Commencement of Actions in Civil Litigation

Civil actions are commenced by 4 different types of documents. These documents are collectively called originating processes. All four are applicable in both Lagos and Abuja High Courts. The rules for determining which applies are also largely the same. Where difference lies is usually additional documents

Writ of Summons: This is the most commonly used and default process. If you are unsure of what to use, use a writ of summons. If the matter is contentious, use a writ. If the law says to use writ of summon, use writ of summon. It’s that simple. The writ is accompanied by the following four documents.

In Lagos

  • The Statement of Claim: Contains all the facts you are relying upon
  • Pre-ACTION Protocol Form 01: To show you have taken all pre-action steps which includes ADR options among others
  • List of Witnesses
  • Witnesses statement on oath

In Abuja

  • The Statement of Claim: Contains all the facts you are relying upon
  • Pre-ACTION counselling Certificate: To show you have taken all pre-action steps which includes ADR options among others
  • List of Witnesses
  • Witnesses statement on oath

The act of adding these documents is known as FRONTLOADING. Frontloading is simply… frontloading. You put all your documents, all your junk, facts out there on the table, let the other party know what you have up your sleeve and let the court know as well. No gimmicks, no surprises. It also saves time and makes the life of a lawyer easier. When we discuss trial advocacy you see how this works. Never mistake the documents required in one jurisdiction for another, you either get it or you don’t. In response, the defendant puts forward within 8 days (Abuja) or 42 days (Lagos)

In Lagos

  • Statement of Defence
  • List of Witnesses
  • Witnesses statement on oath

In Abuja

  • Statement of Defence
  • List of Witnesses
  • Witnesses statement on oath
  • Pre-Action Counselling Certificate (yes only in Abuja is this document filed by the defendant as well)

Originating Summons: This one is specially for the interpretation of documents: deeds, statutes, contracts and what have you. If in a matter, the main bone of contention is whether the words of a document mean a certain thing or whether the tenor of a document allows you to do so and so, go ahead and use an originating summons. However you may be on the wrong track (maybe the matter is too contentious to be settled with an originating summons), hence the court may ask you to frontload the big four up there, thereby converting your process to a writ of summons. Adeyelu II v. Ajagungbade III. In Lagos the originating summons is accompanied by

  • An affidavit setting out the facts relied on
  • All the exhibits to be relied on
  • A written address in support of the application
  • Pre- action Protocol Form 01

In Abuja, it is treated like a motion so we just have an affidavit and written address in support. The defendant is to respond within 8 days (Abuja) or 21 days (Lagos) with a counter affidavit and written address.

Petition: I like to see this process as the one you use to find trouble. ON a more serious note, it is used strictly by prescription of law. The most popular is Election matter. You always hear election petition. Same goes for matrimonial causes; yoou petition for dissolution of marriage.

Originating Motion: Just like the petition, it must be required by the law before it is used. If the law says something should be done by an application but doesn’t specify, then you go by Originating motion. It is required by the Human Rights Enforcement Procedure Rules (hope I got that right, such a mouthful)

N.B: There can’t be a conversion to a petition or originating motion, as in, if you file a writ instead of a Petition you have to tear the paper and start again, no conversion).

FastTrack Procedure: This is a special procedure under the Lagos High Court Rules in Order 56, aimed at reducing the time spent in court to 9 months, all the time limits are cut short. However it doesn’t just apply to just any case. It has to be a case that:

  • Is commenced by a writ of summons
  • An application for fast-track must be made by the claimant to the registrar
  • The claim is for a liquidated sum not less than 100,000,000 (One Hundred Million Naira) OR

The claim is for a charge, mortgage or security OR

Claimant is suing for a liquidated sum and is: a foreigner or a person who is not                       resident in the country; with such facts disclosed in the pleadings

The first and second requirements are compulsory while the third is gived three options, either of the 3 will do.

The following are the highlights of the time frame in the fast track procedure

  • Service of Originating Processes – 14 days
  • Defence – 42 days
  • Reply – 7days
  • CMC – 7days close of pleadings
  • CMC lasts for 30 days and may be extended for a period of 14 days max
  • In the course of the matter, adjournments are rare and if any for a short period
  • Final Addresses 14 days by whichever party goes first, 14 days for the party replying 7 for the other party answering.
  • Judgment is to be delivered within 60 days of the completion of trial

Some of the above terms might not make sense because we’ve not discussed topics like final address and judgment but just keep in mind the difference between the Fast Track Procedure and the normal procedure.

Endorsements on a writ: The following items must be in a writ

The address of the parties and their Legal Practitioner for service: Except the lawyer of the defendant (because this is the first time you will be notifying him of the suit and you can’t possibly know his lawyer at that point) you must have you lawyer’s address on the process as well as the defendant’s lawyer for effective service.

The signature of the legal practitioner: Note I said the legal practitioner not the law firm. The law firm is not a lawyer.

If you are acting for a firm, what you do is sign then under the signature put your name then under your name, your position then under that, the name of the firm. Got it? SIGNATURE, NAME, POSITION, LAW FIRM.

But if you put the firm’s name directly under the signature it’s like you are saying the firm prepared and signed the process and that’s not possible under the law. Okafor v. Nweke

Issuance of writ: At what point is a writ issued? In LAGOS when it is SEALED by the REGISTRAR; In Abuja when it is SIGNED by the REGISTRAR or any other court official authorised to do so. Then the action is said to have commence when the plaintiff/claimant has done all that is required of him Alawode v. Semoh

Service of Processes

This is a very crucial aspect of commencing proceedings. The case would not have been brought before the jurisdiction of the court without service of the processes on the defendant i.e. no service no jurisdiction. The courts shared this opinion in Madukolu v. Nkemdilim. So how do we serve? Order 7 r 1 LAG; ORDER 11 r 1 ABJ, You can give the person, you can give it to a principal officer of the company e.g. Director, Secretary. However if the defendant has authorised his Legal Practitioner in writing, to receive processes on his behalf, there is no longer need for giving the defendant personally.

When you’ve tried to serve the defendant normally but he has been dodging you, you apply for SUBSTITUTED SERVICE by MOTION EX PARTE supported by affidavit and written address. The rules list various ways of substituted and the list is so exhaustive, I’m sure the person cannot escape all of them (It remain small for them to kuku say you can throw it on the person’s shadow sef) Order 7 r 5 LAG; Order 11 r 5 ABJ.

When a party is successfully served he must execute a PROOF OF SERVICE, filed by the process server Order 7 r 13 LAG; Order 11 r 28 ABJ. With particulars of service and acknowledgment of service.

Endorsement of writs

There are 2 types of endorsement of writs:  Special endorsement and general endorsement.

The specially endorsed writs have their statement of claim at the back of the writ, (so no need for an actual statement of claim) while the generally endorsed writ is just a plain writ. In Lagos there are no more specially endorsed writs while Abuja still has that going for them.

Also a writ may be for service within or outside jurisdiction. This operates in both jurisdictions. The legal Practitioner is supposed to apply for leave for such writ to be issued and to serve such writ. This must also be at the back of the writ.

“This writ of summons/originating summons/other originating process is to be served out of ______ State of Nigeria and in ____________ State”

Note that the Sherriff and Civil Processes Act Section 99 says if the process is to be served outside Nigeria the return date (when the defendant should be require to enter appearance)  should not be less than 30 days. If the state’s rules provides a surplus of days (like Lagos), then all well and good. This same law says that there is no need to apply for leave to serve a writ within Nigeria. So if a writ is issued in Kwara State for Service in Zamfara there is no need for leave, but they may have the above endorsement just to show it is not for service around here.

Therefore there are 4 types of writs in all jurisdictions

  • Specially endorsed writ for service within jurisdiction
  • Specially endorsed writ for service outside jurisdiction
  • Generally endorsed writ for service within jurisdiction
  • Generally endorsed writ for service outside jurisdiction

Like I said above, 1 and 2 are no longer in Lagos while 1 to 4 still exist under Abuja Rules

Expiry date: Processes have expiry dates a.k.a. validity periods to give you enough time to serve maybe the defendant is playing hide and seek with you. You can apply for renewals by Motion Ex Parte supported by affidavit and written address.

In Lagos: It is valid for 6 months upon issuance then you can renew for 3 months and another 3 months. That makes a possible total of 12 months. After this time you have to file the processes over again.

In Abuja: It is valid for 12 months and you can renew for another 12 months and another and another and another and so on. So an Abuja process is potentially a vampire.

Defective Writs: A writ that wasn’t properly served, wasn’t properly endorsed or even issued by a court with no jurisdiction or whatever. Normally a defendant who receives a writ is supposed to enter appearance within the given time in accordance with the form given in the rules (Form 11) (along with documents stated above) but to a defective writ he can do any of the following:

  • File conditional appearance then apply by motion on notice to set aside the writ Holman Bros v. Kigo
  • Enter no appearance and bring a summons asking the writ to be set aside Order 5 r 2 Lag; Order 12 r 7 Abj
  • Enter no appearance and file a preliminary objection.

Where the defendant fails to react this way it’s like he is condoning the defect so he must not enter a normal appearance.

Please let me know if there’s anything I’m missing out or misrepresenting.

 

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