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15 Oct

2011 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CIVIL LITIGATION

COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR FINAL EXAMINATIONS
CIVIL LITIGATION
THURSDAY, AUGUST 11, 2011 TIME: 3 HOURS
INSTRUCTIONS:
THIS PAPER IS DIVIDED INTO 2 SECTIONS AND ANSWER BOOKLETS ARE PROVIDED.
QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER QUESTION FROM EACH SECTION SHOULD BE ATTEMPTED.
QUESTIONS FROM EACH SECTION SHOULD BE ANSWERED ON A SEPARATE ANSWER BOOKLET.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET.
SECTION 1
QUESTION 1 (COMPULSORY)
Mr. Ben Ajuwa is the owner of a vacant plot of land at No. 1 Ajasa Street, Lagos. He has been unable to develop the land due to lack of funds. He therefore contacted Mr. Tobi Silas a renown estate developer and entered into a development lease agreement with him. The agreement contains the following clauses amongst others:
4. The Lessor, shall provide the developer with a valid document of title to the land within seven days of execution of this agreement and the Developer shall commence construction work on the land within 14 days of receiving the title document from the Lesser.
10. Any dispute arising from this agreement shall be referred to arbitration in accordance with the Arbitration and Conciliation Act LFN, 2004.
On the day of the agreement was executed, Mr. Ajuwa handed over to Mr. Tobi Silas his purchase receipt in respect of the land but till date Mr. Silas had refused to start construction work on the land contending it does not qualify as valid document of title as stipulated by Clause 4 of the agreement.
Mr. Silas now resides at NO. 2 Wusa Street, FCT, Abuja.
Mr. Ajuwa has now instructed you to commence an action in Court against Mr. Silas for a binding interpretation of Clause 4 of the agreement. He informed you that there is no other fact in dispute between the parties.
a. What is the best process or form to commence an action in this case and why?
b. Draft the process with which you will commence the action (without any supporting document).
c. List the documents/forms to be file along with the process you drafted in (b) above.
d. Assuming Mr. Silas intends to challenge the facts contained in the process filed by Mr. Ajuwa in this case, what step must Mr. Silas take and what is the legal consequence of not taking such step?
e. Assuming Mr. Silas is served with the originating processes, he still wants the matter to be referred to arbitration, what step must be taken?
f. Assuming Mr. Silas’ failure to commence construction was due to the refusal of his Bank, Star Bank Plc, to provide him with funds on the ground that a purchase receipt does not quality as a valid document of title and Mr. Silas intends to proceed against the Bank in the same action commenced against him by Mr. Ajuwa. Draft the application to be filed on behalf of Mr. Silas for this purpose (without any supporting document).
QUESTION 2
On 11th May 2011, Mr. Obla Sunday, a legal practitioner called to the Nigerian Bar in 2006, was at the Chief magistrate Court Ebute-Meta, Lagos to defend a client in a criminal matter in charge No. CR/20/2011. The Court shares the same fence with a nearly police station. As he was driving towards the Court premises, the car engine suddenly went off in-front of the police station. As he was trying to start the engine, two police men suddenly came over from the police station. He later got to know their names as Sgt. Ukpong Emmanuel and Insp. Samson Mustapha. They asked him to move the car from the front of the police station. His plea to them that the car suddenly developed an engine fault fell on deaf ears, He pleaded that they should assist him to push the car and that he was on his way to the court.
Out of annoyance, they dragged Mr. Obla Sunday out of the car. While Sgt. Ukpong gave him a slap and tore his shirt, Insp. Mustapha beat him and took his mobile phones. The beating attracted the attention of Court officials and attendants. Insp. Mustapha continued to shout on Mr. Obla Sunday that he being a legal practitioner does not mean he cannot be disciplined, he threatened to shoot him.
Other colleagues came to the rescue of Obla Sunday and took him to a nearby clinic for treatment. When he was examined, he had broken nose from the beating. Mr. Obla Sunday has decided to enforce in Court his fundamental rights to dignity of human person and claim damages.
a. Draft the application.
b. After the service of the application, the Police Respondents intend to raise a preliminary objection on the ground that since the Inspector General of Police (IGP) was made a party, the action ought to have been commenced at the Federal High Court. Comment on the validity of the objection.
c. What is the proper procedure for raising the preliminary objection?
d. How will the court treat the preliminary objection?
e. What possible orders will the Court make at the hearing of the application?
f. Assuming that in the application for the enforcement of fundamental rights, the Applicant attaches a photocopy of the medical report from a government hospital and the Respondents object to the photocopy, what will be your response?
g. Although duly served with the application, Counsel to the Respondent did not file a respondent unit 2 weeks after. Within what time was counsel expected to file a response?
h. Assuming Counsel to the Respondent was wasting time in filing the response, what step(s) would he take to regularize the position?
i. Comment on the conduct of the Respondents’ Counsel in failing to file a response and simply appearing in Court to orally admit the claim of the Applicant in open Court.
QUESTION 3
After pleadings were settled in a matter involving Musa Yaro and Chief Balogun in Suit no. 1234/CHC/2011, Forms 17 and 18 were taken and issued for pre-trial Conference. On 20th July 2010, the date slated for the Conference, the Defendant was absent and was not represented. The pre-trial Conference Judge adjourned the Conference to 30th July, 2010.
On 30th July 2010, the Defendant again was absent and was not represented.
a. What possible sanction(s) could the Court have made against the defaulting defendant?
b. Assuming that judgment was entered on 30th July, 2010 against the Defendant, State the step(s) the Defendant must take to set aside the judgment.
Order 25 (1) of the Lagos High Court Civil Procedure Rules provided as follows:
i. Within 14 days after close of pleadings, the claimant shall apply for the issuance of a Pre-Trial Conference Notice as in Form 17. Counsel to the Claimant applied for the issuance of a Pre-Trial Conference Notice through his firm’s letter head with Form 17 attached. The Defense Counsel raised and objection stating that the application was invalid since it was not done by way of motion on Notice.
c. Assuming you were the judge, write a Ruling on this objection.

SECTION 2
PLEASE USE ANOTHER BOOKLET FOR THIS SECTION
QUESTION 4 IS COMPULSORY. ONE OTHER QUESTION FROM THIS SECTION SHOULD BE ATTEMPTED.
QUESTION 4
C.C. uji is the Solicitor managing the residential property of Chief Benson located at No. 4 Ring Road Lagos made up of six (6) bedroom duplex. C.C. Uji rented a 4 bedroom duplex to James peters for N9millon per annum on 1st January 2007. James paid rent for two years and since then has not paid again. Sometime in February 2011 C.C. Uji was notified by other tenants in the property that James Peters has turned his apartment into a party house were loud music boomed from giant speakers every night to the annoyance of other tenants and the neighborhood. This attitude coupled with the fact that James Peters is in arrears of rent irked C.C. Uji who issued him a six months quit notice served on James on 26 June 2011 to expire on 31 December 2011. The notice was served by the Secretary to C.C. Uji Law firm who after several attempts to serve James personal failed, decided to paste the notice on the entrance to James Peter’s apartment.
Answer the following questions.
a) What other notice is C.C. Uji required to issue before he can commence proceedings to eject James from the premises. Draft the notice.
b) Assuming during trial at the Lagos Magistrate Court, James Peters raised the following objections to the Jurisdiction of the Court, write a short legal opinion on the objection.
(i) That C.C. Uji did not get a written authority from Chief Ojo Benson before issuing the quit notice.
(ii) That the claim of the claimant is for total of N18million and as such the court lacked Jurisdiction to hear the suit.
(iii) That the service of the quit notice was defective and invalid not having been served by a bailiff of court personally on James Peters.
c) Assuming C.C. Uji has a power of Attorney executed in his favour by Chief Ojo Benson to manage the property, recover possession from tenants and other incident matters, who will be the proper parties in the suit against James Peters to recover possession. Draft the parties heading on the plaint.
d) Chief Ojo Benson pays C.C. annually a fixed amount for managing his property including handling cases in court. Examine the ethical consideration in C.C. Uji’s mode of remuneration.
e) Assuming that based on a petition to the police, an IPO in the Police station had investigated the report of nuisance by the loud speakers of the defendant and written a report, how would the plaintiff’s lawyer be able to tender the IPO’s report in the Magistrate Court?
QUESTION 5
1. John Ali is a businessman and a major dealer/distributor of WAMPCO cement, with his shop located at Plot 10 Garki Abuja. He transacts business as John Ali & Sons”. On 16th February 2009, he entered into a contract to supply 5000 bags of cement to Hopeday Construction Ltd, at its Abuja office. The registered office of the company is at Victoria Island Lagos. The cement bags were needed for the purpose of executing a contract of construction of staff quarters of the NNPC, Abuja.
Hopeday construction Ltd has defaulted in the payment of the contract sum of N10million. After several demand letters, Mr. John Ali has instructed your law firm to sue Hopeday construction Ltd in the High Court, FTC Abuja, for the N10million with interest.
Answer the following with authorities.
a) (i) Prepare a checklist of at least 8 matters that you will consider as Counsel to the plaintiff, before filing this suit in your client’s behalf.
(ii) Assuming that the originating processes were served on the defendant at its Abuja office, what would be your response, if any, as the defendants’ Counsel? What steps would you take in Court on this issue?
b) Assuming that the defendant’s counsel raise an objection in the course of the suit that the present court is not the proper venue for this action, “it involves the operation of companies and Allied Matters Act 2004. The suit should be struck out. It is only properly brought in the Federal High Court”.
(i) What would be your answer as the plaintiff’s counsel
(ii) At what time and how could an objection of this nature be properly raised?
c) Assuming that 3 months have elapse since the defendant was served with the originating processes in the suit. The plaintiff has now brought a motion on notice for judgment in default of defense. As defendant‘s Counsel you have instruction of your client to file a statement of defense out of time.
(i) Prepare an application to facilitate your instructions (without an address).
d) Assuming the 2 motions (i.e. the one by the plaintiff for default judgment and the other by the defendant for extension of time) were scheduled for hearing on the same day, which of the motions would be given precedence by the Court? State your reasons.
QUESTION 6
Recently, the Federal Government announced the appointment of one Justice of the Supreme Court and a Judge of a State High Court from the South East Geo-political zone. Both Judges were appointed by the President of the Federal Republic of Nigeria on the recommendation of the Chief Justice of Nigeria and the appointments were duly confirmed by a judiciary Committee set up by a President fiat for that purpose.
Aggrieved by the procedural irregularities, the Nigerian Bar association has threatened to institute an action against the federal Government for a declaration that the appointment of the Justice of the Supreme Court and a Judge of the High Court were unconstitutional.
Answer the following questions.
(i) Do you think that the NBA has a good case? State your reasons for your answer.
(ii) In which Court should the action be commenced and why?
(iii) Assuming the matter is commenced at the High Court of Lagos State and the Court finds that it lacks jurisdiction and that it is the Federal High Court which has jurisdiction, what should NBA do?
(iv) Would your answer to (iii) above be different assuming that the matter is wrongly commenced at the Federal High Court and it finds that it is the State High Court that has jurisdiction? Give reason(s) for your answer.
(v) Assuming the action is to be commenced at the Federal High Court Abuja, Draft the followings:
(a) The heading
(b) The parties
(c) The reliefs

COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
AUGUST 2011
BAR PART II EXAMINATION
CIVIL LITIGATION
MARKING SCHEME

SECTION 1

Question 1
(a) The best process to commence this action is originating summons. This is because the action is for interpretation of a document and facts are not in dispute. See National Bank v Alakija (2mks)
(b) ..
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Suit No.LD/…………….
BETWEEN
MR. BEN AJUWA ………………………………………… CLAIMANT
AND
MR. TOBI SILAS ……………………………………… DEFENDANT (2MKS)

ORIGINATING SUMMONS
LET Mr. Tobi Silas of No 2 Wuse Street, FCT Abuja within 42 days of service of this summons inclusive of the day of such service cause appearance to be entered for him to this summons which is issued upon the application of the claimant for the determination of the following question:
Whether the purchase receipt in respect of the land situate at No. 1 Ajasa Street, Lagos qualifies as a valid document of title in accordance with Clause 4 of the Development Lease Agreement between the claimant and the defendant? (2mks)

And upon the determination of the above question the claimant will seek the following reliefs:
1. A declaration that the purchase receipt in respect of the land at No. 1 Ajasa Street, Lagos qualifies as a valid document of title in accordance with clause 4 of the Development Lease Agreement between the claimant and the defendant
2. An order compelling the defendant to commence construction work on the land in accordance with clause 4 of the Agreement
3. Such other orders as the Court may deem fit to make in the circumstance of the case
( 1 ½ mks)
Dated this ……………………………day of………………..2011

This summons is issued out of Lagos State of Nigeria for service at the Federal Capital Territory, Abuja. (1mark)

This summons was taken out by Sunday Abutu, Legal Practitioner to the claimant whose address for service is C/O his counsel, Abutu & co, No. 1, Law School Drive, Victoria Island, Lagos.

For Service on
Defendant
Mr. Tobi Silas
No. 2, Wuse Street,
FCT, Abuja. (1 ½ mks)

(c) i) affidavit in support
ii) Exhibits to be relied upon
iii) Written Address (2mks)

(d) He must file a counter affidavit
The consequence of failure to file counter affidavit is that the facts in the processes of the claimant will be deemed to have been admitted. See Alagbe v Abimbola. (2mks)

(e) He must file a motion on notice for stay of proceeding pending arbitration. The motion must be filed without taking further step in the proceeding after being served with the originating processes. If the motion in granted, he can then commence arbitration proceedings. See Section 4 & 5 Arbitration and Conciliation Act; Kaduna State Urban Development Board v Fanz Construction Ltd (3mks)

(f)

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Suit No. LD/…………….(1mk)
BETWEEN
MR. BEN AJUWA …………………………. CLAIMANT/RESPONDENT
AND
MR. TOBI SILAS …………………………………. DEFENDANT/APPLICANT
AND
STAR BANK PLC …………… 3RD PARTY/RESPONDENT
(1MK)
MOTION EX-PARTE
Brough Pursuant to Order 13 Rule 19 Lagos High Court (Civil Procedure) Rules 2004 and Under the Inherent Jurisdiction of this Honourable Court (1mk)
Take Notice that this Honourable Court will be moved on ……………….the ……………day of ……………2011 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the defendant/applicant for the following orders;
1. An order granting leave to issue third party notice against Star Bank Plc
( 2mks)
2. And for such further or other orders as the Honourale Court may deem fit to make in the circumstances of this case. (1mk)

Dated this …………………day of ……………………….2011 (1mk)

________________
Femi James
James & Co
Defendant/Applicant’s Solicitors
No. 1 Law School Drive, Victoria
Island, Lagos (1mk)

Question 2
a)
IN THE HIGH COURT OF JUSTICE OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: ………………
IN THE MATTER OF AN APPLICATION BY OBIA SUNDAY
FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
BETWEEN
MR. OBIA SUNDAY ……………………………………………………. APPLICANT

AND
1. INSPECTOR SAMSON MUSTAPHA …………………….. RESPONDENTS
2. SERGEANT UKPONG EMMANUEL
3. COMMISSIONER OF POLICE, LAGOS STATE.

MOTION ON NOTICE
PURSUANT TO ORDER 11 RULES 1 – 5 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 AND SECTION 34 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED AND THE INHERENT JURISDICTION OF THE COURT.

TAKE NOTICE that this Honourable Court will be moved on………………the …………………day of …………………..2011 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicant praying for the following reliefs:

1. A declaration that the beating and harrasment of the applicant by the 1st and 2nd respondents on the 11th of May, 2011 constitute infringement of the applicant’s fundamental rights to dignity of human person as guaranteed by S. 34 of the 1999 constitution.

2. An order for the payment of the sum of N10 million damages to the applicant by the respondents for the infrigement of the applicant’s fundamental rights.

3. Such further or toehr orders as this honourable court may deem fit to make in the circumstances.

Dated this …………………….day of ……………………..2011

…………….
James John Esq
Applicant’s Counsel
Obia Sunday & Co.
NO. 1, Law School Drive
Victoria Island, Lagos.

FOR SERVICE ON
1. 1st Respondent
Inspector Samson Mustapha
No. 1 Samson Street
Lagos

2. 2nd Respondent
Sergeant Ukpong Emmanuel
No. 1, Emmanuel Street
Lagos

3. 3rd Respondent
Commissioner of Police
Police Headquarters
Ikeja, Lagos.
(2mks)

IN THE HIGH COURT OF JUSTICE OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

SUIT NO:……………

In the Matter of an Application by Obia Sunday
For The Enforcement of Fundamental Rights

BETWEEN
MR. OBIA SUNDAY ……………………………………………………. APPLICANT

AND
1. INSPECTOR SAMSON MUSTAPHA …………………….. RESPONDENTS
2. SERGEANT UKPONG EMMANUEL
3. COMMISSIONER OF POLICE, LAGOS STATE.

AFFIDAVIT IN SUPPORT
I, Obia Sunday, male, christian, Nigerian citizen, Legal Practitioner of Obia Sunday & Co Solicitors & Advocates of No. 1 Law School Drive, Victoria Island, Lagos do make oath and state as follows:
1. I am the applicant in this case, by virtue of which I am conversant with the facts and circumstances of this application.

2. On the 11st of May, 2011 while I was on my way to the Magistrate Court, Ebute Metta, Lagos to defend a client in a criminal Charge No. CR/20/2011, my car engine suddenly went off and the car stopped.

3. That the place where the car stopped happened to be in front of the police station which shares the same fence with the Court.

4. That while I was trying to restart the car. I was accosted by the 1st and 2nd Respondents who are police officers from the station. They insisted that I move the car from the front of the police station.

5. That my plea to the 1st and 2nd respondents to help me push the care away from the station fell on deaf ears. Rather, they dragged me into the station. The 2nd respondent gave me a slap and tore my shirt while the 1st respondent beat me and took my mobile telephone. He also threatened to shoot me with his gun.

6. That it took the intervention of my professional colleagues to rescue me from the respondents and I was later taken to the Mayo Clinic, Ebute-Metta for the treatment of injuries inflicted on my by the respondents.

7. That I was highly humiliated by the conduct of the respondents all of which took place in the presence of several people including court officials, attendants, litigants and passersby.

8. That I depose to this affidavit in good faith, conscientiously believing same to be true and correct and in accordance with the Oaths Act, 2004.

………………………………………
DEPONENT
Sworn to at the High Court Registry,
Lagos, this ……………..day of ………………2011

Before Me

Commissioner for Oaths
( ½ Mk)

IN THE HIGH COURT OF JUSTICE OF LAGOS
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO……………

In the Matter of an Application by Obia Sunday
For The Enforcement of Fundamental Rights

BETWEEN
MR. OBIA SUNDAY ……………………………………………………. APPLICANT

AND
1. INSPECTOR SAMSON MUSTAPHA …………………….. RESPONDENTS
2. SERGEANT UKPONG EMMANUEL
3. COMMISSIONER OF POLICE, LAGOS STATE.

STATEMENT PURSUANT TO ORDER 2 RULE 3 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009

1. NAME AND DESCRIPTION OF APPLICANT
Obia Sunday, Lagal Practitioner of Sunday Obia & Co. No. 1, Law School Drive, Victoria Island, Lagos.

2. RELIEFS SOUGHT
(a) A delcaration that the beating and harasment of the applicant by the 1st and 2nd respondents on the 11th of May, 2011 constitutes an infringement of the applicant’s fundamental rights to dignity of human person as guaranteed by S. 34 of the 1999 Constitution.
(b) An order for the payment of the sum of N10 million damages to the applicant by the respondents for the infrigngement of the applicant’s fundamental rights.
(c) Such further or other orders as this honourable court shall deem fit to make in the circumstances.

3. GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT
i. The beating and harassment of the applicant by the respondents on the 11th May, 2011 constitute an infrigngement of the applicants fundamental rights to dignity of human person guaranteed under section 34 of the Constitution of the Federal Republic of Nigeria, 1999.

Dated ……………………………………….day of ……………………………………2011

………………………
James John Esq
Applicant’s Counsel
Obia Sunday & Co.
NO. 1, Law School Drive
Victoria Island, Lagos.

FOR SERVICE ON
1. 1st Respondent
Inspector Samson Mustapha
No. 1 Samson Street
Lagos

2. 2nd Respondent
Sergeant Ukpong Emmanuel
No. 1, Emmanuel Street
Lagos

3. 3rd Respondent
Commissioner of Police
Police Headquarters
Ikeja, Lagos.
(2mks)

IN THE HIGH COURT OF JUSTICE OF LAGOS
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO……………

In the Matter of an Application by Obia Sunday
For The Enforcement of Fundamental Rights

BETWEEN
MR. OBIA SUNDAY ……………………………………………………. APPLICANT

AND
1. INSPECTOR SAMSON MUSTAPHA …………………….. RESPONDENTS
2. SERGEANT UKPONG EMMANUEL
3. COMMISSIONER OF POLICE, LAGOS STATE.

WRITTEN ADDRESS
1. Introduction
2. Brief statement of the facts
3. Issues for determination
(a) Issue 1
(b) Issue 2
4. Argument of issues
(a) Argument on issue 1
(b) Argument on issue 2
(with authorities in support)

5. Conclusion
6. List of authorities
Dated this ……………………………………..day of……………………………..2011

……………………………………
James John Esq
Applicant’s Counsel
Obia Sunday & Co.
NO. 1, Law School Drive
Victoria Island, Lagos.

FOR SERVICE ON
1. 1st Respondent
Inspector Samson Mustapha
No. 1 Samson Street
Lagos

2. 2nd Respondent
Sergeant Ukpong Emmanuel
No. 1, Emmanuel Street
Lagos

3. 3rd Respondent
Commissioner of Police
Police Headquarters
Ikeja, Lagos.
( 1 ½ mks)

b. By section 46 fo the 1999 Constitution and Order 1 or 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, both the Federal and State High Courts have concurrent jurisdiction over the matter. The case can validly be commenced before either of them. Grace Jack v University of Agric Makurdi (1mk)
c. The notice of preliminary objection must be filed along with the counter affidavit to the substantive application – Or 8 r 2 FR (EP) Rules (1mk)
d. On the date of hearing. The court will hear the preliminary objection along with the substantive application –or 8 r 4 FR (EP) Rules (1mk)
e. The possible orders the court can make are
– Striking out the substantive application for lack of jurisdiction
– Setting aside the service of the originating application
– If the court does not decline jurisdiction, it shall go ahead to give its ruling on the substantive application. (1mk)
f. The Applicant’s Counsel would concede that the medical report is a public document Only certified copy is admissible as secondary evidence of public documents. Therefore, the photocopy is not admissible – Section 97 Evidence Act, LFN, 2004: Araka v Egbue (1mk)
g. The response ought to have been filed within 5 days or service of the originating application on the respondents –or 2 r 6 FR (EP) Rules (1mk)
h. He will seek for extension of time to file counter affidavit by a motion on notice – Or 15 r 4 (1mk)
i. Conduct of counsel is a breach of the rules of professional condcut which requires cousnel to be diligent in the prosecution of his clients brief. Rule 14 RPC. (1mk)

QUESTION 3
(a) The judge may enter final judgement against the defaulting Defendant
Order 25 Rule 6 Lagos (5mks0

(b) The Defendant will appply within 7 days of the entry of judgment ( on or before 6th August 2010) to have the said judgement set aside. He will also give an undertaking to participate effectively in the pre-trial conference. Order 25 Ruel 6 Lagos (5mks)

(c)

IN THE HIGH COURT OF LAGOS
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

SUIT NO 1234/CHC/2011

BETWEEN
MUSA YARO ……………………………………………………. CLAIMANT
AND
CHIEF BALOGUN ……………………………………………………. DEFENDANT

RULING
Upon the close of pleadings on the …………day of ………..2010, the Claimant’s Counsel on behalf of the Claimant, within 14 days of the close of pleadings, applied for the issuance of a Pre-trial Conference Notice, Form 17, with the Firm’s letter-head to which Form 17 was annexed. The Defence Counsel raised an objection on the ground that the application was invalid having not been mae by way of Motion on Notice.

It is the considered Ruling of this court that once the Court has substantive jurisdiction over the subject matter, it will not refrain from doing justice on the mere reason of technicality. The Court is minded to grant it notwithstanding Oder 39 of Lagos State Civil Procedure Rules which requires every application to the court to be brough by motion. It is upon the same principle that counsel may bring application for adjournment with his letter-headed paper. I therefore hold the application to be proper and valid. This objection is therefore overruled.

Sign. ………………………………………
JUDGE
NOTE: where a student argues that the objection should be upheld on the bases of Order 39 of Lagos which requires such application to be by motion, the student should be marked right. (5mks)

SECTION II

QUESTION 4

(a) 7 day notice of owner’s intention to apply to recover possession (1mk)

C. C UJI & CO
BARRISTERS & SOLICITORS
1 BENIN ROAD, LAGOS (1mk)

2nd Jan 2012
( ½ mk)
Mr. James Peters
4, Ring Road
Lagos. ( ½ mk)

Dear Sir,

NOTICE OF OWNER’S INTENTION TO APPLY TO COURT TO RECOVER POSSION ( ½ mark)
I, C. C. Uji Esq solicitor to Chief Ojo Benson the owner of the property at No 4, Ring Road, Lagos and on his behalf do hereby give you notice that unless peaceable possession of the 4 bedroom duplex and appurtenances stiuate at No. 4 ring Road, Lagos, which were held of the said owner under a yearly tenancy which was determined by notice to quit on the 31st of December, 2011 and which premises are held over the detained by you be given to the said owner on or before the expiration of 7 (seven) clear days from the service of this notice, I, C. C. Uji shall, on 9th of January, 2012 apply to the appropriate Court for summons to eject any person therefrom. 1 ½ marks.

Dated the 2nd January, 2012 ½ marks

C. C Uji Esq
Owner’s Solicitor
½ mark

b) .
(i) The position of the law from the case of Coker v Adetayo is that for an agent of a Landlord to validly issue any of the statutory notices, such must have been instructed and given a written authority to so do. So this objection is likely to succeed 2marks
(ii) With respect to the N8 million claim, the position of the law is that what confers jurisdiction on the Magistrate court in Lagos in rental matters is the annual rental vlaue. Once the annual rental value is within the jurisdiction, even though the cumulative amount the Landlord is claiming is above the financial jurisdiction of the court, the court has jurisdiction Joy and v. Wemabod 2marks
(iii) A quit notice is not a court process and does not require the services of a bailiff for it to be properly served. The Rent control and Recovery of Residential Premises Law of Lagos state provides for pasting on the premise sought to be recovered where personal service is not possible. The last two objections will fail 2 marks

4.c
The proper parties in the suit are Chief Ojo Bension (suing through his lawful Attorney C. C. Uji as the claimant and James Peters as the defendant 2 marks

IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN IN LAGOS 1Mark

Claim No……
½ mark
BETWEEN

CHIEF OJO BENON
(SUING THROUGH HIS LAWFUL ATTORNEY C. C UJI)…………… CLAIMANT

AND

JAMES PETERS …………………………………………………………………………. DEFENDANT
1 ½ marks

(D) by Rule 49(2)(a) of the RPC, a lawyer shall not represent or undertake to represent a client for all his litigation or a part of it on an agreed lump sum over a period of time. Payment of a fixed amount annually for his services including litigation offends this rule. 3mks.

(E) The IPO report can be tendered through the IPO, by calling him as a witness. The claimant’s counsel will need to lead him in evidence. The IPO as a witness has to lay foundation for tendering the Report.

In the absence of the IPO, then the Certified True Copy (CTC) of the Report will need to be tendered as secondary evidence of the a public document. This can be produced in court through any person. See section 97 (2) (c) of the Evidence Act; Ogbuinyinya v. Obi Okudo; Agagu v. Dawodu. 4marks.

QUESTION 5

(a) (i)

Checklist of matters (i.e preliminary considerations) that will be considered by Counsel before filing the suit include the following:
1. Proper parties – Who are the propert parties that can sue or be sued?
2. Locus standi – whether the intending plaintiff has locus standi to bring the sut
3. Jurisdiction -= Which court has jurisdiction over the cause of action?
4. Pre-action Notice – Whether the intended Defendant is entitled to pre-action notice
5. Cause of action – Whether there is a genuine cause of action for the intended suit
6. Appropriate venue – Which Judicial Division of the Court is the appropriate venue for instituting the action.

7. Limitation period – Is the cause of action still within the statutory period, or has it become statute-barred?

8. Costs of Litigation
9. Alternative Dispute Resolution – Can the matter be settled in other lawful alternative way instead of by litigation.

10. Condition precedent – Is there any condition precedent that must be satisfied before the suit can be commenced? If yes, has the condition(s) been satified?

11. Pre-action Counselling – Has the plaintiff been offered pre-action counselling in compliance with the Abuja Rules, 2004? (Note that the Certificate of Pre-action Counselling must be filed along with the writ) – See Order 4 Rule 15 (d), Abuja.

12. Relative strengths and weaknesses of the case 4mks
(Any 8 of the above qualifies a candidate for the full mark)

(a)(ii)
If I were the Defencant’s Counsel, my response would be to raise a preliminary objection on the ground that the service of the originating process is irregular or to apply to set aside the service of the originating process.

Where the writ or process is valid but its service is defective as in this case, I would do the following:
(a) Enter a conditional appearance (or Appearance Under Protest): and
(b) Thereafter without taking any further step, I would file a Motion on Notice to set aside the service. See Holman Bros (Nig) Ltd v. Kigo (Nig) Ltd; Skenconsult v. Secondi Ikey 1mark.

5 (b) (i)
My answer to the Plaintiff’s Counsel would be that although section 251 (e) of the 1999 Constitution confers exclusive jurisdiction to the Federal High Court over matters arising from the operation of the CAMA or regulation of companies, the cause of action in this case involves a simple contract over which the High Courts of the States as well as the High Court of the FCT have jurisdiction.

See Onuorah v. K.R.P.C; Adelekan v. ECU-Line NV 1mk

(c) (ii)
An objection of this nature relates to the issue of jurisdiction. Such an objection can be raised at any time, even for the first time on appeal. See Madukolu v. Nkemdilim; Arjay v. AMS Ltd; Elabanjo v. Dawodu.

However, it is preferable to raise such an objection at the earliest opportunity. An objection of this nature may be raised by a Motion on Notice; Notice of Preliminary Objection; Oral application challenging the Court’s jurisdiction; or suo motu by the Court.

See Arjay v. AMS Ltd; Elabanjo v. Dawodu 1mk

5(c)
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

SUIT NO: ………………….

BETWEEN

JOHN ALI
(Trading Under the name and style “John Ali & Sons)……………PLAINTIFF/RESPONDENT
AND
HOPEDAY CONSTRUCTION LTD ………………………………….DEFENDANT/APPLICANT

MOTION ON NOTICE
Brought pursuant to Order………………………..of the High Court of the Federal Capital Territory Civil Procedure Rules, 2004, and the Inherent Jurisdiction of the Honourable Court

TAKE NOTICE that this Honourable Court will be moved on ……………the ……………day of …………2011 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel to the Defendant/Applicant may be heard praying the Court for the following order(s).

1. An order enlarging the time within which the Defendant/Applicant may file his pleadings (or Statement of defence) in this suit.
2. An order deeming the Statement of Defence and the frontloaded documents hereto attached and marked as Exhibit A as proper filed and served, the proper fees having been paid.

3. Such further order or orders as the Honourable Court may deem fit to make in the circumstances of this suit.

Dated this …………………………………day of ………………………………., 2011.

……………………………..
Name & Address of
Defence Counsel
Address for Service
On the plaintiff
C/o his solicitor
Name and Address of Plaintiff’s Counsel 3mks

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

SUIT NO: ………………….

BETWEEN

JOHN ALI
(Trading Under the name and style “John Ali & Sons)……………PLAINTIFF/RESPONDENT
AND
HOPEDAY CONSTRUCTION LTD ………………………………….DEFENDANT/APPLICANT

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE
I, ………………………………………adult female, Nigerian, Company Secretary of 11 Bagauda Lane, Abuja hereby make oath and state as follows:

1. That I am the Company Secretary in the Defendant/Applicant Company and by virtue of this I am conversant with the facts deposed herein.
2. That I have the authority of the Defendant/Applicant to depose to this Affidavit on its behalf.
3. That after the Defendant/Applicant recived service of the originating processes, it was about to forward the processes to its external solicitors. Unfortunately, there was a fire incident in the Defendant Company’s premises on 12th April 2011, as a result of which the originating processes got burnt and were lost
4. That as a result of the fire incident mentioned about, the Defendant Company could not instruct its solicitor in good time.
5. That I have been informed by the Defendant’s solicitor, ………………..of…………………… Chambers and I verily believe him that the time for filing a defence has lapsed.
6. That the Defendant’s Counsel has now prepareed the proposed Statement of Defence with other relevant documents and same are attached ehreto and marked as Exhibit A.
7. That I swear to this affidavit in good faith, and in accordance with the Oaths Act, 2004.

……………………..
DEPONENT
Sworn to at the FCT High Court Registry, Abuja.
This ………………….day of ……………………………2011

BEFORE ME:

COMMISSIONER FOR OATHS
3MKS
5(d)
If the two motions are pending before the court, the one that would preserve the action would be given precedence and heard first, i.e. the motion for extension of time. At best, the court would award costs to the Plaintiff for this motion that would be struck out.
See Nalsa & Team Associates v NNPC 2MKS

QUESTION 6
(i)
The Nigerian Bar Associatiton has a good case

Section 231 (2) of the 1999 Constitution provides that appointment to the office of Justice of the Supreme Court shall be made by the President on the recommendation of the National Judicial Council, subject to the confirmation of such appointment by the Senate.

In the instant case, the appintment of the Justice of the Supreme Court, although made by the President, was not on the recommendation of the National Judicial Council.

Secondly, the appointment was not confirmed by the Senate, rather, by a Committee set up by the President.

All the foregoing are in breach of section 231 of the 1999 Constitution and therefore the purported appointment of the Justice of the Supreme Court is unconstitutional.

Similarly, Section 271 (2) of the 1999 constitution provides that appointment to the office of a Judge of the High Court of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council. The appointment does not require confirmation.

Consequently, the purported appointment of the Judge made by the President, as well as the purported recommendaiton made by the Chief Justice of Nigeria are all in breach of section 271 (2) of the 1999 Constitution. This appointment is also unconstitutional 3mks.

6 (ii)
The action should be commenced at the Federal High Court. This is because section 251 (1) (q) and (r) of the 1999 Constitution vests jurisdiction on the Federal High Court with respect to the following matters:

– Interpretation of the Constitution as it affects the Federal Government; and
– Interpretation of the Constitution with respect to any action for declaration affecting the validity of any executive or administrative act or decision of the Federal Government 3mks.

6(iii)
Upon the Court striking out the suit, the Nigerian Bar Association should file a fresh action before the Federal High Court as the court has no power of transfer. See China Ocean Shipping v. NPA; Attah v. Uthman, Fashakin Food Nig. Ltd. V. Shosanya 3mks.

6(iv)

Yes, my answer would be different. Where the Federal High Court lacks jurisdiction and it finds out that the State High Court has jurisdiction over the subject matter, the Federal High Court is empowered to transfer the case to the appropriate State High Court.

Accordingly, the Federal High Court will neither dismiss the suit nor strike it out: rather, it would transfer the case to the appropriate State High Court. See section 22 of the Federal High Court Act. 3mks.

6(v)

IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

SUIT NO……………………………….
BETWEEN:
The Registered Trustees of the Nigeria Bar Association ………………………PLAINTIFF

AND
1. The Attorney-General of the Federal
2. Hon. Justice ………….(JSC)
3. Hon. Justice…………..(of ……High Court)…………………………………..DEFENDANTS

Relifefs:

1. A declaration that the appointment 2nd and 3rd defendants as a Justice of the Supreme Court and a Judge of the State High Court respective without following due process in unconstitutional, null and void.
2. Injunction restraining the 2nd and 3rd defendants from parading themselves as a Justice of the Supreme Court and a Judge of the State High Court respectively. 3mks

Isochukwu

Quite eccentric really

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