Nigerian Courts’ Clerk: Whether Under Legal Obligations To Perform The Functions Of A Court’s Bailiff? By: Hameed Ajibola Jimoh Esq.

sections: 5 and 6 of the Sheriffs and Civil Process Act, 2004 (as amended)-herein after referred to as SCPA- and Order I of Part II of the Judgment (Enforcement) Rules, made pursuant to the SCPA. Also, their powers and duties have been provided in sections 8, 9, 10 and 11 especially, of the SCPA. Also, the Rules of Courts have provided additional duties of bailiffs for instance, and for the purposes of this paper, the Federal High Court (Civil Procedure) Rules, 2009-herein after referred to as the FHC R, and the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules, 2018-herein after referred to as FCT R, as provided in its Order 6 Rule 1 of the FHC R and Order 7 Rule 1 of the FCT R respectively. Nevertheless the distinguishing functions and powers of bailiffs from a clerk employed in the service of the court, it has been observed upon disclosed facts, investigation and observation of the writer of this paper that perhaps there have been for a very long time indeed, some courts’ staff employed into the civil service as clerks but have continued to falsely personate the functions of bailiffs by engaging in the service of courts’ processes and abandoning their mandated duties in the service of the courts. This paper is of the query as to whether those clerks are actually under legal obligations to perform those functions of a court’s bailiff? And thereby calling the attention of all Heads of Courts and those superior officers under whom those clerks are directly responsible and take instructions from to take necessary steps in putting the courts’ system in order after due investigation of these facts and a close monitoring on those clerks as to what they perform, thereby discouraging an illegality, criminal acts and acts of corruption in the courts’ system. According to the on-line Webster Dictionary, the word ‘clerk’ has been defined for the relevance of this discourse, as ‘a person whose job is to keep track of records and documents for a business or office. An elected or appointed official whose job is to take care of official papers and business for a court or government’. And the word ‘bailiff’ has been clearly defined by this same dictionary for the relevance of this discourse, ‘An officer in a court of law who helps the judge control the people in the courtroom. Someone hired by a sheriff to bring legal documents to people and to take away possessions when people cannot pay for them’. From the above definitions, it is clear that it is not the duty of the clerks to serve courts’ processes rather it is the responsibilities of the bailiffs. Also, the bailiffs are appointed directly by the Sheriffs while clerks are not. It is the functions of clerks to keep track of records and documents and to take care of official papers and business for the court. While it is the duty of a bailiff to help the judge to control the people in the courtroom and to bring legal documents to people and to take away possessions when people cannot pay for them, in order words, to effect service of courts’ processes and to execute and enforce courts’ judgment and orders and all other necessary processes. It is also clear that though both the clerks and the bailiffs are officers of the court, their powers, duties and obligations are clearly different and defined by law. Therefore, it is the humble submission of the writer of this paper that it is an act of illegality for any court’s clerk to take up the functions of bailiffs. Furthermore, and for the purpose of clarity, section 5 of the SCPA provides thus ‘The Sheriffs may appoint such number of persons as bailiffs as may be necessary’. Section 6 of the SCPA also provides thus ‘Every bailiff and very other person who has authority to intermeddle with the execution of writs issued by any court of record, shall before he does so make a declaration, which shall be exempt from stamp duty, in the form in the First Schedule to this Act, or to the like effect, before any judge or magistrate for the division or district in which he exercises such authority’. And by the provisions of Order I of the Part II of the Judgments (Enforcements) Rules, made pursuant to the SCPA, it is provided in Rule 3 thus ‘In the exercise of his powers under section 5 of the Act, the sheriff may appoint any person to be a paid bailiff or an unpaid bailiff.  And on the powers of a bailiff just like the sheriffs, sections: 9, 10 and 11 of the SCPA provide respectively thus ‘9. At the sessions the sheriff shall direct a sufficient number of police constables to be employed to keep order in and within the precincts of the court. 10. The sheriffs at the request of a person delivering a writ to him for execution shall give a receipt for that writ stating the hour and the day of its delivery. 11. The sheriff shall perform any other duty or duties as may be imposed upon him by any written law’. Also see section 8 SCPA. Furthermore, Order 6 Rule 1 of the FHC R provides on the service of courts’ processes within jurisdiction thus ‘Service of writs of summons, notices, petitions, pleadings, orders, summonses, warrants and all other proceedings, documents r written communication of which service is required, shall be made by- (a) the sheriff or a deputy sheriff, bailiff, officer of the court; or …’ among other persons listed under the Rule. Also, under Order 7 Rule 1(1) of the FCT R, it provides thus ‘(1) Service of originating process shall be made by a Sheriff, Deputy Sheriff, Bailiff, Special Marshall or other officer of the court. The Chief Judge may also appoint and register any law chambers, courier companies or any other person or by electronic means mutually agreed to serve court processes’. However, it is to be noted in the submission of the writer of this paper, that the fact that a clerk is an officer of court does not oblige him to serve processes or perform the duties of bailiffs. More so, bailiffs are trained to perform their duties whereas, the clerk is definitely in lack of those trainings to efficiently perform those duties of bailiffs. Also, the schedule of employment of both officers differs. So, there is no justification legally for a court clerk to perform those functions of bailiff. In fact, in the submission of the writer of this paper, it amounts to an act of false personation under the Penal Code Act of the Federal Capital Territory-Abuja and it is an act of corruption. Wherein, section 179 provides thus ‘Whoever falsely personates another, whether that other is an actual or fictious person, and in such assumed character makes any admission or statement, or causes any process to be issued or becomes bail or security, does any other act in any suit or criminal prosecution, shall be punished with imprisonment for a term which may extent to three years or with fine or with both’. From the above arguments and submissions, the writer of this paper encourages lawyers to in interest of justice and sanitizing the courts’ system from all acts of corruption and corrupt practices, to always whistle-blow any trace or suspicion of a situation where a clerk performs any of the acts of bailiffs to the appropriate authority or Heads of Courts and may even report same to the police or any other necessary law enforcement agency for necessary investigation. In fact, upon a complaints made in an article by the writer of this paper sometimes around April, 2018 (this year), wherein the writer of this paper complained about the court’s staff of Kubwa FCT High Court demanding a very high sum to serve courts’ processes, which made the FCT High Court to refer the matter to the standing Committee on Discipline of staff, it was discovered that the said staff was not actually a bailiff but  a mere clerk of the court who was not employed as a bailiff. The only excuse her registrar tried to make in her defence was that she has been acting as a bailiff for more than a year on the directive of the presiding judge of the court. This indeed is totally wrong and illegal as bailiffs are not appointed by the Judge rather the Sheriff. So, every court is enjoined to have means of identifying each staff of court by the public. Finally, it is hoped that every court would take necessary preemptive measures to curb illegality in the courts’ system. e-mail: hameed_ajibola@yahoo.com]]>