WEEK
3
Refer to your Handbook. And our Note, to understand
Jurisdiction
Your knowledge of Jurisdiction will make you know
the appropriate court to institute your action and the Mode of commencing
action in the court.
Jurisdiction is the basis of all your draft, the
moment you miss the court to institute the action, you have missed the first step.
So please try and settle Jurisdiction matter very
well.
N.B:
It not just about knowing the court to institute the action, you must be able
to give reasons. And your reason must be backed up with Authorities.
N.B:
The Jurisdiction of Court is determined by the Statutes….so read the
Constitution.
WEEK
4
We talked about Parties to an Action.
Now the generally rule is that only persons Known to
Law can institute action,
Please you need to understand the categories of
Parties, this is very important;
a) Proper
Party
b) Desirable
Party
c) Necessary
Party
d) Nominal
Party
WHY?
Your Knowledge of the parties will help you in knowing
the party to be joined in your draft. Read the case of GREEN V GREEN
Under this week the drafts to learn are;
a) Application
to join persons as defendant and plaintiff via Motion On Notice
b) Application
for Leave to institute a representative Action
c) Application
to join a Third Party. (Motion
Ex-Parte)
d) Application
for striking out a party
NOTE:
Joining of a third party is different from joining plaintiff and defendant
How
would I know?
a) The
party that will bear eventual liability… A good Example is Insurance Company OR
Bank sometimes.
N.B:
DON’T CONFUSE THIRD PARTY PROCEDING FOR GARNISHEE OHHHH!!!!!UNDER GARNISHEE,
JUDGMENT MUST HAVE BEING GIVEN…….
You also should know the designation of the parties
while drafting;
a) An
Infant
b) Suing
for a family
c) Incorporated
trustees
d) A
Firm
N.B:
Please
you need to know the reasons why you adding a party to a suit that will be the
content of your Affidavit. The reason must comply with the provisions of the
rules of court. FOR EXAMPLE READ ORDER 13 RULE 1 AND RULE 4
N.B: Do you know that you can sue a
Business Name with the Firm Name without adding the (Suing under the name and
style….bla bla blaaaa)… For Example;
If
you have a Scenario that Sola Derin is instituting an action against Bako
Ventures or any other Firm name (Registered under Part B); you can draft it as;
……..
Sola
Derin…….CLAIMANT
AND
BAKO
VENTURES……DEFENDANT
No need for you to argue or doubt just pick your
Rules of Court and Read ORDER 13 RULE 28 HIGH COURT OF LAGOS (CIVIL
PROCEDURE) RULES……..PLS Note that
the Firm must be the defendant in the Scenario) In Abuja See Order 10 rule
WEEK
5 COMMENCEMENT OF ACTION IN THE MAGISTRATE COURT
This part is very simple, remember the monetary
jurisdiction of the Magistrate court ( 10,000,000 and below)
POSER: What the mode of commencing an Action;
a) You
commence the action by Claim, the claim will be supported
with,
b) Particulars
of Claim
REMEMBER,
you will draft these two under various court heading
ALSO, you will need to draft the APPLICATION FOR
SUMMARY SUMMON.
POSER: do we have circumstances you cannot apply for
Summary Summons?
Yes, check the Magistrate Rules.
WEEK
6 COMMENCEMENT OF ACTION IN THE HIGH COURT
You remember I said you should learn Jurisdiction;
your knowledge of jurisdiction is also needed here.
So in the High Court you commence action by;
a) Writ
of Summon
b) Petition
(Marriage)
c) Originating
Summon
d) Originating
Motion (Fundamental Rights)
The beautiful thing is that, you must learn all
because we did all the modes. Try and Read when you need to use them all.
TAKE NOTE: To easily remember the drafts ask yourself
the following questions;
1. When
is this Originating Process applicable
2. Do
we have other accompanying documents
3. What
is the content of what I want to draft?
Under Week 5, YOU MUST KNOW HOW TO DRAFT;
a) Writ
of Summon: I have tried to break it down so you can easily draft it. (Read
our Previous Post on Practical Guidelines in Drafting a Writ of Summon)
b)
The
various accompanying documents;
i.
Statement of claim
ii.
List of witnesses to be called
iii.
Witness statement on oath
iv.
List and copies of documents to be
relied upon
v.
Pre-action protocol form 01
NOTE:
Please you know law school can be crazy,
assuming they ask you to draft what the defense will file. So you should take
note of what the defendant should file;
1.
File
a Memorandum of Appearance……Most people forget this one but you do not forget.
2. Statement
of defense… etc you know the rest.
TAKE
NOTE OF ABUJA PLEASE.
Originating
Summon: This
is also very important and there is 88% chances that you will draft in exam
because it not much.
N.B:
You need to know when you have to institute by Originating Summon. The
accompany documents is different from Writ of Summon;
a) Affidavit
: Setting out facts to be relied upon
b) All
exhibits to be relied upon
c) A
written Address in support of the Application
d) Pre-Action
Protocol form 01
SERVICE
OF PROCESS
This area also must be mastered very well. The
drafts you will need are;
1.
Application
for Substituted Service
2. Writ
of service outside Jurisdiction
3. Proof
of Service: In Lagos you will draft an Affidavit ( See ORDER 7 RULE 13 VIP)
POSER:
WHAT IF THE PROCESSES IS TO BE SERVED OUTSIDE JURISDICTION?
a) What
will be endorsed on the process?
b) How
many days will the defendant enter appearance?
I know you have the answers in your brain, Oya, write it down……
WEEK
7: INTERLOCUTORY APPLICATION
This is not that hard as you may think, WE NEED TO
MASTER THIS AREA. Most of the applications we will be drafting are often
interlocutory Application. I Assume that you understand what am saying
abiiiiiiii.
If you can draft a Motion, you on your way to
the island of ICC
So you need to understand that there is a difference
between INTERLOCUTORY APPLICATION AND
INTERLOCUTORY INJUNCTION.
Interlocutory Injunction is a form of Interlocutory
Application.
So what are we drafting here;
1. Motion
on Notice and
2. Motion
Ex-Parte.
N.B:
I use God to beg you when drafting Ex-Parte, you should just put only your
Address For Service. This is the slim line between the Two.
If you can draft these two, I swear, you half way to
the river of success.
I
need to point out something, when you ask to draft an injuction that the
application will be EX-PARTE, REMEMBER THAT THE Accompanying documents;
1. Ex-Parte
Application
2. Affidavit
in support
3. Affidavit
of Urgency (If it is Interim Injunction)
4. Written
Address
5. Motion
on Notice (Application for Interlocutory Injunction)
6. Affidavit
in support
7. Written
Address. SEE ORDER 39 RULE (3) LAGOS HIGH COURT RULES ORDER 7 RULE 7(3) ABUJA
VIP: Mr Orimogunje actually pointed this part to me,
he said he told us in class but you may have forgotten;
If you read ORDER 39 RULE 8 LAGOS,
If you asked a question like say A owns a House,
while A was enjoying himself in my house, he was called that B wants to start
demolishing the House. So he comes to you as a lawyer. What is the procedure he
will take in stopping B.
See brother and Sisters, you will have to start from
Originating Process, so he will file;
1. Writ
of summon
2. Statement
of claim
3. ……and
all other accompanying documents
In addition then he will now file
also;
1. Ex-Parte
Application for Interim Injunction
2. Affidavit
in support of the Application for Interim Injunction
3. Affidavit
of Urgency (If it is Interim Injunction)
4. Written
Address in Support of the Application
5. Motion
on Notice (Application for Interlocutory Injunction)
6. Affidavit
in support of the Interlocutory Injunction
7. Written
Address in Support of the Application for Interlocutory Injunction
Do not forget the CONDITIONS FOR THE GRANT OF INJUNCTION;
a) Existence
of Legal Right
b) Substantial
issue to be tried
c) Balance
of convenience
d) Conduct
of parties
e) Irreparable
damage
f) Existence
of alternative remedies
g) Undertaking
as to damages
h) Urgency
(For interim Injunction). KOTOYE V CBN, OBEYA V A.G FEDERATION
ALSO: Remember, other forms of Injunction;
Mareva, Anton Pillar
NOTE; these other Injunctions, your
affidavit will state the reasons you want the application.
CHECK
THE DRAFT ON MAREVA
PLEASE
DO NOT FORGET THE RULES GUIDING THE DRAFT OF AN AFFIDAVIT;
OOPLAC;
a)
Opinion
b)
Objection
c)
Prayers
d)
Legal
Argument
e)
Conclusion…..SEE
SECTION 115 EVIDENCE ACT.
LASTLY, INTER PLEADER SUMMONS, the major thing you must remember is that in drafting the
Affidavit you must state that;
a)
He
claims no interest in the subject matter on dispute other than charges or costs
b)
He
does act in collusion with any of the claimants
c)
He
is ready to bring into the court or to pay or dispose of the property as the
court may direct
WEEK 8: SUMMARY JUDGMENT AND
DEFAULT JUDGEMENT
REMEMBER,
the reasons that would make you apply for a summary Judgment and default
Judgment,
THE DRAFTS
SUMMARY JUDGMENT
IN LAGOS (ORDER
11):
Remember the accompanying documents to your application starts from Originating
Process;
1.
Writ
of summon
2.
…..other
accompanying documents
3.
Application
for Summary Judgment
4.
Affidavit
in Support of the Application for Summary Judgment
5.
Written
Address in support of the Application for Summary Judgment
N.B:
Your Affidavit must expressly state that;
THE DEFENDANT DOES
NOT HAVE DEFENCE TO THE CLAIM
POSER: what
about the defendant
He will
file;
1.
Memorandum
of Appearance
2.
Statement
of defense
3.
…other
accompanying documents
4.
Counter
Affidavit to the application
5.
Written
Address
HOWEVER, IN ABUJA; ORDER 21
The
Claimant will file;
a)
Writ
of summon and
b)
Affidavit
stating the grounds on which the claim is based and that the defendant does not
have any defense to the claim
N.B:
THAT YOU MUST STATE IN YOUR AFFIDAVIT;
THAT THE DEFENDANT DOES NOT HAVE ANY DEFENCE
TO THE CLAIM
The
Defendant on the other hand will file;
1.
Notice
of intention to defend
2.
Affidavit
disclosing a defense to the claim,
DEFAULT JUDGMENT
The
sample draft is here. But please you must note something important from the
scenario given in the exam;
If it is
that he refuses to enter appearance;
Then
while you drafting your Affidavit, you must state that he was duly served,
attached is PROOF OF SERVICE Marked Exhibit A1.
N.B:
Your Scenario will determine the grounds you asking for default Judgement and
it must be mentioned in your Affidavit.
HOWEVER,
When the
Judgment as being given, then the next thing you as the Defendant will draft
will be;
APPLICATION TO SET
ASIDE THE DEFAULT JUDGMENT
TAKE
NOTE THAT IN LAGOS THE ONLY CONDITIONS FOR SETTING ASIDE ARE;
1.
Lack
of Service
2.
Fraud
3.
Lack
of Jurisdiction. ORDER 20 RULE 12
BUT IN
ABUJA; the rules says on such terms as the court thinks just. SEE
ORDER 23 RULE 9 ABUJA
THEREFORE, While drafting to set aside, your
affidavit must either show that;
a)
The
claimant didn’t serve you, or he served a wrong person
b)
That
there was some element of fraud in the giving of the judgment
c)
The
court that gave the judgment lacks jurisdiction.
A
default judgment may be set aside by another Judge of the same court and not
necessarily the Judge that gave it – Emodi v. Kwentoh (1996) 2 SCNJ 134
N.B: PLEASE NEVER
FORGET THAT WE HAVE INSTANCES WERE THE CLAIMANT CAN NOT BRING AN APPLICATION
FOR DEFAULT JUDGMENT…HE WOULD NEED TO PROVE HIS CASE, SO INSTEAD OF DEFAULT
JUDGMENT THE CASE WILL BE SLATED FOR TRAIL AND THE CLAIMANT WILL PROVE HIS CASE…..
In the case of
OBAWOLE V WILLIAMS where the court held that the law is that where the court is
called upon to make declaration of a right, the party claiming to be entitled
to must satisfy the court by evidence and not just admission in the pleadings
of the defendant.
WEEK 9: PLEADINGS
The Gist
of Pleadings is to explain what we have done in week 6 commencing action in
High Court. You remember the case of DOHERTY V DOHERTY, were a writ of summon
was held to be the best in commencing action that is contentious in nature.
So the
idea of Pleadings is the both parties writing out there stories.
THE DRAFT
What you
actually know is that, in exam if you asked to draft STATEMENT OF CLAIM
You must
be meticulous in drafting, no need to write plenty things;
a)
The
first two content are introductory averments
b)
The
other contents will be facts that are relevant to the cause of action.
N.B: So
the first thing you need t identify is the CAUSE OF ACTION
The cause of Action
simply means the wahala that caused the wahala that led to instituting the
action.
Also,
you must identify the SPECIAL DAMAGES in the Scenario, if you don’t include
them in your DRAFT OF STATEMENT OF CLAIM., MY BRO
THAT IS ZERO
POSER: WHAT ABOUT THE DEFENDANT?
Remember
what I wrote above that the defendant will file while we were talking about
Commencing Action, scroll up and check
The only
thing that may be added is COUNTER CLAIM
Remember
the principle of law that a COUNTER-CLAIM is independent of its own, it simply
means the STATEMENT OF CLAIM of the defendant.
THEREFORE,
You may asked what will the defendant do in an action after the Claimant have
filed his pleadings
So in
your STATEMENT OF DEFENSE, you will also have a COUNTER-CLAIM
PLEASE
DO NOT FORGET YOUR GENERAL TRAVERSE;
SAVE AND EXCEPT as
is hereinafter expressly admitted, the defendant denies each and every
averments in the Claimant’s Statement of Claim as if each were specifically set
out herein and traversed seriatim
ANOTHER DRAFT UNDER
PLEADING;
Amendment
of Pleadings: This will be via Motion on Notice
a)
You
must include the paragraph you intend to amend in your Affidavit.
POSER: How many
times can you amend your statement of claim in Lagos and Abuja?
WEEK
10: PRE-TRIAL PROCEDURE
UNDER
PRE-TRIAL, we would be looking at Case Management Conference
The
drafting of’
a)
Application
to strike out pleadings( lack of cause of action, frivolous,etc)
b)
Interrogatories
c)
Notice
to admit documents
d)
Settlement
of issues.
ANSWER
THE FOLLOWING AND YOU WOULD BE GOOD WITH CMC?
a)
How
do you commence CMC……The role of the Plaintiff and when the Plaintiff refuse to
commence what are the option opened to the Defendant?
b)
What
are the Forms to be issued?
c)
What
will the court do if the Claimant refuse to attend CMC?
d)
What
will the Court do if the Defendant refuses to attend CMC?
e)
If
the Court takes any action in (c& d) can the parties remedy the action?
f)
If
yes, How?
g)
Cost
to be paid…….
Week 10: TRIAL PREPARATION
The
drafting of CASE THEORY AND TRIAL PLAN
WEEK
15: ENFORCEMENT OF JUDGMENT AND APPLICATION PENDING APPEAL
I
believe you have our blog note on Enforcement of Judgment very instructive.
THE
DRAFT: One thing you should remember is that, the designation of the party will
change from CLAIMANT AND DEFENDANT TO JUDGMENT CREDITOR/ JUDGMENT DEBTOR
The
Draft that you should learn more is the Garnishee Order Draft;
a)
In
your Affidavit you must state the name of the bank
b)
The
account number
c)
The
amount of money in the account you want to enforce the Judgment on.
APPLICATION
PENDING APPEAL
1.
Stay
of Execution: You draft this when the court have entered Judgment for the
Claimant, so to you make an application for the claimant not to execute the
Judgment pending the determination of the Appeal
2.
Stay
of Proceeding: This Is often drafted when an Interlocutory Application was
ruled upon and the party not satisfied by the Ruling can appeal against the
Ruling but will make application to court to stay proceeding pending the
determination of the Appeal…. AND
You
can bring it when an Arbitration agreement exist between the parties and one of
the parties decides to go to court without exhausting the option of ADR in the
Contract Agreement.
3.
Injunction
Pending Appeal: This is often drafted when the CLAIMANT’S claim has been
dismissed or in a situation the defendant has a Counter-claim. So in other
words you telling the court to preserve the res pending the determination of
the Appeal.
TAKE
NOTE OF THE FOLLOWING WHILE DRAFTING;
a)
In
couching your prayers remember to put pending the determination of the Appeal
b)
In
bringing these applications, you must attach;
i.
A
certified true copy of the ruling or judgment as the case may be
ii.
A
certified true copy of the Notice to Appeal
N.B; Remember the
Time line of bringing this Application.
WEEK 16: APPEALS
DRAFTING
SKILLS IN APPEAL IS TESTED BY TIMELINES AND WHETHER THE APPEAL IS
OF RIGHT OR LEAVE IS NEEDED
So you
have to ask yourself this question;
a)
Is
the Judgment being appealed against a Final Judgment or Interlocutory decision?
b)
Will
I need the leave of Court before I can appeal?
c)
Am
I within time to appeal?
N.B: WHEN YOU SEE A
QUESTION AND YOU OUT OF TIME, JUST KNOW THAT YOU WILL DRAFT IN THE COURT OF
APPEAL
REMEMBER,
THE 3 PRAYER RULE
This 3
Prayer Rule is ONLY applicable when;
1.
Leave
is required to Appeal
2.
The
applicant is out of time
THE
THREE PRAYER ARE;
1.
AN
ORDER for ENLARGEMENT OF TIME TO SEEK LEAVE TO APPEAL
2.
LEAVE
TO APPEAL
3.
AN ENLARGEMENT OF TIME WITHIN WHICH TO FILE THE NOTICE OF APPEAL
N.B: The reason I used
Enlargement is because that is what the Court of Appeal Rules used not
Extension of Time…..
THE
DOCUMENTS THAT SHOULD COME TO YOUR MIND IN APPEAL ARE;
a)
Certified
true copy of judgment or ruling sought to be appealed against
b)
Certified
true copy of Notice of Appeal
REMEMBER,
if you within time to Appeal;
1.
If
you need Leave, you will draft at the High Court
2.
If
you do not need leave just carry yourself to the Court of Appeal.
BRIEF OF
ARGUMENT: A sample of it is in the drafts, same as written address.
WEEK 17: RECOVERY OF PREMISES
Just
remember MR LANDLORD Vs Craze Clown
Let me
start by telling you something very important that;
The rule
is that A Lawyer needs the authority of the Landlord before he can draft the
Notice to Quit or Notice of Intention to Apply to Recover Possession.
SO IF IN
THE EXAM, YOU WERE TOLD THAT THE LANDLORD INFORM YOU THAT YOU HELP IN EVICTING
MR MUSA KUMO AWAY FROM THE HOUSE;
1.
You
first draft LETTER OF INSTRUCTION TO RECOVER PREIMISES
I USE GOD BEG YOU DO
NOT FORGET
ALSO, take note of instances that you don’t
need to draft Notice to Quit.
ALSO,
You have to practice the Computation of Time, it is very Important because if
you have a wrong Time, your Drafts will be incompetent.
THEREAFTER,
you move to TRIAL PROCEDURE;
Your
knowledge of identifying where to commence either Magistrate or High Court
will be determine by the Rental Value of the Premises
So your
drafting will be determined by the court you instituting the Action. You just
scroll up and read mode
of commencing action in Magistrate court and High
Court.
WEEK 18: ELECTION PETITION
The mode
of commencing Action is PETITION
IN
DRAFTING, THE CONTENT ARE;
a)
Heading
of the Tribunal
b)
Parties
c)
Holding
and Result of Election
d)
Grounds
of the Petition’
e)
Prayers.
VERY
IMPORTANT, we have only 4 grounds, so from these your scenario you identify
which grounds you will write, but do not go and write anything outside these
grounds;
a)
That
the person whose election is questioned was, at the time of the election, not
qualified to contest the election
b)
That
the election was invalid by reason of corrupt or non- compliance with the
provisions of this Act
c)
That
the Respondent was not duly by majority of lawful votes cast at the election
d)
That
the Petitioner or its candidates was validly nominated but was unlawfully
excluded from the election
Let me
just explain Number A is more explained in from the provisions of the
Constitution. On what amounts to disqualification of a person contesting for
the post of Governor, President, Senator
READ YOUR CFRN to find out these conditions.
Other
Documents accompanying the Petition are;
a)
A
list of witnesses that the Petitioner intends to call in proof of the petition
b)
Written
statement on oath of the witness
c)
List
and copies of every document to be relied upon at the hearing of the petition.
WEEK 19: MATRIMONIAL CAUSES
NUMBER 1
RULE YOU SHOULD NEVER FORGET IS THAT;
a)
There
is only one ground for dissolution of Marriage which is;
‘’The
Marriage have broken down irretrievably’’
The
Mode of commencing action is by way of Petition.(Statutory Form 06)
Remember,
that some cases you will need the Leave of court which will be via Motion
Ex-Parte
Supported
by Affidavit stating
1.
The
particulars of Hardship that will be imposed on the Applicant of application is
refused
2.
The
grounds upon which the proposed petition is based
3.
Whether
or not previous application had been made and whether it was successful or not
4.
Whether
there is a living child from the marriage
5.
Whether
reconciliation has been attempted and particulars of it
Generally,
documents that accompany a Petition are;
a)
Notice
of Petition
b)
Marriage
Certificate
c)
Acknowledgement
of Service
d)
Verifying
Affidavit
The
Respondent will also file A REPLY TO PETITION…
WEEK 20: FUNDAMENTAL HUMAN RIGHT
So on
the Last topic, just read the Blog Notes on Fundamental Right.
TAKE
NOTE. It is commenced by ORIGINATING MOTION
You must
be familiar with CHAPTER IV of the Constitution to know which right was
infringed upon
AND, your knowledge of Jurisdiction is
needed here also, because it will determine which court to institute the
action.
WHAT ARE
WE DRAFTING?
a)
Originating
Motion
b)
Statement
setting out the Name and Description of the Applicant, the Relief Sought and
the Grounds upon which the Relief are sought
c)
Affidavit
setting out the facts upon which the Application is made
d)
Written
Address
PLEASE REMEMBER, That there may be instance that you will need to draft MOTION
EX-PARTE SEE ORDER IV RULE 3 OF FRER
The
Ex-parte application will be supported with;
a)
Affidavit
b)
Affidavit
of Urgency
c)
Written
Address
d)
Also
you must file it together with the Main Application meaning that you will file;
i.
Originating
Motion
ii.
Statement
setting out the Name and Description of the Applicant, the Relief Sought and
the Grounds upon which the Relief are sought
iii.
Affidavit
setting out the facts upon which the Application is made
iv.
Written
Address
THE END
CAVEAT;
1.
Please
take note that this should not substitute for your substantive Note, these are
mere key points and are not really detailed as much as your Textbook.
