commencement of actions in the high court

8/11/2019 Commencement of Actions in the High Court

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ACTIONS IN THE HIGH

COURT


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PRELIMINARY

CONSIDERATIONSThere are some considerations that aparty/counsel mustconsider before

commencing an action. They includethe following:

CAUSE OF ACTION

LIMITATON PERIOD


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LIMITATION PERIOD

Check each states law to find out limitation period. With respect to contract,limitation period for most states is 6yrs.

Public servants (e.g. Teachers)protection act- 3months.

Fund HR- 12months

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COST OF LITIGATION- Lawyers shd look at this with regard to the client. Ifthe deft willing to settle out of court without litigation and settlement substantialenough, better to settle out of court than go to litigation.

JURISDICTION . Odawise everything done would have been futile. EXHAUSTION OF AVAILABLE REMEDIES . Ainabebholo V ESUWFMPCS

LTD (2007) 2 NWLR pt 1017,33. odawise the crt may strike out ur action or

stay proceedings pending wen such remedies have been exhausted. PRE-ACTION NOTICE ( aka PRE-CONDITION)Eti Osa LG V Jegede (2007)

10 NWLR pt 1043, 537. e.g. frmr (still exist?) NNPC Act says notice must beserved on NNPC month b4 going 2 crt.

PRE-ACTION COUNSELLINGCondition precedent in abj without whichregistrar wont register O4 R 16. it means the counsel had advised th e client

about the weaknesses and strengths of the case. Where case weak, costs awardedagainst the deft would be borne by the lawyer instead of the deft.

No known case of such being awarded. Not practicable, cos lawyers espupcoming wont want to lose briefs.

CHANCES OF ENFORCING COURTS JUDGMENT: EnforcementProcedure Rules- imp bcos of Nigan factor. E.g in practice, it is very difficult to

enforce judgement against the police (they go with u to enforce judegement. )also diff to enforce judgement against govt corps.


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VENUE

Venue has to do with where to bring suit and it depends on the typeof action.

O2L provide for the appropriate venue or judicial division forinstitution and trial of suits as follows:

All suits relating to land or any mortgage or charge or interestrelating to land and actions relating to personal property distrained orseized for any cause, shall be commenced in


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in the judicial division where the land

is situated or where the distrain orseizure took place.

All suits for recovery of penalties,

forfeiture and all actions against publicofficers shall be commenced and tried inthe JD in which the cause of action

arose.


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All suits for the specific performance or upon the breach of any contract may becommenced in the JD in which such contract ought to be performed or in whichthe defendant resides or carries on business. See Kraus Thompson Ltd V Unical2004 AFWLR pt209 1148 Catch: u can bring an action 4 specific performance ofcon of sale of land. Means u can bring it under terms 4 con of sale of land or unda

terms of specific performance. All other actions may be commenced in the JD in which the defendant lives or

carries on business.


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PLACE OF INSTITUTING TRIAL OF SUITS

NOTE : By O2 R5 L, Were any suit is commenced in a wrong JD, it may betried in that JD unless the Chief Judge otherwise directs.

Note the difference between O2 R5 L and O9R5 A ;O10 R5 K. Unless d CRTdirects or the DEFENDANTobjects. Note that the deft can object but still forthe crt to rule on the objection. If the crt wants it can still hear the suit. So ddiff is between Chief Judge and Crt.

[Note dat where abuja rules is 9, k will be 10. they tend to follow]

Note also the provisions of O9 R6 A; O10 R6 K. (not in Lagos rules at all.) no

proceedings which may have been taken previously to any plea in objectionwill be affected. This means if 4 e.g. an injunction had been given in a landcase b4 plea that crt lacks jurisdiction, that injunction will still stand eventhough the case is transferred. see the case of Etoluev okuagu (1999) 7

NWLR pt 609, 83. In this case the crt said where there is an objection to thejurisdiction, the appropriate thing is for the court to transfer the case. This iseven tho d rules allow d judge to continue. Yet it might make the judge seen

biased against d deft.


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FORMS OF COMMENCEMENT

ORIGINATING MOTION O1R1 A; O1R1

K. See KOSAP V Kofa trading co. 19962SCNJ 325 [used where the law so states e.gwrit of habeaus corpus( to compel smo to

come to court.)] PETITION O1R1 A;O1R1 K. KASOP V

Kofa trading co Supra [dont really boda. To

be treated later cos special trial. [ also usedwhere the law states that the motion should

be so used e.g matrimonial causes, election

petitions, winding up of a coy.]


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WRIT OF SUMMONS. SeeO3R1 L; 01R1 A;O1R1 Doherty

V DOHERTY 1968 NMLR 241,PDP V Abubakar(2007) 3 NWLR

pt 1022, 515ORIGINATING SUMMONS See

Director SSS V Agbakoba 19993NWLR pt 595, 425 O3R5&6L;O1R1 A; O1R1 K. see note in word


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WRIT OF SUMMONSADVICE TO YOUNG LAWYERS: where confused as to the provs go for

writ of summons. Note that confusion is where the prov is not clear. Wherethere is a specific prov, go for that.

Generally, where ur case is likely to be a contensious one, bring a WOS.

Can be used in the ff situations

*relief for any civil wrong

*damages for breach of duty

*damages for personal injuries or death of any person

*claim based on allegation of fraud

*claim for declaration by an interested person. See O3 R1 L, O 1 R2 A,O1

R2(1) K.


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FILING OF WRIT OF SUMMONS

It shall be accompanied with

Statement of claim

List of witnesses

Written statement on oath of witnessesCopies of every document to be relied

on. See O3 R2 L, O4 R15 A.N/B The requirement of filing acertificate of pre-action counseling.-

(only in Abuja)


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In Lagos and Abuja

It shall be accompanied with

1.Statement of claim

2.List of witnesses(omitted in Abuja)3.Written statement on oath of witnesses

4.Copies of every document(exhibit) to be relied on. See O3 R2 L, O4R15 A.

N/B The requirement of filing a certificate of pre-action counseling.(Abuja)

In Kano, no such rules as these, they are still using the old system.

In Lagos and Abuja, cross- examination is done right away since thestatement on oath of the witnesses are already on paper (front loadingsystem) This system saves time, surprises are avoided, allows forcertainty, counsels are better prepared, it reduces cost, it allows

parties know the weakness of their case. A major disadvantage is asregards advocacy as this system seems to limit advocacy.

ALATADEEV. FALODE(1966)

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ISSUANCE OF WRIT

In Abjua & Kano, this means thesigning of a writ by the registrar.However in Lagos must be sealed bythe registrar before it can be said tohave been issued See O6 R2(1). In

Abuja & Kano leave is required toissue a writ to be served outsidejurisdiction. See O4 R14 A,O5 R6K


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WHEN IS A WRIT SAID TO HAVE

COMMENCED

Nicoles v G.M Nig Railway Corp (1937)- N sued d corp. railway corprules said any suit must be filed 6mnths. Once a party has done all d lawrequires him to do, everything else remains with the crt staff. Once hesfiled the suit has commenced.

See Shuaibu v MUAZU (2007) 7 NWLR ptb1033, 271. It is when the

plaintiff has done all that the law requires him to i.e. applying for thewrit and paying the prescribed fees.


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SERVICE OF WRIT/ ORIGINATING


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SERVICE OF WRIT/ ORIGINATING

PROCESS Failure to serve is a fundamental defect where service

is required. See Otobaimere V Akporehe 2004

1NWLR pt894, 591. Service of originating process is personal, O7 r2 L,

O11 R2 A- See O7 R9L, O11R8 A, O12 R8 K. forhow personal service on a corporation is effected. See

Bello V NBN 1992 6NWLR PT 246,206; Mark v Eke2004 5NWLR pt 865,54


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SUBSTITUTED SERVICE See O7R 5 L- lagos rules relaxed.,O11 R5 A,

inovative, includes e mail. Note dat e mail cld also bused in lagos if d crt chooses that. O12 R5 K. See theinnovation introduced in the Abuja rules.See MarkVEke supra. Nwaosu V Nwaosu 2000 4NWLR PT653,351. a form of ss ordered by crt. In process ofeffectin it, d deft was found and plt gave him by hand.Deft raised objection dat it was supposed to be ss. Coaheld dat there is no rule stopping d plt from servin

prsnlly. The only thing he cant do is to use anor formof subservice oda dan d one d crt orders.


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ORIGINATING PROCESS. Sheriff, Deputy Sheriff, Bailiff, Special Marshall or other officer of the

court, law chambers, courier company or any other person appointed and

registered by the Chief judge of Lagos State. See O7 R1 L. Note the slightdifference in Abuja and Kano. See O11 R1 A,O12 R1 K.

In practice it is the baliff that usuallly serves the writ.

Lagos allow some oda group of pple to serve writs.

Where a party is represented by a counsel and the counsel states that theparty had ghven him authority

To serve a prisoner/lunatic, u serve d prison or d prsn in charge of th

asylum. It is deemed as personal service.

O. 7 r.9 L- prsnl service on the coy./ o 11 r 8 abj


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JURISDICTION

Service of a writ outside jurisdiction is regulated by

the Sheriff and Civil Process Act CAP407LFN1990.

The Act require that such a writ should be endorsed

by the registrar with thus:THIS SUMMONS IS TO BE SERVED OUT OF

THE.. STATE AND IN THE . STATE

Failure to write d above wld beirregular and such a writ cld bequashed.


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THE RULE IN S.99 SCPA See YUSUF V COPERATIVE BANK 1994 9 SCNJ 67; ADEGOKE

MOTORS V ADESANYA 1989 3 NWLR PT 109,205;EZOMO

OYAKHIRE 1985 2SCNJ 260 Note the wordings of s99 Sheriff and Civil Process Act. the HC rules A &

K says fill form 11 within 8 days. But rule 99 says nothing can make himrequired to appear in crt in less dan 30 days or nt in less dan a longa

period dan d rules of crt prescribe- Lagos rules 4 e.g prescribe 42days.

All dis is where d deft is out of state.

Enter an appearance= fill form 11(alawyer cld fill for u without u being

there.

Appear in crt= come to crt.


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RENEWAL OF WRIT Lifespan of a writ in Abuja and Kano is 12 months and can be renewed for

a further 12 months. See O5 R16 K,O4 R16(2). See Kolawole V Alberto1989 1 NWLR pt 98 382- on its au, the prov of the hc civil rule of lagos

that says only b4 d expiration is not the law. The law is dat even afta dexpiration.

Concurrent writ: leave needed to serve writ outside jurisdiction. When notclear weda u cld get deft within or outside jurisdiction (cld come up in

those times wen coys had to move their head office to fct. So might not besure where head office is.). Where not sure, take out a concurrent writ thiswrit is to be issued as a concurrent writ. that writ can be served bothwithin jurisdiction and outside jurisdiction.

ENTERING APPEARANCE


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ENTERING APPEARANCE Appearance is entered by the defendant filing a

memorandum of appearance( in Form 11) in the

registry of the court. See 09 r1 L, O12 R1(2) A, O13R1(1) K. It may also be in form 12 in Abuja and Kano.

Entering appearance =filling form 11.

Abj also has form 12, lagos doesnt. form 12 saysleave has to be obtained first. But the rules generallysays u can enta appearance anytime b4 judgement. (i.e.8 days) [O 12 r5(1)] has been said to be superfluous

that leave needed first. But judges sometimes insist onform 12.


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TYPES OF APPEARANCE CONDITIONAL APPEARNCE Holman Bros Nig ltd V Kigo (Nig)

ltd (1980)11SC 43 [or appearance on protest. Protesting defect in

service. Before starting case, file protest. UNCONDITIONAL APPEARNCE

DEFAULT OF APPEARNCE


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DEFAULT OF APPEARNCE Default appearance: where d deft fails to appear in crt.

See the writ of summons. In Abuja and Kano this is only

possible with respect of cases of liquidated money demandand actions for recovery of lands.[those r d two types ofclaim [ in other cases the court will ask the plt to open hiscase and may give judgement to the plt] See O13 R1-4 A,

O14 R1-4 K. In Lagos judgment is obtained by the claimant in respect

of actions for detention of goods, mesne profits, recoveryof land and liquidated money demands. See O10R3,5,7-9

L

But such judgment obtained are called default


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But such judgment obtained are called defaultjudgmentand can be set aside by the same court. See O13R 6 A,O14 R6 K. In every other case not expresslymentioned default of appearance will entitle the

plaintiff to set down the matter for hearing and he willbe given judgment as he is entitled to. See O10 R12 A,O13R 5A, O14R5 K.

Ordinarily wen a crt gives judgement on merit, d courtcant give judgement on it again. But in default

judgement d crt can give judgement on it. Bring anapplication by way of motion on notice stating:

-Good reason 4 non appearance

-Good defence to plts claim

EFFECT OF NON COMPLAINCE


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EFFECT OF NON COMPLAINCE

WITH RULES OF COURT

E.g of noncompliancea. Commencing with a wrong form

b. Improper endorsementsc. Failure to obtain leave to issue

when required

d. Failure to comply with S.97 and99 SCPA

Wh t i th ff t f th d f t


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What is the effect of these defects. See O 2 of Abuja and Kano rules and O5 of the Lagos rule.

Effect: it shall not nullify d proceedings.

But d crt has the discretion to set aside the defective writ.Or allow ammendment. In PDP V ABUBAKAAR, thecorut allowed ammendment.

See conflict btw 05r 1(1) and (3) lagos. In practice theJudges dont nullify d proceedings,they treat it as a mereirregularity ad have d discrtion to set aside the writ.


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OPTIONS OPEN TO A

DEFENDANT WHEN A WRIT IS

DEFECTIVE File a conditional appearance and apply by motion to set

aside the writ. See Holman Bros ltd V Kigo supra

He can without entering any form of appearnce bring anapplication by summons to set the writ aside.See Skenconsult V Ukey 1981 1 SC 6

O 2 r 2 A, O 5 r 2 L

H b i li ti


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He can bring an applicationchallenging the jurisdiction of the

court See AG Eastern V AGFederation 1964 1ANLR 224

commencement of actions in the high court

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