2012 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CIVIL LITIGATION
COUNCIL OF LEGAL EDUCATION
NIGERIA LAW SCHOOL
BAR FINAL EXAMINATIONS
CIVIL LITIGATION
WEDNESDAY 8TH AUGUST, 2012 TIME: 3 HOURS
INSTRUCTIONS:
THIS PAPER IS DIVIDED INTO 2 SECTION AND 2 ANSWER BOOKLETS ARE PROVIDED. QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER 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)
Boeing 727 belonging to Solo Air, an airline owned by Solo Nigeria Limited with registered address at No. 1, Solo Arenna, Ikeja, Lagos crashed on the 1st May, 2012 while on a scheduled commercial flight 224 from Abuja to Lagos. All passengers on board died. Investigation revealed that the crash was due to gross neglignece of the owners of the plane who allowed it to fly though there was a serious need of repair. Chief Sola Agbe and Dr. James Martins were two of the passengers who died in the crash. Kola Agbe is the eldest son and executor of the estate of Chief Sola Agbe whilst Odu Martins is the eldest son and executor of the estate of Dr. James Martins. On the day of the crash, Fred Fakunle, a Lagos Lawyer went to the scene and persuaded the families of Chief Agbe and Dr. Martins to retain his services for the purpose of claiming compensation from the Airline. The Airline has now refused to pay compensation to the two families without giving any reason. Fred Fakunle has concluded plans to commence proceedings in court against the Airline.
(a) Before which Court will the action(s) be commenced. Explain
(b) Fred Fakunle is not sure whether to commence the claims of the two families in one suit. Advise him.
(c) Assuming Fakunle is to commence proceedings at the Lagos High Court on behalf of the families of all those who died in the crash but he cannot identify all of them at the time of commencing the action, set out in numbered paragraphs the procedure he will follow in commencing the action.
(d) Assuming Fakunle is to commence proceedings at the Lagos High Court on behalf of Chief Agbes family for N100million as general damages for the loss of their breadwinner, draft the statement of claim of not more than ten paragraphs.
(e) Assuming after the service of the originating processes in the action in (d) above on the Airline, the Airline decides to bring in A&G Insurance Plc, the insurers of the Airline into the action for the purpose of claiming indemnity from the insurers, draft the application to be filed on behalf of the Airline for this purpose (without any supporting document).
(f) State the steps to be taken in the case after the application in (e) above has been granted by the Court.
QUESTION 2
PLEASE USE THE SCENARIO STATED IN QUESTION 1 TO ANSWER THE FOLLOWING QUESTIONS:
a. Assuming the Court refused to grant the application in (1e) above on the 1st June 2012 and you were briefed on the 2nd July, 2012 to appeal against the decision, draft the process you will file in order to commence a valid appeal (without any supporting document).
b. Comment on the manner Fakunle got the brief in this case.
c. Fakunle intends to call the Minister of Aviation as a witness at the trial of the case in (d) above but is not sure whether or not the Minister is a compellable witness. Advise him.
d. Fakunle has acted for Sole Airline in 2010 and in the course of his engagement, he had replied a query from the Airport Authority of Nigeria on the airworthiness of the plane involved in the crash. Comment on the propriety of Fakunles appearance for the families.
e. In the course of trial, Fakunle was called as a witness for the families. He intends to give evidence from the Bar. Comment.
f. Assuming that it is now over two (2) months since service of the writ and statement of claim on the defendant and the defendant wishes to file a statement of defence, advise the defendant on what will be done. Prepare the necessary documents (without the statement of defence.)
QUESTION 3
Dr. James Baba filed an Election Petition Challenging the declaration of Chief Kuku Aliyu by INEC as the winner of the Governorship Election of Kwara State which took place on the 2nd August, 2011. He filed his petition at the Governorship Election Tribunal on the 21st Septemberr, 2011 and hearing of the petition lingered on till 21st April 2012 when the judgment was delivered. The tribunal dismissed the petition and declared Chief Kuku Aliyu as the winner of the election.
Dissatisfied with the outcome of the petition, Dr. James Baba filed an appeal at the Court of Appeal on 2nd May, 2012 and his appeal was dismissed in a considered judgment delivered on 17th July, 2012. Dissatisfied with the judgment of the Court of Appeal, Dr. James Baba wishes to appeal to the Supreme Court.
Answer the following questions:
a. Comment on the regularity or otherwise of the judgment of the Governorship Election Tribunal.
b. Does the Court of Appeal have jurisdiction to entertain the Appeal? Give reason (s) for your answer.
c. Assuming that the Court of Appeal has jurisdiction to entertain the appeal, can Dr. James Baba appeal to the Supreme Court? Give reasons for your answer.
d. Assuming that Dr. James Babas appeal at the Court of Appeal was successful and the Court of Appeal ordered INEC to issue a Certificate of Return to Dr. James Baba immediately, and one month after, INEC has refused to give Dr. Baba the Certificate of Return:
i Explain the forms you will issue and the conditions to fulfil to enforce the order of the Court against INEC with the forms.
ii State the Court to go to for the enforcement of the order of the Court of Appeal against INEC.
e. Write your opinion assuming that Mr. Okoro who was the Lawyer for Chief Kuku Aliyu during the hearing of the petition at the High Court has now been briefed by Dr. James Baba to handle the appeal at the Court of Appeal.
SECTION 2
PLEASE USE ANOTHER BOOKLET FOR THIS SECTION.
QUESTION 4 IS COMPULSORY. ONE OTHER QUESTION FROM THIS SECTION SHOULD BE ATTEMPTED.
QUESTION 4 (COMPULSORY)
Michael Cole of No. 1, Cole Street, Lagos supplied 8,000 bags of cement to Ganja Construction Company Limited of No. 1, Gonja Close, Victoria Island, Lagos at the rate of N2,000.00 per bag. The local purchase order (LPO) issued by the company which contained the terms of the contract between the parties provides that the purchase price must be paid latest 30 days after supply of the cement after which any unpaid balance will attract interest at the rate of 10% per annum. The supply was made on the 1st March, 2012 but the Company has not paid till date despite several demand.
By a letter dated 1st July, 2012 and marked without prejudice, Michael offered to waive the interest provided the Company pays the principal sum within 7 days of receiving the letter. He stated in the letter that he was making the offer in order to find a way of amicably resolving the dispute between the parties. Michael has briefed you to recover the principal and interest from the company by action in court.
(a) What ethical obligation do you owe to Michael before commencement of action in Court?
(b) i. Before which court will you commence the action. Explain.
ii. In numbered paragraphs, state the procedure you will follow in order to obtain judgment by the quickest means possible before the court in (b) (i) above.
iii. Draft the application you will file on behalf of Michael in line with the processes in (b)(ii) above without the originating procedures.
(c) Assuming the cement was supplied at the registered office/principal place of business of Ganja Construction Company Ltd at No. 1, Kaduna Street, Wuse, Abuja.
i. Set out in numbered paragraphs the procefure you will follow to obtain judgment by the quickest means possible before the court.
ii. Draft the proceess you will file along with the originating process in line with the procedure in (c)(i) above.
(d) Assuming Ganja construction Company Ltd intends to give oral evidence to show that no interest was agreed, will such evidence be admissible? Explain briefly.
QUESTION 5
Mr. Dudu Osu is a commercial Okada (motor cycle) rider who plies Ikorodu Road of Lagos State on hourly basis everyday. On the 10th January, 2010, while riding along Ikorodu Road he was accosted to stop by the security operatives in the convoy of the Lagos State Governor in order to allow the Governor to pass. Having been stopped on highway, he tried to move forward a bit with a view to looking for a convenient place to part. His movement was regarded to be failure to obey the instruction of the security operatives and as such he was mercilessly beaten and later shot in his two legs. Meanwhile, one Mr. Dudus colleagues took pictures of the scene with his GSM camera phone.
Dudu was later rushed to the hospital and he has been on admission since then with medical expenses of N758,000.00 Chief Gogo Osu (Dudus uncle) has decided to enforce the rights of Dudu Osu on his behalf and approached you on 17th July, 2012 to carry out all necessary legal actions.
Answer the following questions: –
i Draft all necessary processes which you will file in respect of the suit, under the Fundamental Rrights Enforcement Procedure Rules.
ii Assuming that you attached copies of the photographs taken with the cell phone to the affidavit and the defendants filed an affidavit in opposition stating that the photographs were doctored, how ill you ensure that the photgraphs are admitted by the Court?
iii On the day of hearing of the suit, as you intend to announce your appearance, one Barrister Fastnian stood up to annnoounce appearance for and on behalf of Chief gogo Osu. Barrister Fastinan informed the court that you have been debriefed and that he has taken over the case based on the instruction received from Chief Gogo Osu. Comment on the ethical conduct of Barrister Fastinan in respect of his actions.
iv List the parties to be made defendants in this case.
QUESTION 6
Dr. Preye has just briefed you that he had been a tenant in the property situate at No. 4, Akerpai Road, Ikoyi, Lagos since 1990 when he took lease of the property for the establishment of his private hospital from his friend Chief Timothy with the agreement that the property will eventually be sold to him. In consequence of this agreement, Dr. Preye effected improvements to the 4-bedroom bungalow in dispute by building an out-house and a store and has always paid tenement rate in respect of the property. In 2010, Chief Timothy died intestate and letters of administration were issuued to Mrs. Timothy, the surviving wife of the deceaseds real and personal property. They have offered to sell the property to Preye in the sum of N25million which offer Dr. Preye has accepted.
However, Akpos who is Chief Timothyys brother has heard about the agreement to pay the sum and now claims that the property was jointly owned by him and Chief Timothy (as it was their family house), therefore the consideration should be paid to him. Upon Dr. Preyes refusal, Akpos have been sending all manner of people to the property with a view to concluding another sale with them.
(a) Dr. Preye wants to take steps to prevent the sale of the property to another person.
i. Draft the claim that will be endorsed on the writ of summons;
ii. State the parties to be made defendants
iii. Draft the neceesaryy application to prevent the sale of the property pending the determination of the suit.
(b) Assuming the dispute between Akpos and the administrators bordered on who is the proper person to collect the rent of the leased.
Property from Dr. Preye:
i. What application will you file on behalf of Dr. Preye?
ii. Draft the affidavit in support of this application?
(c) Assuming that during your interview with Dr. Preye, he had informed you that the letters of administration issued to Mrs. Timothy and Mr. Bekedromo was forged but this forgery was not known to Mr. Akpos, explain what you will do.
CIVIL LITIGATION
ANSWERS
Q1 (a)
The Federal High Court
One of the items that falls under the exclusive jurisdiction of the Federal High Court is aviation and safety of aircraft as provided under section 251 (1) (k).
In the instant case, the subject matter borders on aviation and as such it falls under the exclusive jurisdiction of the Federal High Court as a court of special jurisdiction
Q1 (b)
In Civil Litigation, actions may be instituted by one or more plaintiffs or defendants for and on behalf of other parties to the suit. The conditions to be fulfilled or satisfied before a representative action can be sustained are;
• Common interest of all parties involved
• Consent of all parties must be sought and obtained
• The grievances must be the same
• The relief sought must be the same
In the instance case, Fred Fakunle can commence the claim of the two families in one suit as long as the above conditions are complied with.
Q1(c)
• Appointment of person or persons that will represent others in the suit.
• Applying to the court by way of motion exparte for approval to institute a class action on behalf of all both the ascertained and unascertained
• Approval by the court to institute a class action.
• Institution of class action on behalf of all parties involved.
Q1 (d)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________________
BETWEEN
KOLA AGBE (Suing on behalf of the
Estate of Chief Solo Agbe) ___________________________________CLAIMANT
AND
SOLO NIGERIA LIMITED _________________________________ DEFENDANT
STATEMENT OF CLAIM
1. The Claimant is the eldest son and executor of the estate of Chief Sola Agbe one of the victims of the ill-fated air crash.
2. The Defendant is an air line Company with registered address at No. 1, Solo Arena, Ikeja, Lagos State.
3. The Claimant avers that on the 1st May, 2012, he took his Late Chief Kola Agbe to the Nnamdi Azikiwe International Air Port to catch up with his scheduled flight to Lagos.
4. The Claimant avers that he and his other siblings were worried when they did not receive any phone call from their father as to wheth he had touched down or not.
5. The Claimant avers that it was not until about 6 Oclock in the evening on the same day that he got wind of the information that the Polo Aircraft belonging to the Defendant Company which his father boarded has crashed leaving every passenger on board dead including his father.
6. The Claimant avers that investigation revealed that the crash was due to gross negligence of the owners of the plane who allowed it to fly though there was a serious need of repair.
7. The Claimant avers that it has not been easy for him and his siblings as they now depend on charity and good will from friends and relatives to feed.
WHEREOF the Claimant claims as follows:
8. The sum of N100 million as general demages for the loss of their bread winner.
Dated this 8th day of August, 2012
_________________________
FRED FAKUNLE (SAN)
CLAIMANTS COUNSEL
20 OPEBI STREET
IKEJA
LAGOS STATE.
FOR SERVICE ON
THE DEFENDANT COY
C/O THEIR COUNSEL
U.O. OBASI (ESQ)
20, KOKO CLOSE
V.G.C.
LAGOS STATE
Q1 (c)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUUDICIAL DIVISION
HOLDEN AT LAGOS.
SUIT NO_________________
BETWEEN
SOLO NIGERIA LIMITED________________________ DEFENDANT/APPLICANT
AND
A & G INSURANCE PLC__________________________3RD PARTYY
AND
KOLA AGBE ____________________________________ CLAIMANT
MOTION EX PARTE
BROUGHT PURSUANT TO ORDER ____________RULE ____________OF THE COURT RULES AND UNDER THE INHERENT JURISDICTION OF THIS HONORABLE COURT.
TAKE NOTICE that the Honorable Court will be moved on the __________day of _________2012 at the hour of 9 Oclock in the forenoon or so soon thereafter as counsel maybe heard on behalf of the Defendant/Applicant praying for the following orders;
1. An order of the court to serve a 3rd party notice on A & G Insurance Plc to appear in this action for the purpose of Claiming indemnity against it.
2. Such further order or orders as the court may deem fit to make in the circumstances.
Dated this 8th day of Auugust, 2012
___________________
U.O. OBASI ESQ
APPLICANTS
COUNSEL
20 KOKO CLOSE
V.G.C
LAGOS STATE
Q1 (f)
The step to be taken is that the court will upon payment of the fees for service on the 3rd party, serve the 3rd party notice on the 3rd party for them to appear in court within 8 days or any time as the court may order on the notice and the 3rd party upon appearance within the stipulated time, shall apply for 3rd party directions in the prescribed form.
Q2 (a)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUUDICIAL DIVISION
HOLDEN AT LAGOS.
SUIT NO_________________
APPEAL NO_______________
BETWEEN
SOLO NIGERIA LIMITED________________________ APPELLANT/APPLICANT
AND
A & G INSURANCE PLC__________________________3RD PARTYY
AND
KOLA AGBE (Suing on behalf of the
Estate of Chief Solo Agbe) _______________________RESPONDENT/RESPONDENT
MOTION NOTICE
BROUGHT PURSUANT TO ORDER ____________RULE ____________OF THE COURT RULES AND UNDER THE INHERENT JURISDICTION OF THIS HONORABLE COURT.
TAKE NOTICE that the Honourable Court will be moved on the ___________day of _________2012, at the hour of 9 Oclock on the forenoon or so soon thereafter as counsel may be heard on behalf of the Appellant/Applicant praying for the following orders:
1. An order for extension of time within which to seek leave to appeal
2. Leave to Appeal
3. Extension of time to file notice of Appeal
4. Such further order or orders as the court may deem fit to make in the circumstances.
Dated this 8th of August, 2012.
____________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
VICTORIA GARDEN CITY
LAGOS STATE.
FOR SERVICE ON
THE RESPONDENT
C/O THEIR COUNSEL
FRED FAKUNLE (SAN)
20 OPEBI STR
IKEJA, LAGOS.
Q2 (b)
Under the relevant provision of the Rules of Professional Conduct for legal practitioners, it is highly unethical for a legal practitioner to instigate action just because of what he can get instead of advising on possibility of exploring an alternative dispute resolution.
On the issue of appraching the clients for retainership, the act amount to touting which is an example of an improper attraction of business as stipulated under Rule 39 of the RPC.
In the instant case, the manner with which Fred Fakunle got the brief is highlyy unethical as such act brings to disrepute the sanctity of the Legal Profession.
Q2 (c)
By virtue of section 308 of the constitution of the Federal republic of Nigeria, 1999 as Amended, only the president, the vice president, a State Governor and a Deputy State Governor are covered byu immunity from courtactions during the pendency of their office. In the instant case, I advise Fakunle to explore all means to bring the minister to court as a witness at the trial as he is not covered by any kind of immunity and as such he is a compellable witness.
Q2 (d)
Once of the duties of a Legal Practitioner is duty to accept brief in the principle of the cab rank rule. Rondell v Worsley. Where a legal practitioner is briefed to prosecute a civil suit against his former employer, he must first of all disclose such relationship to the new client and whatever confidential information he has about the former client should not be used against the former client in prosecuting the matter for the new client.
In the instant case, Fakunle is under an obligation to disclose to the family about his previous dealings with Solo Airline to afford the family to decide as to whether they can still use him or not.
Q2 (e)
Where a legal practitioner is called to testify as a witness in an action, it is a mandatory requirement that he must de-rob himself before stepping into the witness box and it is only inside the witness box that he must testify
In the instant case: Fakunle cannot testify as a witness from the Bar except on a special consideration e.g health ground.
Q2 (f)
The defendant shall file an application for extension of time to file his defence since he is out of time.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________
BETWEEN
SOLO NIGERIA LIMITED________________________ DEFENDANT/APPLICANT
AND
KOLA AGBE (Suing on behalf of the
Estate of Chief Solo Agbe) _______________________CLAIMANT/RESPONDENT
MOTION NOTICE
BROUGHT PURSUANT TO ORDER ____________RULE ____________OF THE COURT RULES AND UNDER THE INHERENT JURISDICTION OF THIS HONORABLE COURT.
TAKE NOTICE that the Honourable Court will be moved on the ____________ day of ________ 2012, at the hour of 9 Oclock in the forenoon or so soon thereafter as counsel may be heard on behalf of the defendant/Applicant praying for the following orders;
1. An order for extension of time to file statement of defence to this suit.
2. Such further order or orders as the court may deem fit to make in the circumstances.
Dated this 8th day of August, 2012
____________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
VICTORIA GARDEN CITY
LAGOS STATE.
FOR SERVICE ON
THE RESPONDENT
C/O THEIR COUNSEL
FRED FAKUNLE (SAN)
20 OPEBI STR
IKEJA, LAGOS.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________
BETWEEN
SOLO NIGERIA LIMITED________________________ DEFENDANT/APPLICANT
AND
KOLA AGBE (Suing on behalf of the
Estate of Chief Solo Agbe) _______________________CLAIMANT/RESPONDENT
AFFIDAVIT IN SUPPORT
I, Chester Mani, Adult, Male, a Christain and a Nigerian Citizen and a staff of Solo Nigeria Limited do make oath and State as follows:
1. That I am the secretary to the Applicant Company and also the head of legal department and by virtue of which I am conversant of the facts of the case.
2. That I have the authority of the Applicant Company to depose to this affidavit on its behalf
3. That the originating processes were served on our company on the 15th of May, 2012 through our lawyer.
4. That upon being served with the processes, made frantic effort to get our layer to commence preparation of our defence as to meet up with filing within the statutory period.
5. That to our utmost dismay, our lawyer was out of the country for medical treatment and routtine checkup and he just came back 3 day ago.
A copy of the medical report brough by our lawyer is hereby attached to this affidavit and Marked EXHIBIT A.
6. That it will be in the interest of justice to grant this application.
7. That I depose to this affidavit in good faith believing its contents to be true and in accordance with the oaths Act.
__________________
DEPONENT
Sworn to at the High Court Registry
Lagos this__________day of _________2012
BEFORE ME
COMMISSIONER FOR OATHS
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________
BETWEEN
SOLO NIGERIA LIMITED________________________ DEFENDANT/APPLICANT
AND
KOLA AGBE (Suing on behalf of the
Estate of Chief Solo Agbe) _______________________CLAIMANT/RESPONDENT
WRITTEN ADDRESS
INTRODUCTION
ISSUES FOR DETERMINATION
ARGUMENT
CONCLUSION
Based on the points highlighted above with the autthorities both judicial and statutory, I hereby humbly submit that the Honourable Court has the power to grant this application and urge your Lordship to grant same in the interest of Justice.
May it please the Honourable Court.
____________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
VICTORIA GARDEN CITY
LAGOS STATE.
FOR SERVICE ON
THE RESPONDENT
C/O THEIR COUNSEL
FRED FAKUNLE (SAN)
20 OPEBI STR
IKEJA, LAGOS.
Q3 (a)
Under the relevant provisions of the Electoral Act 2010, an election petition shall be filed within 21 days after the date of the declaration of result of the election and failure to do so renders the petition null and void as there is no provision for extension of time to file or present a petition after the expiration of the 21 days.
In the instant case, the election took place on the 2nd August, 2011 and Dr. James did not file his petition until 21st September, 2011. In computing the time, Dr. James Baba did not comply with the 21 days rule and as such the Tribunal does not have jurisdiction to hear the petition in the first place.
The period of hearing of the petition is still in order as computing 21st September, 2011 to April 2012 is about 7 months out which the 180 days timing can still be extracted.
In conclusion, the issue of jurisdiction is very fundamental and goes to the root of every matter be it in a regular court or a Tribunal.
The Tribunal lacks jurisdiction to hear and determine the Election Petition presented by Dr. James Baba as not filing the petition within the 21 days automatically wrests the requisite jurisdiction to hear the petition from the Tribunal and as such the judgment delivered by the Tribunal is not valid and as such null and void.
Q3 (b)
The court of Appeal does not have jurisdiction to entertain the Appeal. This is because the Tribunal lacked jurisdiction in the first place to hear and determine the petition and question of jurisdiction can be raised at anytime even at the Supreme Court.
By virtue of the relevant provision s of the Electoral Act, the petition at the Tribunal is nullify and as such there can be no appeal.
Q3 (c)
Yes, Dr. James Baba can Appeal to the Supreme Court.
This is because under the Electoral Act 2010 with 2011 Amendment, appeal from Governorship election Tibunal no longer ends at the Court of Appeal, it now extends to the supreme Court.
Q3 (d) (i)
Q3 (d) (ii)
Q3 (c)
One of the duties of Legal Practitioner is the duty to accept brief as propounded in the cab rank rule. Rondell v Worsly. This means that every legal practitioner is under an obligation to accept brief from every client as long as he is sure that he will not allow his personal interest to conflict with the interest of his client.
Where a legal practitioner is given a brief by a client to handle against his former client, it behooves on the Legal Practitioner to disclose to the new client about his previous dealings with the former clients as to give them the opportunity to decide whether to use him or not.
Also the Legal Practitioner is not permitted under the Rules of Professional Conduct to disclose any confidential information that he has about the former client and also, he is not permitted to use such information against the said former client in the course of prosecuting the brief against him.
In the instant case, Mr. Okoro can accept Dr. James Babas brief as long as he complies with the necessary requirements as provided under the Rules of Professional Conduct for Legal Practitioners and also the rules of professional etiquette.
Q4 (a)
The ethical obligation are:
• To advise Michael on possibility of exploring the option Alternative Dispute Resolution.
• To find out the Court that has jurisdiction to entertain the suit.
• To find out if Michael has any cause of action
• To find out if the mode of commencing the action
• To find out if there is any condition precedent before instituting the action.
• To find out if the action has become statute barred
• To find out if Michael has capacity to institute the action on the principle of locus stand:
• To find out the possibility of enforcing the judgment if he eventually gets it
• To find out the cost of litigation in order to know whether instituting the action worthwhile.
Q(b) (i)
The action will be instituted at the Lagos State High Court.
The reason being that the amount being claimed by the Claimant is above N10,000,000 and as such the Magistrate Court does not have jurisdiction.
4(b) (ii)
1. Preparation of the Writ of Summons which will be marked undefended:
Other documents that will accompany the Writ of Summons are:
• Statement of claim
• Witnesses statement on Oath
• Documents to be relied upon
• An application ex parte for leave of the Court to institute the action under the Summary Judgment Procedure
2. Filing of the documents at the Court and payment of filing fees including the fees for services on the defendant
3. Filing of Notice of Intention to defend accompanied with a statement of defence by the defendant within 42 days of service of the Claimants originating processes on him.
4. Fixing of the date for hearing of the suite and issuance of hearing notice by the Court on the parties.
5. Hearing and judgment
6. Enforcement of judgment in case of any default by the defendant to comply with the order of the Court.
Q4 (b) (iii)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________
BETWEEN
MICHAEL COLE ________________________ _______CLAIMANT/APPLICANT
AND
GANJA CONSTRUCTION COY. LTD_______________DEFENDANT
MOTION EX PARTE
BROUTH PURSUANT TO ORDER 11 OF THE COURT RULES AND UNDER THE INHERENT JURISDICTION OF THE COURT.
TAKE NOTICE that the Honourable Court will be moved on the ___________day of ______ 2012, at the hour of 9 Oclock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Claimant/Applicant praying for the following orders:
1. An order for leave of the Court to institute this action under the Summary Judgement Procedure and to mark the write of Summons undefended.
2. Such further order or orders as the Court may deem fit to make in the circumstances.
Dated this 8th day of August, 2012
____________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
VICTORIA GARDEN CITY
LAGOS STATE.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________
BETWEEN
MICHAEL COLE ________________________ _______CLAIMANT/APPLICANT
AND
GANJA CONSTRUCTION COY. LTD_______________DEFENDANT
AFFIDAVIT IN SUPPORT
I, Michael Cole, Adult, Male, a Christian and a Nigerian Citizen of No 1, Cole Street Lagos do hereby make oath and state as follows;
1. That I am the Claimant in this suit and by virtue of which I am conversant with the facts of the case.
2. That based on the contract agreement I entered with the Defendant Company and the consequent breach on their part, my lawyer has filed all my originating process in this Court.
3. The processes are the statement of claim which is marked as Exhibit B, the writ of Summons Marked Exhibit A, and all the documents which I intend to rely on marked Exhibits C-F respectively.
4. That based on the contents of the originating processes, the Defendant company does not have any defence on the merit.
5. That it will be in the interest of justice for the Court to grant this application as money is tied down and it is beginning to affect my business.
6. That I swear to this affidavit in good faith believing its content to be true and in accordance with the Oat Act.
_______________
DEPONENT
Sworn to at the High Court Registry
Lagos this ____________day of _____________2012
BEFORE ME
COMMISSIONER FOR OATHS
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_________________
BETWEEN
MICHAEL COLE ________________________ _______CLAIMANT/APPLICANT
AND
GANJA CONSTRUCTION COY. LTD_______________DEFENDANT
APPLICANTS WRITTEN BRIEF
INTRODUCTION:
ISSUES FOR DETERMINATION
ARGUMENTS
CONCLUSION:
Based on the submission made above, I humbly urge the Honourable Court to grant the application sought in the interest of justice.
May it please the Honourable Court.
Dated this 8th day of August, 2012.
______________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
VICTORIA GARDEN CITY
LAGOS STATE.
The other processes are:
• Writ of Summons
• Statement of Claim
• Witnesses statement on Oath
• Documents to be relied upon
Q 4(c) (i)
The procedure under order 21 of the Abuja High Court Rules are:
1. Preparation of the writ of Summons which will be marked undefinded Other documents to accompany the writ of Summons are:
• An application Ex-parte for leave of the Court to institute the action under the undefended list procedure, and
• Affidavit is support of the motion.
2. Filing of the processes in Court and payment of filing fees
3. Filing of Notice of Intention to Defend accompanied with an affidavit and a statement of defence by the Defendant within 5 days of service of the plaintiffs processes on him.
4. Fixing of hearing date and issuance of hearing notice by the Court on the parties.
5. Hearing and possible judgment
6. Enforcement of judgement in case of any default by the defendant to comply with the order of the Court.
Q4 (c) (ii)
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO_________________
BETWEEN
MICHAEL COLE ________________________ _______PLAINTIFF/DEFENDANT
AND
GANJA CONSTRUCTION COY. LTD_______________DEFENDANT
MOTION EX PARTE
BROUGHT PURSUANT TO ORDER 21 OF THE COURT RULES AND UNDER THE INHERENT JURISDICTION OF THE COURT
TAKE NOTICE that the Honourable Court will be moved on the day of _________2012, at the hour of 9 Oclock in the forenoon or so soon therefter as counsel may be heard on behalf of the Plaintiff/Applicant prayingg for the following orders:
1. An order for leave of the Court to institute this suit on the undefended list procedure in accordance with the Rules and to mark the writ of Summons undefended.
2. Such further order or orders as the Court may deem fit to make in the circumstances.
Dated this 8th day of August, 2012.
______________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
15 KOKO CLOSE
MAITAMA, ABUJA
FCT.
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO_________________
BETWEEN
MICHAEL COLE ________________________ _______PLAINTIFF/DEFENDANT
AND
GANJA CONSTRUCTION COY. LTD_______________DEFENDANT
AFFIDAVIT IN SUPPORT
I, Michael Cole, Adult, Male, a Christian and a Nigerian Cittizen of No 1, Cole Street Lagos do hereby make oath and state as follows:
1. That I am the Plaintiff in this suit and by virtue of which I am conversant with the facts of the case.
2. That I supplied 8,000 bags of cement to the Defendant Company at the rate of N2,000 per bag.
3. That the Local Purchase Order (LPO) ISSUED BY THE Defendant Companyy which contained the terms of the contract between us provides that the purchase price must be paid latest 30 days after supply of the cement after which any unpaid balance will attract interest at the rate of 10% per annum.
The said Local Purchase Order (LPO) is hereby annexed to this affidavit and marked Exhibit A.
4. That supply was made on the 1st March, 2012 but the Defendant Company has refused to pay till date despite several demands.
5. That by a letter dated 1st July, 2012 and marked without prejudice I, offered to waive the interest provided that the Defendant Company pays the principal sum within 7 days of receiving the letter. That in the said letter, I also made an offer to the Defendant Company to find a way of amicably resolving the dispute between us. A copy of the said letter is hereby annexed to this affidavit and marked Exhibit B.
6. That a close perusal of the contract documents goes to show that the Defendant Company does not have any defence on the merit.
7. That it will be in the interest of justice to grant this application as my money is tied down which is affecting my business adversely.
8. That I swear to this affidavit in good faith believing its content to be true and in accordance with the Oaths Act.
_____________________
DEPONENT
Sworn to at the High Court Registry
Abuja this _________ day of ______________2012.
BEFORE ME
COMMISSIONER FOR OATHS
Q4(b)
An oral evidence made in court to contradict a written document is not admissible. Oral evidence is only admissible when there are conflicting information on the different documents presented before the Court.
In the instant case, the Plaintiff tendered a document and as such the Defendant Company cannot give an oral evidence to debunk the contents of a written document except it there is no conflict, then the Court may admit an oral evidence if the defendant Company lays proper foundation for its admissibility.
5(i)
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO__________________
BETWEEN
MR. DUDU OSU (SUING BY HIS
UNCLE CHIEF GOGO OSU)……………………………………………APPLICANT
AND
STATE SECURITY SERVICES
LAGOS STATE GOVERNMENT ……………………………….RESPONDNENT
LAGOS STATE GOVERNOR
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER …………….RULE …………..OF THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULE 2009 SECTION 34 OF THE CONSTITUTION OF THE FRN AND UNDER THE INHERENT JURRISDICTION OF THE COURT.
TAKE NOTICE that the Honourable Court will be moved on the __________day of ______2012, at the hour of 9 Oclock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicant praying for the following orders:
1. An order to enforce the Applicants fundamental right to dignity of human person as entrenched in section 34 of the 1999 constitution of FRN as Amended.
2. Such further order or orders as the Court may deem fit to make in the circumstances.
Dated this 8th day of May, 2012
______________________
U.O. BOASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
V.G.C, LAGOS.
FOR SERVICE ON
THE RESPONDENTS
C/O A.G.
MINISTRY OF JUSTICE
LAGOS STATE.
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO__________________
BETWEEN
MR. DUDU OSU (SUING BY HIS
UNCLE CHIEF GOGO OSU)……………………………………………APPLICANT
AND
STATE SECURITY SERVICES
LAGOS STATE GOVERNMENT ……………………………….RESPONDNENT
LAGOS STATE GOVERNOR
AFFIDAVIT IN SUPPORT
I, Chief Gogo Osu, Adult, Male, a Pegan and Nigerian Citizen of 25 Melany Street Somolu Lagos State do hereby make Oath and state as follows:
1. That I am an uncle to the Applicant and by the virtue of which I am conversant with the facts deposed herein.
2. That I have the authority of the Applicant to depose to this affidavit on his behalf
3. That the Applicant is a commercial Okada (motor cycle) rider who plies Ikorodu Road of Lagos State on hourly basis everyday
4. That the Applicant informed me of the facts deposed here under in paragraph 4a-e which information I verily believe to be true as follows
a. That on the 10th January, 2010, while riding along Ikorodu Road he was accosted to stop by the 1st Defendant in the convoy of the 3rd Defendant in order to allow the 3rd Defendant to pass.
b. That having been stopped on highway he tried to move forward a bit with a view to looking for a convenient place to park
c. That his movement was regarded by the 1st Defendant to be failure to obey the instruction of the 1st Defendant.
d. That as a result of the misconception of the 1st Defendant as to the intention of the Applicant, he was mercilessly beaten and later shot in his two legs.
e. That he was later rushed to the hospital and he has been on admission since then with medical expenses of N758,000.00. the document evidencing the said medical expenses are annexed to this affidavit and marked Exhibits A, B, and C respectively.
5. That the Applicant has been in so much pain and it has affected his wife and two children so adversely.
6. That it will be in the interest of justice to grant this application.
7. That I depose to this affidavit in good faith believing its contents to be true and accordance with the Oaths Act.
__________________
DEPONENT
Sworn to at the Federal High Court Registry
Lagos this_______day of ________2012
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO__________________
BETWEEN
MR. DUDU OSU (SUING BY HIS
UNCLE CHIEF GOGO OSU)……………………………………………APPLICANT
AND
STATE SECURITY SERVICES
LAGOS STATE GOVERNMENT ……………………………….RESPONDNENT
LAGOS STATE GOVERNOR
STATEMENT, NAME AND DESCRIPTION OF THE APPLICANT
Name: Mr. Dudu Osu
Place of Birth: Lagos State
State of Origin: Benue State
Marital Status: Married with two children
Age: 36 years of age
Sex: Male
RELIEF SOUGHT
1. A Declaration that the act of the 1st Defendants amount to an infringement on the Applicants right to dignity of human person as entrenched in section 34 of the constitution of the FRN, 1999 Amended
2. Sum of N758,000.00 being the cost of medical expense
3. Sum of N5,000,000 as general damages for all the trauma, pains and deprivation caused as a result of the action of the Defendant
4. Such further order orr orders as the Court may deem fit to make in the circumstances.
Dated this 8th August, 2012 FOR SERVICE
________________
U.O. OBASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
V.G.C, LAGOS.
FOR SERVICE ON
THE RESPONDENTS
C/O A.G.
MINISTRY OF JUSTICE
LAGOS STATE.
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO__________________
BETWEEN
MR. DUDU OSU (SUING BY HIS
UNCLE CHIEF GOGO OSU)……………………………………………APPLICANT
AND
STATE SECURITY SERVICES
LAGOS STATE GOVERNMENT ……………………………….RESPONDNENT
LAGOS STATE GOVERNOR
WRITTEN ADDRESS
INTRODUCTION
ISSUES FOR DETERMINATION
ARGUMENT
CONCLUSION
We humbly submit that the Fundamental Human Right of the Applicant were grossly related and hereby urge your Lordship to grant him the relief he is seeking from the Court in the interest of justice.
May it please the Court.
Dated this 8th day of August, 2012
________________
U.O. OBASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
V.G.C, LAGOS.
FOR SERVICE ON
THE RESPONDENTS
C/O A.G.
MINISTRY OF JUSTICE
LAGOS STATE.
5(ii)
By either laying proper foundation for its admissibility since photograph is a secondary evidence or producing the phone with which the photograph was taken or the memory card.
5(iii)
One of the duties of a Legal Practitioner under the Rules of professional conduct for Legal Practitioner is to respect and protect the interesof his colleague at the bar.
In the instant case, conduct of Barrister Fastinan is ethically wrong as what he ought to have done was to make sure that I have been properly debriefed by making sure that I get all my fees before announcing in open court that I have been debriefed.
5(iv)
1. Lagos State Security Service
2. Lagos State Government
3. Lagos State Governor
4. Attorney General of Lagos State.
Q6(a)(i)
The claimant claims:
1. That the property in dispute was never owned jointly by the Defendant and the deceased lessor or any body whatsoever.
Q6(a)(ii)
1. Akpos-1st Defendant
2. Mrs. Timothy 2nd Defendant
Q6 (a) (iii)
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_______________
BETWEEN
DR. PREYE ________________________________________CLAIMANT/APPLICANT
AND
1. MR. AKPOS
2. MRS. TIMOTHY _____________________________DEFENDANT/RESPONDENTS
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER_____RULE_____OF THE COURT RULES AND UNDER THE INHERENT JURISDICTION OF THE COURT.
TAKE NOTICE that the Honourable Court will be moved on the _________ day of______2012, at the hour of 9 Oclock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Claimant/ Applicant praying for the following orders:
1. An order for interlocutory injunction restraining the 1st Defendant/Respondent from selling the property in dispute pending the determination of the substantive suit
2. Such further order or orders as the Court may deem fit to make in the circumstances.
Dated this 8th August, 2012
________________
U.O. OBASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
V.G.C, LAGOS.
FOR SERVICE ON
THE RESPONDENTS
C/O THEIR COUNSEL
J.N AGADA (SAN)
20 OPEBI STREET
IKEJA, LAGOS.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_______________
BETWEEN
DR. PREYE ________________________________________CLAIMANT/APPLICANT
AND
1. MR. AKPOS
2. MRS. TIMOTHY _____________________________DEFENDANT/RESPONDENTS
AFFIDAVIT IN SUPPORT
I Dr. Preye, Adult, Male, a Christian and a Nigeria citizen of No 4, Akerpal Road, Ikoyi, Lagos do hereby make Oath and state as follows:
1. That I am the claimant in this suit and by virtue of which I am conversant with the facts of the case.
2. That the 1st Defendant/Respondent has been sending all manner of people to the property with a view to concluding another sale with them.
3. That I have a Legal right to bring this application
4. That there is a substantial issue be determine by this Honourable Court
5. That the balance of convenience is my favour
6. That I undertake to pay damages to the Respondents should this application turns out to be frivolous
7. That it willbe in the interest of justice to grant this application
8. That I swear to this affidavit in good faith believing its content to be true and in accordance with the Oath Act.
_______________
DEPONENTS
Sworn to at the High Court Registry
Lagos this________day of ______2012
BEFORE ME
COMMISSIONER FOR OATHS
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO_______________
BETWEEN
DR. PREYE ________________________________________CLAIMANT/APPLICANT
AND
1. MR. AKPOS
2. MRS. TIMOTHY _____________________________DEFENDANT/RESPONDENTS
WRITTEN ADDRESS
INTRODUCTION
ISSUES FOR DETERMINATION
ARGUMENT
CONCLUSION
We humbly urge the Honourable to grant this application based on the aforementioned submission in the interest of justice.
May it please the Honourable Court.
Dated this 8th August, 2012
________________
U.O. OBASI ESQ
APPLICANTS COUNSEL
20 KOKO CLOSE
V.G.C, LAGOS.
FOR SERVICE ON
THE RESPONDENTS
C/O THEIR COUNSEL
J.N AGADA (SAN)
20 OPEBI STREET
IKEJA, LAGOS.
Application for stakeholders interpleaded summons
Q6 (b) (ii)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO__________________
BETWEEN
DR. PREYE………………………………………………………………………CLAIMANT/APPLICANT
AND
1. MR. AKPOS
2. MRS. TIMOTHY …………………..DEFENDANTS/RESPONDNENT
3. MR. BEREKEMO
AFFIDAVIT IN SUPPORT OF STAKEHOLDERS INTERPLEADER
SUMMONS
I, Dr. Preye, Adult, Male, a Christian and a Nigeria Citizen of No 4 Akerpai road, Ikoyi, Lagos do hereby make Oath and state as follows:
1. That I am the Applicant and by virtue of which I am conversant with the facts deposed herein.
2. That I have been a tenant in the property situate at No4, Akerpal Road, Ikoyi, Lagos since 1990 belonging to late Chief Timothy.
3. That late Chief Timothy died intestate in 2010 and letters of administration were issued to Mrs. Timothy (the 2nd Respondents) to managed the deceaseds real and personal property.
4. That both the 1st and 2nd Respondents have been pressing me on the issue of payment of rent each claiming to be entitled to collection of the siad rent from me.
5. That with the present situation I am confused as to who to pay rent to
6. That I have not convicted with any of the Respondents in bringing this application.
7. That I do not have any personal interest in the subject matter save for the fact that I do not want to pay to the wrong person in order to avoid therisk of paying all over again.
8. That I am willing to comply with the order of the Court in respect of this application.
9. That I swear to this affidavit in good faith believing its content to be true and in accordance with the Oath Act.
_______________
DEPONENTS
Sworn to the High Court
Registry Lagos this___day of ______2012
BEFORE ME
COMMISSIONER FOR OATHS
Q6 (c)
One of the duties of a Legal Practitioner as provided under the relevant provisions of the Rules of Professional Conduct for Legal Practitioners is representing his client within the bounds of the Law. If a Legal Practitioner knows that he cannot cope with a deceptive situation, it is advisable that he honourably withdraws from the brief.
In the instant case, what I will do is to advise Dr. Preye to disclose to Mr. Akpos the situation of things so that they can settle the issue and if Dr. Preye refuses to take my advise, I will withdraw from the brief.
