2017 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CIVIL LITIGATION
NIGERIAN LAW SCHOOL
BWARI – ABUJA
BAR FINALS EXAMINATIONS
CIVIL LITIGATION
FRIDAY, AUGUST 18, 2017 TIME ALLOWED: 3 HOURS
INSTRUCTIONS:
THIS PAPER IS DIVIDED INTO TWO SECTIONS. TWO ANSWER BOOKLETS ARE PROVIDED. QUESTIONS FORM EACH SECTION SHOULD BE ANSWERED ON A SEPARATE ANSWER BOOKLET. QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER QUESTION FROM EACH SECTION SHOULD BE ATTEMPTED.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET.
SECTION A
QUESTION 1 (COMPULSORY)
Patterson Nigeria Limited (an agro-procesing company) awarded a contract to Jimson Nigeria Limited (an engineering company) in the sum of #30,000.00 for the fabrication, supply and installation of integrated palm produce processing machineries at Plot 1, Patterson Layout, Isolo, Lagos. The contract was entered into by the parties on December 31, 2016 and it provides that Jimson Nigeria Limited shall complete all its works and formally hand over to Patterson Nigeria Limited shall pay 50% of the contract sum in advance; and the balance of ,50% shall be paid on completion. On January 1, 2017 ( a day after the contract was formalized) Patterson Nigeria Limited paid the sum of #15,000,000.00 to Jimson Nigeria Limited. Unfortunately, Jimson Nigeria Ltd. Unfortunately, Jimson Nigeria Limited neither mobilized to site nor performed any of its obligations under the contract because it sub-contracted part of the fabrication works to another company named Engineering Designers Limited. Despite several letters of demand written by Patterson Nigeria Limited, Jimson Nigeria Limited has not been able to perform any aspect of the contract instead Jimson is alleging that its default was as a result of the secondary default by Engineering Designers Limited. Patterson Nigeria Limited has briefed C.D Zaki, Esq to prosecute its claims against Jimson Nigeria Limited. But, C.D. Zaki, Esq. has been busy recently in his political campaigns due to his recent interest to contest the gubernatorial elections in his state. As a result of this undue delay, Patterson Nigeria Limited has now engaged you to take over the prosecute its claims against Jimson Nigeria Limited.
Answer the following questions:
(a) Comment on the most expedient mode of commencement which Patterson Nigeria Limited can employ to recover its claims expeditiously against Jimson Nigeria Limited. Give reasons and also list the processes which the claimant must file and serve on the Defendant under the procedure you identified.
(b) Assuming that the suit has been filed and served on Jimson Nigeria Limited of No. 20, Simpson Street, Lagos and the company has briefed Mr. Joseph Ike to represent it in the defence, draft the memorandum of Appearance which he will file on behalf of the company.
(c) Assuming that after Jimson Limited had been served with the originating process, it informs Mr. Ike that it wants to bring Engineering Designers Limited into the suit to bear part of the liability, explain the procedure to be adopted and the documents to be filed to accomplish this instruction.
(d) Draft the court process required to achieve the instruction in (c) above (without any other accompanying documents).
(e) Discuss the ethical issues which must be observed while accepting re-assignment of the brief from C.D. Zaki Esq. to himself.
(f) Draft the statement of claim in not more than 20 paragraphs to include the following two reliefs:
i. Refund of the sum advanced; and
ii. General damages in the sum of #50m
QUESTION 2
Mr. Kudi Ego is the Chairman of Marafa Cooperative Society in Wuse Zone 2, Abuja. Members of the Cooperative Society accused the Chairman and the Treasurer, Chief Kola Emeka of missapropriating the Cooperative society’s funds to the tune of #20,000,000 (twenty millionaire naira) only . Efforts by the members to make the Chairman and the Treasurer account failed woefully. Unhappy with the development, the members on August 6, 2017 lodged a complaint with the Police Station, Wuse Zone 2, Abuja. Subsequently, the Police arrested and detained the Chairman and the Treasurer and all efforts by their wives and brothers to secure their release proved abortive. The Police insisted that they must refund the money before they will be released from custody. Against this backdrop, Mr. Jaja Mahan, a legal practitioner has been retained to challenge their detention in Court.
Answer the following questions:
(a) With the aid of judicial authorities, identify the Court Mr. Jaj Mahan will file the action.
(b) Assuming that you are Mr. Jaja Mahan, draft the originating process that will be used to commence the action ( without the supporting documents)
(c) List the processes that must be filed with the process you drafted in (b) above.
(d) Assuming that Mr. Kudi Ego and Chief Kola Emeka will suffer exceptional hardship before the service of the originating process, what will Mr. Jaja Mahan do?
(e) If the Police intend to defend the action, list the relevant processes to be filed.
(f) Willyour answer in (a) above be different, if the case borders on an employer restricting his employees, from forming a Union for the promotion of their welfare.
(g) Identify two ethical duties of Mr. Jaja Mahan owes his client.
QUESTION 3(a)
By an agreement dated June 1, 2012, Chief Bawoku leased out his 8 bedroom duplex located at No. 2, Gongoni Street, Wuse, Abuja, to Mr. Boniface at the rate of 12m per annum. One of the terms of the agreement is the property must be used for purely commercial purpose. Even though the nature of the tenancy was not stated in the agreement, Mr. Boniface usually paid his rent on June 1 of each year.
Mr. Boniface, a pharmacist, used the property as a pharmacy outlet and supermarket. He paid his rent regularly for the first three years and thereafter stopped paying rent, complaining that the economic recession had affected his business adversely. Mr. Boniface has also partitioned the 8/bedroom duplex into two flats of 4 bedrooms each. He uses one of the flats for his pharmacy and supermarket; and he now occupies the other flat as his residence.
Chief Bowoku is fed up with Mr. Boniface and has engaged your services as counsel to recover possession of the premises from him.
Answer the following questions:
i. Advise Chief Bowoku on any condition precedent which must be met, before you can validly carry out his instruction yo recover possession of the property.
ii. Advise Chief Bowoku on how the nature of the tenancy can be deciphered, in the absence of it being defined in the agreement.
iii. State the first two documents which are required to be served on Mr. Boniface to execute your instruction.
iv. Assuming that after the expiration of the document(s) served in (iii) above, Mr. Boniface’s still refuses to give up possession, what other step(s) are you required to take in the matter?
v. You have decided to commence the action in Court to recover possession, in which court will you commence the action and by what mode?
v.Assuming that during that during trial Ife Martins want to tender the email correspondence between Aisha and Chief Olowode which he printed from the computer, state the conditions that must be fulfilled before they can be admissible in evidence.
QUESTIONS 3(b)
Ife Martins married Aisha Martins at the Ikoyi Marriage Registry, Lagos On March 1, 2015. Since the marriage, Ife Martins has been permanently sad and is already suffering from some mild form of depression beçause Aisha has steadily and nonchalantly committed adultery with one Alhaji Olowode, a multi-billionare. Also Aisha has persistently refused consumnate the marriage.
Recently, Aisha moved out of the matrimonial home and she has moved in with Alhaji Olowode for who she is pregnant at the margiage. Ife wants to dissolve the marriage and has approached you as counsel for your legal services. He also wants to join Chief Olowode as a party to tlhe suit.
Answer the following questions:
i. Advise Ife Martins on the condition(s) precedent to the Court assumming jurisdiction in the matter.
ii. Relying on the provisions of S.15(2) Matrimonial Causes Act, on what fact(s) can Ife Martins rely on to bring an end to the, marriage?
iii. State all the documents, that you will fle in court at the time of commencing the action and their purpose
iv. Advice Ife Martins on the conditions that must be fulfilled before he can join Alhaji Olowode asja party in the action in view of the, adultery committed.
QUESTION 4
The Mkpokiti 1 of Kweke Land was the Paramount ruler of Kweke Kingdom and was very wealthy during his life home, with several assets including Kweke Oil and Gas Company (KOAC) Limited. He died interstate leaving 17 wives and 83 children. Despite several letters of demand from the survivors of Mkpokiti 1 to Mr. Kefas Idris, the Managing Director of KOAC Limited, he has refused to hand over the company to the survivors, to enable them share their father’s assets as inheritors. He has also refused to render any a.satisfactory account to them. The Children and wives have consulted you to recover the assets and ask for proper account. Mr. Idris resides in Bwari, Abuja, FCT, where the company Aldo has its registered office.
Now aswer the following questions:
(c) State rte names of the parties as it wikk appear on the originating process.
(d) Assuming that Mr. Idris evades service, what will you do, to have him served with the process?
(e) Draft the process in (d) above
(f) During the trial, the defendant did not file any pleadings or adduce any evidence in support of his case, but merely filed a motion for joinder of a 3rd party which was dismissed. After this dismissal, the defendant stated that he would rest gid case on the case if the plaintiff. What will be your next step as counsel to the plaintiffs?
(g) Assuming that the defendant’s prayers in the motion for joinder was granted, what will you do as Defence Consel, to be able to defend the action?
(h) State two prayers that you would have made in the original action as Counsel to the plaintiffs.
(i) What proper order should the court make in the absence of any defence to the claim of the plaintiffs?
(j) What step should be taken next in the proceedings at the close of pleadings?
QUESTION 5
Mr. Joseph Kabaski filed an action for the recovery of the sum of $15 million before the High Court of Lagos State, against Chief Usman Bako. The parties exchanged pleadings and led two witnesses each in evidence. Subsequently, written addresses were filed and on June 16, 2017, the Court entered judgment in favour of Mr. Kabaski . Chief Bako has the sum of # million in his current Account with City Dominion Bank. Mr. Kabaski wants to take steps to execute the judgment against the money in the said Bank.
Answer the following questions:
(a) Identify the mode which Mr. Kabaski can resort to, in the first instance, to execute the judgment.
(b) Draft the process for the initiation of the mode you identified in (a) without the supporting documents.
(c) Assuming that Mr. Kabaski discovered, a landed property belonging to Chief Bako in Ogun State and intends to attach it, describe the procedure to be adopted.
(d) If Chief Bako wants to immediately appeal against the judgment, what process will he file and before which court?
(e) What is the period of time within which Chief Bako must file the process you identified in ( d) above?
(f) Assuming that Chief Bako has appealed and intends that the status quo be maintained, identify the application to be filed.
(g) In which court will the application you identified in (f) above be filed?
QUESTION 6
Mrs. Talatu Bako filed a writ of summons on May 8, 2017 against Hope Construction at the High Court of the Federal Capital Territory, Maitama, Abuja. She claimed for a square metres located at Dawoak, Abuja. She also claimed #20 million damages and perpetual injunction restraining the defendants from trespassing into the land. Her claim was predicted on a 2001 grant by the Minister of the Federal Capital Territory. Hope Construction on the other hand filed a statement of defence and a counter claim. The counter-claim was based on a 2005 grant by the same Minister. The defendant later filed an application to strike out the suit on the ground that Hope Construction is not a juristic person. Rge plaintiff in reaction filed an application to amend the statement of claim by amending the name of the defendant to read ” Hope Construction Limited ” and inserting a new paragraph 7 to plead a certified true copy of the certificate of occupancy obtained from Abuja Geographic Information Service (AGIS), the original having been lost in a fire incident.
Now answer the following questions:
(a) Draft the application for the amendment of the statement of claim (without written address)
(b) What is the legal effect of suing a non-juristic person?
(c) With the aid of relevant authorities, explain which of the two applications filed by the defendant and the plaintiff, the court will hear first.
(d) Assuming that the defendant had been on the land for more than 12 years to the knowledge of the plaintiff, explain the procedure that the defendant will adopt to have the action dismissed based on the pleadings of the parties.
(e) List the conditions that Mrs. Bako must meet before the court can admit the copy of the certificate of occupancy pleaded in the amended paragraph 7 of her claim.
(f) Assuming that the court dismissed the claim and and counter-claim, what procedure must the plaintiff adopt to prevent the defendant from giving effect to the judgment pending appeal?
(g) Briefly comment on the propriety of a prayer in an election petition, asking the tribunal to declare the election result null and void and declare the petitioner as winner, having scored the 2nd highest vote in the election.
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
AUGUST 2017
BAR PART II EXAMINATION
CIVIL LITIGATION
MARKING SCHEME
SECTION 1
QUESTION 1
1(a)
(i) The most expedient procedure which Patterson Nigeria Ltd can employ to recover its claims expeditiously is the summary judgment procedure under Order 11 of the Lagos State High Court Rules 2012. ½ Mark.
(ii) The reasons for choosing this procedure are as follows:
* It is faster than other procedure;
* It can be used for all manner of claims in Lagos State. ½ Mark.
(iii) Under this procedure the processes to be filed and served by the Claimant on the Defendant are:
Writ of summons;
Statement’ of claim;
Depositions of witnesses;
List and copies of documents to be relied upon;
Motion on notice for surmay judgnnent;
Affidavit in support of the Motion on Notice;
Wrirten brief (i.e., Written Address). ½ Mark for each (Total= 3½Marks).
1(b)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: ……………. (¼ MK)
BETWEEN
PATTERSON NIGERIA LIMITED ………………… CLAIMANT
AND
JIMSON NIGERIA LIMITED………………DEFENDANT (½ MRK)
MEMORANDUM OF APPEARANCE1 Mark
Please enter appearance for Jimson Nigeria Limited, sued as Defendant in this action. ½ mark
Dated this……….. day of ………..2017. ½ mark
Signed
Joseph Ike, Esq,
Counsel to the Defendant
Address………..( Any Address will suffice) ½ Mark
For service on:
The Cairmant,
C/o Its Counsel,
Name & Address Claimant’s Counsel
(Any Name & Address will suffice, but not same name as Defendant’s Counse) ½ Mark.
1(c)
If Jimson Nigeria Ltd wishes to bring Engineering Designers Ltd into the suit to bear part of the liability, the procediure to be adopted by Jimson Nig. Ltd. is huThird Party Proceedings. ½Mark
The procedure and docuuents to be filed art s follows:
The Defendant shall file a Motion exparte made to the Court or Judge in Chambers seeking leave of the court to issue and serve a third party notice. ½ Mark
The motion shall be supportecl by an affidavit stating the Defendant’s grounds for beleving that the third party may bear eventual liability in the action.½ Mark.
The motion shall also be acconmpanied with a Written Address; ½ Mark.
If the leave is granted then the order granting leave the 3rd party, notice and the Originating proeesses, as well as all other processes filed in the action shall all be served together on the third party.½ Mark.
1(d)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: ……………. (¼ MK)
BETWEEN
PATTERSON NIGERIA LIMITED ………………… CLAIMANT/ RESPONDENT
AND
JIMSON NIGERIA LIMITED………………DEFENDANT/ APPLICANTS (½ MRK)
AND
ENGINEERING DESIGNERS LTD………..THIRD PARTY/RESPONDENT
MOTION EX-PARTE
Brought pursuant to Order 13 Rule 19 of the High Court of the Lagos State(Civil Procedure) Rules, 2012 and under the Inherent Jurisdiction of this Honourable Court (½ marks)
TAKE NOTICE that this Honourable Court will be moved ……….the…………….day of …………….2017 on at the hour of 9 o’clock or so soon thereafter as counsel may be heard on behalf of the defendant/applicant for:
1. An order granting leave to issue and serve third party notice on Engineering Designers Limited of ………( ½ mrk)
2. Such further or other orders as the Honourable Court deem fit to make in the circumstances of this case. ( ½ mrk)Dated ………..day of……………2017 ( ½ mrk)
A.T Komolafe Esq.
A.T Komolafe & Co
FCT Abuja
Absmart@yahoo.com
080905444 ( ½ mrk)
1(e)
The ethical issues which must be observed while accepting re-assignment of the brief from C.D. Zaki, Esq are as follovws:
(i)I will ask them whether they have fully paid and disengaged tie other lawverbefore coming to me. (½ mark)
(ii) If they haie not fully aid and disengaged the other lawyer before coming to me, I will advice them to do so. Rule 23(4) of the Ruls of Professional cnduct in the Legal Profesion. ( ½Mark)
(iii) I also need to inform their former lawyer about ‘my recent engagement by the company. See generally Rule 25 of the Rules ot Professional Conduct in the Legal Profession. (½ Mark)
iv) Finally, if the matter had already beet filed in court berore I was briefed, the former lawyer and I would need to inform the Court about the change of counsel. See generally Rule 25 of the Rules of Professional Conduct in the Legal profession. (½ Mark)
1(f)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: ……………. (¼ MK)
BETWEEN
PETERSON NIGERIA LIMITED ………………… CLAIMANT
AND
JIMSON NIGERIA LIMITED………………DEFENDANT
Statement of Claim( ½ Mark)
1. The Clainnant is a limited liability company incorporated in Nigeria, having its registered office at Plot 5, Patterson Layout, Isolo, Lagos and among other things carries on the business of processing agricultural product.
2. The Defendant is a limited liabllity company incorporated in Nigeria with its registered office at…………and carying on carries on business as an engineering company.
(½ Mark)
3. The Claimant avers that on 313 December 2016 it entered into a writen contract with the Defendant for the fabrication. supply and, installation of integrated palm produce processing machineries at the Claimant’s premises at Plot 1 Patterson Layout 1solo, Lagos. (½ Mark)
4. Contract sm was #30,000,000.00( Thirty Million Naira) and it was agreed that the Claimant shall advance 50% of the contract sum to the Deiendant. The defendant was to complete all its works and fommally hand over to Claimant not later than June 30, 2017.
5. On January 1,2017 the Claimant advanced the surn of #15,000,000.00 (Fifteen Million Naira) to the Defendant. But to the surprise and disappointment of the Claimant, the Defendant neither mobilized to site nor performed any of its obligations under the contract.
6. The Claimant has written several letters of demand to the Defendant request the Defendant to carry out the contract, but it was to no avail. The Claimant shall rely on the copies of the letters letters of demand in proof of its claim at the trial. (1½ Mark)
7. The Claimant has continued to suffer much hardship, inconveuiences and losses as a result of the Defendant’s breach of the ontract aforesaid. (1½ Mark)
Should be given as the score for any student who captures relationship of the parties, terms of contract and the breach of contract.
Wherefore the Claimant claims against the defendant as follows:
(i) The sum of 15,000,000.00 (Fifteen Million Naira) being the sum which the advanced to the Defendant in part pavment for the contract, which contract the Defendant failed to execute.
(ii) The sum of 50,000,000.00 (Fifty Million Naira) as general damages for breach of contract..
(1 Mark)
Dated this day of……… of …………….2012
Signed
Name of Claimant’s Counsel
Address………… (½ mark)
For Service on:
The Defendant,
Jimson Nigeria Ltd.
Address of the Defendant (½ mark)
QUESTION 2
a. The Federal High Court or High Court of the FCT by the decision in Grace Jack v. University of Agriculture. Howeyer by the decision in Tukur v. Government of Gongola, and the recent case of Adetona v Igele General Enterprise the matter be filed in the High Court of the FCT as the subject matter does not fall within the Jurisdiction of the Federal High Court.
(2½ mark,)
b.
IN THIE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Suit No. ½ MK
IN THE MATTER OF AN APPLICATION BY KUDI EGO AND CHIEF KOLA EMEKA FOR THB ENFORCEMENT OF THEIR FUNDAMENTAL RIGHTS ½MKS
IN THE MATTER OF
1 Kudi Ego.
2 Chief Kola Emeka Applicants
AND
Inspector General of Police Respondent
ORIGINATING MOTION
(Any student who writes Writ of Summons, Originating Summons or Petition should be marked right)
BROUGHT PURSUANT TO ORDER II RULE1 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009, SECTION 35 AND 41 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 AS AMENDED AND THE INHERENT JURISDICTION OF THIS COURT. ½ MK
TAKE NOTICE, That this Honourable court will be moved on the …….. day of…….. 2017 at the hour of 9 ‘O clock in the forenoon or so soon thereafter as the counsel for the Defendant/Applicant will be heard praying this court for the following reliefs:
1. A declaration that the arrest and detention of the applicants by the Respondent on the 5th of August, 2017 is unconstitutlonal, null and void.
2. An order compelling the respondent to release the applicants from detention forth with.
3. An order restraining the respondent, himself or his agent, privies, servants or any other person on his behalf, from arresting and detaining the applicants in connection with the subject matter of the application.
4. An order for the payment of the sum… as general damages for unlawful arrest and detention. (Any amoumt should do). (1 Mk for any 2 prayers stated)
5. And for such further order or other orders as this Honorable Court may deem fit to make in the circumstance.
Dated this_______ day of____ 2017
Jaja Mahan, Esq.
Mahan and Co.
Applicants Counsel
125 Main Street
Wuse, Abuja. (½Mk)
For Service on:
Inspector General of Police
Nigerian Police Force Headquarters
Asokoro,
Abuja. ½ MK)
c. The Processes that must be filed by the Applicants with the originating process are:
1. Statement Setting out the names and description of the applicants, the relieif sought and the grounds upon which the reliefs are sought.
2. affidavit stating the facts upon which the application is made
3. Written Address. (1½ MKS)
d. Mr Jaja Mahan can take any of the following steps to wit:
(i) Filing an application for interim reliefs for an order granting bail to the applicant; or
(ii) An order releasing them from detention pending the determination of the application: or
(iii) An order for the production of the applicants on the date fixed for hearing.
(iv)An order of access to medical facilities as the case may be. (1 mark for any two options).
The application is by way of motion expate supported with an affidavit and a written address. (1½ mark)
e. Processes to be filed by Respondents are:
1. Counter-affidavit.
2. Written address. (1Mk)
Yes, my answer will be different because the National lndustrial Court will be the court that will have jurisdiction to hear and detemine the matter. S.254C (1)(d) of the 1999 CFRN (as amended). (2Mks)
g. Two ethical duties by Mr. Jaja Mahan owes his client are
1. Handle the case competently. Rule 16RPC 2007.
2. Dedication and Devotion to the cause of the client. Rule 14 (1)RPC.
3. Advice him on the option of ADR. Rule 15 (3d). (1Mk) for any two options.
QUESTION 3(a)
i. The condition precedent that must be met before I can carry out Chief Bowoku’s instruction as counsel to recover possession of the property is that I must obtain written authoity from Chief Bowoku betore I can validly issue the necessary statutory notices to recover possession. Coker v. Adetayo; Ayiwoh v. Akorede (1 Mark)
ii. Where the nature of the tenancy has not been agresd upon or defined in the lenancy agreement, the nature of the tenaney shiall, ba deciphered or determined by reference to the time when the rent was paid or demanded. S. 8(3) RPA, Abuja.
(1½ Mark)
iii. In order to execute my instruction, the first two documents that are required to be served on Mr. Boniface are as follows:
1. First is the 6 months Notice to Quit which will expire at the eve of the anniversary of the tenancy.
2. At the expiration.of the notice to quit, I wil serve the second notice which is the Notice to Tenant of Owner’s Intention to Apply to recover Possession otherwise known as the 7 days notice, S. 7 RPA Abuja. (2 Mark)
iv. After expiration of the documents served in (ii) above, (i.e, notice to quit and 7 days notice of owner’s intention), where Mr. Boniface still refuses to give up possession, the next step that I will take is to institute an action in the.appropriate Court in order to recover possession of the premises from him. S. 10 RPA, Abuja. (1 mark).
v. I will commence the actionat the High Court of the Federal Capital Territory, Abuja where the property is situated because the annual rental value of the property is N12m which is more than than the jurisdiction of the District Court. The limit of the jurisdiction of the District Court in Abuja is N5m. (1 Mark).
I will commence the action by Writ of Summons because the action is going to be contentüous. Dohety v. Doherty. Also S.10 of RPA provides that an action for recovery of premises in the High Court can be commenced by issuing a Writ of Summons. (1 mark)
QUESTION 3(b)
i. The conditions precedent to the court assuming jurisdiction in the matter are:
1. The Marriage must be a Statutory Marriage that was contacted under the Marriage Act. Anyaegbunam v. Anyaegbunam Chukwuka v. Chukwuka (Anyone case will. suffice) (½ Mark)
2. The Petitioner must be domiciled in Nigeria. S. 2 (2) MCA Bhojwani v. Bhojwani. A person domiciled in any State of the Federation will be deemed to be domiciled in Nigeria. ( ½ Mark)
ii. The facts stated under S. 15(2) MCA, on which Ife Martins can rely on to bring an end to the marriage are:
1. That the Respondent has wilfully and persistently refused to consummate the marriage.
2. That since the marriage, the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
3. That since the mariage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. S 15(2)(a-c)/MCA. (1 Mark).
iii. The documents that I will file in court at the time of commencing the action and their purpose are:
1. The Petition: this is the court process by which the action will be commenced.
2. Notice of Petition: this gives notice to the Respondent that a petition has been filed against her and also gives instructions as to the steps the Respondent may wish to take in the matter.
3. Acknoledgement of service: This is proof that the petition has been served on the Respondent. It is also bu this means that the Respondent will indicate whether or not she intends to defend the action. All these information will be completed in the acknowledement of service and returned to the Registrar of the court.
4. Marriage Certificate: This is to establish that a valid marriage exists between the parties which is sought to be dissolved.
5. Verifying Affidavit: This is to verify on oath dhe truthfulness of all the facts stated in the petition.
6. Certificate of reconciliation: This shows that counsel had made attempts to reconcile the parties. (2 Marks)
iv. Before Ife Martins can join Chief Olowode as a party in the action in view of the adultery committed he must fulfil the following conditions:
1. He must have pleaded adultery as a fact he is relying upon to dissolve the mariage.
2. He must not have condoned the adultery committed by the Respondent
3. The adultery must not have been committed for a period of more than 3 years before the date of the petition. (1½ Marlk)
v. The condition that must be fulfilled in order to tender an email correspondent between Aisha and chief Olowode which was printed from the computer is to lay proper foundation by producing a certiticate or oral evidence by a person having control of the computer testifying to the fact that:
1. That the said dociunent was produced by a computer which was, at the material time, in regular use of storing and processing information.
2. That the document was produced by the computer in the ordinary course of business
3. That the computer was in good working condition at all material times or to the extent that the computer did not properly work, it had not affected the production of the email/document.
See S. 84 Evidence Act 2011, Kubor v. Dickson. (2 Marks)
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
CIVIL LITIGATION MARKING SCHEME
BAR PART 11 AUGUST 2017
SECTION B
QUESTION 4 ( COMPULSORY)
a. In view of the large number of my clients, it will be difficult to bring the action in the names of all of them as plaintiffs. I will in the circumstance of their common interest in the property bring a representative action. Order 10 r. 8 FCT High Court civil Procedure Rules.
In the alternative
Their nominated representative(s) having obtained Letters of Administration will commence the action in their names as Administrators of the Deceased’s Estate
(Any one of the above answers should be credited with full marks)
(1 Mark)
The mode I will adopt to commence action is by Writ of Summons Since facts are likeiy to be in dispute. Order 1 r. 2(1) FCT High Court Civil Procedure Rules, Doherty v.Doherty. (1 Mark)
b. The conditions my clients must fulfil to enable me adopt he approach in (a) above are:
i. They must have the same interest in the subject matter of the suit.
ii. They must obtain the written authority of the members of the family who are being represented to commence the action for themselves and, on behalf of the family
iii They must seek and obtain the leave of court by motion exparte to commence a representative action. Order 10 r. 8 FCT High Court Civil Procedure Rules.
In the alternative
1. The representatives (administrators ) must obtain letters of administration. (1½ marks)
C.
1. ABC MKPOKITI
2. EFG MKPOKITI
(SUING FOR THEMSELVES AND ON BEHALF OF
THER FAMILY OF MKPOKITI1 OF KWEKE LAND)……. PLAINTIFFS
AND
MR KEFAS IDRIS……………………………………… DEFENDANT
In the alternative
1. ABC MKPOKTI
2. EFGMKPOKITI
(ADMNISTRATORS OF THE ESTATE OF
MKPOKITI 1 OF KWEKE LAND (DECEASED)…………..PLAINTIFFS
AND
MR. KEFAS IDRIS………………………………DEFENDANT
(2 Marks)
d Where Mr. Idris is evading service, I wil ensure he is served by seeking the leave of Court to serve him by substituted means. This is by motion ex-parte supported by affidavit and Written address. Order 11 r. 5 FCT High Cort Civil procedure Rules. (2 Marks).
(e)
(i) IN THE HIGH COURT OF THE FED ERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO. …(½ MK)
BETWEEN
1. ABC MKPOKITI
2. EFG MKPOKITI
(SUING FOR THEMSELVES AND ON BEHALF OF
THE FAMILY OF MKPOKITI 1 OF KWEKE LAND)…….PLAINTIFFS/APPLICANTS
(½ mark)
AND
MR. KEFAS IDRIS………………………………DEFENDANT/ RESPONDENT
AFFIDAVIT IN SUPPORT OF MOTION EXPARTE (¼ Mark)
I, Johnbull Igwe, Male, Muslim Nigerian citizen and a Litigation Secretary do hereby make oath and state as follows; (2 Mark)
1. I am the litigation secretary/cllek in the law firm of ABC & Co lawyers to the appicants by virtue of which fact l am conversant with the facts of this case.
2. I have the consent of both the applicant/affidavit and my principal in chambers to depose to this affidavit.
(½ Mark/for paragraphs 1-2)
3. That have been infomed by the representatives of the plaintifs on the 18/8/2017 in Chambers at about 10.00am during briefing with my principal and I verily believe same to be true as follows
a. That lhe knows thc plainiffs/applicants filed an action against the defendant for the recovery of assets and to render accounts by way of a Writ of Summons.
b.That necessary steps were taken to ensure that the bailiffs of court serve the Defendant who resides within the jurisdiction of this court the Wit oi Summon and the’ accompanying processes personally.
c. That each time the bailiffs attempted to serve the processes on the defendant as pointer the defendant sneaked out of the company.
d. that he knows that the defendant is evading service of the processes on him.
e. that he knows that the, defendant resides at No. 5 Bagauda. Street, Buari, FCTAbuja and can be found at that address.
4. I have been informed by my principal in chembers ABC Esq, at the same place and time and verily believe him as follows;
i. that tha defendant can
………………………………….
Deponent
Sworn to at the High Court Registry Lagos,
this…..,…… day of……….2017 (¼ Mark)
Before Me
………………………
Commissioner for Oaths. (¼ Mark)
(ii)
IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO: ……………. (¼ MK)
BETWEEN
1. ABC MKPOKITI
2. EFG MKPOKITI
(SUING FOR THEMSELVES AND ON BEHALF OF
THE FAMILY OF MKPOKITI 1 OF KWEKE LAND)…….PLAINTIFFS/APPLICANTS
(½ mark)
AND
MR. KEFAS IDRIS………………………………DEFENDANT/ RESPONDENT
MOTION EXPARTE
BROUGHT PURSUANT TO ORDER 11(5) OF THE HIGH COURT OF FEDERAL CAPITAL TERRITORY (CIVIL PROCEDURE) RULES 2004 AND UNDER THE INHERENT JURISDICTION OF THIS HONORABLE COURT (½ MK)
TAKE NOTICE that this honorable court will be moved on the …….. day of……2018 at the hour of 9 O’Clock in the forenoon or so soon thereafter as counsel on behalf of the Plaintiff/Applicant will be heard praying this Honourable Court for the following Orders:
1. An Order granting leave to the Plaintiff/Applicant to effect service on the Defendant by substituted means, to wit by delivering the Writ of Summons and other originating process in this suit to his wife at No. 2 Koko Drive, Wuse, Abuja.
NB– (Any mode of substituted service contemplated by the Rules should be marked correct)
And for such further or other orders as this honorable court may deem fit to make in the circumstances of this case. ( 1 MK)
DATED THIS ___________ DAY OF ____________ 2017
……………………………………
A.B. Smart, Esq
Applicant counsel
Shelter chambers,
No. 4, Wise Road, Abuja
(½ MK)
(iii) IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO: ……………. (¼ MK)
BETWEEN
1. ABC MKPOKITI
2. EFG MKPOKITI
(SUING FOR THEMSELVES AND ON BEHALF OF
THE FAMILY OF MKPOKITI 1 OF KWEKE LAND)…….PLAINTIFFS/APPLICANTS
(½ mark)
AND
MR. KEFAS IDRIS………………………………DEFENDANT/ RESPONDENT
WRITTEN ADDRESS IN SUPPORT OF MOTION (½ MKS)
1.INTRODUCTION
2. BRIEF STATEMENT OF FACTS
3. ISSUES FOR DETERMINATION
4. LEGAL ARGUMENTS
5. CONCLUSION
6. LIST OF AUTHORITIES
(½ Marks)
DATED THIS ___________ DAY OF ____________ 2017
……………………………………
A.B. Smart, Esq
Applicant counsel
Shelter chambers,
No. 4, Wise Road, Abuja
(½ MK)
g)I will file a statement of defence and the other accompanying documents to bc relied upon;, witness statement on oath and certificate ofpre-action counselling..Order-23 r. 2(1) FCT High Court Civil Procedure.
h. WHEREFORE the Plaintiff claims as follows;
1. An Order of this Honourable Court compelling the Defendant to tender accounts of the assets and liabilities of Kweke Oil and Gas Company (KOAC) Lmiied from January 2012 to date to the Plaintiffs famiiy
2. An Order of this Honourable Court compelling the Defendant to hand over tae assets of Kweke Oil and Gas Company (KOAC) Limited to the Plaintiff family forthwith. (2 Marks)
i. The proper order should be for the’ Court to enter judgmert in deiault of defnce in favour of the Plaintiff.
OR
The Court can order the Plaintiff to prove his case.(1 Mark).
j. After the close of pleadings the next step is the settlement. of issues by the parties. Parties must within 14 days’of the close of pleadings submit to the registrar the material questions in controversy between them in the form of issues which shall be noted by the Court and set down for trial. Order 33 of the FCT High Court Civil Procedure Rules. (2 Marks)
.
QUESTION 5 (a)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS. ½ Mark
SUIT NO
.(¼ Mark)
BETWEEN:
MR. JOSEPH KABAKI—————- JUDGMENT CREDITOR/APPLICANT. ½ Mark
AND
CHIEF USMAN BAKO …………….
. JUDGMENT DEBOR/RESPODENT
AND
CITY DOMINION BANK
. GARNISHEE/RESPONDENT
1 mark
MOTION EX-PARTE
BROUGHT PURSUANT TO ORDER
.. RULE
JUDGMENT ENFORCEMENT RULES AND UNER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE THAT this Houourabl Court will be moved on
the
day of
. 2010 at the hour of 9 oclock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Judgment Creditor/Applicant for:
A garnishee order nisi attaching the sum of N10m standing to the credit of the judgment debtor in account No.
..a at the Wuse branch of the Garnishee in satisfaction of the judgment in favour of he judgement creditor/applicant in this case
And such other order or orders as the honourable court may deem fit to make in the circumstance of the this case.
2 marks
Dated this day of 2017 (½ mark)
Sank Ikara
Sank Ikara & Co
Counsel to the Judgement Creditor/Applicant
Funmi Ogunjobi & Co,
10 Labiz Crescent, Abuja.
1 mark
(total 5 marks)
(c) Mr Joseph.Kabaski will apply to the registrar of the court that gave the judgment to issue him with a certificate of judgiment which must be signed and sealed.The certificate will be taken to the registrar of the High.Court in Ogun.state, which is the execution State.
The registrar shall enter the particulars of the certificate of judgiment in a book called the Nigerian Register of Judgments. After the registration, Mr. Joseph Kabaski shall apply for the Writ of Fieri Facias to first attach the moveable properties of the judgment debtor, if any and subsequently file a motion on notice supported by affidavit and wrilten address attach the landed property. See Sections 44 and 104-110 of the Sherrif and Civil ProcessAct (3 marks):
d).Chief Usman Bako must file the notice of appeal before the Registry of the trial court. See Order 6 Rule 1 CAR (1 mark)
(e).Chief Usman Bako must file the notice of appeal within-three nmonth of the delivery of judgment, See Section 24 of the Court of Appeal Act(1 Mark);
(f) If Chief Usman Bako wants the status quo to be maintained he must file an application for stay ot execLtion See the cases of Lijadu Lijadu Ajomale Yaduat. The application will be by way of motion on notice to be supported with an affidavit and a written address. See Order54 0f the HCPR 2012 Lagos 1½ Mark)
(g) The application will first be filed before the trial court except where there are special circumstances, which makes it impossible to apply to the trial court. See Order 6(4)/Court of Appeal Rules, Ezeokafor v. Ezeilo. (1 ½ mark)
Upon hearing the application the court will make a garnishee order nisi. 1 mark
The garnishee will need of file an affidavit of return showing the particulars of monies in the account of the judgment debt or with the garnishee. 2 marks
The court shall make a garnishee order absolute compelling the payment of the monies in the account of the judgment debtor with the garnishee to the judgment creditor. 2 mark
QUESTION 6
6a.
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
½ MARK
SUIT NO .
BETWEEN:
MRS TALATU BAKO……………………………..PLAINTIFF/APPLICANT
AND
HOPE CONSTRUCTION…………………….DEFENDANT/RESPONDENT
(½ Mark)
MOTION ON NOTICE
BROTUGHT PURSUANT TO ORDER 7 AND 24 OF HIGH COURT OF THE FEDERAL CAPITAL TERRITORY (CIVIL PROCEDURE) RULES 2004 AND UNDER THE NHERENT JURISDICTION OFTHIS HONOURABLE COURT.
TAKE NOTICE, that this Honourable Court will be moved on the day of 2017, at the hour of 9 o clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the PlaintifffApplicant praying the court for the following orders:
1. An order of this Honourable Court amending the statement of claim and other processes to reflect the name of the Defendant thus: Hope Construction Limited: (½ Marks)
2. An order of this Honourable Court amending the staternent of claim to insert u new paragraph 7 undellned/highlighted in the proposed amended statement of claim.(½ Marks)
And for such further.orother orders as the Honourable Court may deem git to make in the circumstances.
Dated ……………day of…..,………..2014
Boldface Kelvin
Boldface Kelvin &Co
Plaintifrs/Applicant Counsel)
No 2 Law School,
Bwari, Abuja.(¼ Mark)
For Service On:
The Defendant
No. 15 Bards Close
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
½ MARK
SUIT NO .
BETWEEN:
MRS TALATU BAKO……………………………..PLAINTIFF/APPLICANT
AND
HOPE CONSTRUCTION…………………….DEFENDANT/RESPONDENT
AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE (½ Mark)
I, Mrs Talatu Bako, Christian, Female, and Nigerian business, woman residing at No. 1 Kaka Street Kubwa, Abuja, do hereby make oath and state as follows: ( ¼ Mark)
1. I am the Plaintiff/Applicant in this case and by virtue of which I am quite conversant with the facts of this case
2. That I filed this action through my solicitors Boldface Kelvin & Co against the Defendant
3. The case was wrongly filed against Hope Construction instead of Construction Limited as the Defendant
4. The name of the Defendant is Hope Construction Limited as reflected in the proposed amended statement of claim hereby attached and marked as exhibit A.
5. The Defendant will not be prejudiced if this application is granted (1Mark) for facts captured in paragraphs 1 to 5
6. That I Swear to this affidavit in good faith, believing same to be correct and true in accordance with the Oaths Act. (½ Mark)
………………………………….
Deponent
Sworn to at the High Court Registry Lagos,
this…..,…… day of……….2017 (¼ Mark)
Before Me
………………………
Commissioner for Oaths. (¼ Mark)
(b)The legal effcct of suing a non-juristic person is that-the case will be struck out. See cases of Agbonmagbe Bank Ltd. v. General Manager, G.B: Ollivant Ltd, Njemanze v. Sbell B.P. Dev. Coy, Port Harcourt, Shitta & Ors v. Ligali :& Ors . (1 mark)
(C) Where there are two motions are pending in a proceeding, one motion seeking to regularize the proceeding and the other to.stike or dismiss the suit/the motion seeking to regularize the proceeding will be taken first. See the cases A.G Fed v. AIC Ltd; Nalsa & Team Associates v. NNPC. To this end, the motion for anmendment will be taken first. (1 Mark)
(d) This would be proceedings in lieu of demurrer. In this case the defendant will file his statement of defence first, and then raise: the fact that the matter is Statute barred in his Statement of defence. He.will thereafter file a motion on notice supported by affidavit and a written address praying the court to strke out the suit on the ground that it is statute barred See Ord 22(2) HCCPR of the FCT. In the alterntives after raising the point of law in his pleadings he can canvass argument in support of the issue raised, in the pleadings during flnal address.(2 Marks)
(e) Mrs. Bako, while adducing evidence-in- Chief must lay proper foundation that the fact that the original was lost in a fire incident and that she has a certified true copy from the Abuja Geographic Information Service: Seetion 89 and 90 of the Evidence Act.
f) The Plaintiff will file an application for an injunction pending appeal. The application is by way of motion on notice supported by affidavit and written address. See the cases of Polini v. Gray; Shodeinde v. Registered Trustees of Ahmadiya; Okoya v. Santili. (2 Marks).
(g) These two prayers cannot be sought jointly, but in the alternative. Such, a petition wlil be dismissed for beirig defective. See the case of Opia v. Ibru (1 Mark)
