COMMENCEMENT OF ACTION IN AN HIGH COURT Flashcards
What determines the venue to institute an action in an High Court?
- All suits relating to land, mortgage, charge or interest in land may be commenced in the judicial division where the land is situate or the seizure took place.
EXCEPTIONS:Specific performance in respect of land, the venue is where the defendant resides. - Actions for recovery of penalties, forfeitures and against public officers may be commenced where the cause of action arose.
- All actions for specific performance or on the breach of contract may be commenced where the contract ought to have been performed or where the defendant resides or carries on business
KRAUS THOMPSON ORGANIZATION LTD V UNICAL - All other cases, where the def resides or carries on business
What happens where a suit is commenced in the wrong judicial division?
The appropriate direction by the chief judge is to transfer the suit to the proper division.
What are the modes of commencing an action in the High court?
- Writ of summons
- Originating Summons
- Originating Application/Motion
- Petition
What are the documents to accompany a writ of summons?
- Statement of claim
- Copies of documents to be relied on
- Witness statement of all witnesses except subpoenad witness
- List of witnesses to be called at trial
- Pre Action protocol form 01
What is the effect of failure to accompany the necessary documents while filing a writ?
- The process will not be accepted for filing by the registrar-ABUJA
- It will nullify the action-LAGOS
ORDER 5 RULE 1 Lagos
Can a writ be signed by a law firm?
NO!
OKAFOR V NWEKE
A writ is a court process that can only be signed by a legal practitioner that has been called to bar not a law firm.
What is the life span and renewal of a WRIT?
** 6 months** renewable for another 3 months before the expiration of the writ.
The renewal can only be made twice
Total is=12 months
It must be within the 6 months frame.
Done through MEP+A+WA
How is appearance to a writ of summons entered?
The Defendant may enter appearance personally or through his legal practitioner, by handing in the appropriate form duly completed at the registry of the High Court of Lagos where the action is brought or by sending them to the registry by registered post or electronic means.
Time to file memorandum of Appearance in Lagos and Abuja within & outside jurisdiction?
Abuja-14 days
Lagos-42 days
Outside Abuja jurisdiction is 30 days
Lagos is still 42 days.
SEC 99 SCPA
What are the types of Appearance that may be entered into?
- Conditional Appearance
- Unconditional Appearance
- Default of Appearance
How is an unconditional Appearance entered into?
Memorandum of Appearance.
The defendant is indicating intention to defend the suit & he is deemed to have waived procedural irregularities.
On substantive issues i.e jurisdiction, filing a memo of appearance does not waiver the defect.
How is conditional Appearance entered into?
It is an indication that the defendant intends to contest the jurisdiction of the court or challenge other procedural irregularities in a suit.
After filing a conditional appearance, the defendant must promptly and without taking any further steps, raise the objection by way of motion on notice.
How to set aside a defective writ?
- Enter a conditional appearance and file a MON+A+WA to set aside the writ OR
- File a MON+A+WA
- Challenge the jurisdiction of the court
What is the purpose of front loading system?
- Quick dispensation of justice
- Avoidance of frivolous actions
- It is a catalyst for resorting to ADR
- Removes springing of surprises on parties
- Helps court and counsel in efficient and effective case-management.
When does a witness statement on oath become evidence?
When it has been adopted!
Whatever defect in the original oath is cured by the second oath made in court before the judex, prior to the adoption of the statement by its maker and his subsequent cross- examination.
Types of subpoenas?
- Subpoena Ad Testificandum-
- Subpoena Duces Tecum-You cannot cross examine! until he is called as a witness.
- Subpoena Duces Tecum et Ad Testificandum
What is the effect of failure to affix NBA SEAL?
Failure to affix seal on processes is a mere irregularity that can be regularised and it does not render the process void ab initio but only voidable
When is a writ said to be issued?
When the Registrar seals the writ.
ORDER 8 LAG
When is an action deemed commenced?
A suit is commenced when all documents has been filed and including payment of filing fees
What is concurrent writs?
Note that concurrent occurs when one party is within, and one party is outside jurisdiction.
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How is amendment of a writ of summons done?
Once a writ has been filed, and issued, a Claimant cannot on his own amend it, but must make an application by motion, seeking the leave of the court to amend it.
MON+A+WA
When is originating summons used?
Where the facts in dispute are non contentious or for the interpretation of a document, will or law.
It may also be used where errors in judgments are sort to be corrected.
FORM 3, 4 & 5
What are the accompanying documents that is filed with an originating summons?
- An affidavit setting out the facts that’s being relied upon
- Exhibits in support
- A written address in support of the application
- Pre action protocol form 01
Time for the Defendant to respond in an originating summons?
21 days in both Lagos and Abuja
