It is inevitable in our world today that disagreements will occur from the interactions and communications that take place between humans. These disagreements sometimes go unresolved and may need the intervention of the judicial system to iron them out. Matters brought for determination before a court of law can also be referred to as an “action”. Before the commencement of an action in court, an aggrieved party should at the initial stage consider and think about whether or not he has locus standi and the existence of a reasonable cause of action. He must also satisfy all condition precedents, determine the jurisdiction of the court, clarify statutory limitations etc. One of the courts in the hierarchy of courts in Nigeria is the Magistrate Court. An appeal from the Magistrate Court goes to the High Court.
The mode of commencing an action in a Magistrate court depends on where the court is located. The District Court Laws of the Federal Capital Territory, the Magistrate Court Laws which are applicable in the 36 states of the Nigerian Federation, and the Sheriffs and Civil Process Laws give a succinct and concise provision for the method of instituting an action in a Magistrate Court.
Order 1 of the Magistrate Court (Civil Procedure) Rules Lagos 2009, provides two forms of commencing an action:
1. By claim: the particulars of the claim must be attached.
2. By originating application: actions commenced by originating applications are used where proceedings are authorised to be commenced in Magistrate Courts and not required to be commenced otherwise. It is used when facts are not in dispute and must state the order applied for and sufficient particulars showing the grounds for which the applicant makes the application.
The forms of commencing actions in District Courts in Abuja are:
1. By Plaint: In Form 1, this could be done by way of ordinary or default summons, and is used when facts are in dispute. Plaint is to be filed along with the particulars of the claim. The Registrar of the court will issue a plaint to the applicant, also issue and serve ordinary summons in Form 6 with the particulars of claim to the defendant.
2. By Default Summons: In Form 7, this is used in actions for liquidated money demand which the plaintiff feels the defendant will have no reasonable defence to the claim.
3. By Originating Applicationsy originating applicationsby way of ordinary or default summons, and is used when facts are in dispute.
4. .
Summary summons is used when the claimant wants a quick judgement. The claimant will file the claim with the particulars of claim and request through a letter addressed to the Registrar to endorse the claim as a summary summons.
Application for summons
The Plaintiff is required to file copies of the particulars of the Plaintiffs Claims, showing his cause of action and his pecuniary or other claim and must provide further copies for each additional defendant if there is more than one. In this regard the following claims can be instituted by way of summons along with the requirements that must be provided:
1. Ordinary Debt Cases: The particulars should show dates of all items, goods or other debts and also cash received or credits. Note: 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, this fact must be noted at the end of the particulars.
2. 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.
3. 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:
1. The date of the loan
2. The amount actually lent
3. The rate per cent of interest charged
4. The date of the note or written memorandum of contract
5. The date the contract was signed by the borrower
6. The date when a copy of the contract was sent or delivered to the borrower
7. Payment received, with the date of payment
8. Amount of every sum due to the Plaintiff
9. The date the same became due, and
10. Amount of interest accrued due thereon and unpaid.
1. Hire Purchase Claims: In an action for recovery of goods let under Hire-Purchase agreements the particulars of claim must state:
1. The date of the agreement and the parties thereto
2. The goods claimed
3. The amount of the hire-purchase price
4. The amount paid by or on behalf of the hirer
5. The amount of the unpaid balance of the hire-purchase price
6. The date when the right to demand delivery of the goods accrued
7. The amount if any claimed as an alternative to the delivery of the goods and
8. The amount claimed in addition to delivery of the goods or the alternative money claim.
1. 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 rateable value (or if not having a separate rateable value, the rent (if any) and the grounds on which possession is claimed, must be included in the particulars.
2. 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:
1. The date of the mortgage or charge
2. The amount of principal money lent
3. The amount still due with interest and
4. 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.
1. 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 department and officers of the State concerned.
Note that, the Plaintiff’s claim can be amended at any time before judgement 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. See Orders 3 and 4 of the Magistrate Court (Civil Procedure) Rules of Lagos State 2009.
However, where a Plaintiff feels that the Defendant would in fact have no defence to his action and if the claim is a liquidated amount, he can instead of applying for an ordinary summons apply for a default summons. But default summons cannot be issued against some classes of persons such as:
· Persons under disability e. g. infants and mental patients
· The Government or Government department
· An outdoor worker, his wife and servant
· To recover money secured by a money lender or interest thereon, and
· A person outside the jurisdiction of the court.
If the Defendant fails to discharge his liability by payment, or to file an admission or counter claim within the prescribed period, the Plaintiff can enter judgement in default, i. e. Plaintiff can obtain judgement without any formal trial.
In the case where the sum to be claimed by the Plaintiff in an action for a liquidated money demand is more than the jurisdiction of Magistrate Courts Lagos state, the Plaintiff may on grounds of expediency and convenience, abandon the excess so that the Magistrates Court can assume jurisdiction over the case. Where there is abandonment, it should be clearly indicated at the bottom of the particulars of claim. Section 17 Magistrate Court Law Lagos as amended by Magistrate Court (Increase in Civil Jurisdiction) Amendment Notice 2006 makes this provision. In the event of abandonment, judgement will be in full satisfaction of the Plaintiff’s claim and no separate action can be commenced on the excess already abandoned.
The judgement obtained on a default summons is as valid as one obtained after a full hearing. It may be regarded as a judgement by consent of the parties, but sometimes it may turn out to be judgement obtained in the absence of the Defendant. In the latter case, the judgement may be set aside by the Magistrate Court on the application of the Defendant if he is able to satisfactorily disclose a bona fide defence to the claim.
Finally, the importance of commencing an action in the right court cannot be overemphasized. Therefore, it is important to decide the right court to commence an action. This is necessary to avoid 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.
SOURCE
http://www.thelawyerschronicle.com/commencement-of-action-in-magistrate-courts-in-nigeria/
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