What matters should be considered by counsel after he has been briefed, before he files an action in court?

1. Existence of a cause of action
2. Jurisdiction
3. Limitation statute/ period
4. Locus standi
5. The appropriate venue
6. Exhaustion of available remedies
7. Condition precedent
8. Immunity of the defendant
9. Availability of ADR
10. Litigation cost
11. Pre-action counselling
12. Sufficiency of remedy/ enforceability of judgement

 

• Cause of action

Aggregate of material facts necessary for an action to exist. Counsel should ensure that all the material facts that constitute the ingredients for the particular cause of action are in existence. E.g. in an action in negligence the cause of action requires the disclosure of material facts surrounding 1) the duty of care owed to the claimant 2) breach of that duty 3) injury that flows out of that breach of duty

There is a rule against piecemeal prosecution by lawyers, i.e. so lawyers can’t break the issues involved in an action into different suits. 

 

• Jurisdiction

In which court will the action be appropriately filed? Consider: constitution, relevant statutes, and importance of jurisdiction. Jurisdiction is the life blood Madukolu v Nkemdilim

There are different jurisdictions: Territorial, monetary, substantive, procedural, concurrent, summary, original, appellate, supervisory, general, limited, unlimited Jurisdiction etc.

ADEYORI V OPEYEMI- the court held that jurisdiction of the court arose from the plaintiff/claimant’s claim of action; and not the parties to the case so even if it involves a federal agency, it depends on what the matter is.

 

• Limitation periods

Counsel should ensure that the proposed action is not beyond the period prescribed under the statute of limitation. There are different types of statute of limitation. Within 2 private individuals the general time is 3 years for tort, then 6 years for contract. E.g. the limitation act and laws. Also note the public officers act/laws , check statute that enact incorporations. E.g. s11 NNPC act.

For instance, under s 8 Limitation Law Lagos state in general an action founded on tort or simple contract cannot be brought after the expiration 6 years from the date the cause of action occurred.

Note: whenever you see a date included in a problem question, direct your mind to limitation period to see if the action has been statute barred

 

• Locus standi

This is the legal standing to bring and prosecute an action in court. See s6(6) (B) constitution – it refers to person (both natural and artificial), so the matter must be between a person and another person, so academic questions cannot be instituted at the court. The person must have sufficient interest. With the only exception being the enforcement of human rights, any body can bring a case for enforcement of human right on behalf of another.  No “ professional litigant” – so by-standers who have no interests cannot bring a case.

Locus standi is related to jurisdiction.

An interloper or a person that is not sufficiently interested in a court dispute or action will be prevented from maintaining an action, for want of locus standi

AG Bendel v AGF  (1981) 10 SC 1; OWODUNNI V RTCC (2000) 10 NWLR PTB 675 315; THOMAS V OLUFOSURE (1986) 1 NWLR

 

• Venue – order 2 (Lagos), order 9 (FCT)
• Suits on land – in the relevant judicial division where the land is situate.
• Action on contract – judicial division where the contract ought to have been performed or in which the defendant resides or carries on business.

Note that venue and jurisdiction are different. If you approach the court in the wrong venue it is not fatal to the cause of action but it may be embarrassing so it is something that should be considered. If any suit is commenced in the wrong judicial division, it may be tried in that division unless the chief judge otherwise directs.

 

• Exhaustion of available remedies

Any contractual/statutory remedies? Are they exhausted?

If the law provides for the mode of complaint/ remedies, this should be exhausted.

The court will decline jurisdiction upon failure to exhaust the remedy – ARIBISALA V OGUNYEMI : in the case, the state law  had certain rules that in the case of a dispute the first person to be approached is the prescribed authority i.e the oba, and after that if not satisfied you can approach the commissioner for the state and after that the court. Aribisila didn’t follow the procedure but relied on s 6 (6) of the1979 constitution, claiming he is empowered to approach the court by virtue of the fact that the constitution is superior to state law. The SC court agreed to the extent that the constitution was superior to state law but however where the law governing a particular transaction prescribes the mode of remedy that should be subscribed to before litigation it is in the interest of justice to take those steps and exhaust the remedies before you approach the court.

 

• Pre- action notices / condition precedent

Are the conditions precedent met or satisfied? Has the appropriate pre-action notice been served?

Effect of non-service of pre-action notice:  procedural jurisdictional issue – yes it could be waived MAKUDAWA V KATSINA LC; MOBIL UNLTD V LASEPA. 

 

• Availability of ADR method

See also order 17 FCT – which encourages resort to ADR

 

• Pre- action counselling

Lagos – pre action protocol form 01

See order 3 rule 2 (e) Lagos; and the specimen of the form in the schedule to the rules.

 In Abuja once a party is represented, the counsel as well as the client must sign pre-action notice and the contents are to the effect that he has advised his client as to the strengths and weaknesses of the case and he has taken the action after considering the strengths and weaknesses of the case. In Lagos only the claimant (whether he is representing himself or not) is required to file protocol form 01, the defendant doesn’t have to.

Note the differences between the FCT and the Lagos provisions. Comparison

See order 4 rule 15 (d) 

• PAC in FCT is not made on oath; whereas the form 01 Lagos is made on oath
• The sanction of false pre-action counselling in Abuja is that counsel will pay the cost of action while in Lagos it amounts to perjury.

 

• Immunity

S.308 constitution provides for executive immunity. Also note diplomatic immunity – diplomatic immunity and privileges act – it says diplomats are covered by diplomatic immunity in the country they are at. See Noah v British High Commissioner.

Does s.308 immunity, act to prevent an election petition against a sitting governor?

 

• Sufficiency/ enforceability of judgement
• Will the cost of execution of any judgement obtained be justified by the quantum of the benefits that will be derivable therefrom?

 

 COMMENCEMENT OF ACTIONS IN THE MAGISTRATE COURT

 

The scope of this topic is limited to just Lagos. So all the laws are based on Lagos.

 

APPLICABLE LEGISLATION

• The magistrate’s court law 2009
• The sheriff and civil process law;
• The magistrates’ courts (civil procedure) rules 2009.

 

Defining characteristics

• An inferior court of record – it is not listed as a court under s5 of the constitution. 6(4)(a) constitution gives states the power to establish.
• Always established by a law of the state
• It is amenable to the supervisory jurisdiction of the high court.
• A magistrate is addressed as your honour. S 8 (1) MCL Lagos. In other jurisdictions they are addressed as = your worship
• Robed in black magistrates’ gown – s 8(2) MCL
• At least 5 years post call – s 4(2) MCL
• It is a court with summary jurisdiction. EHWRUDJE V WARRI LOCAL GOVT (2016) 10 NWLR (pt.1520) 337 SC

Summary trial means expedited trial. This is because in a summary trial thereis :

• No filing and exchange of pleadings,
• No discoveries of facts and documents thus no interrogatories etc.
• The proceedings are time bound

For example

1. Adjournments cannot be made for more than 14working days from the date of commencement of trial and during the proceedings.
2. Where either party fails to appear or proceed with his case, then the court may strike the matter off the cause list or grant default judgment – s 42(5) MCL

By s. 60 MCL judgments should be delivered within 21 working days after the close of trial.

Note: the magistrate court can deliver judgment and reserve reasons till not more than 21 days after the judgment.

 

Section 27 MCL (general powers)

Jurisdiction – s28 MCL. Does it fall within the monetary jurisdiction of the court?

All personal action arising from contract, tort with the damages not in excess of 10 million as at the time of filling.

 See s 28(7) MCL – the issues of will (be it validity, devise, bequest) or any matter on  title to land/ any interest therein cannot be entertained by the magistrate court in its original jurisdiction.

 

Means of commencing an action

1. A claim
2. Originating application

See order 1, rules 1-4 Lagos states magistrates courts (civil procedure) rules 2009. Herein after Lagos MCR

 

ORIGINATING APPLICATION

Originating application may be brought

• If the claimant resides or carries on business in Lagos;
• The subject matter of the application is situated or located in Lagos;
• Where no claimant is named in the application, if the claimant or one of the claimants resides in or carries on business in Lagos, see order 1, rule 2 MCR (Lagos)

 

The originating application is applicable under order 1 rule 8 MCR

used in similar conditions as applicable to its procedural cousin in the high court:

1. Facts are not likely to be disputed

 

See order 1, rules 8(2) MCR Lagos.

 

Originating summons areused when the facts are not in issue but how to construe some instruments, documents or law so what interpretation should be given to a particular section.

 

Contents/ features of an originating application

• See order 1, rules 8(2) MCR - It shall be in writing and state the following

1. The order applied for and sufficient particulars to show the grounds on which the applicant claims to be entitled to the order;
2. Names and addresses of the person intended to be served – respondents
3. Applicants address for service where no person is intended to be served

• Filing and service on the respondent, see order 1, rule 8(3) MCR
• The application is held in chambers order 8, rule 5 MCR

 

CLAIM

In Lagos they are called claimant and defendant.

1. Commonest means of commencing actions.
2. “Claimant” and “defendant”
3. A claim = An ordinary summons or a summary summons against the defendant.

Note: a summary of claims is no longer needed; you only need the particulars of claim numbered consecutively. 

Processes

• File the claim in the pattern in civil form 1, with particulars of claim in the registry.

Assessment. Payment of the appropriate filing fee.

• Entering of the claim in the relevant court book, with:
• The names and places of residence or business of the parties and
• The substance of the action
• Assignment of a number

The registrar also directs the service of the court processes on the opposing side; and delivers claims on the day of filing to the office of the designating magistrate – order 1 rule 6 MCR

• Particulars of claim should be signed by the claimant or his Legal Practitioner with his address for service, telephone number, email address. See order 1 rule 4 MCR. Note that including the email address and telephone is important.

 

Generally the default issuance is that of an ordinary summons unless your application is accompanied with a letter requesting for a summary summons, and the conditions for summary summonsare met, in such case summary summons is issued.

 

Ordinary summons

1. Issued in the normal course of events after the entry of the claim, unless the applicant has applied for a summary summons. See order 2 rules 1 MCR
2. A copy of the particulars of claim is attached to the summons.
3. The registrar fixed the date and time the defendant is required to appear in the court to the ordinary summons – this is called the return date, see order 2 rule 2 MCR.

This is the most important difference between an ordinary summons and summary summons. A summary summons doesn’t anticipate any hearing, so no date is fixed, it can only be used where the claim is liquidated sum. It doesn’t anticipate lengthy litigation.  Ordinary summons is when there is going to be contention, so witnesses are called and the usual procedures follow.

4. The return date must not be less than 5 days after the service on the defendant – order 2 rule 2 MCR
5. A defendant to an ordinary summons may file a counterclaim, set-off, or a special defence within 6 days of the service of the summon on him – see order 2 rule 5 MCR
6. If the defendant intends to admit liability fully or partially he files an admission within 6 days of the service of summon on him. Order 2 rule7.
7. A defendant may by such admission propose or desire time for payment. See order 2 rule 7
8. The registrar sends notice of the admission to the claimant, order 2 rule 7(2) MCR
9. If the claimant accepts the admission and the proposal, he sendsto the registrar a notice of acceptance within 3 days of the notice of the admission. Order 2 rule 7(3) MCR
10. Judgment is entered by the magistrate as soon as practicable following the admission and acceptance. See order 2 rule 7 MCR
11. A claimant who refuses the amount in the admission or the proposal for payment sends a notice of non-acceptance to the magistrate in chambers within 3 days of the receipt of the notice of admission.
12. A defendant who has delivered an admission with a proposal as to time for payment is no more under the obligation to appear to a summons on the return date. See order 2 rule 7(6) MCR
13. Where the defendant fails to deliver an admission or the claimant fails to give a notice of acceptance within the prescribed time the action will be set down for hearing.

 

SUMMARY SUMMONS

• Only applicable where the claim is for a debt certain or liquidated money demand, with or without interest. Order 3 rule 1- read, note the exceptions
• It is a faster procedure in the magistrates’ courts.
• It does not envisage plenary hearing.

 

What are those instances where a person cannot bring a summary summons in the magistrate court in Lagos?Order 3 rule 1a MCR, there are 5

• Against an infant or a person of unsound mind or a person adjudged as a lunatic
• It cannot be used for money lenders action
• On behalf of assignee of debt
• To recover money secured by a mortgage or charge
• Against a defendant who has to be served outside jurisdiction

Procedure of summary summons

1. The claimant makes an application for the issuance of a summary summons when he files the claim. The application is made by a letter written to the registrar for the endorsement of the claim as a summary summons
2. The registry shall endorse the claim to issue a summary summons
3. A defendant to a summary action who disputes his liability for the whole or part of any claim or desires time for payment or desires to set up a counter claim, shall within 5 days of the service of summons on him, inclusive of the day of service , deliver to the registrar –

• The form appended to the summons completed according to the circumstances of his case and stating the address for service and signed by him or some other person on his behalf; or
• A defence or an admission and a request for time for payment (in this order called an admission) or a counter claim, signed and accompanied by as many copies as there are claimants. see order 3 rule 3 (1) MCR

4. If the defendant fails to pay into the court the total amount of the claim and cost or deliver at the registry of the court, a defence or an admission or a counterclaim within 5 days of the service of summons on him inclusive of the day of service, the claimant may have judgment entered against the defendant for the amount of the claim and costs, and the order shall be for payment immediately, or at such time or times as the claimant may request:

-  Provided that if he delivers a defence or an admission or a counter claim after the said 5 days and before judgment has been entered, judgement shall not be entered under this paragraph but the procedure prescribed by Or3 R5 or Or 3 R6 shall be followed - order 3 rule 4 MCR

5. If within the 5 days or before judgement is entered the defendant delivers at the registry of the court a defence not accompanied by an admission of any part of the claim or delivers a counter claim, the registry shall fix a day for trial of the action and shall give not less than 5 clear days notice to the claimant a copy of the defence – or 3 r 5
6. Order 3 rule 6 MCR , order 3 rule 6 (2)MCR, order 3 rule 6(3) MCR
7. If the magistrate is satisfied that the defendant when he delivered his admission intended to dispute the claim or set up a counter claim, he may give him permission to defend the action or set up a counter claim on such terms as to costs or otherwise as he thinks fit, and if he gives such permission, he shall fix a day for the trial of the action and give notice of it to the claimant and defendant. Order 3 rule 7 MCR
8. Where three months have expired from the date of service of a summary summons, and no defence or admission or counter-claim has been delivered and judgement has not been entered against the defendant; or an admission has been delivered but no notice of acceptance or non-acceptance has been received from the claimant by the registrar who shall forward same to the magistrate in chamber, the action shall be struck out and no extension of time shall be granted beyond the three (3) months- Order 3 rule 8

 

SERVICE – see order 5 rule 1-5

1. Personal service, if any individual is involved
2. Partnership: (a) Any of the partners personally (b)To any employee at the principal place of business of the partnership
3. On statutory corporation:

• On the secretary or any other person with executive authority

4. A person carrying on business in a name other than his real name is sued in that name as if he were a firm name, he may be served as if he were a partner sued in the name of the firm and the business were a partnership.
5. If personal service is not possible, substituted service may be effected – order 5 rule 2 MCL