General Studies on Civil Litigation

Question 1

Identify the preliminary considerations a lawyer must take before instituting an action on behalf of his client

Answer 1

I. Exhaustion of available remedy
II . Existence of a Cause of action
III. Issuance of Pre-action notices or
condition precedents
IV. ADR
V. Locus standi of the party
VI. Jurisdiction of theCourt
VII. Parties to the action
VIII. Cost of litigation
IX. Res Judicata
X. Limitation of action

Question 2

What is the first step to always take before instituting an action in court? The supporting provision of law

Answer 2

The fist step-to take before commencing an action in court istartesort mediation as provided by the contract agreement. between the parties.

Question 3

When is a writ of summon the appropriate means of commencing an action in the High Court?

Answer 3

Writ is summon is used in the High court or Federal High Court when there is a contentious matter or where facts are likely to be on dispute
Doherty v. Doherty ( when I’m doubt use Writ of Summons$
Director of SSS v Agbakoba

It is also used in both summary procedures for entering judgements

Question 4

What are accompanying documents a lawyer must file, infact frontload for a successful action commenced by writ of summons

Question 5

What is the originating process for commencement of a Fundamental Human Rights Matter?

Answer 5

An Originating Motion

Question 6

List al the supporting process you will require to enforce a fundamental rights action

Answer 6

I. Statement
II. Affidavit
III. Written Address

Question 7

Likely reliefs to seek in cases of breach of Fundamental Human Rights

Answer 7

A declaration that the detention ofMr. Ayeni Bassey si unlawful and a breach of his right to personal liberty.
ji.
I
n ediate release ofMr. Ayeni Bassey
ii.The Sum of
…….As general damages
iv.
A public apology published ni any two national dailies or by any other mode

Question 8

Can other persons apart from the aggrieved bring an action for fundamental human rights?

Answer 8

Yes. Anyone can bring an action on behalf of a person whose right has been violated.
By virtue of Paragraph3(e) (i-V);
o f thePreamble to the Fundamental Rights Enforcement Procedure Rules, Anyone, acting on behalf of another can bring a fundamental rights enforcement proceedings for a person whose rights are being infringed or about to be infringed upon.

Question 9

Can fundamental rights actions be instituted against individual persons?

Answer 9

It was previously the law that fundamental rights actions can only be maintained against government and not against private individuals. See Minister of Internal Affairs v Shugaba

However, this is no longer the case as the court in the case of Garba v University of Maiduguri, held that fundamental right actions can be enforced against private individuals as well

Question 10

How do you get an uninterested party to testify in court?

Answer 10

By using a subpoena and testificandum

Question 11

What is the difference between the FCT High Court and Federal High Court? Should you be weary of mixing them up?

Question 12

What is an immunity

Answer 12

Immunity refers to privileges an individual may enjoy based on certain circumstances. For instance, a diplomat, even his families enjoy immunity from law suits and legal proceedings.

Question 13

Is it right for a pleading to be settled on the name of a law firm?

Answer 13

No. It renders the pleadings incompetent. A court process issued by a legal pracutioner can only be signed or endorsed by a person who is qualified to practice law in Nigeria and whose name is on the roll of legal practitioners

See Okafor v. Nweke.

Question 14

What does it mean to specifically plead in law?

Answer 14

In every statement of claim or defence, certain facts are specifically pleaded. A good example is pleadings on damages.
Things to be specifically pleaded:
1. Islamic Law
2. Customary Law (except where judicially noticed)
3. Foreign law
4. Matters that would take the adversary by surprise e.g limitation of action; immunity;
Equitable maxims and special pleas like lashes estoppel; res ipsa locutor
5. Counter claim and Set off
6. Insanity in probate matters
Defamation
3. areA Claim for special damages must not only be specificaly pleaded, every head of claim must be itemized/particularized.
E.g- Th’e sum ofN10,000,000.00 (Ten Million Naira) as special damages

Particulars of special damages:
i. The cost of damaged windscreen =#7,000,000
ii. The cost of damaged head lamps = #3,000,000

Answer 15

Thisraises issue:of conflict.ofinterest A-lawyerinstch-asituation isjequiredto mat filldisclosuretohisclientot enabletheclientmakesachoiceastowhetherthecounsel should accepticontinue: with the brief or not. The defeudant’s-counselought ot have disclosed his relationship with Chief. Benson: Rule I7 R P C : Z i n k

Question 16

State the prerequisite for admission of electronically generated evidence

Answer 16

1. The computer /device was regularly used to produce the type of evidence sought to be tendered.
2. The content of the device for evidence must have been generated in the ordinary course of business.
3. The device, at all material time, must be in good working condition so as not to affect the production of generated evidence nor alter its accuracy.
4. The person who operated the device must give oral evidence or swear an affidavit verifying the above facts.
   Section 84 Evidence Act; Silver vDickson; Kubor vDickson

Question 17

What does it mean to properly certify a document?

Answer 17

For a CTC to be valid, it must be certified by the appropriate body. E.g CAC for Certificate of Incorporation Section 104(3) Evidence Act.
It is the Registrar General of Corporate Affairs Commission that has the competence to certify a Certificate of Incorporation.

Question 18

Is a certified true copy of a document admissible in court?

Answer 18

The position of the law is that it is only the primary evidence (original) of a document that is admissible in evidence; section 86 of the Evidence Act.
However, where the primary evidence is not available, the secondary evidence (any other copy other than the original) will be admissible if proper foundation is laid: section 87 Evidence Act 2011.

Question 19

What is the criteria for validity of the CTC of a public document?

Answer 19

i It must be issued by a person duly authorized as having custody of the public document.
II. The proper fee paid for the certified copy must be subscribed therein.
iii. It must be written on the foot of the document that it is a CTC
iv. It must be dated and signed by the certifying officer with his name and official title subscribed; section 104 E.A

Question 20

As a good lawyer, how do you get your client to adopt a statement on oath?

Answer 20

The steps/questions I would take to enable my witness adopt his statement on oath are:
a. Tell this court your name address and occupation?
b. Did you make any statement on oath in relation to this suit?
c. If you see the statement will you recognise it?
d. How will you recognise it?
e. Is this your statement on oath?
f. What do you want to do with the statement?

Question 21

After being served a writ of summon, what is the first step a defendant must take?

Answer 21

The defendant enters appearance in the matter by filing a Memorandum of Appearance. See O.r 9.r 1(1) Lag; Form 11 of the Appendix to the Rules.

Question 22

Draft a general traverse for any statement of defense

Answer 22

After conclusion fotrial. where only the Claimant gave evidence ni the matter, the Claimant’s Counsel waidldlress theCoun first.! 1 MK.
eTh Ciaimant Counsel will be required to mile his written address within 12days after close fo

SAVE AND EXCEPT as is hereinafter expressly admitted, the Defendant denies each and every allegation of facts contained in the statement of claim as if same were set out and traversed
seriatim.” (2 MKS) (d)
Please tell t

Question 23

Draft a general traverse for any statement of defense

Answer 23

After conclusion fotrial. where only the Claimant gave evidence ni the matter, the Claimant’s Counsel waidldlress theCoun first.! 1 MK.
eTh Ciaimant Counsel will be required to mile his written address within 12days after close fo

SAVE AND EXCEPT as is hereinafter expressly admitted, the Defendant denies each and every allegation of facts contained in the statement of claim as if same were set out and traversed
seriatim.” (2 MKS) (d)
Please tell t

Question 24

The

Question 25

The

Question 26

List the content of a written address

Answer 26

This is in a case of a claimant’s written final address: 1. Heading of the court 2. Suit Number .3 The Parties 4. Title of the document .5 Introduction 6. 'Brief Statement ofFacts .7 Issues for Determination 8. Legal Arguments 9. Conclusion 10. List of Authorities 11. Date 12. Signature, Name & Address of Claimant's Counsel 13. Address for Service on Defendant Counsel.

Question 27

Assuming trial has been concluded ni the matter, and only the Claimant gave evidence, who will address the Court firstand within what time frame will the party be required to file the written address?

Question 28

Assuming trial has been concluded ni the matter, and only the Claimant gave evidence, who will address the Court firstand within what time frame will the party be required to file the written address?

Question 29

Documents that accompany writ of summons?

Answer 29

1) Statement of Claim 2) Witness Statements on Oath 3) Copies of documents to be relied on at the trial 4) Gertificate of Pre action Counselling Order 4 Rule 15 Abuja

Question 30

In an exam type scenario, the defendant to a suit that arose in Abj, in which you represent the plaintiff, resides in Niger State , What steps do you take as a counsel to Plaintiff ensure that a writ is properly served on a defendant

Answer 30

The steps I will take are as follows: 1) Apply to court by way of motion ex parte for leave to issue the writ for service outside jurisdiction. Order 4 Rule 6 Abuja 2) Endorse on the writ that it is for service outside of the Federal Capital Territory. Abuja and in Niger State of Nigeria. S. 97 SCPA 3) Endorse the writ for appearance within minimum of 30days. S. 99 SCPA

Question 31

Upon being served, the defendants briefed the law firm ofKomolafe &Co. ot file their defence. Having done os and joined issues, AT.. Komolafe, Esq. si keen ot ask certain questions of hte plaintiff with a view ot obtaining answers whcih he considers relevant to the case. Briefly state how eh mya od this before trial and how the plaintiff si expected ot respond ot this.

Answer 31

A I Komolafe Esq may ask the questions by way of discovery offacts otherwise called interrogatories. (1⁄2 MK) He can do this by motion no notice supported by affidavit for leave of count to serve interrogatories. (1⁄2 MIK.) The plaintiff is torespond by way of affidavit within 5 days. (1⁄2 MK) Order 30 rules 1 & 2(1) Abuja (1⁄3 MK) 1. E (

Question 32

Assuming that the court suo moto decided to visit a locus in quo in order to see things for itself, briefly state the procedure(s) the court will take to do this

Answer 32

Evidence Act provides for two methods, one of which could be adopted by the Court as follows; 1) The Court can adjourn the case and continues sitting at the locus. or 2) The Court visits the locus and inspects same. After which, it returns to continue sitting at the court room where evidence of what transpired at the locus wil be taken. Sees. 127 Evidence Act 201. (11⁄2 MK)

Question 33

What are the conditions the court will consider to grant a third party to be attached to a suit?

Answer 33

The Court will consider anyone of the following factors: That the defendant 1. is entitled to indemnity; or 2. si entitled ot any relief connected with the original subject matter of hte action and substantially the relief claimed by the plaintiff; or 3. that an issue relating to the subject-matter is substantially the same arising between the plaintiff and the defendant and should properly be determined between the plaintiff, the defendant and the third party, or between any of them, the Court or a Judge ni chambers may give leave ot the defendant to issue and serve a third-partynotice. (Order 10 Rule 18

Question 34

Digital Evidence

Answer 34

I wil lay foundation by tendering a certificate, affidavit or giving oral evidence to the following effect: 1) Particulars of the computer ie the digital camera 2) That the photograph was taken by the camera ni hte ordinary course ofbusiness 3) The the computer was ni regular use sa at hte time of taking hte photograph 4) The computer was ni god working condition at hte material time S. 84(2) Evidence Act 2011, Kubour .v Dickson; Sylver v Dickson (21⁄2

Question 35

When am interlocutory decision (or judgment) is taken by the court can the decision be appealed?

Answer 35

Yes, the defendants can appeal the decision within 14 days from the date of the decision. See Sec. 24 CA; Omonuwa v Oshodin

Question 36

What are the documents that will accompany a motion on notice application to seek leave of court for extension of time for appeal

Answer 36

1. Affidavit in support of the application .2 The CTC of the ruling appealed against 3. A copy of a proposed Notice of Appeal .1 fI similar application was made at the lower court, copy of hte ruling refusing the application Order 4 CA Rules (1MK)

Question 37

After drafting and filing application for appeal (I’m not referring to Motion on notice) what is the period within which you wil file the appelants brief of argument?

Answer 37

Appellant's brief should be filed within 45 days from the date of receipt of the Record of Appeal. Order 19 CA Rules

Question 38

How do you effect service by substituted means?

Answer 38

The procedure is as follows: 1) File an application by way of motion exparte supported by an affidavit and a written address. See Order 1 (5) Abuja Rules, 2004. The substituted service may be done ni any of the following ways: I. By delivery of the document to some adult inmate at the usual or last known place of abode or business of the Defendant. II. By delivery of the document to some other person, being the agent of the defendant. III. By advertisement in a Federal Gazette, or in some newspaper circulating within the jurisdiction. IV. By notice put on the principal Court house or in a place of public resort in the judicial division. V. By email or any other scientific device known.

Question 39

What is the life span of a writ of summon

Answer 39

It is one year. One this time lapse before service renew the writ before service.

Question 40

Documents that accompany motion on notice for extension of time (usually cause you delayed in responding to writ of summons)

Answer 40

I. Affidavit II.Written Address III. Memorandum of Appearance IV. Statement of defence V. List o f witnesses VI. Witness statements of oath VII. Copies of documents to be relied on.

Question 41

In a case where there is an application for default judgment and an application for stay of proceedings, what is the order of hearing applications?

Answer 41

The general rule is that motions/applications before the court are to be heard acording how it was filed. However, where two applications are before the court, one seeking to terminate the proceedings and the other seeking to regularize or correct an irregularity, then the court will hear the motion that will regularize and give life to the suit; NALSA & Team Associates v NNPC, AIC Limited v AGF.

Question 42

In a case where, counsel to the claimant has brought an ex-parte motion seeking an interim injunction restraining your client (the defendant) from selling his assets within the court jurisdiction pending the determination of the substantive suit. You want to make an informed argument in court, list the conditions you will argue must be met by the application.

Answer 42

The conditions that must be met by an exparte motion for interim injunction includes: I. Existence of a legal right to be protected by the court II. There must an urgent need to protect the subject matter of the dispute III. Substantial issue to be tried IV. An irreparable damage will occur and which cannot be adequately compensated. A.G Oyo State v Ayorinde V. Conduct of the parties to the suit. VI. Undertaking to pay cost should the application turn out to be frivolous: CBN v Kotoye VI The applicant must also file along with the exparte motion, a motion on motive for interlocutory injunction.

Question 43

In a case where an Originating Motion is applicable, however the persons whose Fundamental Human Right is being infringed upon are likely to suffer exceptional hardship before the service of the originating process, what will their lawyer do?

Answer 43

The lawyer can take any of the following steps to wit: (i) Bring an application for interim reliefs for an order granting bail to the applicant; or (ii) An order releasing them from detention pending the determination of the application; (iii)An order for the production of the applicants on the date fixed for hearing, Or (iv) An order of access to medical facilities as the case may be.

Question 44

In a scenario question where you have a family clamoring for a landed property and having the same cause of action, what do you do?

Answer 44

In view of the large number of my Clients, it will be difficult to bring the action in the names of all of them as Plaintiffs. I will in the circumstance of their common interest in the property bring a representative action.

Question 45

What are the conditions to fulfill in order to adopt a representative action approach in relation to family property ? The third is as crucial as all of them.

Answer 45

I. They must have the same interest in the subject matter of the suit. II. They must obtain the written authority of the members of the family who are being represented to commence the action for themselves and on behalf of the family. III. They must seek and obtain the leave of court by motion ex-parte to commence a representative action

Question 46

Similar to the scenario painted in 44, if the landed property belongs to a deceased, is the same process applicable?

Answer 46

The representatives (administrators) must obtain letters of administration. The claiming party of the suit now can be: (SUING FOR THEMSELVES AND ON BEHALF OF THE FAMILY OF MKPOKITI 1OF KWEKE LAND). AND (ADMINISTRATORS OF THE ESTATE OF MKPOKITI 1OF KWEKE LAND (DECEASED)

Question 47

What is the content of a written statement to support a motion?

Answer 47

1. INTRODUCTION 2. BRIEF STATEMENT OF FACTS 3. ISSUES FOR DETERMINATION 4. LEGAL ARGUMENTS 5. CONCLUSION 6. LIST OF AUTHORITIES

Question 48

After close of pleadings in a case, what is the next thing

Answer 48

After the close of pleadings the next step is the settlement of issues by the parties. Parties must within 14 days of the close ofpleadings submit to the registrar the material questions in controversy between them in the form of issues which shall be noted by the court and set down for trial.

Question 49

What proper order should the court make in the absence of any defence to the claim of the plaintiffs? What step should be taken next

Question 50

Apart from the garnishee procedure provided under Section 83(1) of the Sheriffs and Civil Process Act (which is on relation to money in bank anyway), if you discover that a judgement debtor has a property that you would like to attach so that he can pay remedies, how do you go about it?

Answer 50

I will apply to the registrar of the court that gave the judgment to issue a certificate of judgment to me which must be signed and sealed. The certificate will be taken to the registrar of the High Court in the state where the property is situate, which is the execution State. The registrar shall enter the particulars of the certificate of judgment in a book called the "Nigerian Register of Judgments. "After the registration, I will apply for the Writ of Fieri Facias to first attach the moveable properties of the judgment debtor, if any and subsequently file a motion on notice supported by affidavit and written address to atach the landed property. See Sections 4 and 104-110 of the Sherrif and Civil Process Act

Question 51

How long after delivery of judgement can a person file for appeal?

Answer 51

Unsatisfied with the judgement or ruling of court, you are expected to file the notice of appeal within three months of the delivery of judgment. See Section 24 of the Court of Appeal Act

Question 52

If you want status quo to be maintained after filing for appeal, what must you do?

Answer 52

Usman Bako wants thestatus quo to be maintained he must file an application for stay of execution. See the cases of Lijadu v Lijadu, Ajomale v Yaduat. The application will be by way of motion on notice ot be supported with an affidavit and a written address. See Order 54 of the HCPR 2012 Lagos (11⁄2 Mark)

Question 53

What is the legal effect of suing a non-juristic person?

Answer 53

The legal effect of suing a non-juristic person is that the case wil be struck out. See Shitta & Ors v Ligali &Ors

Question 54

Assuming in a case of declaration of title to land, a defendant has been on the land for more than 12 years, how can he get the case dismissed?

Answer 54

This would be by proceedings in lieu of demurrer. In this case, the defendant will file his statement of defence first, and then raise the fact that the matter is statute barred in his statement of defence. He will thereafter file a motion on notice supported by affidavit and a written address praying the court to strike out the suit on the ground that it is statute barred. In the alternative, after raising the point of law in his pleadings he can canvass argument in support of the issue raised in the pleadings during final address

Question 55

How do you get the court to to admit a copy of a evidence e.g certificate of occupancy; certificate of incorporation etc without as evidence in court?

Answer 55

While adducing evidence in chief, you must lay a properfoundation by stating the fact that the original was lost in a situation beyond your control e.g in a fire incident and that you have obtained a certified true copy from appropriate quarters e.g Geographic Information service of a state (in the case of Certificate of Occupancy) ; Thd Corporate Affairs Commission (In the case of Certificate of incorporation)

Question 56

If you as a defendant counsel, for instance, have throbbing questions for the plaintiff how do you get your questions across? And how is the plaintiff meant to respond?

Answer 56

I will ask the questions by way of discovery offacts otherwise called interrogatories. I will do this by motion no notice supported by affidavit for leave of count to serve interrogatories. The plaintiff is to respond by way of affidavit within 5 days. Order 30 rules 1 & 2(1) Abuja

Question 57

When an interlocutory decision (judgement) is given within what time can the defendant appeal the decision?

Answer 57

14 days

Question 58

Ways substituted service can be effected?

Answer 58

By way of motion exparte supported by an affidavit and a written address. See Order 1 (5) Abuja Rules, 2004 The substituted service may be done ni any of the following ways: 1. By delivery of the document to some adult inmate at the usual or last known place of abode or business of the Defendant. 3 . By delivery of the document ot some other person, being the agent of the Defendant 3. By advertisement ni a Federal Gazette, or in some newspaper circulating within the jurisdiction. 4. By notice put on the principal Court house or in a place of public resort ni the judicial division. 5. By email or any other scientific device known. Anyone of the 5