CIVIL WEEK 5 PRELIMINARY MATTERS TO CONSIDER
FOR THE LOVE OF CHRIST JESUS; THE BEGINNING AND THE END.
WEEK 5 PRELIMINARY MATTERS (1)
PRE-ACTION ISSUES AND COMMENCEMENT OF ACTION IN THE MAGISTRATE COURT.
:: VARIOUS MATTERS THAT NEED TO BE CONSIDERED BEFORE COMMENCING OR DEFENDING AN ACTION. This is necessary to prevent fatality or striking out of suit.
An action is a proceeding in court for the enforcement of a right-7-Up Bottling Co Plc V Abiola Bottling Co and Anor.
From looking at the pleadings, facts and circumstances:
– Whether there exists a reasonable cause of action to which the plaintiff is entitled to a legal relief-Mobil V LASEPA. This can be deciphered from the statement of claim.
– Litigation Cost and possible duration.
– Available Alternative Remedies or Mechanisms: Whether available remedies have been exhausted (like lodging complaints) and also whether amicable settlement can be effected through ADR 15 RPC, 38 MCL Lagos, Or 3 R 11 Lagos, S 19 CFRN, etc. Client should have been intimated in this regard
– Compliance with Condition Precedents: like pre-action notice, letter of demand, quit notices, etc. Awojugbagbe Light Industries V Chinukwe
– Pre-action Counselling/Protocol on strength and weaknesses of the case with certificate in this regard required in Lagos and Abuja to be filed with the Writ and originating processes. 4 Abuja, 3 Lagos.
– Enforcement of the Judgment:
– Jurisdiction of the court to hear the matter. Madukolu V Nkemdilim, tells us that the court should be properly constituted by qualified judges, due process and condition precedents have been fulfilled and the subject matter is within the court’s substantive and territorial jurisdiction. As the issue can be raised at any time and trial could be rendered a nullity- Tukur V Governor of Gongola State.
– Proper Processes and Venue: although improper institution can be transferred.
– Locus Standi: interest and competence of the plaintiff in the subject matter-Fawehinmi V Akilu (1987) 4 NWLR Pt 67 797, Abraham Adesanya V President FRN, Fawehinmi V President. FREPR enjoins courts to entertain FHR matters rather than strike out for lack of locus standi. S (6)(6)(b) may be relied upon.
– Limitations: Statutory and other limitations: like statue bar for lapse of time (6/12 years)-Green V Green, 3 months limitation to institute action against public officers for wrong committed in execution of public duty as required under S 2 POPA (AG Cross Rivers V AG Bayelsa, Egbe V Adefarasin), Immunity (to president, vice, governors and their deputies-308 Of the 1999 Constitution. Can however be sued in official capacity or merely nominal party. Diplomats too S1 DIPA, Judges-188 EA, whether other party is incompetent-175 EA) etc.
Lawyers ethical considerations.
:: ETHICS AGAINST FRIVOLOUS ACTIONS AND AVOIDING ABUSE OF COURT PROCESS.
:: COMMENCEMENT OF ACTION IN THE MAGISTRATE COURT.
Order 1 Rule 1 (then other rules under) MCCPR 2009 Lagos, actions may be commenced where the defendants or one of them resides or carries on business in Lagos or the cause of action arose (wholly or partly in Lagos[1] or the subject matter of the application is situated in Lagos. Incapacitated persons can come through guardian[2] or next friend. (replace Lagos with the State in question).
Court of subordinate and summary jurisdiction which the legislature can establish-Section 6(4a) CFRN. The relevant MC and HC laws and rules would be considered. Like MCL Lagos NO 16, 2009, MC (CP) Rules, Sheriffs and Civil Process Laws.
The Lagos State Magistrate Court has no division and the financial ceiling is ten million naira. Sc 93 MCL Lagos 2009.
In a liquidated money suit the plaintiff may for reasons of expediency abandon money over the ten million mark so the court can have jurisdiction (abandonment of excess). Such abandonment should be noted Or 8 R 4 MCRLagos. As judgment would be a full satisfaction of claimant’s claim.
- 28 (1) and (2) MCL Lagos states the magistrate may hear actions in tort, contract (not exceeding N10,000,000) and recovery of premises not exceeding N10,000,000 annual rental value; appointment of guardian, recovery of penalties, sanitation injunctions, and Lotteries and Environmental laws. The defendant or one of the defendants must reside in Lagos and/or the cause of action must have arisen wholly or partly in Lagos Or an assignee can where assignor would have commenced in Lagos.
Modes of commencing. (Order 1 MCR).
– By Claim: (with particulars of claim showing substance of his claim and reliefs sought) could be for the issuance of Ordinary Summons (Civil Form 1) or Summary Summons in (Civil Form 4) for contentious and liquidated money demands respectively.
Note the timelines for the defendant to respond. Defendant to appear on a date determined by the registrar not less than 5 days provided service has been effected.
For summary summons, you request the registrar to endorse your claim as summary summons. Summons should be served personally but substituted service may be allowed where personal service is impracticable-Or 5 MCR.
– By Originating Application: default one where no other is prescribed Or 1 R 8 MCR
The format of a claim should have the heading of the court, suit number, names of the parties, title, body (which contains facts succinctly describing the parties and facts constituting the cause of action and the reliefs sought). Remember stuffs that should be specifically pleaded.
Summary summons is inapplicable to infants, moneylenders, mortgages, one impaired mentally or physically, a government department, or a person outside the court’s jurisdiction. In the SOC, the body of claim should contain (circumstances in which the alleged liability arose) the following:
– In debt cases, particulars of debt, dates of transaction, etc.
– Unliquidated Demands should show the certain sum.
-Moneylenders action should show particulars of loan (amount, interest, etc.) note/memorandum, date of transaction(s), sum due and interest accrued… Hire Purchase, Mortgages, Possession Cases (description fo the property, ground on which possession is claimed, etc.
Summary summons lasts three months from the date of service and is not renewable. But claimant is at liberty to file a fresh claim-Or 3 MCR Lagos.
Amendment of claims can be done before judgment with leave of court by filing and delivering amended particulars with additional court fee.
[1] For assignee, he can commence where the assignor can commence in the above two.
[2] And court can appoint a guardian where they have none.
