Civil procedure
September 03, 2019
Methods of Commencing Actions in a 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 – Dohertyv. 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, inEzomo 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. InOdua 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 judgement for his claims in default of appearance – Order 10 Rule 2 Lagos, Order 13 Abuja, and Order 14 Kano. Such an application for judgement 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 judgement in default of appearance must be supported by a written address – Order 31 Rule 1 Lagos.
JUDGEMENT THEREOF
A judgement obtained pursuant to such an application for default of appearance is called a “default judgement”.
Since a judgement which a plaintiff or claimant obtains by reason of failure to enter appearance is a default judgement, that is, not a judgement on the merit, then the court has jurisdiction to set aside or vary such a judgement – Order 10 Rule 11 Lagos, Order 13 Rule 6 Abuja and Order 14 Rule 6 Kano.
Before the court can set aside such default judgement, the defendant must make an application to court within a reasonable time of the entry of the judgement praying the court to set aside such judgement. 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 judgement 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 judgement was given in his absence;
2. Whether there has been undue delay in making the application to set aside the judgement so as to prejudice the party in whose favour the judgement subsists;
3. Whether the latter party (i.e. in whose favour the judgement 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 judgement 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.
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.
SOURCE
http://wingrass.blogspot.com.ng/2013/03/mode-and-procedure-of-commencement-of_1.html
