CIVIL
LITAGATION WEEK 5 LESSON PLAN
Topic
Preliminary Consideration before Commencement of
Action & Commencement of Actions in the Magistrate Court
Contents
1.
Preliminary consideration
before commencing an action or defending an action viz: limitation periods, pre-action
notices/conditions precedent, locus
standi, the appropriate venue for an action, cause of action, exhaustion of
available remedies and their effect on the jurisdiction of a court; litigation
costs, availability of alternative dispute resolution method and pre-action
counselling.
2.
Reflections on the lessons on
a) interviewing and counselling skills/ethics b)letter writing/duty to
client/accountability, cost and charges under Law in Practice
3.
Ethical issues involved in
instituting frivolous actions, abuse of court process and failure to advice on
ADR options
4.
Commencement of action in the
Magistrate
Reading Materials
Rules
of Court
1. Civil Procedure Rules of the High Courts of
Lagos State and FCT Abuja;
2. Civil Procedure/Litigation textbooks;
2. Evidence Act;
3. Magistrate Court Law of Lagos State;
4. Magistrates Courts Rules of Lagos State
5. Rules of Professional Conduct, 2007
Cases to examine
The students areexpected to be familiar with
thefollowing relevant cases.
A-G Federation v A-G Abia state (2001)11
NWLR (pt. 725) 689; Ibrahim v Osim (1988) 3 NWLR (pt. 82) 257; Thomas v
Olufosoye (1986) 1 NWLR (pt. 18) 669; Mobil Producing (Nig) Unltd v LASEPA
(2002) 18 NWLR (pt. 798) 1; Katsina Local Authority v Makudawa (1971) 7 NSCC
119; Amadi v NNPC (2005) 10 NWLR (pt. 674) 76; Aribisala v Ogunyemi (2005) 6
NWLR (pt. 921) 212; Nicholas v Generak Manager Nigerian Railways Ltd (1938) 14
NLR 87; Iron Products Ltd v SAC (1992) 4 NWLR (pt. 238) 734 and Alao v Omoniyi
(1966) NMLR 161
Outcomes
At the end of
this lesson students would be able to:
1.
Discuss and explain the
following that need to be considered before commencing or defending an action-
limitation periods, pre-action notices/conditions precedent, locus
standi, the appropriate venue for an action, cause of action, exhaustion of
available remedies and their effect on the jurisdiction of a court; litigation
costs, availability of alternative dispute resolution method and pre-action
counselling;
2.
Explain the relevance and
relationship of the lessons in content 2 with outcome 1.
3.
Identify preliminary issues in
given cases.
4.
Explain the general principles
and procedure for commencing actions in the Magistrate
Court of Lagos State.
5.
Prepare a plaint and
particulars of claim for filing in Magistrate Court of Lagos State.
Activities
1.
Students are required to read
in advance the topics and Case Studies 1, 2, and 3 (as modified by tutors) and identify in writing the
preliminary issues in the case studies.
2.
Ethical issues involved in a)
instituting frivolous actions, b) abuse of court process and c) failure to
advice on ADR options
3.
Prepare a plaint and
particulars of claim for filing in the relevant Court using modified Case Study 1, 2, and 3
below.
TASKS
1. Students are required to read in advance
the topics.
2. Draw up a list of preliminary issues to be
considered before commencing the actions in any given case.
3. Prepare a Writ/plaint and claim/particulars
of claim for filing in the relevant Courts using case studies below.
4. Identify preliminary issue/s you will consider
in each case study
5. Draw up a list of ethical issues involved
in
a)
Instituting
frivolous actions
b)
Abuse
of court process
c)
Failure
to advice on ADR
6.
Prepare for all the tasks as members of any group could
be called to make presentation on any of the tasks.
NOTE:
All groups are to prepare
all the tasks as members of any group may be called upon to make presentation
on any of the tasks in class.
Electronic copies of the
prepared tasks are to be submitted to the Lecturers on line latest by 10 pm on
Monday, 5th December, 2016 whilst the hard copies must be submitted
to the Lecturers in class by 9 am on Tuesday 6th December, 2016.
Case Study 1:
In March, 2014,
the Plaintiff, Mrs. Kayuba Ada, entered into a contract in Lagos with
Agricultural Bank PLC to supply five hundred tons of Cashew nut worth N10,000,000:00 (Ten million Naira) only
to the Bank for onward exportation to Malaysia. The term of the contract is
that down payment of N3,000,000:00
will be made before the exportation and that the balance will be paid when the
goods reaches its destination. Subsequent to this, Mrs Ada received the sum of
N3,000,000:00 and supplied the goods to its destination in Malaysia.
Since then, Agricultural Bank has refused to pay Mrs Ada the balance
sum despite letters of repeated demands sent. However, on 1st June, 2015
Agricultural Bank wrote a letter to Mrs Ada of its decision not to pay the
balance because the goods supplied were inferior to the standard requested for.
Mrs Ada has now instructed you to commence proceedings against Agricultural
Bank claiming the balance of N7,000,000:00, N2,000,000:00 special damages and
N700,000:00 as general damages.
Case Study 2
City links
Transport Company limited is a thriving transport company with a fleet of buses
and has its registered office at No. 1 Oniru Road, Suru-Lere Area, Lagos. Mr.
Darlington Okoye (a.k.a. Osama) is one of the drivers of the company. On the
14th of February, 2015, Dr. Henry Obama, a Consultant Physician at the Gnenral
Hospital Hospital, Ikeja, was travelling, form Ikoyi to Ikeja in his brand new
Mercedes Benz ML 340 jeep car with Registration Number ABJ 999 IKJ, which he
bought for Eight Million Naira (N8,000.000.
00) only. On getting to Yaba Junction of the Third-Mainland Bridge, Dr. Henry
Obama who was then driving at a speed of 120 KM per hour noticed a motor cycle
rider attempting to cross the road and applied his break to avoid hitting him.
Immediately, Dr. Henry Obama was hit from behind by a bus belonging to City
Links Transport Company Limited and driven by Mr. Danlington Okoye (a.k.a
Osama).
Dr. Henry Obama’s car was badly damaged as a result of the accident.
In fact, it was a write-off. Dr. Henry Obama also sustained serious injuries
and had to be rushed to the Lagos State University Teaching Hospital, (LUTH), Idi-Araba,
Lagos, where he received treatment and was discharged after one week. The
treatment, in all, cost him one Hundred Thousand Naira (N100,000.00) only, for which the hospital issued him a bill and a
receipt.
Dr. Henry Obama has now instructed you to commence an action for
negligence against Mr. Darlington Okoye (a.k.a Osama) and City Links Transport
Company Limited claiming general damages to the tune of Five Hundred Thousand
Naira (N500,000.00) only, and special damages of Eight Million and One
Hundred Thousand Naira (N8,100,000.00)
only for his damaged car and treatment.
Case Study 3
Crown Kitchen
Ltd sued K & T Ltd at the Ikeja High Court Lagos seeking a declaration that
the contract between them and the partnership entered into by the parties was
still valid and subsisting. Crown Kitchen also sought an order of perpetual
injunction restraining K & T Ltd from converting 20 vehicles to its sole
use and sought an order directing a division of the vehicles among the parties.
Crown Kitchen Ltd also sought for payment of the sum of N2.17
million being proceeds of a contract performed by the parties from March 2010
to December 2012. The agreement between the parties had been entered into in
Ikeja, although the actual performance of the contract was intended to be in
Ikoyi, Lagos where K & T had its offices. A clause in the contract
Agreement stipulated that the parties shall submit to conciliation before
resorting to litigation.
Crown Kitchen Ltd heard that cases are dealt with faster at the magistrate
court because it is a court of summary jurisdiction. But Okonkwo & Co.,
their counsel filed an originating summons at the Ikeja High Court. On being
served with the originating summons, K & T entered a conditional appearance
and subsequently filed a preliminary objection contending that the Ikeja High
Court lacked jurisdiction.
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