MODE AND PROCEDURE OF COMMENCEMENT OF ACTION IN THE HIGH COURT

There are four different ways or methods of commencing actions in the High Court. These are:

a)      By writ of summons (a writ for short);

b)      By petition;

c)      By originating summons; and

d)     By originating motion (also known as application).

Each of the above is referred to as originating process. Almost, as a general rule, it is by the writ of summons that most actions are commenced, each of the remaining originating processes being resorted to where the Rules or a statute or a rule of practice prescribes the particular process as a mode of starting specified type of actions.

WRIT OF SUMMONS

A writ of summons is a formal document issued by a court stating concisely the nature of the claim of a plaintiff against a defendant, the relief or remedy claimed and commanding the defendant to “cause an appearance to be entered” for him in an action at the suit of the plaintiff within a specific period of time, usually eight days, after the service of the writ on him, with a warning that, in default of his causing an appearance to be entered as commanded, the plaintiff may proceed therein and judgment may be given in defendant’s absence.

Generally, all actions are to be commenced by the writ of summons except where there is any express legislation prescribing another mode – Order 3 Rule 1 & 2 Lagos High Court (Civil Procedure) Rules 2004; Order 1 Rule 2, Uniform Civil Procedure Rules (UCPR); and Order 4 Rule 2, Abuja. From the cases, writ of summons is the appropriate mode for commencing an action which by its nature is contentious. Usually, action commenced by a writ of summons requires the filing of pleadings and possibly a long trial – Doherty v. Doherty (1968) NMLR 241; NBN Ltd v.  Alakija [1978] ANLR 231.

Under the Lagos High Court (Civil Procedure) Rules. 2004. All civil actions commenced by writ of summons shall be accompanied by:

a)      Statement of claim;

b)      List of witnesses to be called at the trial;

c)      Written statement on oath of the witnesses; and

d)     Copies of every document to be relied upon at every trial – Order 2 Rule 1, Lagos.

Where a claimant fails to comply with the above, his originating process shall not be accepted for filing by the Registry – Order 2 R. 2, Lagos. Under Order 4 R. 17 Abuja, a certificate of pre-action counseling signed by counsel and litigant shall be filled along with the writ where proceedings are initiated by counsel, showing that the parties have been appropriately advised as to the relative strength or weakness of their respective cases, and the counsel shall be personally liable to pay the costs of the proceedings where it turns out to be frivolous.

ENDORSEMENT OF THE WRIT OF SUMMONS

All writ of summons must have endorsed on it by the claimant (plaintiff) the nature of the claim being made or the relief sought.  This endorsement is at the back of the writ of summons.  This is to enable the defendant tell at a glance the nature of the action and the relief claimed against him. 

A writ is endorsed when it contains a concise statement of the grounds of the complaint or claim and the relief or remedy to which the plaintiff or claimant considers himself entitled. This concise statement of the plaintiff or claimant is called the “particulars of claim” and it is required to be endorsed at the back of the writ.

If a party types his claims on a separate sheet of paper and affixes to the writ, that will be an improper endorsement and the writ will be invalid and is liable to be struck out.  In Alatede v. Falode (1996) ANLR 101, it was held that typing on a separate paper and then gumming the same to the writ was an irregularity and not in compliance with the rules. Therefore, the writ may be struck out as not being properly endorsed; Nwonye v. Road Construction Ltd. (1966) NMLR 254.

However, where there has been a valid endorsement on the writ of summons and the space provided is insufficient to accommodate the claims, a separate paper may be used in addition to the writs.

It can also be said that:

1.      If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the Writ must show it.

2.      In probate actions the endorsement must show whether the plaintiff claims as creditor, administrator, legatee, next-of-kin, Heir-at-Law, successor under native law devisee or in any other character.

3.      In all cases in which the plaintiff desires to have an action taken the Writ must be indorsed with a claim that account be taken.

4.      In actions for libel the endorsement on the Writ must state sufficient particulars to identify the publication which is the subject matter of the complaint – Order 4, Lagos.

In all cases, the parties to the action should be correctly described and at the back of the writ a concise statement of the nature of the claim must be stated. If a person acting under a Power of Attorney sues on behalf of the donor, it is the name of the donor not that of the donee that should appear on the writ – D. J Perera v. Motor & General Insurance Company Ltd. (1971) 1 NMLR 181.

ENDORSEMENT OF CLAIM AND PLAINTIFF’S ADDRESS - Order 4 R. 1, Lagos; Order 5 R. 10 and 12 UCPR; Order 4 R. 10 Abuja.

Plaintiff's address must be endorsed on the writ. If plaintiff is suing by a legal practitioner, the legal practitioner must endorse address of plaintiff and also his own name or firm and his place of business within the jurisdiction of the court – Order 4 Rule 12(1) Abuja.

It should be noted that the plaintiff's address must be given at all times whether or not he is suing by a legal practitioner – D. J Perera v. Motor & General Insurance Company Ltd (supra). In Lagos, if the writ of summons does not contain an address for service the writ cannot be accepted by the registrar and if it contains illusory fictitious or misleading address, it may be set aside by a Judge on application of the defendant – Order 4 R. 8, Lagos. If after giving his own address for service a legal practitioner ceases to act for his client, he must inform that court and furnish his client's address and that of the new legal practitioner acting for him. However, where a plaintiff fails to comply with the provisions of Order 4, Lagos, a defendant may, before entering appearance or upon entering a conditional appearance (or appearance under protest object to the writ on the ground that it is defective. Kigo (Nig.) Ltd v.  Holman Brothers (Nig) Ltd (1980) NSC 251; Sken Consult v. Sekondy Ukey (1981) ISC. 6; (1981) NSCC 1. Similarly, any legal practitioner who receives instruction from a client during the pendency of proceedings should inform the court of the address where service on the client can be effected – Gbagbeke Okotie v. C.O.P (1959) WRNR 2 at 5.

Where a claimant sues through a legal practitioner, the legal practitioner shall state on the originating process his chambers address as the address for service. If the legal practitioner is based outside the jurisdiction, he shall state a chamber's address within the jurisdiction as his service address – Order 4 R. 6(2) Lagos. Under Order 4 R. 11(2) Abuja, where a writ is issued in an action brought by a person resident outside the jurisdiction, it shall be endorsed with a statement of that fact and with the address of the person resident outside jurisdiction. If a plaintiff sues in person, and his place of residence is not within jurisdiction, or he has no place of residence, the writ shall be endorsed with the address of a place within the jurisdiction where documents for him may be delivered or sent – Order 4 R. 12(3) Abuja; Order 5 R. 12 UCPR.

BY PETITION

A petition is a written application in the nature of a pleading setting out a party’s case in detail and made in open court.

It is, however, only used where a statute or Rules of court prescribe it as such a process – Order 1 R. 2(3) UCPR. For example, section 410(1) of Companies and allied Matters Act (CAMA) 2004 provides that an application to the court for the winding-up of a company shall be by a petition. Also, section 54(1) of Matrimonial Causes Act, 1970 provides that proceedings for dissolution of marriage are commenced by petition. The Electoral Act also states that petitions are the only modes of procedure in election litigations. An election petition has been said to be similar to pleadings in civil matter as it is in that the practitioner sets out all the material facts he relies on for his petition – Egolum v. Obasanjo (1999) 5 SCNJ 92 at 125.

A petition as the Uniform Procedure Rules provides, shall include a concise statement of the nature of the claim made or the relief or remedy required in the proceedings begun thereby and at the end thereof a statement of the names of the persons, if any, required to be served therewith or, if no person is required to be served a statement to that effect - Order 7 R. 2(1) UCPR.

ENDORSEMENT OF PETITION

It shall be endorsed with the names and addresses of the petitioner and his Legal Practitioner, or where the petitioner brings a petition in person and corresponding to those made in the case of a writ, with the endorsements of the name and addresses of the plaintiff and his Legal Practitioner – Order 7 R. 2(3) UCPR.

Where a person brings a petition in person, it shall be endorsed with:

a)      The address of his place of residence, and if his place of residence is not within the jurisdiction, or if he has no place of residence there, the address of a place within the jurisdiction at or to which the documents for him may be delivered or sent;

b)      His occupation; and

c)      An address for service – Order 7 R. 2(4) UCPR.

A petition is presented in the Court Registry and a day on which it is required to be heard is fixed by the Registrar – Order 7 R. 3 and 4(1) UCPR. Unless the Court otherwise directs, a petition which is required to be served on any person shall be served on him not less than seven days before the day fixed for hearing of it - Order 7 R. 4(2) UCPR.

The High Court Rules of Lagos stipulate that a petition shall be presented by being left with the Registrar and that the party presenting it shall hand a copy to the Registrar. These Rules further require that the original should be sealed with the seal of the court and filed.

Service is effected in the same manner as a writ of summons. A respondent normally files a reply to the petition and at the trial, oral evidence is taken.

BY ORIGINATING SUMMONS

It is a summons that initiates proceedings. However, a summons in a pending matter does not initiate proceedings but it is used for making interlocutory applications in a pending cause or matter.

Generally, originating summons is used for non-contentious actions, that is, those actions where the facts are not likely to be in dispute (a question of law rather than disputed issues of facts). When the principal question in issue is or is likely to be one of construction of a written law or any instrument or of any deed or will or contract, originating summons may be used for the determination of such questions or construction – Director, SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425; NBN Ltd. v. Alakija (supra); Doherty v. Doherty (supra); In Unilag v. Aigoro (1991) 3 NWLR (Pt. 179) 376, it was held that originating summons is used where it is sought to correct errors in a judgment; In Orianwovo v. Orianwovo (2001) 5 NWLR (Pt. 752) 548, it was held that an action for declaration of title to land ought not to be commenced by originating summons.

In Fagbola v. Titilayo Plastic Industries (2005) 2 NWLR (Pt. 909) 1 at 19, it was held that where proceedings are commenced by originating summons, pleadings are not used, that is, no statement of claims or defence are filed.  Rather, affidavit evidence in support of originating summons and counter affidavit will take the place of pleadings – Order 3 R. 5 and 6 Lagos; Order 1 Rule 2(2) Abuja; and Order 1 Rule 2(2) Kano.

FORMS OF ORIGINATING SUMMONS

LAGOS –

An originating summons shall be in Forms 3, 4 and 5 in the Appendix to the Rules with such variations as the circumstances of the case may require. An originating summons shall be prepared by the applicant or his legal practitioner and shall be sealed and filed in the Court Registry.  When it is so sealed and filed, the summons shall be deemed to be issued – Order 3 Rule 8(1) Lagos. In Lagos, an originating summons shall be accompanied by:

a)      An affidavit setting out the facts relied upon;

b)      All the exhibits to be relied upon; and

c)      A written address in support of the application – Order 3 Rule 8(2), Lagos.

The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the respondent or respondents – Order 3 Rule 8(3), Lagos.

ABUJA AND KANO

The originating summons shall be in Forms 54, 55, 56, 57 or 58 in the Appendix to the Rule as the circumstances of the case require – Order 5 R. 1(1) Abuja; and Order 6 R. 2(1) Kano.  Usually, a party taking out an originating summons is described as the “plaintiff” and the other party as the “defendant”. In Abuja and Kano, an originating summon shall be accompanied by:

a)      A statement of questions, which the plaintiff seeks determination or directions of the court; and

b)      A concise statement of the relief or remedy claimed with sufficient particulars to identify the cause(s) of action.

ORIGINATING MOTION OR APPLICATION

This is the last of the originating processes. Unlike a petition, this may be used where a statute has not provided for it. Originating application is used when facts are not in dispute and it is used when the action relates to the interpretation of a document. In an application for prerogative orders of certiorari, prohibition, mandamus, Habeas Corpus or enforcement of Fundamental Human Rights, originating motion may be used.  Significantly, where a state has not provided for a method for enforcing a right conferred by that statute, originating motion should be used – Order 40 Rule 5(1) Lagos; Order 43 Rule 5(1) Kano; and Order 42 Rule 5(1) Abuja.  It is rarely used in the Magistrate Court.

Its use was highlighted in the case of Chike Arah Akunna v. A-G of Anambra State & Ors (1977) 5 SC 161, it was held that the appropriate method of making an application to the court, where a statute provides that such an application may be made but does not provide for any special procedure, is an originating motion; Fajinmi v. Speaker, Western house of Assembly (1962) 1 All NLR (Pt. 1) 206.

This rule was also re-stated in Kasoap v. Kofa Trading Co. (1996) 2 SCNJ 325 at 335, that where it is sought to enforce a right conferred by a statute, but in respect of which no rules of practice and procedure exist, the proper procedure is an originating notice of motion.

THE CONCEPT OF FRONTLOADING

This is the requirement of filing the statement of claim together with all other documents along with the writ.

In Lagos, list of witnesses are required for frontloading whilst in Abuja, it is a certificate of pre-action counseling.

PURPOSE OF FRONTLOADING

1.      The essence of this is to avoid springing up of surprises.

2.      It ensures that spurious objections are not raised.

3.      It helps the court to identify the issues before the court.

4.      It saves time and cost of both parties and that of the court.

5.      It prevents frivolous proceedings.

6.      It gives the court and counsel vantage position to ascertain the strength and weakness of the case of both parties.

It should be noted that in frontloading, processes are not to be accepted for filing and if wrongly accepted for filing, the court shall strike it out – Jabita v. Onikoyi (2004) All FWLR (Pt. 233) 1625; Order 3 Rule 2(2) Lagos. But in Abuja Rules, there is no provision as to the effect of not frontloading.

DOCUMENTS TO BE FRONTLOADED

LAGOS

1.      Writ of summons;

2.      Statement of claim;

3.      List of witnesses to be called at the trial;

4.      Written statement on oath of the witnesses; and

5.      Copies of every document to be relied upon at trial – Order 3 Rule 2(1), Lagos.

ABUJA

1.      Writ of summons;

2.      A statement of claim;

3.      Copies of document mentioned in the statement of claim to be used in evidence;

4.      Witness statement on oath; and

5.      A certificate of pre-action counseling.

ISSUING OF ORIGINATING PROCESSES

A writ of summons in Lagos and other originating processes shall be deemed to be issued when the Registrar seals it.  All writs of summons must be duly signed by a legal practitioner or by the claimant where he is not represented.  At the time of presenting the document for filing, the legal practitioner or claimant, as the case may be, is expected to leave as many copies as possible with the Registrar for service on the defendant.

In Abuja and Kano, the circumstances under which a writ of summons can be utilised in commencing civil proceedings are similar to that of Lagos. Unlike the position in Lagos, there is no provision of list of witnesses to be called in Abuja.

A writ is issued in Abuja and Kano when the Registrar signs it.  The sealing of a writ is not necessary in addition to the signing by the Registrar.  Therefore, the signature of a registrar on a writ of summons will be sufficient to issue a writ of summons in Abuja and Kano.

EXCEPTION

The only exception is where the rules or other statutes expressly provide for the sealing. Order 4 R. 9 Abuja, and Order 5 R. 9 Kano – The sealing of any writ or process shall not be necessary in addition to the signature of the Registrar or other officer by whom the writ or process shall be signed, except where sealing is expressly directed by these Rules or any written law.

SERVICE OF WRIT

The aim of this service is to give notice to the defendant, so that he may be aware of, and be able to resist, if he may, that which is sought against him – United Nig. Press Ltd & Anor. v. Adebanjo (1969) 1 All NLR 431 at 432. The issue of service is fundamental and where a writ of summons or other originating processes are not served, the Court would lack jurisdiction to entertain the matter.

In First Bank of Nigeria (FBN) Plc V. Obande (1998) 2 NWLR (Pt. 538) 410, it was held that failure to serve a process where service of process is required is a failure, which goes to the root of a proper procedure of litigation. Also, in Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195, it was held that a person required to be served but who was not served is entitled to have any order made against him set aside as a nullity because service is a condition precedent for a court assuming jurisdiction.

It is the duty of the Sheriff or the Bailiff of Court or a Police constable or any other person so appointed to serve the writ of summons or other originating processes. There are two modes of service:

1.      Personal service; and

2.      Substituted service.

PERSONAL SERVICE

This is the delivery of the originating process to the person to be served personally – Order 7 R. 2 Lagos, Order 11 R. 2 Abuja, and Order 12 R. 2 Kano. In some cases, personal service may not be required where the defendant has authorised his legal practitioner in writing to accept service and such a legal practitioner enters appearance on his behalf. The written authority given to the legal practitioner must be attached to the memorandum of appearance filed by such legal practitioner in Lagos – Order 7 R. 3 Lagos, Order 11 R. 3 Abuja, and Order 12 R. 3 Kano.

In Lagos, persons who are under legal disability shall be served through their guardian – Order 7 Rule 6(1). However, it is provided in this rule of court that personal service on a minor who is over 16 years of age living independently or doing business is good and sufficient.  In Abuja and Kano, service on an infant shall be effected on his father or guardian. If he has none, then upon the person with whom he resides or under whose care he is – Order 11 Rule 11 Abuja, and Order 12 Rule 11 Kano.

SERVICE OF A WRIT ON A LUNATIC OR DETAINEE

If a lunatic or a detainee in prison is to be served with a writ of summons or other originating process, services should be effected on the head of the asylum or prison, as the case may be – Order 11 Rule 10 Abuja, and Order 12 Rule 10 Kano.

There is no such distinction in Lagos as they are all classified as persons under legal disability but there is a provision in relation to a detainee or a prisoner under Order 7 Rule 7, allowing service on the head of the prison, as the case may be.

SERVICE OF A WRIT ON PARTNERSHIP

Where a partnership is sued, the originating process may be served on any of the partners or at the principal place of business within the jurisdiction.  It may also be served upon any person having the control or management of the partnership business – Order 7 Rule 8 Lagos, Order 11 Rule 7 Abuja, and Order 12 Rule 7 Kano.

SERVICE OF A WRIT ON COMPANIES

Section 78 of the Companies and Allied Matters Act provides for service of processes on companies registered under the Act. It states that such service should be in accordance with the rules of Court that is applicable.

Under the various High Court rules, service of writ or other originating process may be effected on any director, responsible officer, secretary or other principal officers of the company or by leaving it at the corporate head office of the company.

It is not acceptable to effect such service at the branch office of the company – Order 7 Rule 9 Lagos, Order 11 Rule 8 Abuja, Order 2 Rule 8 Kano; In Mark v. Eke (2004) All FWLR (Pt. 200) 1455, the Supreme Court held that the mode of service on a limited liability company is as provided under Section 78 of CAMA and the relevant rules of court. Under that law, service on a company can only be effected at its registered office and not its branch office. The Supreme Court was further of the view that there could not be substituted service on a corporation and the rules on substituted service only applied to natural persons.

SERVICE OF WRIT ON AN UNINCORPORATED BUSINESS ENTERPRISE

The process may be served on a partner or a person apparently in control of the management of the business – Iyke Medical Merchandise v. Pfizer Incorporated (2001) 10 NWLR (Pt. 722) 540, where it was held that service on an unincorporated business enterprise is effected by service on a partner or on the person having de facto control or management of the business using the business and its principal place of business

SUBSTITUTED SERVICE

This is a mode of service other than personal service. Where a court process cannot be effected on a party personally, substituted service will be utilised – Order 7 Rule 5 Lagos, Order 11 Rule 5 Abuja, and Order 12 Rule 5 Kano.

Where a party attempts unsuccessfully to effect personal service, he is entitled to bring an application ex parte for leave of court to effect substituted service. Such an application will be supported by an affidavit disclosing the various attempts made at personal service.  When an order is granted upon satisfaction by the court, then the other party would be served by the substituted means.

MODE OF EFFECTING SUBSTITUTED SERVICE

There are different ways of substituting service. It may be:

a)      By advertisement in a national daily; or

b)      By gazette; or

c)      By leaving the court process with an adult male in the last known address of the party; or

d)     By court service; or

e)      By service on an agent of the party.

It should be noted that substituted service is only relevant for natural persons. Therefore, an artificial person such as a company cannot be served by substituted service – Mark v. Eke (supra).

PROOF OF SERVICE

Where a party has been served either personally or by substituted means, the person effecting service is usually required to depose to an affidavit of service stating:

a)      The fact of service;

b)      Date;

c)      Time;

d)     Place; and

e)      Mode of service.

There should also be exhibited the acknowledgement of service where appropriate. The affidavit of service is prima facie proof of the service of the process – Order 7 Rule 13 Lagos, Order 11 Rule 28 Abuja, and Order 12 Rule 28 Kano.

In every writ of summons, there is usually a provision for endorsement of service on the writ. It has been held in the case of Schroeder & Company v. Major & Company Ltd. (1989) 2 NWLR (Pt. 101) 1 at 157, that such endorsement is mandatory.

ISSUE OF WRIT OF SERVICE OUTSIDE JURISDICTION OF A COURT

Ordinarily, Courts have no power to order the service of processes outside their area of territorial jurisdiction. However, where writs or other processes need to be served outside the jurisdiction of the court issuing them, it is necessary that special statutory powers in that respect be complied with.

The statutory authority, which empowers the Courts in one State to issue writs and other processes for service in another State, is the Sheriffs and Civil Process Act.  This is provided in section 96 of the Act. By section 97 of the Act, every one of such writ of summons or other originating process must have the following endorsements:

“This summons is to be served out of …….… State and in ………. State”.

This is similar to the provision in Order 3 Rule 9 of the Lagos High Court Rules.

In some jurisdictions, there are provisions for leave of court to issue a writ or other originating process for service outside the jurisdiction of the court. The Civil Procedure Rules of Abuja and Kano require that if a writ is to be served out of jurisdiction of the court, it cannot be issued without leave of court or judge in chambers – Order 4 R. 6 Abuja, and Order 5 R. 6 Kano.

There is no such provision in the Lagos Rules. This means that in jurisdictions requiring leave of court, two things must be done:

1.      Leave of court must be sought before the writ is issued; and

2.      There must be mandatory endorsement as required by section 97 of the Sheriffs and Civil Process Act.

It follows, therefore, that in those jurisdictions where leave of court is unnecessary before the issue of the writ for service, the mandatory endorsement is necessary.

TIME LIMITED TO ANSWER SUMMONS

By section 99 of the Sheriffs and Civil Process Act, the time limited to answer summons served outside jurisdiction shall not be less than 30 days after the service of the writ effected, or if a longer period is prescribed by the rules of the court, it should not be less than that longer period.

For example, under the Abuja and Kano Rules, a defendant is expected to enter appearance within 8 days after service.  The effect of this provision, therefore, is that where a defendant is served outside jurisdiction, he has up to 30 days to enter appearance. In Lagos, the period of entry of appearance is 42 days. This is a period longer than the provision under Section 99 of the Act.  A defendant in Lagos will enjoy the benefits of this provision.

EFFECT OF NON-COMPLIANCE WITH THE SHERIFFS AND CIVIL PROCESS ACT

The effect of non-compliance with the Act is fundamental and goes to the competence of the Court in assuming jurisdiction over the matter – Sken Consult Nigeria Ltd. v. Ukey (1981) 1 SC 6, where the Court held that application must be made within a reasonable time.

The attitude of the court presently is that although non-compliance with the provisions of the Act is fundamental, where a defendant in the face of non-compliance with the Act takes steps in the proceedings such as filing of pleadings and contesting the matter on the merit, he would be deemed to have waived the non-compliance. In Ezomo v. Oyakhire (1985) 2 SC 260 on the question of non-compliance with the provisions of the Sheriffs and Civil Process Act, the court held that by contesting the case to the full on the merits, without earlier taking preliminary objection before trial, the appellant must be deemed to have waived whatever right he had under that section. In Odua Investment v. Talabi (1997) 7 SCNJ 600, the Supreme Court stated that non-compliance with the requirement of Sections 97 and 99 of the Sheriffs and Civil Process Act is only voidable and would only lead to a writ of summons being set aside if the defendant has not taken steps in the proceedings.  It is important to note that it was a split decision of the Supreme Court.

RENEWAL OF WRIT

The life span of a writ shall be six (6) months – Order 6 Rule 1, Lagos.

In Lagos, the judge may renew a writ for a period of 3 months from the date of such renewal – Order 6 Rule 6(2).  The judge is only entitled to order a maximum of two renewals in each case for good cause, upon prompt application, provided no originating process shall be in force longer than a total of 12 months – Order 6 Rule 7. In Abuja and Kano, the renewal of a writ of summons shall be for a period not exceeding 12 months – Order 4 Rule 16(1) Abuja and Order 5 Rule 16(2) Kano. After 12 months a writ would lapse if not served on a defendant but before the expiration it can be renewed for another 12 months – Order 4 Rule 16(2) Abuja.

Note that where a writ of summons is issued against two or more defendants and only one of them is served within the period stipulated by the rules, such service will not make the writ invalid for purposes of service on the other defendant outside the period limited for service.

In Lagos, where a writ of summons has been renewed, it shall be so indicated and a memorandum as in Form 6 of the Lagos Rules will be stated thereon – Order 6 Rule 6(2). In Abuja and Kano, it is sufficient if the renewed writ is marked with an official stamp showing the period for which the validity of the writ has been extended – Order 4 Rule 16(3) Abuja and Order 5 Rule 16(3) Kano.

APPEARANCE

Once a writ of summons or other originating process has been duly served, the defendant is required to enter appearance either in person or through a legal practitioner of his choice within the time allowed under the rules.

In Lagos, the defendant is expected to enter appearance within forty-two (42) days – Order 9 R. 1. In Abuja and Kano, it is eight (8) days – Order 12 R. 1 Abuja and Order 13 R. 1 Kano. In Lagos, the defendant, upon entry of appearance, is expected to serve a sealed memorandum of appearance on the claimant’s legal practitioner or the claimant in person within two (2) days.

If two or more defendants are sued in an action and a single legal practitioner represents them, they are entitled to file a single memorandum of appearance, which shall state the names of all the defendants that are represented by the legal practitioner – Order 9 Rule 4 Lagos, Order 12 Rule 4 Abuja, and Order 13 Rule 4 Kano.

It should be noted that in Lagos, where a defendant files an appearance after the time limited for filing of appearance, he shall pay to the court additional fee of N200 for each day of default.  This is in the nature of penalty and is meant to prompt a defendant to enter appearance within the stipulated time – Order 9 Rule 5. However, in Abuja and Kano, a defendant may enter appearance at any time before judgment – Order 12 Rule 5(1) Abuja and Order 13 Rule 5 Kano. And, where such a defendant enters appearance outside the time limited for entry of appearance, he shall not be entitled to any further time for delivery of his defence except the court so orders – Order 12 Rule 5(2) Abuja and Order 13 Rule 5 Kano.

There are two types of appearance namely:

1.      Unconditional appearance; and

2.      Conditional appearance.

UNCONDITIONAL APPEARANCE

This is a situation where the defendant files the memorandum of appearance as in Form 11.  By such an act of filing of any additional appearance, the defendant is deemed to have submitted to the jurisdiction of the court and is taken to have waived any irregularity arising from the writ of summons.

CONDITIONAL APPEARANCE

In filing a memorandum of appearance, a defendant may wish to object to the jurisdiction of the court or the issue and service of the originating process itself. In such a case, he is expected to enter a conditional appearance. The defendant, by entering a conditional appearance, has not submitted himself to the jurisdiction of the court but gives an indication that he intends to raise objection to the action before the court.

In all cases, a memorandum of appearance must contain the address of the defendant or that of the legal practitioner where he is represented by one. Such memorandum of appearance gives the plaintiff or claimant an address within jurisdiction on which to serve all other court processes.

DEFAULT OF APPEARANCE

Where a defendant fails to appear to a writ of summons within the time limited by the rules, the plaintiff or the claimant shall be at liberty to apply for judgment for his claims in default of appearance – Order 10 Rule 2 Lagos, Order 13 Abuja, and Order 14 Kano. Such an application for judgment in default of appearance shall be made by way of motion on notice supported by an affidavit stating inter alia the effect of due service on the defendant and that the time limited for appearance has lapsed with the defendant defaulting in entering of appearance.

In Lagos, such an application for judgment in default of appearance must be supported by a written address – Order 31 Rule 1 Lagos.

JUDGMENT THEREOF

A judgment obtained pursuant to such an application for default of appearance is called a “default judgment”.

Since a judgment which a plaintiff or claimant obtains by reason of failure to enter appearance is a default judgment, that is, not a judgment on the merit, then the court has jurisdiction to set aside or vary such a judgment – Order 10 Rule 11 Lagos, Order 13 Rule 6 Abuja and Order 14 Rule 6 Kano.

Before the court can set aside such default judgment, the defendant must make an application to court within a reasonable time of the entry of the judgment praying the court to set aside such judgment. The application must be supported by an affidavit explaining the delay and other reasons for the default. It should also show that he has a good defence for the action.

The principles that a court will consider in exercising discretion to set aside a default judgment were first enunciated in Idam Ugwu v. Nwaji Aba (1961) ALL NLR 438, and more forcefully re-stated in Williams v. Hope Rising Voluntary Fund Society (1982) 1 and 2 SC 145 to the following effect:

1.      The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence;

2.      Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;

3.      Whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for re-hearing of the suit being made so as to render such course inequitable; and

4.      Whether the applicant’s case is manifestly unsupportable.

In addition to the foregoing factors, the court must also be satisfied that the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of the judgment has been such as to make his application worthy of sympathetic consideration.

EFFECT OF NON-COMPLIANCE WITH THE RULES

Where an action is commenced by way of originating summons and it is later discovered that it is one for which a writ of summons is the most appropriate procedure, the courts may order that the originating summons be converted to a writ of summons rather than striking out the action.  The court will, therefore, order that the party should file pleadings, that is, statement of claim and statement of defence – Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340.

In Lagos, the effect of non-compliance with the rules of court in Order 5 Rule 1 envisages two situations:

1.      Where there has been failure to comply with certain requirements in regard to commencement of proceedings, it shall have the effect of nullifying the proceedings – Order 5 Rule 1(1). This sub-rule deals with the commencement of an action. An example of the application of this sub-rule is where there has been a failure of compliance with Order 3 Rule 2 which requires that the writ of summons must be accompanied by the statement of claim, the list of witnesses to be called at the trial and the written statements of all the witnesses. In such a case, where there has been no compliance with the process for commencing the proceedings. The effect will be a nullity – Jabita v. Onikoyi (supra) at 1653, where the court construed Order 5 Rule 1(1) and struck out the main claim and counter-claim for non-compliance with Order 3 Rule 2.

2.      Where in the course of proceedings there appears a failure to comply with the provisions of the rules as to time, place, manner, form or content, such a failure may be treated as an irregularity, which shall not nullify the proceedings – Order 5 Rule 1(2), Order 2 Rule 1(1) Abuja and Order 2(1) Kano. However, it appears from the provisions of the rules in Abuja and Kano, unlike Lagos, that where there is even non-compliance with the rules as to commencement of the proceedings, it may be treated as an irregularity rather than a nullity. In such a case:

a)      He must make an application by motions or summons for an order setting aside the proceedings. The grounds for such an application must be stated in the summons or motion. The party cannot make an oral application – Order 5(2)(ii) Lagos, Order 2 Rule 2(a) Abuja, and Order 2 Rule 2(ii) Kano; Adejumo v. Governor of Lagos State (1970) 1 ALL NLR 187.

b)      The application must be made within reasonable time before the applicant takes in fresh step after noticing the irregularity. If he takes any step in the face of such irregularity, he will be deemed to have waived his right – Order 5 Rule 2(1) Lagos, Order 2 Rule 2(b) Abuja, and Order 2 Rule 2(1) Kano.

Lastly, where the court is faced with an application to set aside for non-compliance, it may make any of the following orders:

1)      Set aside wholly or in part the proceedings or any steps taken therein; or

2)      Allow an amendment of the process to be made; pr

3)      Make such orders it may deem appropriate in the circumstance including the order as to cost.

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ETHICAL ISSUES

1)      Rule 15 – Representing client within the bounds of law.

2)      Rule 16 – Representing client competently.

3)      Rule 19 – Privilege and confidence of a client.

4)      Rule 21(1)(c) and (3) – Withdrawal from employment.

5)      Rule 24(2)(3)(4) and (5) – Responsibility for litigation.

6)      Rule 25(1) and (4) – Investigation of facts and production of witness, etc.

7)      Rule 30 – Lawyer as officer of court.

8)      Rule 31 – Duty of lawyers to court and conduct in court.

COMPLETE WRIT OF SUMMONS

General Forms of Writ of Summons,

(Order 3, rule 3)

20…………..

IN THE HIGH COURT OF LAGOS STATE

IN THE .......................................... JUDICIAL DIVISION

BETWEEN

A. B ........................................................................................................................................................ Claimant

AND

C. D .......................................................................................................................................................... Defendant

To C. D. of  ................................................................. in the .......................................... of .......................

You are hereby commanded that within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of A. B.; and take notice that in default of your so doing the claimant may proceed therein and judgment may be given in your absence.

DATED this ............................................ day of .....................................................  20....................

...............................

Registrar

Memorandum to be subscribed on the writ

N.B. This writ is to be served within three calendar months from the date thereof, or, if renewed, within three calendar months from the date of the, last renewal, including the day of such date and not afterwards.

The defendant may enter appearance personally or by legal practitioner either by handing in the appropriate forms, duly completed, at the Registry of the High Court in which the action is brought or by sending them to the Registrar by registered post.

Endorsements to be made on the writ before issue thereof.

The claimant s claim is for, etc ........... This writ was issued by G. H., of.................. whose address for service is ................ agent for ................ of ............. legal practitioner for the said claimant who resides at .................... (mention the city or town and also the name of the street number of the house of the claimant s residence, if any).

Endorsement to be made on copy of writ forthwith after service.

This writ was served by me at .................... on the defendant (here insert mode of service) on the .............................. day of ......................  20 ........

Endorsed the ........................ day of .........................  20......

(Signed) ..........................

Address for service ..........................

FORM 3

(Order 3 rule 8)

GENERAL FORM OF ORIGINATING SUMMONS

IN THE HIGH COURT OF ………………….

IN THE ......................................... JUDICIAL DIVISION

(If the question to be determined arises in the administration of an estate or a trust, entitle it "In the matter of the estate or trust").

BETWEEN

A. B....................................................................................................................................................... Claimant

AND

C. D., E.F.............................................................................................................................................. Defendants

Let ………............. of …………........... in …………........ within eight days after service of this summons on him, inclusive of the day of such service cause an appearance to be entered for him to this summons which is issued upon the application of.................................... of .................................. who claims to be (state the nature of the claim), for the determination of the following questions: (State questions).

Dated the ............................... day of  ....................... 20 ..............

This summons was taken out of by ................. Legal Practitioners for the above-named.

FORM 4

ORIGINATING SUMMONS UNDER (Order 3, Rule 8(1))

IN THE HIGH COURT OF LAGOS STATE

IN THE …………….………………… JUDICIAL DIVISION

In the matter of A.B. a Legal Practitioner (Re Taxation of costs, etc.) (or as may be).

Let A.B. of ………..attend the Court, (or Chief registrar's Office) HIGH COURT LAGOS, on the …….day of …………20…….. At 9 o'clock in the forenoon (on the hearing of an application on the part of …………………). (State relief sought). (If for leave to endorse award under the Arbitration Law, ap. Add, "And that the respondent do pay the costs of this application to be taxed."

DATED the ……. day of ………… 20……..

This summons was taken out by ……………….

Note:

It will not be necessary for you to enter an appearance in the HIGH COURT REGISTRY, but if you do not attend either in person or by your Legal Practitioner, at the time and place above mentioned (or at the time mentioned in the endorsement thereon), such order will be made and proceedings taken as the Judge may think just and expedient. 

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Barr. Ezekiel Chigozie has many years experience in providing legal representation and advising clients across exceptional broad range of contentious and non-contentious matters. His main goal is to help clients resolve contentious or non-contentious legal problems they are having rapidly and cost effectively.  +2348034997413