COMMENCEMENT OF CIVIL PROCEEDING IN THE HIGH COURT

CONTENTS:

1.0       Introduction

2.0       Objectives

• Main Content
• Commencement of Action
• Appearance
• Settlement
• Summary judgment

• Pleadings

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Reading

INTRODUCTION

A party who has been wronged or is aggrieved and wishes to seek relief in a High Court usually consults a lawyer for legal advice, who takes down the facts of his case and instructions. If the matter is not urgent and needing immediate action in court to forestall irreparable damage, the lawyer may as a first step write a letter of demand to the would be defendant demanding that a debt be paid, a wrong be put right and or monetary compensation be paid to his aggrieved client as the case may be and give a period of time for the demand to be met, failure of which action is thereafter filed, with or without giving further notice to the would be defendant or alleged wrong-doer.

OBJECTIVES

At the end of this Unit, you should know the following:

• How a case starts in the courts
• The stages before the final conclusion
• Settlement, and
• Pleadings and its objectives

MAIN CONTENT

Commencement of Action:

An action may be commenced in the High Court by a counsel filing one or a combination of the following papers in court:-

• Writ of Summons, or originating summons, together with a statement of claim, or
• Exparte motion, with or without a writ of summons and a statement of claim, which may be filed
• Petition, as may be necessary, such as in matrimonial proceedings for divorce and so forth, or winding up of a company for its inability to pay its debts and so forth.

A writ of summons when filed is sealed by embossing the court’s name on it for service by bailiff on the defendant to give him notice of the claim, made against him and requiring him to acknowledge service and to defend it, if he does not admit the claim.  A statement of claim may be filed along with the writ or later on within 14 days of the service of the writ on the defendant.

A writ usually contains the following endorsements:

• Names of the parties to the suit, that is:
  • The name of the Plaintiff and his address;
  • Name of the defendant and his address, and
  • Name of the plaintiff’s solicitor and his business address for service of court

• An endorsement of the claim against the defendant:

A writ is required to be served on the defendant personally. The life of a writ is 12 months, within which time it has to be served, although its life may be renewed before it expires to enable it to be served.

Appearance:

A defendant may enter an appearance to a writ after an acknowledgement of the writ by sending by post to the Registrar a memorandum of appearance together with a copy of the memorandum. Where the defendant appears in person, the memorandum must be signed by him and must contain an address for service, which address must be within the jurisdiction of the High Court.

However, where a defendant fails to enter appearance, within the time frame, the plaintiff, may by a motion on notice obtain interlocutory or final judgment against the defendant in default of appearance and or failure to defend the action. As a final judgment, the judgment is final with respect to the liability of the defendant to pay damages as well as with respect to the quantum of damages.

Settlement:

Parties to an action may also settle the dispute for valuable consideration or without consideration and withdraw the action without filing terms of settlement in which cases the action will be struck out by court or by filing terms of settlement in court, which will pronounce it as consent judgment of the court in conclusion of the action.

Summary Judgment:

Summary judgment is a procedure or device available for promptly and expeditiously obtaining judgment and disposing off a controversy or matter without a trial. It is usually available where:

• There is default of appearance, and or
• Failure to file a defence, or
• When there is no dispute as to either material facts or inferences

This procedure permits any party to a civil action to move for a summary judgment on a claim, counter claim or cross-claim where he believes that there is no genuine issue of material fact to be tried and that he is entitled to judgment as a matter of law, in any of the situations listed above.

Pleadings:

Pleadings are written statements served by a party on his opponent and containing the allegations of fact on which the party relies. They enable the parties to determine areas on which they are agreed and areas on which there is a controversy between them. Certain facts stated by a party may be admitted by his opponent, in that case the facts need not be proved.

Thus, pleadings enable each party to know what facts he had to prove at the trial and surprise, which might follow from one party rising at the trial facts that his opponent did not anticipate, is avoided. The principal advantage of pleadings is that they enable the parties to determine the precise issues in controversy between them.

The Object of Pleadings includes:-

• To state the claims of the parties
• To give the parties time for considered reply
• To ascertain the issues in dispute or controversy between the parties which requires trial and decision by court?
• To eradicate irrelevant matter, and
• To avoid a party spring a surprise by raising an issue he did not plead during the trial

Thus, a pleading must not state or set out law but may raise an issue of law but without reaching conclusions of law.

SELF-ASSESSMENT EXERCISE

How does a case start in the court?

CONCLUSION

In this Unit, we have vividly discussed on how a dispute commences into an action, what writ is all about, how a defendant enters an appearance to a writ after acknowledging the service of a writ, settlement of disputes, summary judgment, and pleadings and its object. Thus, a court may order a stay, that is, a suspension of proceedings in an action temporarily for good reasons.

SUMMARY

As I have mentioned above, a court has an inherent jurisdiction or power to stay proceedings in a claim for any of the following, until something requisite is done or until a party has complied with an order. However, a stay of proceedings may be permanent, if to proceed with the action would be improper or the suit is frivolous, vexatious or an abuse of court process, that is, an abnormal use of the court process.

TUTOR MARKED ASSIGNMENT

Explain any 3 of the following:-

• Commencement of action
• A writ
• Appearance
• Pleadings
• The Object of Pleadings.

  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.

Kiralty, A. K. R., (1960) – The English Legal System, - London, Sweet and Maxwell.

Nnanyelugo Okoro and Aloysius – Michael Okolie, (2004) – Law, Politics and Mass Media in Nigeria, Nsukka, Prize Publishers.