COMMENCEMENT OF ACTION IN MAG COURT

Question 1

What are the preliminary matters to consider before instituting an action in court?

Answer 1

1. The availability of ADR
2. Reasonable cause of action
3. Locus standi-**Adesanya v President of Nigeria & Anor(the def had no locus standi because his rights were not infringed upon)
   **Fawehinmi v Akilu(there was locus standi)
4. Limitation period
5. Jurisdiction
6. Venue of the court
7. Capacity of parties
8. Condition precedent
9. Immunity-S 308(cannot sue them in their personal capacity), also applicable to S 10 DIPA(diplomatic immunity does not apply to Nigerians working in the HC)
10. Enforceability of judgment
11. Cost of Litigation, including the opportunity cost
12. Previous relationship and need to preserve relationship
13. Procedure for commencing the action.
14. Applicable/relevant laws.

Question 2

What happens where there is a failure of advice the client of the option of ADR in LAGOS AND ABUJA?

Answer 2

-In Lagos, it nullifies the action
-In Abuja, Registrar shall not accept the processes for filing
See RULE 15(3)d

Question 3

What are the limitation periods and their deadlines?

Answer 3

1. Actions against public officer-3 months, Sec 2(1) of the POPA(does not apply in criminal matters)
2. Contract under seal-12 years
3. Land matters-North & East(12 years), West-10 years, State(20 years)
4. Action for recovery of land - 12 years(LAGOS)
5. Actions founded on simple contract - 6 years
6. Cases of damages for slander/libel/defamation - 3 years
7. Actions claiming damages for negligence, nuisance or breach of duty - 3 years
8. Actions founded on tort - 6 years

Question 4

For a court to have jurisdiction, what are the conditions?

Answer 4

1. Subject matter jurisdiction
2. Due process
3. The proper parties must have been before the court
4. Must be duly constituted.
   MADUKOLU V NKEMDILM

Question 5

What is substantive and procedural jurisdiction?

Answer 5

-Substantive jurisdiction can be raised at any time even on appeal

-procedural jurisdiction has to be raised timeously as it can be waived.

Question 6

What is the effect of pre action counseling certificate in Abuja?

Answer 6

The lawyer has advised his client on litigation as to the strength and weakness of their case and it must be indicated on the originating processes.
Where the suit is frivolous, the lawyer will undertake to pay the costs of proceedings.
BOTH THE CLAIMANT & DEF shall file the certificate

Question 7

What is the effect of pre action protocol form 01 in Lagos?

Answer 7

The law makes it compulsory in Lagos and it evidences that the parties have tried to settle out of court. Failure to comply will nullify proceeding.
ONLY THE CLAIMANT FILES

Question 8

What is Pre Action notice and examples?

Answer 8

Under CAMA, SEC 17 stipulates that a 30 days notice must be given to the CAC before an action is institute against the commission. The notice must state the claimant(personal details) and their reliefs sought, cause of action & particulars of claim.
Similar provisions in the NNPC Act

Question 9

What are the List of condition precedents that must be followed to recover professional fees?

Answer 9

1. Recovery of professional fees by lawyers can only be instituted after the expiration of one month from the day of service of bill of charges on the client.
2. Stamp & seal-failure is an irregularity & it will be deemed not properly filed
3. Demand letter for civil action

Question 10

Modes of commencement of an action in Magistrate Court?

Answer 10

1. By Claim
   -Ordinary summons
   -Summary summons
2. By Originating Application

Question 11

How is an action commenced by claim?

Answer 11

ORDER 1 RULE 4
1. Submitting the claim and particulars of claim to the registrar. The particulars of claim contains a succinct statement of the allegations of fact which underlie the claims.
2. The particulars of claim must be signed by the claimant or his legal practitioner. It must contain
-Address of service
-Phone number
-Email Address for communication
3. Pay the requisite filing fees to commence an action
4. The registrar will enter the particulars of the claim into the court cause kept for that purpose
5. The registrar will subsequently night the action a number according to how it is filed within the year.
6. Service will be directed on the opposition party.
7. The registrar will deliver the claim on the designating magistrate who assigns the claim to a magistrate
8. The magistrate then issues an ORDINARY SUMMONS except a summary summons has been requested for.

Question 12

When can claim be used to institute an action in the Magistrate Court?

Answer 12

1. Where the defendant resides/carries out business in Lagos
2. Where the cause of action arose wholly or partly in Lagos.
3. where the claimant sued as an assignee of a debt.

Question 13

How is service of processes done in the magistrate court?

Answer 13

PERSONAL SERVICE
1. Service of the defendant personally
2. If it is a partnership, service on one of the partners can suffice so far the partnership has not be dissolved to the knowledge of the claimant
3. Service at the head office of a company
4. Service on a guardian in the case of an infant or a person of unsound mind.

Question 14

When may substituted service be ordered?

Answer 14

ORDER 5
Where personal service cannot be effected on the defendant and it is shown by affidavit evidence.
1. Through an accredited courier service provider
2. By leaving the processes with an agent of the defendant
3. By advertisement in a newspaper
4. By pasting the notice conspicuously at the defendant’s address or last known address
5. By pasting at the court premises
WITH LEAVE OF COURT
MEP+A+WA

Question 15

When can service be effected?

Answer 15

From 6AM-6PM
And appearance to summons outside Lagos shall not be less than 30 days

Question 16

What options are available to the defendant after service of the summons on him?

Answer 16

1. Admission or request for time-WITHIN 6 days of service of summons on him, the claimant has 3 days to respond
2. Demand for further particulars-Within 6 days, 2 days for the claimant to respond
3. Counter Claim, Set off or defense
4. Tendered before Action

Question 17

When must the claimant apply for a date to be fixed for hearing under claim?

Answer 17

not later 10 days after filing his claim write to the magistrate requesting a date to be fixed for hearing

Question 18

When is summary summons used?

Answer 18

FORM 4
Recovery of debt or liquidated money demand capable to mathematical precision.

Question 19

How is summary summons issued?

Answer 19

A letter of application is made by the claimant to the registrar, requesting that the claim should be endorsed as a summary summons

Question 20

When can summary summons cannot be issued?

Answer 20

1. Where the defendant is an infant. persons of unsound mind or lunatics
2. To recover money lent by a money lender
3. To recover money on behalf of an assignee of debt or thing in action
4. To recover money secured by a mortgage or charge
5. Where the defendant who has to be served outside jurisdiction.

Question 21

What’s the life span of ordinary summons?

Answer 21

3 months
It is not subject to renewal.

Question 22

What is the life span of summary summons?

Answer 22

3 months
However summary summons may be exchanged with ordinary summons before the expiration of the 3 months.

Question 23

When is originating application used on Magistrate court?

Answer 23

Where no law or rule of law provides for any mode of commencing such an action.

Question 24

When is Originating Application used under the Magistrate court?

Answer 24

1. When the claimant resides or carries in Lagos.
2. Subject matter of the application is situated in Lagos.
3. Where no claimant is named in the application, if the claimant or one of the claimants reside/carries on business in Lagos

Question 25

Qualifications for Small Claims Court in Lagos?

Answer 25

1. The claimant resides or carries on business in Lagos
2. The defendant resides or carries on business in Lagos
3. The cause of action arose partly or wholly in Lagos
4. It is for a liquidated money demand not exceeding N5 million naira
5. The claimant must have served a letter of demand on the defendant as in FORM SCA 1
   The entire hearing period must not exceed 30 days

Question 26

Commencement of an action by small claims in Lagos?

Answer 26

1. Application is done through the small claims complaint form as in FORM SCA 2 to the registrar of the magistrate court
2. The Assistant chief registrar if satisfied will mark it as “qualified for small claims” and direct payment for filing fees
3. Summons will be subsequently issued as in FORM SCA 3
4. Within 24 hours, the assistant registrar will deliver the case file to the administrative magistrate
5. The designated magistrate will then issue it at a random to a magistrate within 24 hours of receipt of the case file
6. The sheriff will ensure service of the claim and summons on the defendant within 7 days of filing
7. Service shall be personal
8. Affidavit of service as FORM SCA6 & Affidavit of non service as in FORM SCA 4 must be filed within (2) days of service.
9. Substituted service may be applied for by filling FORM SCA 7
   The defendant must respond by filing FORM SCA 5 within 7 days

Question 27

What options are open to the defendant under Small claims court?

Answer 27

FORM SCA 5
1. Counter claim
2. Admission
3. Defence within 7 days by completing FORM SCA 5 as appropriate.
**Counterclaim exceeding N5 million may be filed but judgment cannot be entered exceeding the general jurisdiction of the magistrate court which is 10 million.
The claimant may file a reply within 5 days.
Appeals shall be within 14 days

Question 28

What’s the time frame for small claims hearing in the Magistrate court?

Answer 28

30 days

Question 29

What’s the time frame for small claims proceedings in the Magistrate court?

Answer 29

60 days

Question 30

When must judgment be delivered on the parties?

Answer 30

Within 14 days from completion of hearing.