KELVIN CIVIL LITIGATION.pdf

CHAPTER ONE INTRODUCTION TO CIVIL LITIGATION Here you will be taught sources of civil litigation, the applicable laws, and the various rules of court. Under this course, only Abuja and Lagos are focused on for now (although reference may be made to other jurisdictions). Therefore, in addition to the general applicable laws like the Constitution of the FRN, the Evidence Act, Sheriffs and Civil Processes Act etc.; civil litigation is regulated mainly by the High Court Rules of various states. For example in Abuja, the High Court of Federal Capital Territory Abuja (Civil Procedure) Rules 2018 applies while the High Court of Lagos State (Civil Procedure) Rules 2019 applies in Lagos State. ALTERNATIVE DISPUTE RESOLUTION (ADR): This means other methods of resolving civil disputes other than litigation. It includes; Arbitration, Negotiation, Mediation, Conciliation etc. Under the Abuja Rules 2018, ADR was made an integral part of civil process. Order 2 Rule 7 of the 2018 Rules provides that the Chief Judge of FCT can refer any matter considered appropriate for ADR to Abuja Multi- Door Court or to other appropriate ADR institutions or practitioners. Also under, the new 2019 Lagos Rules, ADR has been included as one of the fundamental overriding objectives of the Rule. Parties are therefore mandated to seek amicable resolution of the dispute with the court as the last resort; see Order 2 Rule 1 of the 2019 Lagos Rules. Under the 2018 Abuja and 2019 Lagos Rule, the scope of ADR is wider. The court or judge is now duty bound to encourage settlement of matters via 1 ADR. Where a matter is suitable for ADR, the Judge shall by enrolment order refer the case to the Abuja Multi Door Court House (AMDC) for resolution within 21 days except otherwise ordered by the court. Where a party refuses to submit to ADR and loses the case in court, he shall pay a penalty as may be determined by the court; see Order 19. R. 2(1) of the 2018 Abuja Rules; Order 28 Lagos Rules 2019. It is therefore one of the ethical responsibilities of a lawyer to advice the parties to seek amicable resolution of their dispute and should only go to court where amicable resolution fails or is not possible; Rule 15(3)(d) Rules of Professional Conduct for Legal Practitioners 2007 Advantages of ADR are as follows: (the following are reasons why you will advise your client to resort to ADR other than litigation) 1. It saves time and cost 2. Promotion of good cordial relationship 3. It is litigant friendly as no much legal technicalities are needed 4. De-congests the Court of cases 5. Promotion of confidentiality of parties matters 6. Promotes party autonomy 7. Enforcement of Resolution by the parties is easier 8. It encourages the use of experts on an aspect of Law. Disadvantages of ADR 1. Parties can easily re-open the matter except in Arbitration 2. Does not create precedents 3. It does not generate revenue for the State 4. Its application is limited in some cases 2 5. Decisions are not binding on the parties like judicial judgments (except Arbitration). LIMITATIONS OF ADR ADR mechanisms are not available in respect of the following matters: 1. Election petition 2. Divorce or nullity of marriage as regards to declaration of status 3. Capital offences which are not compoundable 4. Injunction restraining an immediate act 5. Interpretation of statutes or the Constitution. 6. Enforcement of fundamental rights 7. Declaration of rights N.B - August 2011 No 1 (e) Where a Defendant has been served with an originating process and he still wants the matter referred to Arbitration, he must file a Motion on Notice for stay of proceedings pending Arbitration. If the motion is granted, he can then commence arbitration proceedings. The application must be filed before he takes further actions in the case, otherwise he will be deemed to have waived the right. Kaduna State Urban Development Board v Fanz Construction Ltd. Possible EXAM QUESTIONS, you may be asked the following questions: 1. State the ethical obligations you owe the parties before instituting an action in court? 2. Other than going to court highlight other methods you may adopt in resolving the dispute? 3 3. State why it is advisable to adopt alternative means in resolving the dispute other than litigation? CHAPTER TWO JURISDICTION IN CIVIL CAUSES It is very important for you to know the courts that will assume jurisdiction in any given scenario. N/B law school will not ask you to define jurisdiction, however for the purpose of emphasis; Jurisdiction is the power of a Court to decide or sit over a matter, which is fundamental. Madukolu v. Nkemdilim The issue of jurisdiction can be raised at any time in trial, and even on appeal for the first time Arjay v AMS Ltd (focus) Preferably raised at the earliest point Madukolu v. Nkemdilim. It may be raised by: a. Motion on notice b. Notice of preliminary objection c. Oral application challenging the Court’s jurisdiction, or d. even by the Court suo motu. Elabanjo v Dawodu.; Arjay v AMS Ltd. NB – Where the court of first instance lacks jurisdiction there can be no appeal TYPES OF JURISDICTION 1. Substantive Jurisdiction: This is the jurisdiction imposed on the court by the law establishing the court or any other statute; e.g. section 251 CFRN which conferred exclusive jurisdiction on the Federal High Court over certain issues. 4 2. Procedural Jurisdiction: This jurisdiction based on the rule and practice of the court. A good example is the issue of giving pre-action notice before instituting an action against some government agencies. Such procedural jurisdiction may be waived where the defendant fails to raise objection timeously; Mobil v LASEPA 3. Territorial Jurisdiction: This is jurisdiction based on the subject of the dispute and where the cause of action arose or where the parties are. E.g. the Defendant resides or carries on business in another State and the contract which is the subject matter of the suit was executed in that State, is the High Court of that State that has jurisdiction to entertain the action. The High Court of another State lacks jurisdiction to entertain the action. Akintunde v Ojo (May 2012) NOTE: Where the court lacks jurisdiction, the trial no matter how well conducted will be a nullity: Anih v. Nna FACTORS DETERMINING JURISDICTION OF A COURT; 1. Nature and Subject Matter of Dispute: for example, if it is contract, then the court that will have jurisdiction is determined by where the contract is to be performed or where the defendant resides; Order 4 Rule 1(3), Lagos Rules and Order 3 Rule 3 of the Abuja Rules. If it is land then the court in the place where the land is situate will assume jurisdiction see generally Order 4 Rule 1(1) Lagos Rules and Order 3 Rule 1 Abuja Rules 2018. 5 2. Parties: The parties to the dispute will also determine the court, for instance, where it involves the Federal Government or its agency in relation to its statutory functions or disputes between two Banks in relation to Banking policies, the FHC will have jurisdiction. The proper parties must be before the court and they must be juristic persons for the court to assume jurisdiction. 3. Mode of commencement of action: Some actions must be instituted using a specific mode for instance election matters must be by PETITION. If it is instituted by any other mode, it will be entertained by the court. 4. Geographical area (this is determined by the cause of action for example matters of interest in land is to be instituted where the land is situate ) 5. Presence of any legal requirements or condition precedents (for example actions requiring pre-action notice or leave of court before it can be instituted.) 6. Constitutional provisions. COURTS WITH CIVIL JURISDICTION 1. SUPREME COURT (Check December 2020 Re-sit Exam Q 2(a-f)) This is the apex (highest court) in Nigeria. ❖ COMPOSITION: It is composed of the Chief Justice of Nigeria (CJN) and not more than 21 Justices, as may be prescribed by an Act of the National Assembly; section 230 (2) CFRN. ❖ Constitution: This means the number of the Justices that can sit to entertain a given matter or appeal. For an appeal from Court of Appeal; at least 5 justices of the SC will sit to entertain it, but if it relates to an appeal involving the interpretation of the constitution or matters 6 relating to the original jurisdiction of the SC, it will sit with not less than 7 Justices; section 234 CFRN Examples of matters that fall within the Original Jurisdiction of the Supreme Court are: TAKE NOTE a. Disputes between the Federation and a State (AGF v AGS) or States v state: section 232(1) CFRN, AG Lagos v AGF ( Bar final 2009) b. Dispute between the National Assembly and a State of the Federation (NASS v State) in so far as the dispute involves any question whether of law or fact none which the existence or extent of a legal right depends c. Disputes between the National Assembly and the President d. The National Assembly and any State House of Assembly. NOTE items (c-d) was made pursuant to Section 1 of the Supreme Court (Additional Original Jurisdiction) Act 2002 and S. 233(2) CFRN (the latter allows the National Assembly to confer additional original jurisdiction on the Supreme Court by an Act). NOTE also that neither the National Assembly nor State House Assembly shall institute or initiate legal proceedings under this Act EXCEPT upon the resolution of the House passed by a simple majority of the members of that House present and sitting at the time the resolution is put to vote; (Dec 2020 Q 2f) The nominal Parties in the suit shall be: National Assembly vs. AGF or AGS or; 7 If it is House of Assembly of a state then the Speaker of the House of Assembly will be the nominal party; S. 3 Supreme Court Additional Jurisdiction Act, 2002. Qualification of Supreme Court Justices: To be appointed as a Justice of the Supreme Court: the person must be a legal practitioner in Nigeria of at least 15 years post call experience - S. 231(3) CFRN Appointment: The Justices of the Supreme Court are appointed by the President of Nigeria on the recommendation of the National Judicial Council (NJC) and all such appointment shall be subject to confirmation by the Senate; Section 231(1) & (2) CFRN Appellate Jurisdiction: the SC has exclusive appellate jurisdiction over appeals from the Court of Appeal. Appeals to the Supreme Court could be as of right or with leave. Its decision is final and not appealable. S. 235 CFRN Retirement Age: Section 291(1) CFRN: A judicial officer appointed to the Supreme Court or the Court of Appeal may retire when he attains the age of (65) sixty-five years and he shall cease to hold office when he attains the age of seventy years (70). Conditions For Invoking Original Jurisdiction of The Supreme Court: a. The action must be brought by the ATTORNEY GENERAL of the State or the Federation-section 20 Supreme Court Act 8 b. Subject matter of dispute must be one where State government /Federal government are direct beneficiaries-AGF v. AG Imo; Plateau State v. AGF. c. Must pertain to existence of a legal right. 2. COURT OF APPEAL: See S. 237 CFRN Composition: Composed of the President with not less than 49 justices and 3 to be learned in customary law and 3 learned in Islamic personal law: section 237(1) CFRN Qualification for Appointment: must be a legal practitioner in Nigeria of not less than 12 years post-call experience: S. 238(3) CFRN Appointment: It is done by the President on the recommendation of the National Judicial Council (NJC): S. 238(2) while only the appointment of the President of the Court is subject to confirmation by the Senate: S. 238(1) CFRN Constitution: while sitting to hear an appeal, it shall sit with at least 3 Justices sit on a matter: S. 239(2) CFRN Original Exclusive Jurisdiction: S. 239(1) CFRN a. It has jurisdiction to determine if a person has been validly elected to the office of the President or Vice President b. Whether the term of office of the president has ceased c. The office of President or Vice President has become vacant. 9 Exclusive Appellate Jurisdiction: It has exclusive appellate jurisdiction on decisions from the Federal High Court, High Court of the States and the FCT, Sharia Court of Appeal, Customary Court of Appeal, National Industrial Court, Code of conduct Bureau, Court Martial and the National and State Houses of Assembly Election Tribunals - S. 240 CFRN Final Decisions of the Court of Appeal: The Court of Appeal shall be the final appellate Court in the following matters: TAKE NOTE a. Decisions on appeals from the National and State Houses of Assembly Election Tribunal are final - S. 246(3), Awuse v Odili b. Decisions on appeals from the National Industrial Court are final; S. 243(4) CFRN 3. FEDERAL HIGH COURT S. 249 CFRN. Composition: It is composed of the Chief Judge and such other number of Judges as prescribed by an Act of the National Assembly – S. 249 (1) CFRN Constitution: it shall sit with at least one judge on a matter - S. 253 CFRN Qualification for Appointment: must be a lawyer of at least 10 years post- call experience -S. 250 (3) CFRN Appointment: It is done by the President on the recommendation of the National Judicial Council (NJC) while only the Chief Judge’s appointment is subject to confirmation by the Senate. See S. 250 (1) & (2) CFRN Jurisdiction: The FHC has exclusive jurisdiction over all matters contained in section 251 of the Constitution and any other matter as may be conferred on it by an Act of the National Assembly. Original Exclusive Jurisdiction: 10 The Federal High Court has the exclusive jurisdiction to sit on the following matters: 1. Matters under Section 251(1)(a)-(o). CFRN, relating to: a. The revenue of the Government or any of its agencies. b. The taxation of Companies and other business corporations or persons subject to Federal taxation. c. Customs and Excise, Export duties. Claims by or against the Nigerian Customs Service. d. Banks and Banking or other financial institutions matters, actions by or against the Central Bank of Nigeria arising from, legal tender; Forex; Bills of Exchange; Fiscal Measures; Letters of Credit; Promissory Notes e. Matters arising from the operation of the Companies and Allied Matters Act and other enactments regulating the operation of Companies. f. Federal enactments dealing with Intellectual Property and industrial standards i.e. Copyright/Patents/Passing Off/Business Names. g. Admiralty/Shipping, h. Diplomatic and Trade Representation, i. Citizenship and Aliens/Extradition, j. Bankruptcy and Insolvency, k. Aviation/Safety of Aircraft, (Negligence and Plane Crashes included) l. Arms and Ammunition, m. Drugs and Poisons, 11 n. Mines and Minerals; (including oil fields, mining geographical surveys and natural gas) o. Weights and Measures 2. Any matter related to the decision or act of the Federal Government or any of its agencies. See Section 35. CBN Act, Section 251. CFRN: a. The administration, management, and control of the Federal Government or any of its agencies. b. The operation or interpretation of the Constitution as relating to the Federal Government or any of its agencies c. The validity of an executive or administrative action by the Federal Government or any of its organs or officers It should be noted that where an action against the Federal Government or any of its agencies is based on any Federal Enactment, a Law, or the Doctrines of Equity, a party is not prevented from seeking reliefs of damages, injunctions, or specific performance. 3. Any questions as to: a. Whether the term of office of a senator or a member of the house of representatives has ceased. b. Whether the office of a senator of a member of the house of representatives has become vacant. Sections 251(4) & 272(3). CFRN, Section 27 & 28. 1st Alteration Act. NB An action by the a person challenging the appointment of a judge by the President should be commenced at the Federal High Court. This is because the Constitution in Section 251(l), (q), and (r) CFRN confers jurisdiction on the Federal High Court with respect to 12 1. Interpretation of the Constitution as it affects the Federal Government; and 2. Interpretation of the Constitution with respect to any action for declaration affecting the validity of any executive or administrative act or decision of the Federal Government N.B When parties to a suit aren’t federal agencies a suit can’t be brought to the FHC under the contemplation of Section 251 4. STATE HIGH COURT AND THE HIGH COURTS OF THE FCT They are established by S. 270 and S. 255 of the CFRN respectively. Appointment: The Chief Judge and other Judges of the High Courts of the States are appointed by the Governor on the recommendation of the National Judicial Council while the Chief Judge’s appointment is subject to confirmation of the House of Assembly. See S. 271 (1) & (2) CFRN While the appointment of the Chief Judge and other Judges of the FCT High Court is done by the President on the recommendation of the National Judicial Council and the Chief Judge’s appointment is subject to the confirmation of the Senate. See S. 256(1) & (2) CFRN Qualification: At least 10 years post call experience. See S. 271(3) CFRN Constitution: At least one judge can sit over a matter. See S. 273 CFRN Jurisdiction of the State High Courts: This is provided under section 272 of the 1999 Constitution. It can assume jurisdiction over any civil proceeding, which is not covered by section 251 of the Constitution. Appellate Jurisdiction of the High Court: Have appellate jurisdiction over decisions of Magistrate Courts, Area Courts, Customary Courts POSER 13 In a case of conflict between residents of a community and the State Government, which Court has jurisdiction to hear the matter. Why? 2010 No 1(b) The action will be commenced before the Lagos State High Court because the Constitution has conferred general jurisdiction on the High Court on all matters except those matters in respect of which exclusive jurisdiction has been conferred on the Federal High Court by Section 251 CFRN. Section 272 1999 CFRN. Onuorah v KRPC; 5. NATIONAL INDUSTRIAL COURT It is recognised as a Superior Court of record pursuant to Section 6 (Altering S. 254’CC’) of the Third Alteration Act 2010 to the CFRN and the National Industrial Court Act 2004. Composition: It is composed of a President and other number of Judges to be determined by the Act of the National Assembly – section 254A CFRN Constitution: At least one judge can sit over a matter or not more than 3 Judges as directed by the President of the Court; S. 254E of the Third Alteration Act 2010 to the Constitution. Appointment: The appointment of the President and other Judges of the Court is done by the President on the recommendation of the National Judicial Council and the President’s appointment is subject to the confirmation of the Senate. S. 254B (1) & (2) of the Third Alteration Act 2010 to the 1999 Constitution. Qualification for Appointment: A Lawyer with at least 10 years post call experience and has considerable knowledge in the law and practice of industrial relations/employment conditions in Nigeria. Section 254B (3) of the Third Alteration Act 2010 CFRN 14 Jurisdiction: It has exclusive jurisdiction in civil causes and matters to try all labour, trade unions, industrial relations or employment related matters notwithstanding the provisions of sections 251, 257 and 272 of the CFRN 6. JURISDICTION OF MAGISTRATE COURT In the North, they are known as District Courts (Abuja) in the exercise of their civil jurisdiction. By Section 28 of the Magistrate Court Law of Lagos State, vest civil jurisdiction over: a. All personal actions arising from contract, tort, or both, where the debt or damage claimed, whether as a balance of account or otherwise is not more than Ten million, N10, 000,000.00 at the time of filling. b. actions between landlord and tenant for possession of any land, agricultural, residential or business premises or house claimed under agreement or refused to be delivered up, where the annual rental value does not exceed ten million Naira (N 10,000,000.00) at the time of filing; This amount is exclusive of claim of arrears of rent and mesne profits, which may claimed in addition not minding the fact that the total claim exceeds ten million Naira (N10,000,000.00); c. In Abuja civil matters involving monetary claim of not more than Five million N5 million are to be instituted before the District Court d. Actions of recovery of penalties, charges, rates, taxes, expenses, cost of enforcement of statutory provisions, contributions or other like demands, which may be recoverable by virtue of any existing law. 15 JURISDICTIONAL CONFLICT BETWEEN THE FEDERAL HIGH COURT AND THE STATES HIGH COURTS Although the State High Court is a court of unlimited jurisdiction, the establishment of the Federal High Court, has created a lot of controversy as to some matters which fall within the exclusive jurisdictions of the FHC and the one which falls within the exclusive jurisdiction of the SHC. Due to the importance of the issue of jurisdiction, it is important that some of such controversies be reconciled. Some of the areas of controversies will be discussed thus: 1. FUNDAMENTAL RIGHTS ENFORCEMENT ACTIONS The issue of the court that will assume jurisdiction in fundamental rights enforcement cases always comes out in the bar exams. Generally, both the FHC and SHC has concurrent jurisdiction over fundamental rights matters; section 46(1) & (2) CFRN It is settled by the recent decision F.U.T Minna v Olutayo , and EFCC v Reinl (Pt 1730) The position is that both the Federal High Court and the State High Court can try fundamental Rights Cases irrespective of the Subject matters of enforcement. (follow what’s below in case the examiner does not avert his mind to the new position) But in your bar exam, if you see such a question as “In which court will you institute the action?” and the scenario bothers on the breach of fundamental right;  Check the subject matter or facts leading to the breach and the parties involved before determining the appropriate court to approach; Tukur v Government of Gongola State, 16  For example, if the breach arose from matters like tort, contract, civil offences etc. and it involves individuals or police, then the appropriate court should be State High Court; (Dec 2020 Re-sit Q 4b)  On the other hand, where the breach arose issues like terrorism, treason or financial fraud and involving a federal government agency like EFCC, NDLEA etc. then the action should be filled before the Federal High Court; Adegbite v Amosu; Mrs Moji Iheme v Nigerian Army Council & Ors. 2. BANKS AND ITS CUSTOMER In cases of banker-customer relationship for example where the customer of a bank wants to sue the bank or vice versa, both the Federal High Court and the High Courts of the States will have jurisdiction under the proviso to S. 251(1)(d) CFRN. Federal Mortgage Bank v. NDIC and NDIC v Okem Enterprises A good example is where the customer is suing for negligence or breach of contract; SGB v. DELLUCH If it’s an action between a bank and another bank and it is not an ordinary banker customer relationship, the FHC will have exclusive jurisdiction Non-customer of Bank suing for negligence–FHC has exclusive jurisdiction 3. SIMPLE CONTRACTS In simple contracts between a Federal Government agency and an individual, the State High Courts alone will have jurisdiction to try the matter. See Onuorah v. KRPC Ltd. 17 TRANSFER OF CASES TO THE STATE HIGH COURT BY THE FEDERAL HIGH COURT This will occur when a matter is wrongly instituted at the Federal High Court which lacked the jurisdiction to entertain it. The only thing the Federal High Court will do is to transfer the case to the State High Courts and not to strike it out. See S. 22 of the Federal High Court Act, Fasakin Foods Ltd v. Shosanya and AMC Ltd v. NPA; August 2011 No 6 (iv) NOTE that the States or FCT High Courts cannot transfer a matter, which it lacked jurisdiction to try to the Federal High Court, the appropriate step to take in such instance is to strike out the matter; Fasakin Foods Ltd v. Shosanya (see Bar Final April 2019 Q. 4C) NOTE: Below is with regards to wrong division In the High Court of FCT Abuja, cases instituted in wrong judicial divisions may be transferred only by the Chief Judge if need be, see Order 3 Rule 6 (Abuja Rule). In Lagos, the action may be heard in that division unless the Chief Judge directs otherwise; Order 4 Rule 3 Lagos Rules. POSER Assuming in an action for breach of contract between a person (Claimant) and a Company (Defendant), the Defendant Counsel raised a preliminary objection that the State High Court is not the proper venue for the action since it involves the operation of the CAMA 2020 and so the appropriate Court with jurisdiction is the Federal High Court. What would be your response as Plaintiff’s Counsel; and at what time, and how could an objection of this nature be properly raised. August 2011 No 5(b) (i) & (ii) 18 My response to the objection by Defendant’s Counsel would be that although Section 251 CFRN 1999 confers jurisdiction on the Federal High Court over matters pertaining to the operation of CAMA, the cause of action in this case involves a simple contract over which the Constitution has conferred general jurisdiction on the State High Court Section 272 CFRN. Onuorah v KRPC; An objection to jurisdiction is fundamental and can be raised at any stage in the proceedings even for the first time on appeal. Madukolu v Nkemdilim; However, it is preferable to raise such objection at the earliest opportunity. Such objection can be raised in any manner, by 1. a Motion, 2. by Notice of Preliminary Objection challenging the Court’s jurisdiction, 3. by oral application challenging the Court’s jurisdiction, or 4. even by the Court suo motu. Elabanjo v Dawodu.; Arjay v AMS Ltd. POSSIBLE EXAM QUESTION FROM JURISDICTION In the bar exam, you may be asked the following questions in relation to the issue of jurisdiction: 1. In which court will you institute the action and why? (see April 2018 Q 1a & c) To answer the above question, check the cause of action and the parties. 2. Comment on the jurisdiction of the court to entertain the suit above? If you are asked the above question, it means the scenario must have mentioned a particular court where the action was commenced. Therefore you are expected to check from that given scenario if that 19 court has jurisdiction and if not; state the appropriate court. (See August 2019 Q 3a, December 2020 Q 1a) ETHICAL ISSUES ON JURISDICTION: (Every topic has its own ethical issues it is not only in LIP that questions on ethical issues are asked): 1. A Lawyer should avoid commencing an action in the wrong court or judicial division. 2. A lawyer should advise the client on the importance of ADR 3. A lawyer should represent the client competently R. 16 of RPC 4. Dedication and devotion R. 14 of RPC. 5. Avoid conflict of interest; R. 17 RPC Note: RPC means Rules of Professional Conduct 2007. CHAPTER THREE PARTIES TO A CIVIL SUIT Your interest here is only to ascertain the proper designation of parties in different jurisdictions. In Abuja & Lagos: Presently in Abuja and Lagos the party suing is the CLAIMANT while the party sued is the DEFENDANT; see Order 1 and Order 13 of the 2018 Abuja Rules. NOTE the following: Claimant and Defendant is used when the action is instituted by Writ of summons Applicant and Respondent is used when instituted by originating summons/or motions) 20 Petitioner and Respondent is used when the action is instituted by Petition For an action to be competent, parties must be legal persons i.e. either natural persons or an artificially created legal person e.g. a limited liability company. If the legal capacity of a plaintiff/claimant or a defendant is raised, the onus lies on the person claiming that he has capacity to prove his competence to conduct the action. If a party is proved not to be competent to sue or defend the action, he may be struck out of the suit. If the incompetent party is the plaintiff/claimant, the action itself may be struck out. – Shitta v Ligali (focus) TYPES OF PARTIES N/B law school may not ask you to define the various types of parties but you should be able to identify from every given scenario who is suing and who is to be sued. a. Proper parties. These are parties who are directly affected/involved by the suit and whose interest will be directly affected if a relief in the claim were granted. Mobil v. Lasepa. i.e, the Plaintiff who alleges to have suffered the damage and Defendant who occasioned the damage - 2009 b. Desirable parties. These are those who have an interest or who may be affected by the outcome of the suit. Hence, their interest will be prejudiced if they are not joined as parties. A.G Federation vs. A.G Abia State c. Necessary parties. These are those who are interested in the subject matter of the proceedings and in whose absence, the proceedings 21 cannot fairly be dealt with. i.e those whose presence are necessary for the proper determination of the suit. Green v. Green, Babayeju v. Ashamu. Where an agent acts on behalf of a disclosed principal, the principal is a necessary party. d. Nominal parties. These are parties who have no direct interest in the subject-matter but are made parties by virtue of their office e.g. Attorney General, Corporate Affairs Commission, INEC. N.B The Attorneys General of the State who are the Chief Law Officers of the States are the proper party in actions involving the State. POSER: Assuming a Landlord executed a Power of Attorney in favour of a Solicitor to manage his property and recover possession from tenants and other incidental matters, who will be the proper parties in the suit against James Peters to recover possession. Draft the parties heading on the Plaint. August 2011 No 4 (c) Name of donor of POA Claimant (Suing through his Lawful Attorney [NAME]) AND James Peters Defendant SPECIAL PARTIES TO A SUIT: 1. INFANTS: infants are categorised as persons with legal disability therefore, they can sue and defend actions through their guardian ad litem; Order 1 Rule 5 of the 2018 Rules and Order 15 Rule 9 Lagos Rules 2019. 22 NOTE: such guardian must however file a written authority for that purpose signed by that person in the registry; Order 15 Rule 10 Lagos Rules (Bar final August 2016 Q 1 and 2020 Q4). Sample draft as it would appear in the originating process if a minor is suing; (very important) BOBO KELS (Suing through his Guardian, MR. JIDE KELS)’………..CLAIMANT 2. LUNATICS: in Abuja can sue and defend actions through a Guardian or Committee in Lunacy. In Lagos; they sue or defend by their guardians. 3. TRUSTEES/ Executors and Administrators of Estates: the name of the trustee or Executor must appear on the Court processes stating that they sue as the executor of the deceased or the administrator if there is no will: Order 13 Rule 15 Abuja 2018; Order 15 Rule 11 Lagos Rules 2019 Sample draft: Musa Ardo (suing as Trustees/Executor or Administrators of the Estate of Sani Abacha deceased) …… Claimant 4. Registered associations such as Charitable organisations/non-trade organisation, schools, churches etc.; can sue and be sued in the name of its Incorporated Trustees. Draft: Registered Trustees of J &J School…Claimants or Defendants; 5. Partnerships– could sue in the firm’s name, individual name as partners or one or more could sue representing the other parties e.g. (see August Bar Final 2018 Q1a & 2019 Q 1d); 23 Obi John and James King; (Trading under the Name and Style of Bus G. Enterprises) ………..Claimant 6. The Government of a State or Federation: can sue and defend actions through the AGS or the AGF. This is because they are the Chief Law officers of the Government. S. 150, 195 CFRN 7. Unincorporated Association: They generally cannot sue or be sued in their names, as they are not legal personalities. They generally sue or are sued through representatives. Fawehinmi v. NBA, Nigeria Nurses Association vs. A.G Federation. (focus) 8. Statutory Bodies: These are bodies like, NITEL, etc. which can sue and be sued in their statutory names depending on the instrument creating the body. 9. Trade Unions can sue and be sued in their registered names. In Bonsor v Musicians Union it was held that though an unincorporated body, the Musicians Union could be sued for breach of contract as a legal entity and that damages could be recovered out of the Union funds NOTE Diplomats and members of their families are immune to all forms of civil action and therefore cannot be sued, Section 1(1) Diplomatic Immunities and Privileges Act; Ishola Noah v British High Commissioner; (August 2019 Bar Final Q. 3b&c) 24 EFFECT OF SUING OR BEING SUED IN A WRONG CAPACITY a) It is fatal to the action if the person is the claimant; Order 13 Abuja Rules; Order 15 Rule 2 Lagos 2019 Rules. This is because only juristic persons known to law can sue. b) Order 15 Rule 5 Lagos: Where an action has been instituted against a wrong defendant or where the name of a defendant has been incorrectly stated a judge may upon application order a substitution or addition of any person as defendant or correction of any such name on any term as may be just. JOINDER OF PARTIES TO AN ACTION In the a given case, if a person who was ordinarily supposed to be a party was omitted in the suit, such a person or any of the parties who intends to join the person to the suit can bring an application by MOTION ON NOTICE supported with an AFFIDAVIT and a WRITTEN ADDRESS to be joined in the suit; Order 14 Rule 5 of the Abuja Rules;; Order 15 Rule 16 Lagos, Awoniyi v. Registered Trustees of ARMOC The joinder of parties takes effect from the date the court so orders and not from the date the writ of summons was filed before the court–Oduola v. Ogunjobi. NOTE: The court may in its discretion suo motu order that a person be joined in a suit. Time to apply for Joinder: Although an application for joinder may be made at any time even on appeal, it is however preferable to do so at Case Management Conference in Lagos or Pre-trial Conference in Abuja. 25 NOTE: The application must be coupled with; 1. statement of claim or defence, 2. list of the exhibits to be relied on and 3. written deposition of the witnesses. Conditions for Grant of the Application: A party complaining of not being joined in the suit must satisfy the court that: a. He is entitled to some share or has interest in the subject matter of the suit; b. He is likely to be affected by the outcome of the suit; and c. If he is not made a party, the case cannot be decided with finality Order 14 Rule 5(1) Abuja High Court Rules; MISJOINDER OF PARTIES Where a wrong person who is unconnected to the suit in any way is joined in an action or a person who is immune to a civil action is sued for instance a diplomat, an application praying the Court to strike out the name of the party wrongly joined will be made. See O. 14 R. 5(5) FCT Rules, O. 15 R. 16(2) Lagos Rules 2019; (August Bar final 2019 Q 3C) The application will be by a MOTION ON NOTICE supported with an AFFIDAVIT and a WRITTEN ADDRESS. DEATH OF PARTIES IN A CIVIL SUIT A dead party ceases to have legal personality from the time of his death either personally or in a representative capacity. The action then abates: Okotie & Ors. v. Olughor. 26 The only EXCEPTION is where the cause of action is not a personal action. This is captured in the Latin maxim: action personalis moritur cum persona meaning “a personal action dies with the person”. However, where the action survives the sole plaintiff, an application may be brought by his legal representatives to be substituted for the dead party; Order 14 R. 39 Abuja Procedure for Substitution of Party: It is applied for by a Motion on Notice + affidavit + written address. REPRESENTATIVE ACTIONS Where several persons have similar interests in a suit, one or more of them may, with the leave of the Court (Exparte), be authorized by the others interested or defend the suit on behalf of all parties. Atanda v. Olanrewaju. These are known as representative actions and are generally employed in the following circumstances: 1. Representative suits are mainly used in actions by family heads or principal members for and on behalf of the family; 2. Officers or members of an association or common groups not bearing legal personality on behalf of the association or common group; 3. Next Friends and Guardian ad Litem for and on behalf of infants and lunatics; 4. Actions in respect of estate of deceased persons and executors of wills and letters of administration; 5. Other groups of persons with common interest in the subject matter of the action who decide to use a few persons to represent the entire persons constituted in that group. 27 Before a representative action may be instituted, those represented must have a common grievance, the relief sought must be beneficial to all, and the parties must give express CLASS ACTIONS - Order 13 rule 15 Abuja; Order 15 rule 13 Lagos – March 2021 Class actions are also known as group litigation. It is used where the wrong complained of affects a wide spectrum of persons It will apply in a situation where in any proceedings the person or class of persons or some other members of that class that may be interested in the subject matter cannot be ascertained or cannot be readily ascertained or if ascertained cannot be found or if ascertained and found, it is expedient for the purpose of efficient procedure that one or more persons be appointed to represent that person or class or member of the class. The difference between class action and representative action is that in the latter, persons involved know each other unlike a class action where the persons involved are not determinable PROCEDURE: Motion Ex Parte + Affidavit + Written Address SCOPE: LAGOS 1. Construction any written instrument including a statute 2. Administration of estate 3. Property subject to trust 4. Land held under customary law as family/community property SCOPE: ABUJA 1. Torts 2. Construction any written instrument including a statute 3. Administration of estate 28 4. Property subject to trust 5. Land held under customary law as family/community property STEPS TO TAKE FOR CLASS ACTION STEPS – (focus) 1. Commence class action in view of the inability to identify all the claimants 2. Application will be by leave of court to permit representative of one or some of the persons to commence class action 3. The application is by Motion Ex-parte + AFFIDAVIT + Written Address 4. If leave is granted any member of the class including those not before the court will benefit from the judgement. They will also be bound by the outcome of the case UNLESS there is a. Fraud b. Non-Disclosure of material facts POSSIBLE EXAM QUESTIONS ON PARTIES 1. Identify the necessary parties in the above case and their designation? If you are asked the above question check if any of the following is involved: i. A minor (mention the name of the minor and add ‘suing through the guardian………..) ii. State or federal government (write A.G of the State or Federation) iii. Registered associations/schools/churches (add ‘Incorporated Trustees of……(add the name of the school or association)) iv. Business name (write the name of the persons doing the business and add ‘trading under the name and style of…….) 29 v. Representative action (write the name of the appointed representatives and add ‘suing for themselves and on behalf of…….. (name of the group to be represented)) 2. Draft the heading of the court up to the parties as it would appear in the originating process to be filed in the above suit? (See Sept. 2016 Q1a, Jan. 2020 Q 4b) POSER Can the Governor of a State be sued? 2009 No 1(b) No civil proceeding can be instituted or continued against any person holding the office of Governor or Deputy Governor, or President or Vice President while he is in office. Section 308(1)(a) CFRN Also the appearance of such person cannot be compelled by any process of court. Section 308(1)(c) CFRN. Therefore the Governor of a State can neither be sued nor can his presence in such proceedings be compelled by any process of the Court. The action against him will be incompetent and cannot be entertained by the Court. Tinubu v IMB Securities; Fawehinmi v IGP. CHAPTER FOUR 30 PRELIMINARY ISSUES TO CONSIDER BEFORE COMMENCEMENT OF ACTION Before commencing an action, there are certain factors a legal practitioner should consider. Some of such matters include: (see August bar final 2019 Q 1a, Dec 2020 Re-sit Q 5b) 1. Existence of reasonable Cause of action (this relates to the facts which entitles the claimant to sue) 2. Parties (proper parties must be brought before the court and must be juristic persons. Where the wrong parties are sued, the matter will be struck out) 3. Availability of ADR methods 4. Jurisdiction of the court 5. Locus standi- i.e the legal right to sue which is determined by interest in the subject matter 6. Limitation of time 7. Cost of litigation 8. Venue 9. Requirement of pre action counselling 10. Satisfaction of condition precedents like Pre-action notice The following must be noted with respect to pre-action notices: a. The provision of any law providing for pre-action notice is mandatory b. Non-issuance of such pre-action notice, where required, is fatal to the suit as such suit will be incompetent against the party who ought to have been served with the notice. 31 c. This right may, however, be waived by the defendant taking steps in the proceedings. NNPC vs. SELE d. Failure to serve a pre-action notice must be pleaded by the defendant. Failure to plead it amounts to a waiver. Amadi vs. NNPC COMMENCEMENT OF ACTION IN THE MAGISTRATE COURT IN LAGOS STATE There are 2 main methods: 1. Claim a. Ordinary Summons (contentious matter) b. Summary Summons (liquidated Money demand) 2. Originating Application (Non-contentious Matter, Interpretation of document) See Order 1 Rules (1) and (2) of the Magistrate Court (Civil Procedure) Rules 2009 Schedule 4 to the Magistrate Court Law No.16 2009 of Lagos State. SMALL CLAIMS COURT LAGOS STATE (NOTE questions came out from here in the January 2020 Bar Final Exam MCQ Qs. 1-5) The objective of the small claims procedure which was recently introduced in Lagos to provide easy access to an informal, inexpensive and speedy resolution of simple debt recovery disputes in the Magistrates’ Courts. COMMENCEMENT OF ACTION AT SMALL CLAIMS COURT An action may be commenced in the Small Claims Court where: 32 (a) The Claimant or one of the Claimants resides or carries on business in Lagos State; (b) The Defendant or one of the Defendants resides or carries on business in Lagos State (c) The cause of action arose wholly or in part in Lagos State. (d) The claim is for a liquidated monetary demand in a sum not exceeding N5, 000,000 (Five Million Naira), excluding interest and costs. (e) The Claimant has served on the Defendant, a LETTER OF DEMAND as in Form SCA 1. (f) The action shall be commenced by CLAIM (by completing the Small Claims Complaint; Form SCA 2) SERVICE OF THE SUMMONS The Summons shall be served on the defendant within seven (7) days of filing by the Sheriff of the Small Claim Court. NOTE: if personal service is not possible, the claimant will apply for substituted service. FILING OF DEFENCE/ADMISSION/COUNTERCLAIM 1. Upon service of the Summons, the Defendant shall file his Defence/Admission or Counterclaim within Seven (7) days by completing Form SCA 5. 2. The Claimant may file a reply to the defence or counterclaim within 5 days of service and NO further pleadings will be filed thereafter. Note that the defendant can counterclaim up to an amount not exceeding N10, 000,000 (Ten Million naira) (interest and cost not included). 33 NON APPEARANCE OF THE PARTIES Where on the date fixed for hearing, neither party appears, the Magistrate shall unless he sees good reason to the contrary, strike out the claim. Where the Claimant appears but the Defendant does not appear, provided there is proof of service, the Magistrate shall proceed with the hearing of the claim and enter Judgment as far as the Claimant can prove his claim. Where the Defendant appears but the Claimant does not appear, the Defendant if he has no counterclaim shall be entitled to an Order striking out the claim, but if he has a counterclaim, the Magistrate shall proceed to hear the counterclaim and enter Judgment accordingly. DURATION OF PROCEEDINGS BEFORE THE SMALL CLAIMS COURT 1. Before hearing, the parties will be given 7 days to explore amicable settlement of the matter. If they fail, the matter will proceed to hearing. 2. The entire hearing period shall not be more than thirty (30) days from the first date of hearing, inclusive of the seven (7) days for amicable settlement. 3. The entire period of proceedings from filing till judgment shall not exceed Sixty (60) days. 4. The Magistrate must deliver its judgment within 14 days of completion of hearing; however any judgment delivered after the 14 days period is not invalid. 34 5. Hearing shall be from day to day and adjournment will only be granted in exceptional cases for a short period. 6. The judgment when entered shall be enforced 14 days after it was given. APPEALS 1. Appeals from Small Claims Court lies to the High Court 2. Where either party is aggrieved with the Judgment, such party shall fill the Appeal form, as in Form SCA 8 within 14 (fourteen days) of the delivery of the Judgment. 3. The Appeal shall be by oral hearing of the parties and on the records of the appeal. 4. The whole Appellate Process from the assignment of the Appeal to Judgment shall not exceed thirty (30) days SEE ARTICLE 2-14 OF THE SMALL CLAIMS PRACTICE DIRECTION 35 CHAPTER FIVE COMMENCEMENT OF ACTION IN THE HIGH COURT This is one of the most important topics in civil litigation. This is because the High court is a court of unlimited jurisdiction; therefore it can entertain any matter except where the law clearly stipulates that such matter should go exclusively to another court. NOTE, all matters relating to contract, tort (negligence, nuisance, defamation etc.), land matters etc. are commenced at the state high court. PLACE OF COMMENCEMENT/VENUE: (this will help you to answer questions like “In which Court will you institute the action?” see August 2013 Q2, 2014 Q2, 2016 Q3, April 2018 Q1 & 4) 1. For Land matters/disputes the matter can be instituted in the High court of the State where the land is situated (lex situs): Ors 3 R 1 Abuja Rules; Ors 4 R 1(1) Lagos. 2. An action arising from contracts is to be instituted where the contract is to be performed or where the defendant resides or does his business: Ors 3 R 3 Abuja; Ors 4 R 3 Lagos. If a company is a party in the suit, action is to be commenced in the judicial division where it has its central place of business, management and control or its registered head office- Kraus Thompson v UNICAL 3. For any other type of breach like tort, fundamental rights breach etc. you institute the action where the breach occurred or where the defendant resides. 36 ACTION COMMENCED IN THE WRONG JUDICIAL DIVISION In Abuja PRESENTLY, under the new Rules, it is only the Chief Judge that can consider a case for transfer to another judicial division if the action was commenced in a wrong one. See Ors 3 R 6. In Lagos, the matter could proceed in that court’s judicial division UNLESS the Chief Judge directs otherwise: Ors 4 R 3 Lagos. FORM/MODES OF COMMENCEMENT OF ACTION (This is also known as Originating Processes). Ors 2 ABJ, Ors 5 Lagos Actions are commenced in the High Court through four different processes via: a. Originating motion b. Originating summons c. Petition d. Writ of summons 1. ORIGINATING MOTION This is used only when provided for by a statute or a rule of court. Examples of actions to be commenced by this way are; a. Application for habeas corpus, b. Order for mandamus, c. Prohibition or certiorari, d. Application for judicial Review e. Action for the enforcement of fundamental rights under the Fundamental Rights Enforcement Procedure Rules 2009. Note: parties are usually referred to as ‘Applicant and Respondent’. 37 Documents to be attached to the application: 1) Affidavit 2) written Address and 3) other exhibits to be relied on. 2. ORIGINATING SUMMONS – August 2011 This is used whenever there is interpretation of a written law, documents or other agreements. It is used generally for non-contentious matters i.e. those matters where the facts are not likely to be in dispute. Director of State Security Service v Agbakoba, National Bank v Alakija. In Abuja, the defendant has 8 days to respond and in Lagos, the Respondent has 21 days to respond. Examples of some actions to be commenced by This Mode Are: a. Action for interpretation of the constitution or other laws, documents etc. b. Actions between States and federal government or between National Assembly and the President; (Dec 2020 Q 2b) c. Interpretation of any instrument or deed, d. Construction of Wills, clauses in contracts, agreement or some other question of law. O. 2 R. 3(2) Abuja; O. 5 R. 4 (Lagos 2019 Rules) Documents that will accompany the Originating Summons are: - August a. An Affidavit setting out the facts to be relied on b. Exhibits to be relied on at trial c. A written address in support of the application d. Pre-Action Protocol Form 01 with necessary documents (Lagos) or Certificate of pre-action counselling Form 6(Abuja); 38 Ors 5 R. 4(3) Lagos Rules; Ors 2 R 3(5) Abuja Rules Where an action is wrongly commenced by originating Summons, the trial court may either strike it out or convert it to writ of summons and order for pleadings. PDP v Atiku Note that where the question to be determined arises in the administration of an estate or a trust, then the summons is titled “In the matter of the estate or trust” N.B – focus Challenge an originating summons by filling a counter affidavit. The consequence of failure to file counter affidavit is that the facts in the process of the claimant will be deemed to have been admitted The parties are referred to as CLAIMANT and DEFENDANT. 3. PETITION This is a written application made to court setting out a party’s case. It is only used where a statute or the rule of court provide for its use. Some examples of Suits to Be Commenced by Petition Include: a. Dissolution of marriage-matrimonial proceedings, b. Election petitions; section 133 Electoral Act c. Winding up of companies and other applications under the CAMA. NOTE: that in a petition, the parties are referred to as PETITIONER and RESPONDENT. 4. WRIT OF SUMMONS (This is exam focus August 2013 Q 2b, 2014 Q 2b, 2016 Q 3b; April 2018 Q 1(b & d), April 2019 Q 4b, Jan 2020 Q 4a and Dec 2020 Q 1d) 39 (If you are asked in the exam, by what Mode/originating process will you commence the action? Your answer is below) Writ of summon is used to commence every action1 EXCEPT if a particular rule or law, provides otherwise: Ors 2 Rule 2(1) Abuja; Ors 5 R 1 Lagos The writ is the default or main mode of commencing all actions in the High Court for contentious matters. Generally, when counsel is in doubt as to how to commence a proceeding, it is most appropriate to use the writ of summons- Doherty v. Doherty. Thus in the exam, all actions relating to contract or interest in land, tort e.g. negligence or defamation, trespass etc. which mostly are contentious should be commenced by writ of summons. COMMENCEMENT OF ACTION An action is commenced when all of the following has been done: 1. Filing fees are paid on the processes. 2. Any Affidavit or Witness Statement on Oath have been taken before the Commissioner of oaths 3. The processes are duly served on the adverse parties 4. The Registrar of the Court gives it a suit number and it is entered in the Cause Book; see UBA v. Mode Nig. Ltd; Alawode v. Semoh 1 Any relief or remedy for any civil wrong or Damages for breach of duty, whether contractual, statutory or otherwise, or Damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or in respect of damage or injury to any property. Where the claim is based on or includes an allegation of fraud, or Where an interested person claims a declaration. 40 FRONTLOADING OF DOCUMENTS (Focus) 🔄 This means the document that accompany the writ of summons: a. Statement of claim; b. List of witnesses to be called at the trial; c. Written statements on oaths of the witnesses except subpoenaed witnesses d. Copies of every document to be relied on at trial e. Pre-Action Protocol Form 01 with necessary documents (in Lagos) OR Certificate of Pre-Action Counselling as in Form 6 (in Abuja); O. 2 R. 2(2) Abuja and O. 5 R. 1(2) Lagos NOTE: Students are always asked in the exam to list the documents that will accompany a writ of summons: (see, August 2018 Q 1b, 2019 Q 3h, April 2018 Q 4c, Dec 2020 Q 1d) Effect of Not Filing the Requisite Documents Along With the Writ: May 2011 In Abuja, the Registrar shall not issue the writ– Order 2 Rule 2(4), its to be treated as irregularity and shall not nullify the proceedings, judgment or document. Ors. 5. In Lagos, failure to include the accompanying documents will nullify the action–Order 5 Rule 1(3) Lagos; (Dec 2020 Q 1d(iii)) In Jabita v Onikoyi, it was held that a writ unaccompanied by the prescribed documents shall be struck out. 41 Application to set-aside for irregularity is made by motion in lagos and summons /motion in Abuja with grounds of the objection stated in the motion – Ors 5 R2(2) Abj , Ors 7 R 2(2) Lagos When Is A Writ Said To Be Issued? The Registrar issues the writ of summons, but it could be issued by any other officer authorised by the court. In ABUJA, the writ is issued when it is signed by the Registrar provided it is accompanied with the necessary documents required above–Order 2 Rule 1 Abuja. In LAGOS, a writ is said to be issued when the Registrar seals the writ; O. 8 R. 1(1) Lagos 2019 Rules. But in practice, it is also signed. NOTE: the Writ must be signed by a named Legal Practitioner in the Firm and not by or in the name of the firm; see Nweke v Okafor; (August 2019 Q 3d). CONCURRENT WRITS Ors. 8 Lagos Rules, Ors. 6 Abuja Rules When a writ is to be served on a defendant within jurisdiction and also on another defendant outside jurisdiction, the writs are described as concurrent writs; O. 8 R. 9 & 10 of the Lagos Rules 2019, O. 6 R. 9 Abuja Rules It must be endorsed on top of the Writ that it is issued by the Court for service outside the jurisdiction of the Court and marked ‘CONCURRENT’. LIFE SPAN OF A WRIT (August 2013 Q2, 2014 Q2, 2016 Q 3) O. 6 Abuja Rules; O. 8 Lagos Rules This means how long a writ will remain valid until served on a defendant by the claimant. 42 The life span of writ in ABUJA and LAGOS is 6 months renewable for a period of 3 months twice. The second renewal may only be granted for good cause; O. 6 R. 6 & 7 Abuja; O. 8 R. 6(1) Lagos Rules. NOTE: where a defendant is served with an expired Writ without renewal, he may raise a preliminary objection or file a motion on notice for the writ to be set aside. RENEWAL OF A WRIT Once a writ is expired, it cannot be served on the defendant until it is renewed. A writ can be renewed by filling a MOTION EX PARTE for renewal supported with AFFIDAVIT stating cogent reasons for the delay and Written Address In Abuja and Lagos you can only apply for renewal before the expiration of the writ: O. 6 R. 6(2) Abuja; O. 8 R. 6 (2) & 7 Lagos. NOTE that in Kolawole v. Alberta the Supreme Court held that a writ of summons can be renewed even after its expiration. POSER: Within what time must a writ of summons (in Lagos) be served after the date of issue and what steps would the claimant take if he is unable to serve within that period. 2009 No 2(d) The life span of a writ of summons in Lagos is 6 months in the first instance, after which it becomes invalid except renewed. Where the Claimant is unable to serve the process during the 6 months period, he should apply for renewal of the writ for a further period of three months. The Court can only grant 2 renewals in each case provided that an originating process shall not be in force longer than a total period of 12 43 months. This should be done before the expiration of the writ. But the Claimant can still apply for renewal after the expiration of the writ. Kolawole v Alberto EFFECT OF ACTIONS COMMENCED BY WRONG MODE Commencing an action by the wrong mode is no longer interpreted to be fundamental EXCEPT where the law specifically provides otherwise. For example, if an action is commenced by originating summons instead of by writ of summons, the court will order a conversion of the originating summons to a writ of summons and order the parties to file their pleadings; Uchendu v Ogboni. SERVICE OF ORIGINATING PROCESSES Purpose of Service- The general purposes of service of process is to give notice to the defendant where an originating process is not served on the adverse party, the court lacks jurisdiction to entertain the action- NBN v. Guthrie; Ezomo v Oyakhire. Any decision arrived at without service to an adverse party will be set aside on appeal or even by the same court; Mark v Eke MODES OF SERVICE OF PROCESSES: There are two types of service: a. Personal service b. Substituted service 44 PERSONAL SERVICE:  Originating processes must be served personally on the defendant (or defendants if more than one) unless where substituted service become necessary upon order of the court; Order 7 Rule 2 (Abuja 2018); Order 9 Rule 2 (Lagos Rules 2019).  Note: where the Claimant authorized a Legal Practitioner in writing to accept services on his behalf and the Legal Practitioner enters appearance, the processes may be served directly on the LP; O. 9 R. 3 Lagos Rules 2019 SUBSTITUTED SERVICE: (Important area for Bar Final Exams see August 2018 Q. 6a, August 2019 Q. 5e) O. 7 Abuja; O. 9 Lagos This is usually applied for when an attempt to effect service personally on a party has failed or that the party is evading service. Sometimes the court may order substituted service without an attempt at personal service; O. 7 R. 11 Abuja; O. 9 R. 5 Lagos Procedure for applying for Substituted Service: (This is very important and it is usually asked) 1. Apply for leave of the court by MOTION EX PARTE supported with an AFFIDAVIT stating the grounds for the application (why personal service had been difficult or impossible) and WRITTEN ADDRESS. 2. State in the application(prayer) the proposed means of serving it on the party. This may include the following: a. Newspaper publication b. Pasting at the last known address of the defendant c. Delivering it to an adult occupant of the defendants compound 45 d. Sending it via email or other electronic means agreed upon by the parties or as may be allowed by the court see Order 7 R 11(1) & (2) Abuja; O. 9 R. 5(1) & (2) Lagos Rules DRAFT: AN ORDER granting leave to the claimant/applicant to serve the processes in the suit to the defendant by substituted means by (any of the above 4) NOTE: Companies You serve a company by delivering the process to a director or any principal officer of the company or by leaving it at the registered address of the company within jurisdiction of the court; O. 9 R. 9 Lagos; Order 7 Rule 8 of Abuja, Mark v Eke (Dec 2020 Q 1f) Originating processes are required by law to be served on the defendant by personal service. The service is to be effected by the Sheriff, Deputy Sheriff or other relevant officer of Court. Personal service on a company is effected delivering the process on any of the Principal Officers of the Company or by delivering at the Registered office of the Company. Service of a process on a messenger is invalid service. Mark v Eke. Service of a process at the Branch or other office of the Company, not being the Registered Office is invalid service. As a Defendant Counsel, I will raise a preliminary objection to challenge the service as irregular. Service of Originating Processes Outside Jurisdiction of the Court – MAY, Section 97 SCPA IN ABUJA, the Procedure is as follows: 46 1. A special endorsement must be made on the writ by the Registrar indicating that it is for service out of Jurisdiction-Section 97 of Sheriff and Civil Processes Act (SCPA). The endorsement may be drafted thus: ‘This (originating process) is to be served out of the Federal Capital Territory, Abuja and in ………..State’ see Order 2 Rule 4 of the Abuja Rules 2018 2. The defendant must be given not less than 30 days after service to enter appearance: section 99 of the SCPA. IN LAGOS, the only procedure required is: That the Registrar will only endorse on the writ that it is to be served outside jurisdiction. The special endorsement may be drafted vice versa as the sample given for Abuja above; i.e. ‘This (originating process) is to be served out of Lagos State and in ………..State’ Order 9 Rule 16 Lagos NOTE: in Lagos, there is no need to give the defendant 30 days to enter appearance since the Lagos Rules provided for a period of 42 days which is longer than the period provided under the section 99 of the SCPA. Effect of Non-Compliance with Procedure for Service Outside Jurisdiction: Where a writ to be served out of jurisdiction did not comply with the procedure above, it will be defective and may be set aside by the court; Sken-Consults Limited v Ukey. 47 Therefore, if you are counsel to the defendant, you will raise a preliminary objection against such writ; Adegoke Motors Ltd. v. Adesanya & sons POSER Write a one-page opinion on the ruling of the Court who dismissed an application on the grounds that the Writ need not be endorsed for service outside jurisdiction – May 2012 The ruling of the Court would be wrong because where the Defendant resides or carries on business in another State and is to be served with an originating process, there be an endorsement that the process is for service outside the jurisdiction of Nigeria. Section 97 SCPA and the writ must also provide that the Defendant is given not less than 30 days to answer to the writ (42 days in the case of Lagos). Section 99 SCPA Service Of Originating Processes Outside Nigeria (this has never been asked in Bar Final Exam) The procedure is as follows: 1. Apply by Motion Ex Parte for leave to issue Writ out of the jurisdiction of Nigeria and for substituted service stating how the process should be served. 2. The proposed Writ of Summons to be served will be attached as an exhibit to the affidavit in support of the Motion; see Order 8 of Abuja Rules 2018; Order 10 of Lagos Rules 2019. 3. The defendant must also be given 30 days to enter appearance. 48 TIME OF SERVICE OF PROCESSES (MCQ question) In Abuja and Lagos, processes of courts are to be served between 6am and 6pm daily (Monday to Saturday) EXCEPT on Sundays and Public Holidays. However, in exceptional circumstances, by a court order processes may be served on a Sunday or Public Holiday: O. 9 R. 14(1) & (2) Lagos 2019 Rules; O. 7 R. 15(1) & (2) Abuja Rules 2018. Refusal to Accept Process or Threat of Violence: Where a defendant or any person to be person to be served refuses to accept the process, the Bailiff or the process server should leave the process within the reach of the Defendant. The Bailiff has to swear an affidavit stating what transpired: O. 9 R. 12 Lagos Rules and O. 7 R. 12 Abuja 2018 Rules. Options Open to Defendant After Being Served With A Defective Writ The defendant can enter a conditional appearance and by filing a Motion on Notice to set aside the service for the Writ for being defective: 1. File a motion on notice to set aside the writ itself for being defective without entering an appearance: Sken Consult Ltd. v. Ukey. 2. File a Notice of preliminary objection challenging the jurisdiction of the court with or without entering appearance: AG Eastern Nigeria v. AGF TIME FOR ENTERING OF APPEARANCE (Exam Focus April 2018 Q.4g & August 2018 Q.1b) In ABUJA the defendant has 14 DAYS within which to enter appearance. If the defendant is outside jurisdiction, then he has 30 DAYS; Order 9 Rule 1 of the 2018 Rule 49 In LAGOS, the defendant is to enter appearance within 42 DAYS after the service of the writ whether the defendant is within or outside the jurisdiction. – O.11 R. 1-3 Lagos 2019. The defendant will enter appearance by filing his MEMORANDUM OF APPEARANCE. This Memorandum of Appearance must be served on the claimant(s) and other defendants if more than one defendant was sued within 7 DAYS of entering appearance. Documents that will accompany Memorandum of Appearance: a. Statement of defence b. Witness Statement on Oath c. Copies of the documents to be relied upon during trial d. List of witnesses (both Abuja and Lagos). Types of Appearances that may can be entered by the defendant: 1. Conditional Appearance: this is used to challenge the action at an early stage without allowing full trial. For example, where the writ was defective or there was no proper service or the court lacks jurisdiction, the defendant may simply enter a condition appearance also known as ‘Appearance in Protest’. After the entry of conditional appearance, the defendant must promptly and without taking any further steps, raise the objection by way of motion on notice otherwise, he would be taken to have waived his right of objection. The court will rule on the objection before proceeding with the substantive suit. DRAFT: CONDITIONAL APPEARANCE 50 WAYS OF PROTESTING DEFECT IN A SUIT - Focus a. Defendant may enter a conditional appearance and later file a motion raising the objection. b. He may without filing any form of appearance file a motion or summons to set aside a defective writ or the service thereof. c. He may also without any form of appearance bring an application challenging the jurisdiction of the court. 2. Unconditional Appearance: this is used where the defendant simply intends to join issues with the claimant by defending or denying his claims. APPEARANCE OUT OF TIME 1. Where the defendant is unable to enter appearance within the stipulated time as indicated above, the claimant may apply for default judgment. However, the defendant through his counsel may avoid a default judgment given against him by seeking the leave of the Court to enter appearance out of time. This application will be by MOTION ON NOTICE supported with an AFFIDAVIT disclosing cogent reasons for non-appearance within time/delay and a WRITTEN ADDRESS. 2. The Motion will be supported with the following : a. Statement of defence b. Witness Statement on Oath c. Copies of the documents to be relied upon during trial d. List of witnesses (both Abuja and Lagos); (see Jan 2020 Q 6a & b) 51 NOTE: the defendant will pay cost of N1000 per each day of default in LAGOS; see O.11 R. 5 Lagos Rule and in ABUJA cost of N200 for each day of default for entering appearance out of time. POSSIBLE EXAM QUESTIONS FROM COMMENCEMENT OF ACTION AT THE HIGH COURT 1. In which court will institute the action? Give reasons for your answer. (To answer this question check whether the issue is land matter, contract or tort) for e.g. see January 2020 Q 4a (Answer: I will institute the action in the high court of Lagos state. This because the incident took place in Lagos and the defendant resides in Lagos). 2. By which mode/originating process will you adopt in commencing the action and why? (Always choose WRIT OF SUMMONS unless the question talks about interpretation or it involves breach of fundamental right.), see Dec 2020 Q 1d (reason is because the facts of the case is likely to be contentious) 3. State/list the documents you will file together with the originating process. 4. Assuming you are counsel to the defendant, what step will you take to defend the action? (Answer: you will enter appearance by filing Memorandum of appearance with 14 days or 42 days) 5. Assuming the defendant is evading service, what step will take to ensure he is duly served? (Answer: you will for leave of court for substituted service by motion ex-parte, supported with affidavit and written address). 6. Possible Drafts: Memorandum of Appearance, Motion on Notice for Extension of time, Motion ex parte for substituted service. 52 CHAPTER SIX INTERLOCUTORY APPLICATIONS (VERY IMPORTANT) Generally, interlocutory applications are applications made in the course of pending proceedings. Once an action has been commenced, all subsequent applications are referred to as interlocutory applications–NALSA Team Associates Ltd. v. NNPC, Kotoye v. Saraki. PURPOSES OF INTERLOCUTORY APPLICATIONS 1. To cure defects in substantive suit e.g. to amend pleadings. 2. To obtain some temporary relief especially when time is of essence. 3. To nip an action in the bud e.g. a preliminary objection to the Court’s jurisdiction to hear the matter. 4. To fulfill a condition precedent to the commencement of a substantive suit e.g. a man suing in a representative capacity and he needs leave of court to sue. NOTE: all Interlocutory Applications are by MOTION which may be on Notice (to be served on the adverse party) or Ex parte (no address for service). APPLICATIONS BY MOTION ON NOTICE 1. All applications extension of time to do any act or to file any process: N.B For an application for extension of time the rules require the defendant to show good cause/defense. This is done by exhibiting such defense in the affidavit 2. Application for interlocutory injunction 53 3. Application for striking out of a suit or name 4. Application for adjournment a case (Motion on Notice or by a formal letter to the Judge in chamber) 5. Interpleader summons 6. Application for amendment of any court process 7. Application for joinder of party in a suit 8. Application for installment payment of judgment sum APPLICATIONS BY MOTION EX PARTE 1. Leave to sue in a representative capacity. 2. Anton Pillar Injunction 3. Mareva injunction 4. Application for substituted service 5. Application for third party proceedings. 6. Application for Interim injunction 7. Application for renewal of writ of summons. SPECIFIC INTERLOCUTORY APPLICATIONS A. REPRESENTATIVE ACTIONS Ors 13 Rule 14 Abuja, Ors 15 R 12 This will arise where two or more persons have the same interest in one suit, one or more of them may, with the leave of the Court, be authorised by the other persons interested to sue or to defend the suit on behalf of all the parties. It is mostly used for family, community or unregistered associations. (See August 2017 Q 4a and April 2018 Re-sit Q 4b) 54 Matters Where Representative Actions Can Be Filed: The Abuja (Civil Procedure) Rules 2018 provides and specifies matters where representative actions can commence, they are matters under: i. Administration of estate ii. Property subject to trust iii. Land devolved under other interest as family or community property iv. Construction of any written instrument including a statute v. Torts. See order 13(15) Abuja (Civil Procedure) Rules 2018; Order 15 Rule 13 Lagos Rules 2019 Procedure for Bringing Representative Action2 (March 2021) The representatives will first seek the leave of the Court to sue in a representative capacity by a MOTION EX PARTE supported with an AFFIDAVIT exhibiting the letter of authority or memorandum signed by a majority of members authorising the representation indicating the names of the appointed representatives and a WRITTEN ADDRESS. The Conditions/Factors for Representative Action (August 2017 Q4,). The court will consider the following before granting the leave: 1) Common interest and grievance of all the persons sought to be represented. It must be the same. 2) The reliefs sought must be beneficial to all represented. See Atanda v. Olarenwaju 3) The applicants must be duly appointed by the persons to be represented (written authority). 2 Under both rules the need to seek leave of court to sue in a representative capacity seems to have been dispensed with. 55 POSER In an action instituted by an association of which you are a member, write a short reflective opinion on the suggestion by the association that you represent them and also be one of the claimants. 2010 No 1(d) A Legal Practitioner can be made a party to Representative action if he has a common interest in the subject matter of the suit with the rest of the Claimants. However, by Rule 17(5) RPC, a Lawyer shall not appear as Counsel for a client in a matter in which the Lawyer is himself a party. He may however appear but only to represent himself. Fawehinmi v NBA. B. THIRD PARTY PROCEEDINGS (Bar Final August 2016 Q 1d & 2017 Q. 1C, August 2018 Q 4E) This procedure is only available to a defendant or a claimant who is a defendant to a counter-claim. See Bank of Ireland v. UBA; Order 13 Rule 21 Abuja Rules; Order 15 Rule 19 (1) Lagos Rules. Circumstances When Third Party Application Is Needed: i. The watch word to look out for in the exam is LIABILITY. ii. Where the third party will bear eventual liability in whole or in part or will indemnify the defendant for contributing to the breach. So if in the scenario in exam you see any of the above elements and they ask you to advise the defendant on what to do, your answer will be that he should bring an application for third party proceedings. PROCEDURE for 3rd Party Proceedings: (very important) i. The defendant will apply for leave of the court by way of MOTION EX PARTE to issue and serve third party notice. 56 ii. The application will be supported with an AFFIDAVIT stating the grounds for wishing to join the third party and a WRITTEN ADDRESS. iii. If the order is granted a copy of the order and all other necessary processes in the matter will be served on the third party. iv. The third party to be joined has 8 days to enter appearance if within jurisdiction and if not within jurisdiction he has 35 days to enter appearance; O. 13 R. 21 Abuja FCT Rules 2018; Okafor v. ACB Ltd. O. 15 R. 19 Lagos Rules 2019. C. APPLICATION FOR INJUNCTIONS Injunctions are applications aimed at stopping the doing of an act or to maintain the status quo of the parties in certain case either pending the determination of the suit or pending the hearing of the dispute between the parties. An injunction is an order of court restraining the Respondent from doing an act Types of Injunctions: 1. Interim Injunction An interim injunction is one granted to preserve the status quo until a named date or until further order or until an application on notice can be heard. It is granted in situations of extreme urgency made by ex parte – Order 43 R. 3 (1) Abuja and Order 43 Rule 3(1) Lagos. The affidavit must disclose the urgency the urgency otherwise it will not be granted The Main Features of An Interim Injunction Are: 57 i. In the exam, once you see the phrase “Pending when the parties will be heard or pending the hearing of the suit” choose INTERIM INJUNCTION ii. It is made to preserve the status quo until a named date, or until a further order, or until an application on notice for interlocutory injunction is heard or determined. It is only meant to last for a short period especially in cases of extreme urgency. iii. In Abuja and Lagos an ex parte interim order lasts for 7 days and may be extended for another 7 days only; O. 43 Rule 3(2)&(3) Abuja Rules 2018; O. 43 Rule 3(3) & (4) Lagos Rules 2019 iv. It is applied via a MOTION EX PARTE supported with an AFFIDAVIT of urgency and a WRITTEN ADDRESS. NOTE: where there is no urgency or where the right of the adverse party will be affected the court will hardly grant an order of interim injunction. 2. Interlocutory Injunction This is granted pending the determination of the suit or unless discharged by the court. It is applied for through a MOTION ON NOTICE only after a suit has been properly commenced. It is aimed at protecting or preserving the subject matter of the dispute or to order the parties to maintain status quo PENDING THE DETERMINATION OF THE SUIT. N/B in the EXAM once the words: ‘PENDING THE DETERMINATION OF THE SUIT’ is used in the question; the correct answer will be interlocutory injunction. 58 CONDITIONS FOR GRANT OF INJUNCTION APPLICATIONS - CBN v. Kotoye, Obeya Memorial Hospital v. AGF 1. Existence of a legal right – Injunctions are usually granted to protect legally recognized rights – Green v. Green 2. There must be a substantial issue to be tried. 3. Balance of convenience. This is a question of who will stand to lose more if the status quo ante is restored and maintained in the final determination of the suit. 4. Irreparable damage or injury: The applicant has to show that damages will not adequately compensate him for the injuries he will suffer if the injunction is refused; Ayorinde v. A-G. Oyo State. 5. Conduct of the parties; the applicant must not be guilty of misconduct. 6. Undertaking as to damages N.B – A claim for damages is not an automatic bar against an interlocutory injunction. The issue is whether such damages will be adequate compensation for the loss the applicant stands to suffer - Kotoye v CBN An order of injunction will not be granted where damages will be adequate compensation for the loss the applicant stands to suffer. 3. Mareva Injunction (Bar Final April 2019 Q. 2B) This is a kind of injunction which a claimant suing for debt can obtain against a defendant who has assets within the jurisdiction of the court, to restrain that defendant from removing the assets from the jurisdiction or from disposing of them, pending the trial of the action. See Mareva Compania Naveira SA v. International Bulk Carrier Ltd; Sotinminu v 59 Ocean Steamship, AIC LTD v. NNPC; It is by a MOTION EX PARTE supported with an AFFIDAVIT which must state the fact that the subject matter of the dispute which is in possession of the adverse party is at risk of being taken out of jurisdiction, and a WRITTEN ADDRESS. 4. Anton Pillar Injunction It is particularly useful to claimants who are victims of commercial malpractice like breach of copyrights, patent rights, etc. (alleging breach of intellectual property). Anton Pillar K.G. v. Manufacturing Process Ltd. Where a claimant shows a very strong prima facie case that a property, the subject matter of the suit, is in the possession of the defendant and that the defendant will most probably destroy it if he had notice of the proceedings, the order may be granted. It permits the Applicant to enter into the premises of the Respondent to search and seize, detain and preserve goods or articles in possession of the Respondent. - S. 25(1) Copyright Act It is by MOTION EX PARTE + AFFIDAVIT + WRITTEN ADDRESS. NOTE: that it is the Federal High Court that can entertain an application for Anton Pillar injunction since it is aimed at Copy Rights protection D. INTERPLEADER SUMMONS (Order 48 Abuja and Order 47 Lagos) (exam focus) We have two types of interpleader to wit: 60 1. Stakeholder Interpleader (May) This is an application to be made to the court by a person who is in possession of a property subject to two adverse claims of which he is not certain of the owner and he has no interest in the subject matter. It is aimed at urging the court to ascertain between the two adverse claimants who is the rightful owner of the property. (For instance where a tenant whose landlord has died is been pressured by two sons of the landlord from different mothers to pay rent and the tenant has no idea who amongst the two sons to pay to). The PROCEDURE is that the applicant will file an Interpleader Summons (originating summons) supported with an affidavit which MUST state the following facts: MCQ and THEORY) i. That the applicant has no interest in the subject matter in dispute except charges or costs; ii. That the applicant does not collude with any of the claimants; and iii. That the Applicant is willing to pay or transfer the subject matter into court or to dispose of it as the court may direct Order 48 R. (2) Abuja; O. 47 R. 2 Lagos N.B - May If on the date fixed for the hearing of an interpleader application, one of the Respondents failed to appear in Court despite having been served, the Court may make an order declaring him and all persons claiming under him for ever barred against the applicant and persons claiming against. However, such order shall not affect the rights of the claimants as between themselves. Order 48 R 9 Abuja, Order 47 R 8 Lagos 61 2. Sheriffs Interpleader: (Bar Final August 2019 Q 1f & g) This arises where a third party claims that the property on which execution of a judgment by the Sheriff is levied or about to be levied belongs to him and not to the judgment debtor. used in circumstances where a sheriff in execution of a judgment attaches property, which is claimed by a third party who is not the judgment debtor The essence of this proceeding is to determine whether the property belongs to the judgment debtor or not–Nwekeson v. Onuigbo. Interpleader proceedings enables the Sheriff to ask the court to determine whether the goods or property belong to the judgment debtor or the rival claimant, Section 34 of the Sheriffs and Civil Process Act. AFFIDAVIT EVIDENCE All motions whether on Notice or exparte must be supported with an affidavit and written address. An affidavit is a written declaration of facts made voluntarily and confirmed on oath or affirmation of the party making it. NOTE THE FOLLOWING ABOUT AN AFFIDAVIT: a) Where the deponent is not a party, he must state the authority on whom he deposes; b) Where the deponent deposes to facts not within his personal knowledge, the source and circumstances of his information must be stated – Ajayi Farms Ltd. v. NACB 62 c) It must contain only relevant facts and not extraneous matters or law, legal arguments, prayers or conclusion. section 115 Evidence Act. d) It must be written in chronological order and in numbered paragraphs. e) An affidavit shall not be sworn before a Notary public who is a Counsel to the party for whom the affidavit is to be filed shall not be admissible. In such circumstance any affidavit or witness statement on oath is inadmissible. Section 19 Notary Public Act. Buhari v INEC. – May 2011 f) Although there is no provision in the Evidence Act that prohibits a Lawyer from deposing to an affidavit in support of his client’s application. However, by the Rules of Professional Conduct, it is unethical for a Counsel to depose to an affidavit in favour of his client. Counsel should not put himself in an embarrassing position where he may be a Counsel and a Witness in the same matter. Elebanjo v Tijani. - 2010 COUNTER–AFFIDAVIT Where a party intends to challenge the facts in an affidavit, the step to take is to file a counter affidavit. The consequence of failure to file counter affidavit is that the facts in the process of the claimant will be deemed to have been admitted. Alagbe v Abimbola – May Where a Respondent fails to file a counter-affidavit or fails to specifically deny averments made in the affidavit in support of the motion, the court shall act on the unchallenged or un-contradicted evidence and deem them to be admitted and treat them as such–Falobi v. Falobi. 63 The EXCEPTION to this rule is that where the Respondent wants to rely on points of law alone as deposed to by the applicant himself, he need not bother to file a counter-affidavit – Badejo v. Minister of Education. CONFLICTS IN AFFIDAVITS (Dec 2020 Re-sit Exam Q 4h, may) Where there is a conflict on material facts deposed to by the parties, the court will call for oral evidence in order to be able to resolve the conflicts and make a finding of fact – Falobi v. Falobi. However, where there is documentary evidence that can resolve the conflict, the court may dispense with oral evidence; see EIMSKIP Ltd. v. Exquisite Industries (Nig) section 116 of Evidence Act. SWEARING OF AFFIDAVIT BY COUNSEL It is unethical for a counsel to swear an affidavit on behalf of his client. According to Rule 20(1) of the RPC, a lawyer shall not accept to act in any contemplated or pending litigation if he knows or ought reasonably to know that he will be called as a witness. In Elabanjo v Tijani the court stated that there is no law preventing counsel from deposing to an affidavit but it is unethical for him/her to do so, this is to avoid an embarrassing position of being put into the witness box and subject to cross-examination (focus) However, in circumstances mentioned in Rule 20(2) RPC, a counsel can depose to an affidavit. PRIORITY IN HEARING APPLICATIONS (Bar final September 2015 Q.1C and Jan 2020 Q 6D) 64 Generally, it is usual to take pending motions in the order in which they are filed. However, where there are two motions with adverse effect on the proceeding, one seeking to regularise (e.g. motion for extension of time), and the other to dismiss or strike out the suit (motion for default judgment), the motion seeking to regularise the proceeding will be taken first–A. G (Fed.) v. AIC Ltd., NALSA & Team Associates v. NNPC. Ethical Issues on Use of Interlocutory Applications: a. A legal practitioner should not use frivolous applications to obstruct, delay, or adversely affect the administration of justice; Rule 30 RPC. b. A legal practitioner shall not mislead the court–He shall deal candidly and fairly with the court; Rule 32 RPC. c. Counsel should not file application which he ought to know will amount to an abuse of court process or an act which is dishonourable. HOW TO MOVE A MOTION IN COURT–(August 2016 Q1 and 2018 after announcing appearance): motions are moved not heard. 1. My Lord before this Honourable Court is a motion on notice for……….(mention the purpose of the motion), dated the _____day of ___2020 and filed______(usually lawyers will say; ‘and filed the same day’) 2. The motion is brought pursuant to Order….Rule…….of the Rules of this Court and under the inherent jurisdiction of this Honourable Court 3. My Lord, we seek the following RELIEFS (read out reliefs) 4. My Lord, our motion is supported by a 10 paragraph affidavit deposed to by one ____(name of deponent)_______We rely on all the paragraphs of the affidavit. Accompanying the affidavit is ___ exhibits marked___. 65 5. In compliance with the rules of court, we have also filed a written address dated and filed on the…..day of…2020 in support of our application. We wish to adopt same as our argument in support of our application 6. We humbly pray this honourable court to grant our application as prayed. Thank you, my Lord HOW TO ANNOUNCE APPEARANCE May it please this Honourable Court I am C. O. Ude appearing for the Claimant/Applicant or for the defendant. OR If you are holding the brief of a Senior Counsel or another lawyer: ‘May it please this Honourable Court; I am C. O. Ude, holding the brief of A. A. Yusuf SAN, appearing for the Claimant’. (This is usually asked in exam see August 2016 Q 1g) POSSIBLE QUESTION FROM INTERLOCUTORY APPLICATIONS 1. What step will you take to stop the defendant from interfering with the res pending the determination of the suit? Answer: I will bring an application for interlocutory injunction by motion on notice supported with affidavit and written address. 2. Assuming you are counsel to the defendant, what step will you take to join ABZ Limited to bear part of the liability? Answer: I will bring an application for third party proceedings. It will be by motion ex parte for leave of court to serve ABZ Ltd with a third party notice. 66 3. Considering the number of your clients, how will the action be properly instituted? Answer: I will seek leave of court to bring a representative action on behalf of all my clients. It will be by motion ex parte supported by affidavit and a written address. 4. Assuming the defendant is selling off its assets and moving same out of the jurisdiction of the court, what step will take to stop it? Answer: I will bring an application for mareva injunction by motion ex parte supported with affidavit and a written address to restrain the defendant from selling or taking its properties out of jurisdiction. 5. Assuming the claimant filed a motion for default judgment and the defendant in response filed a motion for extension of time, with the aid of decided cases, state which of the application the court should hear first? Answer: The court will hear the motion for extension of time first because it will give life to the proceedings; NALSA & Team Associates v NNPC CHAPTER SEVEN 67 SUMMARY JUDGMENT PROCEDURE – Ors 11 Abuja , Ors 13 Lagos Summary judgment is any judgment given in favour of the claimant summarily, without going through a full trial or plenary trial of the action. The main reason for summary judgment is to save time and cost of lengthy and expensive trial where the defendant obviously has no defence to the action. Mcgregor Associates v. NNBN DEFAULT JUDGEMENT default judgments are also judgments given summarily in default of a party failing or neglecting to enter an appearance or file a defence to an action commenced in court against such party. See Order 10 rule 2 and Order 21 Abuja; Order 12 rule 1 and Order 22 Lagos respectively for judgment in default of appearance and defence. However in the case of judgment entered in default it can be set aside upon an application that is brought before the court timeously in such respect. N.B – 2009 BAR FINALS In an application for default judgment, it is appropriate for the Court to set down a suit for trial where the claim is such default judgment cannot be granted, for example in declaratory reliefs which the claimant must prove even if the Defendant admitted the facts. The Judge is empowered to set aside any default judgment obtained under the Rules, only on the grounds of: O. 21 R 12 Abuja; O.22 R 12 Lagos, 1. fraud, 2. non service 68 3. lack of jurisdiction. default judgment, can be set aside or varied upon an application by the Defendant within a reasonable time showing a good defense to the claim and a ‘just cause’ for the default. Ors 12 R 9 Lagos, Ors 10 R 11 Abuja Thus, any reason given by the Defendant which the Court considers to be a just cause for the default can suffice as a ground to set aside the judgment, Distinction between Summary Judgment and Default Judgment 1. A summary judgment is a final judgment and can only be set aside on appeal since it is a judgment given on the merit for want of a defence by the defendant –ACB v. Gwagwada. While a default judgment can be set aside by the same court that gave the judgment because it was given in default not necessarily for want of a defence. 2. A summary judgment is resorted to in circumstances where it is obvious or, at least, it appears to the claimant that the defendant has no defence to the action –UTC (Nig.) Ltd. v. Pamotei. While a default judgment is resorted to where the defendant has failed, neglected and or refused to either enter appearance or file his defence. UNDEFENDED LIST PROCEDURE (Bar Final September 2015 Q 4f, April 2019 Q. 2a) The Undefended list procedure is better discussed under five (5) main headings: they are: (Order 35) 1. Purpose/Use of undefended list: it is used for recovery of debts or liquidated money demand only. 69 2. Procedure for Undefended list: the action must be commenced by Application as in Form 1 (WRIT OF SUMMONS) + AFFIDAVIT stating the grounds on which the claim is based and stating that in the claimant’s belief there is no defence to the sui

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