
2.2 Federal High Court and Other States
The position is uniform. Order 26 of the Federal High Court (Civil Procedure) Rules 2019 provides: “All applications shall be by motion.” The High Court of Lagos State (Civil Procedure) Rules 2019, High Court of Rivers State (Civil Procedure) Rules 2023, and Kano State High Court (Civil Procedure) Rules 1988 contain similar provisions.
2.3 The Other Anomaly
Ironically, Order 25 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules 2024 mandates that “the Claimant shall apply… for Pre-Trial Conference Forms.” In practice, lawyers write letters. Letters are also not in the Rules. This shows a pattern: practice deviating from law. But this other visitor is the most dangerous.
2.4 THE NATURE AND PURPOSE OF RULES OF COURT
Rules of Court are not only “adjectival law”; they are also normative instruments meant to help and guide the court in its search for justice. They are the compass from filing to judgment. As such, they embed substantive principles of fair hearing, substantial justice, legal validity, avoidance of abuse of court process, and jurisdiction.
When Order 39 Rule 1 mandates “Motion”, it enforces discipline: facts on oath, notice to the other side, and arguments within timelines. That is fair hearing.
When Order 39 gives 7 days, it pursues speedy disposal. That is substantial justice.
To ignore these Rules and file a process unknown to law is, therefore, not just a breach of procedure. It is a breach of the normative values the Rules protect. It invites chaos.
No doubt, the High Court Civil Procedure Rules have undergone several modifications geared towards improving access to justice since 1976 — 1976, 1986, 1994, 2008, 2012 and now 2024. Each amendment sought to make litigation faster and cheaper. And yet, through all these 50 years of reform, no provision for this “visitor” was ever inserted.
Why then do lawyers still use it?
To use a process that has no place in legal parlance amounts to taking the clock back. It is reverting to the era of confusion that the Rules were amended to cure.
3.0 THE REVEAL: MEET THE VISITOR
Now, to name the visitor.
It is called “NOTICE OF PRELIMINARY OBJECTION.”
3.1 Where Does It Actually Come From? ‘Appellate Courts’
This process was born in appellate courts.
Court of Appeal Rules 2021, Order 10 Rule 1:
“A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing…”
Supreme Court Rules 2024, Order 4 Rule 13 provides that the respondent must give the appellant not less than 5 days’ notice of the preliminary objection before the hearing.
The purpose: to save time in appeals. If an appeal is incompetent, say so early. It is a case-management tool for courts that decide on records and briefs.
3.2 How It Migrated to Trial Courts
From the 1990s, three things happened:
- Convenience: A 2-page “Notice” is easier than a Motion + Affidavit + Written Address.
- Judicial Indulgence: Some Judges started hearing it “to clear all objections together.”
- No Consequence: Courts rarely struck it out.
Thus, an appellate tool became a trial court disease.
4.0 WHY DOES THIS VISITOR HAVE NO SEAT IN TRIAL COURTS?
Four reasons:
4.1 It Violates Express Rules
Order 39 Rule 1 says applications “shall be made by Motion”. “Shall” is mandatory. See Nwosu v. PDP (2018) LPELR-44386 (SC). A “Notice” is not a Motion. It is a nullity.
4.2 It Cannot Deal With Facts
Trial courts determine facts. A “Notice” is filed without an affidavit. But jurisdiction is often a combination of law and fact. See Agu v. General Oil Ltd (2015) LPELR-24613 (CA): disputed facts must be on oath. A bare Notice cannot do that.
4.3 It Creates Confusion and Delay
Typical scenario: Motion No. M/90/2026 is filed. Nineteen days later, a “Notice” is filed against “Motion No. M/89/2026”. See Okafor v. A.G. Anambra (2011) 2 NWLR (Pt. 1232) 467 on wrong description, which amounts to nullity.
This is how records get confused and cases are delayed for months. The “visitor” snails into the file and slows everything down.
4.4 It Undermines Timelines and Fair Hearing
Order 39 gives 7 days. A “Notice” filed on day 19 circumvents this. It also denies the other party proper notice. See Saraki v. FRN (2016) LPELR-40013 (SC).
Authority: In Jimoh v. Starco Nig. Ltd (2009) 3 NWLR (Pt. 1128) 243 (CA), the Court held that:
“The proper way to challenge the competence of a suit in the High Court is by Motion on Notice supported by affidavit, not by a mere Notice of Preliminary Objection.”
5.0 THE MISCHIEF: HOW THE VISITOR EATS JUSTICE
5.1 Delay
Order 39 was designed for quick disposal, but this visitor adds 2–3 months.
5.2 Confusion of Records
Wrong numbers, wrong parties. Registries misfile. Appeals follow.
5.3 Arguing Merit in Disguise
In land and enforcement cases, this “Notice” is used to argue: “the action was lawful”. See Dagazau v. Bokis Int’l Ltd (2011) 14 NWLR (Pt. 1268) 261: that is not the purpose of a threshold objection.
5.4 Erosion of Discipline
If we allow this, why not “Letter of Objection”? “Email Objection”? Rules exist for order. See Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621.
6.0 COMPARATIVE POSITION
England: Civil Procedure Rules 1998, Part 23 — Application Notice.
USA: Federal Rules of Civil Procedure, Rule 12(b) — Motion to Dismiss.
No serious jurisdiction uses a bare “Notice” at trial. Trial courts need evidence on oath. Only a Motion supported by an Affidavit guarantees that.
7.0 RECOMMENDATIONS: HOW TO SHOW THE VISITOR THE DOOR
- Supreme Court Pronouncement: Declare it incompetent in trial courts.
- Practice Direction: All Chief Judges should direct registries to reject it.
- NBA Position: Educate members. Discourage the practice through Mandatory Continuing Legal Education.
- Amend Rules: Insert: “No Notice of Preliminary Objection shall be filed in the High Court.”
- Costs: Award substantial costs and foreclose defaulters. Kill the incentive.
8.0 CONCLUSION
For 50 years, our Rules have been reformed to promote access to justice. To now resort to a process unknown to those Rules is to take the clock back.
This “visitor” came from appellate courts. It has no seat in trial courts. It has no legal backing. It is slow, destructive, and unnecessary.
The Rules are there. They are not just technical. They are normative. They protect fair hearing and prevent abuse.
Let us obey them. Let us show this visitor the door.
LIST OF AUTHORITIES
Statutes and Rules
- High Court of Ogun State (Civil Procedure) Rules, 2024
- Federal High Court (Civil Procedure) Rules, 2019
- Court of Appeal Rules, 2021
- Supreme Court Rules, 2024
Cases
- Madukolu v. Nkemdilim (1962) 2 SCNLR 341
- Jimoh v. Starco Nig. Ltd (2009) 3 NWLR (Pt. 1128) 243
- Okafor v. A.G. Anambra State (2011) 2 NWLR (Pt. 1232) 467
- Agu v. General Oil Ltd (2015) LPELR-24613 (CA)
- Dagazau v. Bokis Int’l Ltd (2011) 14 NWLR (Pt. 1268) 261
- Nwosu v. PDP (2018) LPELR-44386 (SC)
- Saraki v. FRN (2016) LPELR-40013 (SC)
- Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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