Pre-Trial, Trial, Trial Preparations

Question 1

On what grounds may a pleading be struck out

Answer 1

1. It is vexatious, scandalous or embarrassing
2. It is an abuse of court process
3. It disclosures no reasonable cause of action or defence

Question 2

In Abuja when may a pleading be struck out

Answer 2

By Court at any stage of the proceedings.

ORDER 15 RULE 18(1)

Question 3

In Lagos when may a pleading be struck out

Answer 3

By a judge at the Case management conference

ORDER 15 RULE 16

Question 4

What other actions besides from striking out may a Court take towards pleadings that fall under grounds of striking out

Answer 4

1. Court may grant leave to amend pleadings
2. Court may enter judgement for the plaintiff or defendant
3. Court may make any other orders as it thinks fit

Question 5

What is Demurrer?

Answer 5

It is an Old English Common Law Procedure where a party challenges the proceedings of the opposing party on a point of law. The defendant challenging cannot file a statement of defence as only challenging the facts in the statement of claim as insufficient to sustain a claim for relief.
This has been abolished an replaced with ‘proceedings in lieu of demurrer’.

Question 6

What are proceedings in lieu of demurrer?

Answer 6

This replaced the old English Common Law Procedure of Demurrer. The new rules state that a party wanting to challenge the pleadings of the opposing party, can raise any point of law in his pleadings after which they may file a preliminary objection or a motion on notice.
CAVEAT - there are exceptions

Question 7

Methods for bringing an application in proceedings in lieu of demurrer?

Answer 7

1) A motion on notice, affidavit, written address (when challenging on mixed facts and law) OR
2) A preliminary objection (when challenging on points of law alone)

Question 8

Exceptions to proceedings in lieu of demurrer

Answer 8

Proceedings in lieu of demurrer will not apply in the issue of Substantive JURISDICTION, as that can be raised at any time.

The defendant can raise a preliminary objection without first filing a statement of defence if he contends that:

1. The party who contends lacks locus standi
2. Conditions precedent to the institution of an action were not fulfilled
3. Action is statue barred
4. Defendant claims immunity
5. The writ and pleadings disclose no reasonable cause of action.

Question 9

What are interrogatories (discovery of fact)

Answer 9

This is an extensive questioning of the opposing party in writing to obtain certain facts necessary to establish the party’s claim or defence but which the opposing party has exclusive knowledge/possession of

Question 10

What is Discovery on oath of documents (inspection of documents & notice to produce) ?

Answer 10

A party may request in writing from the other party for discovery of documents when they need a document that is in custody or possession of the other party and which are relating to any matter in question in the case.

Question 11

Procedure for delivering interrogatories

Answer 11

In Lagos, form for serving interrogatories must be Form 19. No need to file a motion

In Abuja, you file with Form 21 and leave of court must be sought by a motion on notice supported by affidavit and written address

Order 28 rule 1 – 3 Abuja
Order 26 rule 1-3 Lagos

Question 12

When should interrogatories be delivered?

Answer 12

In Lagos & Abuja, within 7 days of close of pleadings

Order 28 rule 1 – 2 Abuja
Order 26 rule 1-2 Lagos

Question 13

How and when are interrogatories answered in Lagos?

Answer 13

Within 7 days of the interrogatories being served on you.
Answer is by way of Affidavit. The affidavit would be in form 20
2 copies of the affidavit delivered to the Registrar

Order 26 rule 5-6 Lagos

Question 14

How and when are interrogatories answered in Abuja?

Answer 14

Within 7 days of the interrogatories being served on you.
Answer is by way of Affidavit. The affidavit would be in form 22.
2 copies of the affidavit delivered to the Registrar

Order 28 rule 5-6 Abuja

Question 15

When should the request for Discovery of documents be served?

Answer 15

In Lagos & Abuja, within 7 days of close of pleadings

Order 26 rule 8 Lagos;
Order 28 rule 8 Abuja

Question 16

What is the consequence of failure to obey an order for interrogatories or discovery in Lagos

Answer 16

The party will be guilty of attachment (contempt of court) and this could mean prison

Where a Legal Practitioner has been served with interrogatories and fails notify his client, the LP would also be guilty of attachment
Order 26 rule 11 & 12 Lagos

Question 17

What is the consequence of failure to obey an order for interrogatories or discovery in Abuja

Answer 17

Party can be guilty of cost and the lawyer will also be guilty of cost.
Order 28 rule 11 & 12 Abuja

Question 18

Procedure for requesting discovery of documents in Lagos and Abuja?

Answer 18

In writing requesting any other party to make a discovery of documents on oath.
No formal application or leave of court is required

Order 26 rule 8 Lagos;
Order 28 rule 8 Abuja

Question 19

How and when is the discovery answered in Abuja?

Answer 19

On oath within 7 days of the request or within such other time as the court may allow and it shall be dealt with at the Pre-trial Conference.
I.e. Answer by Affidavit in form 23 and Office copies of documents requested for must be attached to the affidavit.

Order 28 rule 8 Abuja

Question 20

How and when is the discovery answered in Abuja?

Answer 20

On oath within 7 days of the request or within such other time as the court may allow and it shall be dealt with at the Case management Conference.
I.e. Answer by Affidavit in Form 21 and Office copies of documents requested for must be attached to the affidavit.

Order 26 rule 8 Lagos

Question 21

What is notice to admit

Answer 21

An admission of the truth of the whole or part of the case of the opposing party

Order 19 Lagos & 20 Abuja allow any party 7 days before the first case management conference (Lagos) or Pre-trial Conference (Abuja) to serve a notice to admit facts or docs in writing to the other party and the party on whom the notice is served must file a response either admitting or not admitting within 4 days after service of the notice on him. Failure to admit will mean he is deemed to have admitted.

Question 22

What is the effect of facts admitted in notice to admit?

Answer 22

Judgement may be entered in respect of admissions

Order 19 Lagos & 20 Abuja

Question 23

What is settlement of issues

Answer 23

This is the procedure whereby the parties along with the court ascertain what the material questions in controversy are and settle it in form of issues for determination at trial

Order 27 Rule 1 Lagos;
Order 27 Rule 1 - 3 Abuja

Question 24

When are parties required to define and file their issues in controversy for settlement of issues?

Answer 24

Within 7 days of the close of pleadings to the Registrar

Order 27 Rule 1 Lagos;
Order 27 Rule 1 - 3 Abuja

Question 25

What happens if one party fails to comply with the process of settlement of issues?

Answer 25

Court will set the matter down for hearing with the issues set down by the other party

Order 27 Rule 1 Lagos;
Order 27 Rule 1 - 3 Abuja

Question 26

What happens where parties differ in their issues in controversy for settlement of issues?

Answer 26

The Pre-trial judge or Case Management judge may settle the issues

Order 27 Rule 1 Lagos;
Order 27 Rule 1 - 3 Abuja

Question 27

What court does a judge have the power to transfer a matter to

Answer 27

Any court or tribunal of competent jurisdiction.

Question 28

When can order for transfer of action be made?

Answer 28

1. Lack of jurisdiction
2. Conflict of interest or bias of the Judge
3. Where a law provides (there are some statutes that state that matters commenced in some courts should be terminated immediately and taken to other court e.g. failed bank tribunal, BOVID act)

Question 29

What happens when a matter is transferred?

Answer 29

The matter will start de novo and it will be deemed that the matter was properly filed in that court
Order 37 rule 1 Lagos;
Order 41 rule 1 Abuja 2018

Question 30

What is consolidation of actions?

Answer 30

It means that two or more separate or distinct actions are now joined together to be tried together at the same time

Question 31

When can order for consolidation be made?

Answer 31

1. Same issues and
2. Issues can be properly tried & determined at the same time (the parties may not necessarily be the same).

Order 37 rule 1 Lagos 2012; Order 41 rule 7 Abuja.

Question 32

What is the Mode of application for consolidation?

Answer 32

Motion on notice supported by affidavit and written address

Order 43 rule 1 & 3 Abuja; Order 39 r 1&3 Lagos

Question 33

What is the purpose of consolidation

Answer 33

1) To save time and cost
2) To ensure that the matter is dealt with expeditiously,
3) It helps to avoid multiplicity of actions.

See DIAB NASR v Complete Home Enterprises (Nig) ltd (1977) 5 SC p.1

Question 34

What is Deconsolidation of actions

Answer 34

Where the court consolidates actions and finds out that it is no longer convenient to take all the matters together for example may be due to a counter claim.

An application to deconsolidate is brought by any party by motion on notice supported by affidavit and written address.

Question 35

Can the court deconsolidate actions?

Answer 35

The law gives a trial Judge, or Judge whom consolidated cases are brought the nod to rescind an order of consolidation if the interest of justice dictates.
Attah v Nnacho (1965)

Question 36

When do you apply for CMC notice in Lagos?

Answer 36

The claimant shall apply for CMC notice within 14 days of the close of pleadings.

Order 25 Lagos

Question 37

When do you apply for Pre-trial notice in Abuja?

Answer 37

The claimant shall apply for Pre-trial notice within 7 days of the close of pleadings

Order 27 Abuja

Question 38

What forms are CMC notices are issued with?

Answer 38

Form 17 accompanied with CMC information sheet in Form 18

Order 25 Lagos

Question 39

What forms are Pre-trial notices are issued with?

Answer 39

Form 19 accompanied with Pre-trial information sheet in Form 20
Order 27 Abuja

Question 40

When shall a CMC conclude and what does the judge do upon this?

Answer 40

Within 3 months of its commencement unless extended by the judge.

The judge shall issue a report upon conclusion of the conference
Order 25 Lagos

Question 41

When shall the pre-trial conference conclude and what does the judge do upon this?

Answer 41

Within 30 days of its commencement unless extended by the judge

The judge shall issue a report upon conclusion of the conference
Order 27 Abuja

Question 42

What happens where the claimant fails to apply for CMC/ pre-trial conference

Answer 42

The defendant may apply himself or he may apply for an order to dismiss the action

Order 25 Lagos; Order 27 Abuja

Question 43

What happens if a party to fails to attend the CMC/ pre-trial conference or is uncooperative with the process?

Answer 43

1. If the erring party is the claimant, the judge shall dismiss the claim
2. If the defendant, the judge shall enter judgement against them
   Order 25 Lagos; Order 27 Abuja

Question 44

Can judgement given as a result of the party’s default be set aside?

Answer 44

Where a default judgement has been given under the CMC it can be set aside upon an application made within 7 days of the judgement

Order 25 Lagos; Order 27 Abuja