CIVIL LITIGATION - COMMENCEMENT OF ACTIONS IN THE HIGH COURT

Flashcards based on Civil Litigation lecture notes covering commencement of actions in the High Court.

How many High Courts are there per state and what is the purpose of judicial divisions?

There is typically one High Court per State; judicial divisions exist for administrative convenience.

What is the appropriate venue or judicial division for trial of suits regarding Land Matters, Recovery of Penalties, Actions on Contract, and other actions?

Land Matters: Judicial Division Where The Land Is Located; Recovery Of Penalties, Forfeitures Or Actions Against Public Officers: Judicial Division Where The Cause Of Action Arose; Actions On Specific Performance, Or In Respect Of Breach Of Contract: In The Judicial Division Where The Contract Ought To Have Been Performed Or In Which The Defendant Resides Or Carries On Business; Every other Action takes place in the judicial division where the defendant resides or carries on business.

What are the different modes of commencing actions in the High Court?

Writ of Summons, Originating Summons, Originating Motion, and Petition.

When is a Writ of Summons used?

Contentious matters or where facts are likely to be in dispute; where the Claimant is uncertain about the mode of commencement of action.

What are the key contents of a Writ of Summons?

Judicial division, heading in special cases, names and description of parties, claim, address of parties and legal practitioner; General and Special endorsement.

Who can sign a court process on behalf of a litigant?

Only a Legal Practitioner can sign a court process on behalf of a litigant – Section 9 of Legal Practitioners Act; a Law Firm cannot sign a court process.

Is it mandatory to affix a lawyer's NBA stamp and seal on a writ?

Lawyers’ NBA Stamp & Seal should be affixed on Writ. Failure to affix does not render process incompetent but is regarded as an irregularity which can be cured by affixing the seal.

What documents must accompany a Writ of Summons?

Statement of Claim, List of witnesses to be called at the trial, Written Statements on Oath of Witnesses except Witnesses on Subpoena, Copies of every document to be relied on at the trial, Pre Action Counselling Certificate – Form 6 (Abj) or Pre-action Protocol Form 01 with necessary documents (Lag).

Before an action is commenced in the High Courts of Lagos State and the FCT, Abuja, what is a lawyer expected to do?

A lawyer is expected to comply with some steps, geared towards amicable settlement of the dispute and to avoid the filing of frivolous suits.

What does 'frontloading' mean in the context of commencing actions?

Filing of Statement of Claim and other necessary documents alongside the Writ of Summons.

What are the advantages of frontloading?

Trials are open, saves time & cost, prevents frivolous suits, encourages ADR, efficient case management, avoids springing up of surprises, affords parties & counsel opportunity to ascertain strength of case.

What is the effect of failure to frontload or file accompanying Documents in Abuja and Lagos?

In Abuja, process shall not be accepted for filing upon failure to frontload or file accompanying Documents. In Lagos, it nullifies action.

When is an Originating Summons used?

Determination of questions dependent on the construction or interpretation of documents where facts are not likely to be in dispute.

What is an Originating Motion and when is it used?

Also known as Originating Application, it is used where a law or rule requires that actions may be commenced by it. Example: Enforcement of Fundamental Rights, Application for prerogative reliefs, etc.

What is a Petition and when is it used?

Used where a law or rule requires that actions be commenced by it. Example: Election Petitions, Matrimonial Causes, etc.

What happens to all originating processes upon acceptance for filing regarding ADR?

All originating processes upon acceptance for filing must be screened for suitability for ADR.

When is a Writ or Other Originating Process Issued?

When sealed by Registrar.

When is an action 'commenced'?

When Claimant has done all that is required as payment of filing fees etc., action is deemed commenced.

What is a Concurrent Writ?

A Concurrent Writ is a true copy of a Writ taken out either at the point of issuance of the main writ or after, which bears the same date and has the same life span as the main writ.

Who can serve an originating process?

Sheriff, Deputy Sheriff, Bailiff, special marshal, other officer of court, law chambers, courier companies appointed or registered by the CJ or other persons and such person shall be referred to as a process Server.

What is the permissible time for service of originating process?

Between 6am and 6pm. Service after 6pm is deemed served on next day. All days except Sunday and public holiday except in exceptional circumstances.

What are the modes of service?

Personal Service or Substituted Service.

What are the Modes of Substituted Service?

Delivery to adult inmate in last abode of defendant, advertisement in gazette or newspaper, posting at Court House or by Email or scientific device, courier, etc.

What is the procedure for Substituted Service?

Application by motion ex parte, supported by an affidavit and a written address.

What are the conditions for service out of Jurisdiction within Nigeria?

No leave required if time to enter appearance must not be less than 30 days where the rules prescribe less and endorsement that writ is for service out of the state and in another.

What constitutes proof of service?

Affidavit of Service.

What is the consequence of failure to serve?

Affects the jurisdiction of the Court.

What Steps the DEFENDANT may Take to Set Aside a Defective Writ?

Enter conditional appearance then apply by motion on notice, affidavit & written address a to set aside writ or service, Without entering appearance apply by motion on notice or summons to set aside writ, Apply to challenge jurisdiction without entering appearance.

Differentiate between Non-Service & Irregular Service

Where there is no proper service, the court has no jurisdiction. Where there is improper service, it is a procedural defect which can be remedied.

Steps a Claimant Can Take To A Defective Writ

Apply by Motion on Notice, affidavit and written address to rectify defect.

Describe the key aspects of Electronic Filing and Service

All process and service may be done electronically. Chief Judge is to establish E-filing Unit which will be responsible for management of documents and processes filed. The E-filing Unit shall run concurrently with the regular registry. The filing method adopted by the Claimant shall be followed by the Defendant. Processes can validly signed electronically. Hearing in a case can be held virtually upon the application of the parties or direction of the Judge

What is the Life Span Of An Originating Process.

6 months in the first instance and may be renewed twice for a period of 3 months in each case in Lagos. In Abuja the Writ is valid for 12 months and renewable for another 6 Months.

What is the Meaning & Procedure For Entering Appearance?

Conditional or unconditional submission to jurisdiction of court is entered by filing Memorandum of Appearance as in Forms 11 & 12 in Lagos & Abuja, respectively.

What is the Time to enter appearance?

42 days in Lagos & 21 days in Abuja as stated on the form of Writ of Summons.

What is 'Fast Track'?

A special procedure for speedy trial of suits commenced by way of Writ of Summons.

What are the Qualification for Fast Track in Lagos?

Action is commenced by Writ of Summons and the claim or counterclaim is for liquidated monetary relief of a sum not less than One Hundred Million Naira, or the claim involves a mortgage transaction, charge or other securities.

What are the Qualification or Jurisdiction for Fast Track Division in Abuja?

Monetary claim of not less than 100million, and emanating from Banker/Customer transactions & Commercial transactions.

Application by motion ex parte supported by affidavit disclosing sufficient reason to justify the application.

What is the procedure for Fast Track?

Trial is to last for a maximum of 6 months from the Case Management Conference.

What is the time frame for Fast Track trials?

The Court may enter final judgment where it is satisfied that the Defendant has no defence to the claim.

How does the Court handle undefended Fast Track cases?

Yes, the Judge may order the suit to be transferred to the regular track where justice demands so.

Can a case be transferred from the Fast Track?

Order 24 of the High Court of Lagos State Civil Procedure Rules 2019 and Order 28 of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules 2018.

What are the applicable rules for undefended cases?

Judgment entered by the Court in favour of a Claimant who has clearly established his claim and there is no reason to proceed to trial.

What is Summary Judgment?

Where defendant has no defence to the action or a serious triable issue.

What are the grounds for Summary Judgement?

Order 25 of the High Court of Lagos State Civil Procedure Rules 2019 and Order 29 of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules 2018.

Where do you find provisions for Summary Judgement?

Application by Plaintiff brought by Notice of Motion supported by affidavit stating belief there is no defence; Exhibit documents; Defendant then shows cause why judgement shouldn't be entered against him.

What is the procedure for Summary Judgement?

Dismiss application and give directions for further proceedings; Enter Judgment; Give Defendant leave to defend conditionally or unconditionally.

What are the powers of the Court in Summary Judgement proceedings?

A responsive pleading in which the Defendant answers the Claimants allegations/claims and states the facts on which he relies for his defence.

What is Defence?

Within 42 days in Lagos and 21 days in Abuja of service of the Writ and Statement of Claim.

When must a Defence be filed?

Plaintiff can apply for judgement in default of defence.

What happens if a defendant fails to file their defense timely?

Denial, confession and avoidance, traversing, objection in point of law, set-off and counterclaim.

What are the contents of a Defence?

A claim brought by the Defendant against the Plaintiff in the same action. It is actually a cross-action.

What is a Counterclaim?

It must be related to or connected with the subject matter of the Principal Claim; it should be included in the defence; it has the same effect as a cross action.

What are the rules regarding Counterclaims?

Yes where the Plaintiff's action is stayed, discontinued or dismissed. It can be tried separately.

Can a Counterclaim be struck out?

A pleading by the Plaintiff in answer to the Defence.

What is a Reply?

Within 21 days after the service of the Defence.

When should a Reply be filed?

Where the Plaintiff joins issues with the Defendant.

When is a Reply unnecessary?

Statements in writing served by parties alternately to one another stating the material facts on which each party relies.

What are Pleadings?

To define the issues in dispute; to prevent surprise; to enable parties prepare adequately for trial; evidence.

What is the purpose of pleadings?

Plead only material facts; plead the facts and not the law; plead facts but not evidence; facts should

What are the rules of pleadings?