CIVIL PROCEDURE IN THE MAGISTRATE COURT:

CONTENTS:

1.0       Introduction

2.0       Objectives

• Main Content
• Choice of Court and Issue of Summons
• Originating Summons
• Pre-trial Stage and Settlement
• Default Action
• Trial

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Reading

INTRODUCTION

In general, civil procedure in the various Magistrate Courts is uniform but there are some important differences. It is intended to discuss here the rules of civil procedure in the Magistrate Court of Lagos State. Thus, the Civil procedure of a Magistrate Court may be summarized by considering the salient stages of the procedure such as the choice of court and issue of summons, pre-trial stage and settlement, default action, trial and enforcement of judgment.

OBJECTIVES

In this Unit, you will be able to understand the following:-

• The civil procedure of a Magistrate Court with reference to Magistrate Court of Lagos State.
• About the pre-trial stage and settlement
• The role of the Magistrate
• What happens to the defaulter?

MAIN CONTENT

Choice of Court and Issue of Summons:

The plaintiff, that is, the person who is suing and asking for relief is expected to commence or initiate proceedings in the Magistrate Court in one of the following districts:

• Where the defendant resides, or
• Conducts his business, or
• District where the causes of action arose wholly or

The plaintiff or his counsel commences the action by filing in the court a request for a summons, which may be ordinary summons or default summons which is issued for debts or liquidation money demands setting out the details of the claim, which summons is then served by the court bailiff on the defendant, that is, the person who has been sued.

An infant may sue by his next friend and may defend by his guardian. His next friend is usually his father or a person. No person is to act as next friend unless he has signed a written authority for the purpose, the authority has been filed in the Court Registry and he gives his own written consent to act in that capacity.

Lunatics and persons of unsound mind not adjudged lunatics may sue and defend an action by their committee. Persons of unsound mind may sue by their friends with the consent of the next friends and defend an action by guardians appointed for that purpose.

Originating Summons:

An originating summons is a summons other than a summons in a pending cause or matter. It is a summons (a writ of summons), which originates an action. It is expressly provided in the High Court rules that any person who claims to be interested under a deed, will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.

An originating summons procedure is appropriate where the main or only point in dispute is the construction of a Statute or other enactment or the construction of a document or where the main or only point in dispute is some other question of law. It is not appropriate where a substantial dispute of fact is likely to arise. An originating summons dispenses with the need for pleadings.

Pre-trial stage and settlement:

Where the defendant fails to do anything by taking one of the steps enumerated by the Court, upon expiration of the time limited for the defendant to either enter appearance and defend the claim, or settle the matter, the plaintiff may file in an application on notice for judgment supported by an affidavit which will be heard by the Magistrate and judgment given thereon, in conclusion of the case, unless the defendant enters appearance and defends the action. Alternatively, the action may be determined without going to trial or at any time before judgment, if the parties reach a settlement and inform the court, in this instance:

• The matter may be discontinued by being struck out with or without cost, or
• The parties may file terms of settlement in court which is then pronounced as the judgment of the court in the case

Default Action:

Where the plaintiff is claiming a liquidated sum, that is, a fixed sum or debt which amount is known or capable of being assessed, the plaintiff should commence the action by way of a default summons or default action, so that, upon the defendant failing to take necessary step to resolve the case or defend it, the plaintiff will have judgment entered against the defendant on an application on notice.

Trial

Where pleadings have been filed, the party on whom the burden of proof lies in respect of the material issues or questions between the parties must begin by stating his case. Then he must produce his evidence and examine his witnesses. When he has concluded his evidence, he must ask the other party if he intends to call evidence. If the other  party does not intend to call evidence, the party who began is entitled to sum up the evidence already given and comment on it.

However, the other party states his case. The case on both sides is then considered closed. The Magistrate then considers all the evidence before him and gives judgment to the party, who has evidence on the balance of probability in his favour, or the party who has discharged the burden of proof cast on him on the balance of probability or on a preponderance of evidence as required by the Evidence Act or Law in the State.

SELF-ASSESSMENT EXERCISE

What is your understanding of the civil procedure of a Magistrate Court with reference to Magistrate Court of Lagos State.

CONCLUSION

It is apt to conclude this unit by reminding ourselves the areas discussed, and these are, the choice of court and issues of summons, originating summons. We have also discussed pre-trial stage and settlement, default action and finally, trial.

  SUMMARY

As a general rule, every entity recognized as a person by the law can sue and be sued and any entity not recognized by the law as a person can neither sue nor be sued. But there are certain classes of persons under disability, for example, infants, and lunatics.

TUTOR MARKED ASSIGNMENT

What are the salient stages of civil procedure in the Nigerian Courts?

REFERENCES/FURTHER READING

Akintunde Olusegun Obilade, (1990) – The Nigerian Legal System,  Owerri, Spectrum Law Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc

John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam Bookman Publishers.

Kiralty, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell. Sanni, A. O., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel Publishing House.