CIVIL LITIGATION LESSON PLAN – WEEK 6 (TASK) "COMMENCEMENT OF ACTION IN THE HIGH COURT'

CIVIL LITIGATION LESSON PLAN – WEEK 6

TOPIC:  COMMENCEMENT OF ACTION IN THE HIGH COURT

Contents:

Commencement of Action in the High Court:

1.                  Mode and procedure for commencement of action in the High Court

2.                  The frontloading concept and its purpose including documents to be frontloaded.

3.                  Issue of originating processes;

4.                  Fast Tracking Procedure

5.                  Service and renewal of writ, 

6.                  Appearance, default of appearance and judgment thereof,

7.                  Effect of non compliance.

8.                  Ethical implications of commencing action by wrong procedure, none or improper service of originating processes, delay in raising objection to non compliance.  

Outcomes

At the end of the lesson students would be able to:

1.                  Explain how different types of proceedings are commenced at the High Courts and the steps to take to initiate or contest actions,

2.                  Complete writ of summons and draft originating summons and the documents to be frontloaded (particularly the witness statement on oath);

3.                  Explain how court documents are brought to the notice of the other party;

4.                  Discuss the principles governing the issue and renewal of originating processes;

5.                  Discuss and explain the principles governing  entry of appearance by the defendant in a matter upon being served with the originating processes , default of appearance and judgment thereof.

6.                  Draft the Memorandum of Appearance

7.                  Explain the consequences of non compliance with the Rules the rules of court.

8.                  Explain the steps to be taken where the Defendant wants to set aside the service of the Writ or Originating process(es).

9.                  Explain and discuss the ethical implications of commencing action by wrong procedure, none or improper service of originating processes, delay in raising objection to non compliance.    

Activities before class:

Students are to read in advance the following:

a.       Standard texts on commencement of action;

b.      Orders 1-10 High Court Civil Procedure Rules Lagos and Orders 1-6, 9, 11-13 FCT Abuja High Court Civil Procedure Rules;

c.       The Case Study below

d.       

TASKS:

1.      Prepare the necessary process(es) for the commencement of the action in the case study.

2.      Assuming the land is situate at No. 6 Lambe Crescent, Asokoro, FCT Abuja, prepare the necessary processes for the commencement of the action.

3.      Assuming the action in 1 above is simply for interpretation or construction of clauses 5, 6 and 7 of the contract of sale (without any dispute as to facts), prepare the necessary processes for the commencement of the action.

4.      Assuming the defendant in 1 above could not be served with the originating processes 5 months after filing and you realised that the processes may not be served until the 7^th month, prepare the necessary application to ensure that the processes remain valid until the time of service.

5.      Assuming the defendant in 1 above could not be served with the court processes and all efforts to get him served with the originating processes have proved abortive due to the fact that he has been evading service, prepare necessary application to ensure that the processes are served on him.

6.      Prepare the memorandum of appearance to be filed by the defendant in 1 & 2 above.

7.      Draw up and briefly explain the ethical implications of:

a.      commencing an action by wrong procedure,

b.      non or improper service of originating processes, and

c.       delay in raising objection to non compliance with the rules.

NOTE:

1.      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.

2.      Electronic Copies  of group work must be submitted latest by 8pm on Monday 12^th December, 2016 whilst hard copies must be submitted in class by 9am on Tuesday, 13^th December, 2016.

3.      Each student must open a case file containing copies of the processes prepared by his or her group. These need not be submitted but students will be called at random to present their files.

4.      Each Student must come to class with his/her High Court rules for both Lagos and Abuja as students will be required to practice filling the precedent forms of a writ of Summons, Originating Summons and Memorandum of Appearance in class.

NOTE: Any student who attends class without his/.her rules of court may be sent out of the class.

CASE STUDY

Chief Joseph Lambe is the holder of the statutory right of occupancy in respect of the choice piece of land at Lambe Close, Ikoyi, Lagos State by virtue of the Federal Certificate of Occupancy No. FCO/111/2010 issued to him by the Minister of Lands and Urban Development sometime in 2010. Royal Estates Limited, a real estate development company, desirous of buying the property from Chief Lambe, entered into negotiation with him. N250m was agreed as the purchase price. A contract of sale was thereafter executed by both parties on 1^st June 2014. Some of the clauses in the agreement are as follows:

5.            The purchaser shall pay to the seller the sum of N25m being 10% of the purchase price as deposit before the execution of this contract.

6.            Upon the execution of this agreement, the seller shall hand over possession of the land to the purchaser and the purchaser shall be at liberty to commence construction work on the land immediately.

7.            Balance of the agreed purchase price shall be paid on or before 1^st November 2014

After payment of the deposit and execution of the contract of sale, the purchaser moved into possession and started construction of a 10 storey residential apartments on the land but did not pay balance of the purchase price as agreed. On the 1^st December, 2014, the seller wrote a letter to the purchaser demanding that the purchaser pay the balance of purchase price or give up possession of the land. A similar letter was written on the 5^th of January, 2015. On the 7^th January 2015, the seller wrote another letter terminating the contract of sale and demanding that the purchaser vacate the land within 7 days of service of the letter. However, on the 8^th of January, 2015 the purchaser paid the balance of purchase price which was promptly returned by the sellers.

 In addition to the N25m paid as deposit, the purchaser has spent N75m on construction works on the land consisting of N15m for building plans and approvals, N10 for quantity surveying and N50m for piling. The projected annual income from the developed property is N60m. The purchaser is therefore not happy and has now instructed you to commence proceedings in court to seek legal redress in the matter for damages for breach of contract and a claim for adequate monetary compensation to be paid by the seller.