BAR FINAL: MENU LIST FOR CIVIL LITIGATION WEEK 3-WEEK 20

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. 

        

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