PRELIMINARY CONSIDERATION BEFORE COMMENCEMENT OF AN ACTION IN A NIGERIAN COURT

In addition to any other consideration that may weigh in the mind of a litigant’s counsel, it is advisable before commencing proceedings in court, to consider four important issues that will most likely affect the action. These are:

a)      Whether the proposed plaintiff or claimant has a cause of action;

b)      Whether the proposed court has jurisdiction in the matter;

c)      Whether all conditions precedent have been satisfied; and

d)     Whether the action is not statute barred.

LIMITATION PERIODS

This has to do with if an action is statute barred or not. For the purposes of time for action, time begins to run from the moment the cause of action has arisen, that is, when the facts which are material to be proved to entitle the plaintiff to success have happened – Lasisi Fadare v. A. G, Oyo State (1982) 4 SC 1.

The law sometimes places limitation in bringing certain actions in court. Where there is elapse of time as regard to limitation of time, proceedings will be statute barred – Ajayi v. Military Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1. This means that a party will be denied proceedings after time as elapsed – Obiefuna v. Okoye (1961) 1 All NLR 357; Sauda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379.

The following are limitation periods prescribed by the limitations laws:

a)      Action founded on simple contract – 6 years – section 8 Limitation Law, Lagos; section 6 Limitation Act, Abuja.

b)      Action for damages for negligence – 3 years – section 9, Lagos; section 8(1), Abuja.

c)      Action for damages for slander – 3 years – section 10, Lagos; section 9, Abuja.

d)     Action upon instrument under seal – 12 years – section 12, Lagos; section 11, Abuja.

e)      Action by state authority to recover land – 20 years – section 16, Lagos; section 15, Abuja (the limitation period for this is 12 years in Abuja).

This period begins to run when the cause of action accrues – Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 and the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by limitation law, then the action is statute barred – Ajayi v. Military Administrator of Ondo State (supra).

Also note that once the limitation period has elapsed, the defendant can set it up as a full defence, though for it to be in favour of the defendant, the defendant must specifically plead it. It becomes imperative on the plaintiff counsel to consider whether the cause of action is out of time before venturing into the expense of issuing a process.

Where all the above conditions have been met, proceedings may be constituted in court that has jurisdiction to hear such matters (for example, the Magistrate Court).

PRE-ACTION NOTICES / CONDITION PRECEDENTS

The law most times requires certain conditions to be satisfied before filing an action in court. Such condition precedents may be by way of service of pre-action notice or satisfaction of other steps required by law before commencement of action.

Cases where pre-action notices can be served are:

1)      Between landlord and tenant, where there is recovery of premises. The court can only exercise jurisdiction in such instances where the landlord has served the tenant statutory notice to quit – section 14(1) Rent Control and Recovery of Residential Premises Law of Lagos State; section 8(1) Recovery of Premises Act of Abuja. Such service has been held to be condition precedent for commencement of action for recovery of premises – Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572.

2)      Laws establishing statutory bodies which require a pre-action notice to be served. For example section 12(2) of Nigerian National Petroleum Corporation (NNPC) Act which provides that “no suit shall be commenced against the Corporation before the expiration of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims”. Non-issuance of such pre-action notice, where required, is fatal to the suit as such suit will be incompetent against the party who ought to have been served with the notice. This right may, however, be waived by the defendant taking steps in the proceedings – Ugwuanyi v. NICON Plc (2004) 15 NWLR (Pt. 897) 612; NNPC v. Sele (2004) 2 NWLR (Pt. 910) 623.

3)      With respect to public officers. For example, section 2 Public Officers Protection Act LFN 2004, which provides that “an action or proceeding shall not lie or be instituted against such person unless it is commenced within three months next after the act, neglect or default complained of or in the case of a continuance of damage or injury, within three months next after the ceasing thereof”. For the protection to be applicable, the act done must be one in pursuance or execution or intended execution of any law or of any public duty or authority – Ademola II v. Akinwale Thomas (1946) 12 WACA 81

LOCUS STANDI

This means legal capacity to institute proceedings in a court of law and is used interchangeably with the terms like “standing” or “title to sue” – Sen. Abraham Adesanya v. President of FRN & Anor. (1981) 5 SC 112 at 28-129 per Fatayi Williams CJN (as he then was); Ogunsanya v. Dada (1992) 4 SCNJ 162 at 168.

It is also defined as the right of a party to appear and be heard on the question before any court or tribunal – Gombe v. P. W. (Nig.) Ltd (1995) 7 SCNJ 19 at 32. It is also the right or competence of instituting proceedings in a court for redress or assertion of a right enforceable at law – A. G, Kaduna State v. Hassan (1985) 2 NWLR 453 at 496 per Irikefe JSC (as he then was); Adefule v. Oyesile (1989) 5 NWLR 377 at 418.

No one can properly sue for the enforcement of a right apart from the person, in whom a right is vested as his personal right, as such having the locus standi to sue. It has been stated that a party prosecuting an action would confer some benefit on such party – Buraimoh Oloriode & Ors v. Opebi & Ors. (1984) 5 SC 1 at 16 per Irikefe JSC (as he then was). Such benefit must be personal or peculiar to that party instituting an action – Abraham Adesanya’s case (supra).

A person who makes a claim which in actual fact belongs to another has no locus standi before the court – Buraimoh Oloroide’s case (supra). There must be a dispute between a person who makes a claim and the one against whom the claim is made and the action must be justifiable – A. G, Kaduna State v. Hassan (supra).

Where a plaintiff has no locus standi a court is obliged to strike out his action without going into the merits of the case – Sen. Abraham Adesanya’s case (supra). Objection as to lack of locus standi should be raised at the earliest stage and can be raised before the defendant files his statement of defence – Bolaji v. Bamgbose (1986) 4 NWLR 632. The most ideal time to raise it is after the plaintiff has filed his statement of claim which must disclose a cause of action vested in him – Adefule v. Oyesile (supra). The plaintiff needs not plead in his statement of claim that he has locus standi to commence the proceedings against the defendant for the relief(s) sought – Orogun v. Soremekun (1986) 5 NWLR 152. All he needs to plead and prove are facts establishing his right and obligations in respect of the subject-matter of the suit. Thus, the issue of locus standi does not depend on the success or merit of a case but on whether the plaintiff has sufficient interest in the subject-matter of the dispute – Adesokan v. Adegorolu (1997) 3 SCNJ 1 at 16.

The law is that there is no room for the adoption of the modern and liberal views on locus standi being followed in such common law jurisdictions like England and Australia which adoption has support in statute law – Per Oputa JSC in A. G, Kaduna State’s case (supra). In an action to assert a public right or to enforce the performance of a public duty, it is only the A. G of the Federation or of a State, as the case may be, who in law, has the requisite standing to sue – A. G of the Federation v. A. G, Imo State & Ors (1982) 12 SC 274 at 306 – 307; A. G for New South Wales v. The Brewery Employees Union (1908) 6 CLR 469 at 550 – 561. A private person can only bring such an action if he is granted a fiat by the A. G to do so in his name. such an action is referred to as a relator action and the private person to whom the fiat is granted, as a relator.

Finally, when a court holds that a plaintiff has no locus standi in respect of a claim the consequential order to be made is striking out of such claim and not as dismissal of the claim. This only means that the court before which such action is brought cannot entertain the adjudication of such an action when question arises as to a plaintiff not having the locus standi to institute an action.

VENUE

A party who decides to initiate an action in a magistrate court in Lagos State must comply with Order 2 Rule 1 & 2 of the Magistrates Court Rules. An action must be such that it can come under that provision. An action can be brought where:

a)      The defendant or one of the defendants resides or carries on business in Lagos.

b)      The cause of action arose wholly or partly in Lagos.

c)      The plaintiff sues as assignee of a debt or other thing in action, the action may be commenced in Lagos if the assignor might have commenced it in Lagos but for the assignment.

d)     The subject-matter of an originating application is in Lagos.

e)      Where there is no respondent to an application and the applicant lives in Lagos.

It should be noted that where a person carries on business through an agent in a place but has his principal place of business elsewhere, the first mentioned place is where he carries on business.

CAUSE OF ACTION

There must be a cause of action before an intending litigant can seriously think of initiating proceedings in court, that is, a cause of action must have arisen.

Hence, cause of action can be defined as “a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person” – Letang v. Cooper (1965) 1 QB 222 at 242 per Diplock L. J; Egbe v. Adefarasin (supra); Alese v. Aladetuji (1995) 7 SCNJ 40 at 50; or “the facts which constitute the essential ingredients of an enforceable right or claim” – Tower & Sons Ltd v. Ripstein (1994) AC 254 at 263 per Lord Wright.

The phrase “cause of action” comprises every fact which is material to be proved to enable the plaintiff to succeed – Cooke v. Gill (1873) LR 8 CP 107 at 108 per Brett J. It can also be said to be the fact or combination of facts which gives rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage – Savage v. Uwaechia (1972) 1 All NLR (Pt. 1) 251 at 257 per Fatayi Williams, JSC (as he then was); Egbue v. Araka (1988) 2 NWLR 598, or the act on the part of the defendant which gives the plaintiff his cause of complaint – Jackson v. Spittal (1870) LR 5 CP 542 at 552; Kusada v. Sokoto N. A (1968) 1 All NLR 377 at 381.

The factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed against the defendant – Bello v. A. G, Oyo State (1986) 5 NWLR 828 at 876. Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced, otherwise the proceedings will be premature and consequently unsustainable. An action relates back to the date it was commenced, that is, the date of the writ and not to a subsequent date and therefore a plaintiff cannot succeed in a cause of action which did not exist on the date of the issue of writ – Mohammed v. U. B. A (1976) 2 FNR 21.

A cause of action may give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not by way of separate actions – Gafaru v. U. A. C Ltd (1961) All NLR 785.

JURISDICTION

Jurisdiction is the legal capacity of a court to hear and determine judicial proceedings. It has the power to adjudicate concerning the subject matter of the controversy – Otukpo v. john (2000) 8 NWLR (Pt. 669) 507 at 524.  A court of law can only exercise judicial powers when it has jurisdiction – Bronik Motors Ltd v. Wema Bank Ltd (1983) 65 C 158. Jurisdiction is fundamental in any proceeding and lack of it is fatal to such proceedings – Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587; Sken Consult v. Secondy Ukey (1981) SC 6.

The limit of jurisdiction of Magistrate Court is spelt out in Section 17 of the Magistrate Court Law, Lagos State amended by Notice of Increase in Jurisdiction No 62 2006. In Abuja, Section 13 of the District Court Act which provides for the limit of jurisdiction of the District Court Judges has been amended by the District Court (increase in jurisdiction of District Judges) Order, 1997.

LAGOS

1.      Customary Court Grade I                   -           N1,000000     

2.      Customary Court Grade II                 -           N1,000000

3.      Senior Magistrate Grade I                  -           N750,000

4.      Senior Magistrate Grade II                 -           N750,000

5.      Magistrate Grade I                              -           N500,000       

6.      Magistrate Grade II                            -           N500,000

ABUJA

1.      Customary Court Grade I                   -           N250,000

2.      Customary Court Grade II                 -           N200,000

3.      Senior Magistrate Grade I                  -           N150,000

4.      Senior Magistrate Grade II                 -           N100,000

5.      Magistrate Grade I                              -           N100,000

6.      Magistrate Grade II                            -           N50,000

7.      Magistrate Grade III                           -           N25,000

The criteria for competence of a court were adumbrated in Madukolu v. Nkemdilim (supra) as follows:

a)      The court must be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.

b)      The subject matter of the case must be within the court’s jurisdiction and there must not be any feature in the case which prevents the court from exercising jurisdiction.

c)      The case before the court must be initiated by due process of law and upon fulfillment of any condition precedent to exercise of jurisdiction.

The issue of jurisdiction may be raised at any time of the proceedings including during appeal for the first time without leave – Yusuf v. Co-op Bank Ltd (1994) 7 NWLR (Pt. 359) 676; Ozomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195.

LITIGATION COSTS

Litigation involves expenses by both parties. There are various court fees paid for filing processes and other documents and for their preparation, the amount spent in summoning the witnesses, and paying them allowances in certain cases and of course, the legal practitioner’s fees where one is engaged.

Costs are meant to compensate one of the parties, most often the successful party, for expenses he has incurred in the litigation.

There are two elements in litigation cost which are:

1)      The fees a party pays to his legal practitioner for professional services (called solicitor’s and own client costs); and

2)      The other sums of money spent by him in the course and for the purposes of the litigation (called party and party costs).

It is from statute, mainly from the rules of court, that the courts derive the power to order costs. Thus, according to Lagos High Court Rules, no party is entitled to any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the court.

AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION METHOD

Alternative Dispute Resolution (also known as ADR). It is the method by which parties to a dispute reach an amicable resolution of the dispute without the need to resort to Court or litigation. ADR could be Court connected or non-Court connected. It is the former when where the matter was already in Court and the parties agreed on an out of Court settlement while it is the latter where the parties mutually reach an acceptable agreement without recourse to Court.

There are different types of ADR which are alternatives to litigation. These are:

1.      Negotiation;

2.      Mediation;

3.      Conciliation

4.      Multi-Door Court House;

5.      Early Neutral Evaluation; and

6.      Arbitration.

Any of the above is available to parties that do not prefer litigation due to delay in justice and expenses to be incurred unlike alternative dispute resolution.

PRE-ACTION COUNSELLING

This is to give professional or legal help and advice to clients on certain conditions to be satisfied before filing an action in court. Such condition precedents may be by way of service of pre-action notice or satisfaction of other steps required by law before commencement of action.

INTERVIEWING AND COUNSELLING SKILLS

This is to help the potential client air his or her concerns; the interview must be conducted effectively.

Legal interviewing is a medium of communication between a practitioner and a potential client. A client may consult a practitioner with a matter which he or she believes relates to law, but which has nothing to do with law, in which the legal practitioner is to aid the client to the right place.

1)      To form an attorney-client relationship – this has to do with three level viz.: personal, educational, and contractual. It is personal where you and the client come to understand each other, that is, you have to know each other very well in the course of interviewing and counselling. It is educational where you explain to the client what is involved in practice, for instance, fiduciary relationship, confidentiality, etc. finally, it is contractual where the client agrees to hire you and pay for your fees and expenses incurred.

2)      To learn the client’s goals – know what the client wants and explain the best options to him.

3)      To learn as much as the client knows about the facts – this is the major aim of the interview.

4)      To reduce the client’s anxiety without being unrealistic – give the client the feeling that you can help with the matter but do not assure him that you must win the case as this will be unethical.

ETHICS OF INTERVIEWING AND COUNSELLING

1)      A lawyer should not assure his client that he must win the case presented to him.

2)      It is imperative on the part of the counsel to ensure that all alternative dispute resolution methods have been explored before proceeding to commence an action.

3)      A lawyer should not agree to accept a case which he is not specialised on.

4)      To handle a client’s matter, the practitioner may need to interview other people who possess information or can provide explanations relating to it.

LETTER WRITING

Practitioners are required to draft letters of various kinds, ranging from a covering letter to a letter before a civil action. In drafting letters, the conventions governing letter writing such as layout, salutation and complimentary close must be adhered to. Since the practitioner acts on behalf of a client in a professional capacity, the letter should be written in plain English. It should never be conversational; thus, can’t, won’t, they’re, and so on, should not be used. Such an informal style of writing is inappropriate. In Weston v. Central Criminal court, Courts Administrator (1977) 1 QB 32 at 39, the Court of Appeal observed that the letter was discourteous and rude.

Every letter should bear a date. The day should be written in figures, the month in words and the year in figures. The month and year should not be abbreviated but be written in full. Dates should not be punctuated. However, it is permissible to insert a comma after the month. The month should be written out in words, while the day and year should be written in figures.

A letter must bear a heading or caption, for example, if a client is being informed about progress in a suit, then the heading of the letter will be the suit number and the parties to the suit

 Where it is intended that the letter should be read only by the addressee, the expression ‘Strictly Private and Confidential’, should be written on it.

No letter must be dispatched unsigned. A letter must be signed either by the writer or on his behalf.

CHARGING OF FEES

A firm should charge fees for doing legal work, except where it does free legal work for those who cannot afford it. Legal work done for free is called pro bono work. It is permissible to do free work for the poor, colleagues, widows, orphans, etc.

A law firm may have a special or general retainer to do legal work. There is a special retainer, where it is instructed to handle a single work; and a general retainer where it is instructed to handle all problems arising in an area of law during an agreed period of time.

A law firm cannot charge arbitrary fees. It must charge fees according to the provisions of the law because a law firm is a professional business. Such fees are regulated by Legal Practitioners Act, 2004, and the Rules of Professional Conduct (RPC). Section 19(3) of LPA provides that the remuneration provisions shall apply to a firm consisting of legal practitioners in partnership as they apply to a legal practitioner. The  RPC provides that in fixing fees, it should never be forgotten that the profession is a branch of the administration of justice and not merely a money-getting trade.

The Legal Practitioners’ Remuneration Committee is empowered under section 15 of the LPA to make orders regulating fees of legal practitioners.

DUTY TO CLIENT

The rules of professional conduct is made for the maintenance of the highest standard of professional conduct etiquette and discipline in terms of the constitution of the Nigerian Bar Association.

This can be found under Rules 14 to 25 of the Rules of Professional Conduct for Legal Practitioners, 2007.

A lawyer has the duty to take instructions from his client, represent his client in court, give legal advice to his client, etc.

ETHICAL ISSUES INVOLVED IN INSTITUTING FRIVOLOUS ACTIONS, ABUSE OF COURT PROCESS AND FAILURE TO ADVICE ON ADR OPTIONS

1)      A practitioner must comply with the law and rules of professional conduct when consulted by a potential client to handle a matter.

2)      A legal practitioner should know whom the enforceable right in the cause of action is vested to enable him decide whether he, himself, can properly sue.

3)      A legal practitioner must ascertain whether there is any conflict of interest with existing clients. If there is, a legal practitioner is to decline the matter. A violation of this will constitute professional misconduct – Rule 17 of the Rules of Professional Conduct (RPC).

4)      A legal practitioner must also ensure the potential client’s matter does not involve illegality, crime or fraud. A legal practitioner should decline where the matter involves one or any of these.

5)      Legal practitioners must be frank in dealing with potential clients. If it is a field where the legal practitioner lacks knowledge, the legal practitioner should decline to the matter.

6)      A legal practitioner should endeavour to obtain full knowledge of his client’s cause before advising thereon, and he is bound to give candid opinion of the merits and probable results of pending or contemplated litigation.

7)      The client must be assured that the facts will be treated confidentially – Fawehinmi v. Nigerian Bar Association & Ors. (1989) 2 NWLR (Pt. 105) 558.

8)      A legal practitioner is to give advice on the possible courses of action (e.g. alternative dispute resolution).

9)      It is important for counsel to ensure that all conditions precedent have been satisfied before commencement of proceedings.

10)  The legal practitioner must possess analytical skill, and the ability to articulate clearly and advice being offered.

RELEVANCE AND RELATIONSHIP IN CONTENT 2 AND OUTCOME 1

The relevance is that a client has to be interviewed and counselled on the right cause of action to take in a court of jurisdiction. While the relationship is that of accountability, cost and charges.

GENERAL PRINCIPLES AND PROCEDURE FOR COMMENCING ACTIONS IN THE MAGISTRATE COURT OF LAGOS STATE

It is important to decide the right court to commence an action. This is necessary because of the effect of conducting a trial that may at the end be a nullity for want of jurisdiction. It is also not in the interest of parties or the due administration of justice that disputes remain unsettled due to the problem of jurisdiction.

The procedure can be by two ways namely: (a) By plaint; and (b) By originating application.

BY PLAINT

When facts are in dispute or any of the issues below are in contention, one commences by way of plaint, two types of plaint are ordinary summons and default summons.

A plaintiff commences an action by plaint by filing the Praecipe form in Form 1 of Appendix 1 to the Magistrate Court Rules and filing same with the particulars of claim – Order 2 Rule 6(1) Lagos; Order 2 Rule 1 Abuja.

A particular of claim is a brief summary of the plaintiff’s case and should be headed in the court where it is to be filed and signed by the plaintiff or his solicitor. It shall contain the monetary value of the plaintiff’s claim or state the reliefs sought by him. It shall also contain an address for service of both the plaintiff and the defendant. Where plaintiff is resident out of jurisdiction he shall furnish an address for service within jurisdiction – Order 2 Rule 6(4) Lagos; Order 3 Rule 4 Abuja. The plaintiff is required to furnish as many copies of the particulars of claim as there are defendants.

A plaintiff may combine more than one cause of action in one plaint but the court may order separate trials where it thinks that they cannot be conveniently tried together. Where more than one cause of action is combined the plaintiff must state the grounds of each cause of action and the relief's separately in the particulars of claim.

On payment of the prescribed fees the Registrar will enter the plaint in a civil cause book. The entries shall contain the particulars of the parties and the substance of the action of the plaintiff stating a date for hearing. He (the Registrar) then numbers the plaint in the year and order in which it is entered and issues a plaint note to the plaintiff. The Registrar then issues an ordinary summons as in Form 6 of appendix A to the Rules to be served on the defendant. A copy of the plaintiff’s particulars of claim and Form 6A is attached.

The registrar may refuse to enter a plaint in the following conditions:

1)      Where the plaint on the face of it discloses no cause of action

2)      Where the matter is not within the jurisdiction of the court.

3)      Where the plaintiff unreasonably fails to supply the information required in he Praecipe Form.

ORDINARY SUMMONS

When the matter is contentious and it is so obvious that the matter will go to trial, the magistrate issues an ordinary summons as in Form 6 of appendix A to the Rules to be served on the defendant. A copy of the plaintiff’s particulars of claim and Form 6A (instruction telling a defendant the mode and manner he will enter a defence) is attached.

Steps defendant can then take in reacting:

1)      He may within six (6) days request for further particulars by filing a notice specifying what further particulars he needs.

2)      He may within six (6) days of the service of the summons, file a defence or counter claim against the plaintiff using Form 6A.

3)      He may file a counter claim against some other persons and ask that such persons be added as defendants.

4)      He may file a notice in Form 6(b) admitting liability for the whole or part of the claim and ask for more time within which to pay up. This must be filed within 6days of the service of the summons on him. If this is acceptable to the plaintiff, he will send a notice of acceptance within 3 days of receipt of the defendant’s notice and judgment will be entered accordingly. A notice of non-acceptance must be sent within 3 days, on the other hand, in which case the matter will proceed to trial.

5)      He may pay into an amount to settle the claim within 7 days or the time set by the registrar for the defendant to appear in court.

DEFAULT SUMMONS

A plaintiff applies for a default summons where his claim is for the recovery of a debt or liquidated money demand and he believes that the defendant has no defence to his claim

A claim for a liquidated money demand is a claim or demand in which the amount is fixed or has been agreed upon by the parties or is capable of being ascertained by mathematical computation or operation of law – Iron Products v. SAC Ltd (1992) 4 NWLR (Pt. 238) 734 at 746 Para A-G.

PROCEDURE FOR DEFAULT SUMMONS – Order 4 Rule 1 of Magistrate Court Rules, Lagos:

In Lagos State, Form 7 is used, and attached Form 7a, to fill Praecipe Form 1, and to attach affidavit stating that provisions of Order 4 Rule 1 MCR (which states those people that one cannot issue default summons on) of Magistrate Court Rules have been complied with.

The defendant has 10 days within which to enter his defence – Order 4 Rule 7, Lagos. However, A plaintiff whose claim is over and above the limit of jurisdiction of the magistrate court can still bring his action in the court by abandoning the excess – section 53 Magistrate Court Laws and Order 2 Rule 6 (2) MCR Lagos; Order 2 Rule 5 District Court Rules (DCR) Abuja. It must be stated in the particulars of claim that the excess is being abandoned.

BY ORIGINATING APPLICATION

This is rarely used. However, people in practice use it for non-contentious matter, that is, interpretation of statute when the facts are not in dispute – Order 2 Rule 2 MCR, Lagos.

The life-span of originating process is 12 months, but can be renewed for a period of  months upon an application  by way of motion ex parte supported by affidavit. Where an originating process expires without renewal, the plaintiff cannot go ahead to serve the expired writ unless a renewal is asked for.

Mode of service:

1)      This is served personally on the defendant – Order 6 MCR, Lagos. It should be served by the bailiff or police officer or any other person designated by the court – Order 6 Rule 6 MCR, Lagos.

2)      Substituted service by motion ex parte supported by affidavit stating that it has been impossible to serve personally on the defendant.

Mode of service is served by:

1)      Agent of defendant

2)      Advertisement in newspaper within courts jurisdiction,

3)      Pasting it on conspicuous part of last known address of defendant.

4)      Pasting in conspicuous place of court once one is sure that it will be seen by defendant.

5)      Or any other way the court decides – Order 6 Rule 2 MCR, Lagos.

APPLICATIONS FOR SUMMONS

Three copies of the particulars of the Plaintiffs Claims, showing his cause of action and his pecuniary or other claim, must be furnished with a further copy for each additional defendant if more than one.

Ordinary Debt Cases: The particulars should show dates of all items, goods or other debts, and also cash received or credits. However, where the plaintiff is willing to abandon the excessive portion of his claim so as to be able to commence his proceedings in the Magistrate court or District court, the fact must be noted at the end of the particulars.

Unliquidated damages: In claims for unliquidated damages, the plaintiff can state that he limits his claim to a certain sum, which will then in general be deemed to be the amount claimed, certainly in respect of the court fee to be paid or in relation to any award of costs against an unsuccessful plaintiff.

Moneylender's Action: In money lender's action, the particulars of claim must show that the plaintiff was at the date of the loan, a duly licensed money lender and also state the following:

a)      The date of the loan;

b)      The amount actually lent;

c)      The rate per cent of interest charged;

d)     The date of the note or written memorandum of contract;

e)      The date the contract was signed by the borrower;

f)       The date when a copy of the contract was sent or delivered to the borrower;

g)      Payment received, with the date of payment;

h)      Amount of every sum due to the plaintiff;

i)        The date the same became due; and

j)        Amount of interest accrued due thereon and unpaid.

Hire Purchase Claims: In action for recovery of goods let under Hire-Purchase agreements the particulars of claim must state:

a)      The date of the agreement and the parties thereto;

b)      The goods claimed;

c)      The amount of the hire-purchase price;

d)     The amount paid by or on behalf of the hirer;

e)      The amount of the unpaid balance of the hire-purchase price;

f)       The date when the right to demand delivery of the goods accrued;

g)      The amount if any claimed as an alternative to the delivery of the goods; and

h)      The amount claimed in addition to delivery of the goods or the alternative money claim, stating which.

In Possession Cases: The Plaintiff can join a claim for mesne profit, arrears of rent, damages for breach of covenant, or payment of the principal money or interest secured by a mortgage or charge. A full description of the property in question, together with a statement of the net annual rate-able value (or if not having a separate rate-able value, the rent (if any) and the grounds on which possession is claimed, must be included in the particulars).

Claims on Mortgages: Claims by a mortgagor to recover moneys secured by his mortgage or charge (whether principal or interest), must show the following particulars:

a)      The date of the mortgage or charge;

b)      The amount of principal money lent;

c)      The amount still due with interest; and

d)     What if any, proceedings have been taken by the plaintiff in respect of the property mortgaged and whether he has obtained possession thereof. In regard to claims for possession of the mortgaged property, the plaintiff must give the details required at (b) and (c) above and add particulars of the proceedings taken in respect of the principal money or interest.

Claims against the State: In proceedings against the State, the particulars of claim must contain information as to the circumstances in which it is alleged the liability of the state has arisen and as to the government departments and officers of the State concerned.

AMENDMENT OF CLAIMS

The Plaintiff's claim can be amended at any time before judgment with leave of court by filing and delivering amended particulars.

The amount of the claim can be increased, in this case, an additional court fee may become payable. The court at the hearing may allow or disallow the amendment.

Where an action is for unliquidated money demand, the plaintiff will apply for ordinary summons. In all cases of liquidated money demand, the application will be for default summons – Order 3 and 4 MCR, Lagos.