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22 Jan

CIVIL WEEK 6 COMMENCEMENT OF ACTIONS

WEEK 6

COMMENCEMENT OF ACTIONS IN THE HIGH COURT.

         Place of Commencement: Or 2 HCLCPR. Matters are commenced where they arose, or are to be performed or where the defendant resides or does his business (in land matters where the land is situate).

Company actions are commenced in the jurisdiction of the head office-Union Corporation V LRC.

An action started in the wrong venue will continue until a counsel objects and the Judge (in his discretion) directs that it should be taken elsewhere rather than nullify-MBA V Owoniboys Tech Services. 2 NICAct, Or 2 Lagos, Or 1 NICR

:: THE FRONTLOADING CONCEPT: all relevant documents must be filed with the originating process or the registrar will reject the originating process- Or 3 (Lagos) or the writ would not be issued-(Or 4 Abuja). Or if action has commenced, it can be dismissed (except document was sufficiently pleaded) – Or 5 R 1 Lagos. Frontload, pay requisite fees, serve other party, registrar gives suit number and enter suit in cause book-UBA V Mode.

:: ORIGINATING PROCESSES: Henceforth, frontloading means that it should be accompanied with Statement of Claim, List of Witnesses (to be called at trial), written statement on oath of witnesses (except witnesses on subpoena, copies of every document to be relied on at trial, Pre-action Protocol form 01 (or in the case of Abuja Pre-action Counselling Certificate). i.e. to show that client has been advised of strengths and weaknesses of his case and counsel would pay costs where it turns out to be frivolous.

Note that in Abuja, you don’t need to frontload the list of witnesses.

MODE OF COMMENCEMENT. See generally, Order 1, 2 and 3 HCRFCT, HCLLagos.

Writ of Summons: default mode (except a law provides otherwise). Form 1. Or 1 R 1 Abuja Usually for contentious matters and requires filing of pleadings and frontloading Doherty V Doherty 1968 NMLR 241.

Originating Summons: Where statutory provisions mandate its use. Usually for interpretation of documents or law. Or 3 Lagos Or 1 Abuja. E.g. Human Rights enforcement. Where confused or the facts of the case are likely to be disputed, use writ of summons-NBN Ltd V Alakija [1978] ANLR 231, Inakoju V Adeleke. No need for pleadings in Originating summons-In Re Power.

Originating Motion: where statute/rules mandates its use. usually for prerogative orders (habeas corpus, mandamus, prohibition and certiorari) Fundamental rights (Or 2 FREPRules) 2009.

Petition: Where law mandates. For election (133 EA), matrimonial, company winding up proceedings/causes.

Originating summons and originating motion should be backed by affidavit, exhibit, written address, and pre—action protocol form Order 3 Rule 8 Lagos. *Not Statement of Claim*

:: ISSUE OF ORIGINATING PROCESS:

A writ is issued when it (accompanied by frontload documents and) has been signed (and sealed for Lagos) by the registrar of the court-Or 6 Lagos.

When the plaintiff has taken due steps required by law in order to commence the suit, he is said to have commenced the suit. Alhaji Saude V Abdullahi (1989) 3 NSCC 177.

Remember that filing fees should be paid.

:: SERVICE OF ORIGINATING PROCESS. To inform the party of the suit and non-service can go to root of jurisdiction- Sken Consults V Ukey, Madukolu V Nkemdilim.

Governed by rules of court. This is effected by (court process servers[1] serving defendant personally[2]. However, where personal service is impossible / inconvenient; (e.g. defendant’s location is unascertainable, he is avoiding service, etc.) substituted service[3]  may be ordered by the court after applicant-plaintiff applies through motion ex-parte supported by affidavit showing efforts made at effecting personal service-Or 7 Lagos, Or 11 Abuja, 11 and 12 Uniform Rules. Hybrid service may also be used. E.g. service on LP,

Service of Process on a Company: is always personal to a principal officer of the company (like director, secretary) or by leaving the process at the company’s head office Mark V Eke, Section 78 CAMA, Order 6 Rule 8 FHCCPR. Service on an ancillary staff is void and annuls the court’s jurisdiction upon a preliminary objection from the defendant’s lawyer MTN Communications Ltd V Bolingo Towers.

Service of process on a foreign company is by its local agent (if any), otherwise by service outside jurisdiction or by post.

Where service is on defendant outside the state but within Nigeria. Leave of court is NOT required-Section 96 SCPA but Section 97 SCPA requires that it must be endorsed on the writ that it is to be served outside and return date is not less than 30 days after service or longer period prescribed by court Section 99 SCPA.

Non-compliance may invalidate service-Sken Consults V Ukey to which defendant should raise preliminary objection or waive in that regard-Odu’a Investment Co Ltd V Talabi.

Service outside Jurisdiction: all of Nigeria is one jurisdiction under the Sheriff and Civil Processes Act so service outside jurisdiction usually means service abroad and is always with leave of court (via motion ex parte (is it supported by affidavit)) except in Lagos.

Upon grant of the motion, the process is sealed by the court and sent by the Chief Registrar to the Solicitor–General, who further transmits it to the appropriate authority in the foreign country along with a translation if the language of that country is not English. A certificate or affidavit of service by diplomatic channels is enough proof of service S.97 SCPA. Or 8 Lagos, Or 11 Abuja.

:: LIFESPAN AND RENEWAL OF ORIGINATING PROCESSES. Lifespan of writ is 6 months but may be renewed twice for a period of 3-3 months only to make total not more than 12 months-Or 6 R 6 Lagos[4].

In Abuja a writ lasts for 12 months and can be renewed (before or after expiry date- Kolawole V Alberto) for another 12 months ad infinitum Or 4 R. 16.

A writ should be issued and served on the defendant-Nwabueze V Obi Okoye. The writ is void if not served within its life span.

Civil writs are served from 6AM—6PM barring Sundays and public holidays unless in exceptional circumstances by an order of court.

Note: Writ should include address of defendant.

Renewal is generally at discretion of court.

:: EFFECT OF NON-COMPLIANCE.

Note Or 5 Lagos rules provides that non-compliance with prescribed procedure at the beginning shall nullify the proceedings (except the issue relates to the choice of originating process) if at other stage the irregularity may be regularised at discretion of judge.

Service (not writ) would be set aside- Nwabueze V Obi Okoye (1988) 4 NWLR R 664. Sken Consult V Sekondy Ukey (1981) I SC. 6.

The defendant must however object timeously (preliminary objection by summons or motion on notice with grounds stated-Cole V Agu) before trial or before taking any step in the action which may amount to a waiver (like unconditional appearance)-See generally; Nwabueze V Obi Okoye. As he may expressly or impliedly waive the irregularity-Ezomo V Oyakhire (1985) 1 NWLR 195.

Although the issue of jurisdiction may be still be raised after he has taken a step in the action-AG Eastern Nigeria V AG Federation, Madukolu V Nkemdilim.

Although in practice it is honourable to write to plaintiff to regularise/comply rather than jump to court to set aside.

:: APPEARANCE AND DEFAULT OF APPEARANCE.

Appearance is done by filing (conditional/unconditional) memorandum of appearance (Form II) within 8 days (Abuja) or 42 days (for Lagos with statement of defence) of service of writ on him. Where outside the jurisdiction, he should appear within 30 days Address for service (of defendant or legal practitioner) should be stated.

Defendant may appear out of time (provided before judgment) by motion ex-parte supported by affidavit stating reasons for not appearing within time.

He may appear in two ways:

– If defendant wishes to set aside writ or service, he should enter an appearance in protest or conditional appearance and then (by way of motion apply to set aside-Sken Consult V Sekondy Ukey, Nwabueze V Obi Okoye.

He may enter Unconditional appearance and defend the suit in the merit. Deemed to have waived irregularities.

If defendant does not appear, the plaintiff can apply for judgement in default of appearance[5], which can be set aside on grounds of fraud, non-service, and lack of jurisdiction

If the defendant is out of time, he may apply to appear out of time and avoid default judgement. He will pay N200 for each day of default.

:: ETHICAL ISSUES

 

[1] Sheriff, bailiff, others authorised by court to serve.

[2] Who acknowledges receipt of the process by endorsing at the back or in Bailiff or other process server depose to affidavit to the effect that he served defendant personally but he refused to endorse. Or 7 Lagos Rules. Another form of proof of service is the appearance of the defendant in court. Another form is Affidavit of Service (which is prima facie proof) setting out date, time mode and fact of service. Or 7 Lagos, 11 Abuja, 12 Uniform Rules. It appears the initiator of the process shall pay cost of service.

[3] Delivery at last place of abode, court or public place within court’s jurisdiction, email, adult male member of last known place of abode, advertisement in Federal Gazette or newspaper circulating around jurisdiction.

[4] But this may have changed following the ruling in Kolawole V Alberto

[5] This would however not be done where the issue relates to declaration of title to land.

Isochukwu

Quite eccentric really

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