CIVIL LITIGATION JURISDICTION. Comment on the competence of the Federal High Court to entertain a claim based on simple contract.

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1 CIVIL LITIGATION JURISDICTION Comment on the competence of the Federal High Court to entertain a claim based on simple contract No 1 (a) Where the subject matter of an action is based on simple contract, the Federal High Court has no jurisdiction to entertain the action since it is outside the jurisdiction conferred by Section CFRN. Onuorah v KRPC. Does the National Industrial court have jurisdiction to hear and determine an action between two states? 2009 No 3(ii) The National Industrial Court has no jurisdiction to entertain an action between two states. Where a dispute is either between the Federation and a State or between two States, it is the Supreme Court that has jurisdiction to the exclusive of all other Courts to entertain the action. Section CFRN. AG Abia v AG Federation; AG Lagos v AF Federation; AG Imo v AG Rivers. In a case of conflict between residents of a community and the State Government, which Court has jurisdiction to hear the matter. Why? No 1 (b) The action will be commenced before the Lagos State High Court because the Constitution has conferred general jurisdiction on the High Court on all matters except those matters in respect of which exclusive jurisdiction has been conferred on the Federal High Court by Section 251 CFRN Section CFRN. Onuorah v KRPC; National Union of Electricity Employees v Bureau of Public Enterprises. Assuming in an action for breach of contract between a person (Plaintiff) and a Company (Defendant), the Defendant Counsel raised a preliminary objection that the State High Court is not the proper venue for the action since it involves the operation of the CAMA 2004 and so the appropriate Court with jurisdiction is the Federal High Court. What would be your response as Plaintiff s Counsel; and at what time, and how could an objection of this nature be properly raised. August No 5(b) (i) & (ii) My response to the objection by Defendant s Counsel would be that although Section 251 CFRN 1999 confers jurisdiction on the Federal High Court over matters pertaining to the operation of CAMA, the cause of action in this case involves a simple contract over which the Constitution has conferred general jurisdiction on the State High Court. Section CFRN. Onuorah v KRPC; National Union of Electricity Employees v Bureau of Public Enterprises. An objection to jurisdiction is fundamental and can be raised at any stage in the proceedings even for the first time on appeal. Madukolu v Nkemdilim; Elabanjo v Dawodu. However, it is preferable to raise such objection at the earliest opportunity. 1

2 Such objection can be raised in any manner, by a Motion, by Notice of Preliminary Objection challenging the Court s jurisdiction, by oral application challenging the Court s jurisdiction, or even by the Court suo motu. Elabanjo v Dawodu.; Arjay v AMS Ltd. Which Court has jurisdiction to hear and determine an action brought by the NBA against the President for over irregularities in the appointment of Judicial Officers and why? August No 6 (ii) An action by the NBA challenging the appointment of a State High Court by the President should be commenced at the Federal High Court. This is because the Constitution in Section 251(l), (q), and (r) CFRN 1999 confers jurisdiction on the Federal High Court with respect to interpretation of the Constitution relating to any action affecting the validity of any executive or administrative act or decision of the Federal Government. Assuming a matter is instituted at the High Court and the Court finds that it lacks jurisdiction to entertain the case, what should the Plaintiff/Claimant do? August No 6 (iii) Where a High Court finds that it lacks jurisdiction to entertain an action, the appropriate order is to strike out the suit. The State High Court has no powers to transfer cases to the Federal High Court. China Ocean Shipping Line v NPA; Attah v Uthman; Fashakin Foods v Shosanya. Assuming a matter is wrongly commenced at the Federal High Court and the Court finds that it is the State High Court that has jurisdiction. What should the Court do? Give reason(s) for your answer. August No 6 (iv) Where a Federal High Court finds that it lacks jurisdiction to entertain an action, the appropriate order is to transfer the suit to the appropriate Court with jurisdiction. This is because the Federal High Court is empowered to transfer a case to the appropriate Court where it finds that it licks jurisdiction to hear the matter. Section 22(2) of the Federal High Court Act. Mokemu v Federal Commissioner of Works. In an action for breach of contract instituted at the Lagos High Court, but where the Defendants reside and carry on business in Makurdi, and the contract was also executed in Makurdi, draft the application seeking to set aside the writ of summons on the ground of lack of jurisdiction. May No 1 (1 ) Draft Application to set aside writ of summons: In an action for breach of contract instituted at the Lagos High Court, which was challenged by the Defendants on the grounds that they reside and carry on business in Makurdi, and that the contract was also executed in Makurdi, the Judge dismissed the application on the ground that since the head office of the Defendants is in Lagos, he had jurisdiction. Write a one page opinion on the ruling of the Court. May No 1 (2) 2

3 The ruling of the Court would be wrong for the following reasons: Where the Defendant resides or carries on business in another State and the contract which is the subject matter of the suit was executed in that State,it is the High Court of that State that has jurisdiction to entertain the action. The High Court of another State lacks jurisdiction to entertain the action. Order 2 Rule 3 Lagos High Court Rules Akintunde v Ojo. ALTERNATIVE DISPUTE RESOLUTION (ADR) Draft a letter (not more than one page) to a Claimant in order to explore the possibilities of an amicable settlement before commencement of action in court. Aug No 2 (a) Draft (Letter for ADR) Assuming after a Defendant is served with an originating process, he still wants the matter referred to Arbitration, what steps must he take? August No 1 (e) Where a Defendant has been served with an originating process and he still wants the matter referred to Arbitration, he must file a Motion on Notice for stay of proceedings pending Arbitration. If the motion is granted, he can then commence arbitration proceedings. The application must be filed before he takes further actions in the case, otherwise he will be deemed to have waived the right. Sections 4 & 5 Arbitration and Conciliation Act; Kaduna State Urban Development Board v Fanz Construction Ltd. PARTIES Explain the proper parties in the case No 1 (c) The proper parties in a case between residents of a community; and the State Government and a Company will be the Representatives of the community (since the community is not a juristic person and can only sue through Representatives); the Attorney General of the State (this is because the Attorney General is the proper party in actions involving the State) and the Company since the Company is a juristic person and can sue and be sued in its corporate name. Can the Governor of a State be sued? 2009 No 1 (b) No civil proceeding can be instituted or continued against any person holding the office of Governor or Deputy Governor, or President or Vice President while he is in office. Section 308(1) (a) CFRN Also the appearance of such person cannot be compelled by any process of court. Section 308 (1) (c) CFRN

4 Therefore the Governor of a State can neither be sued nor can his presence in such proceedings be compelled by any process of the Court. The action against him will be incompetent and cannot be entertained by the Court. Tinubu v IMB Securities; Fawehinmi v IGP; Global Excellence Ltd v Donal Duke. Who are the proper parties in a case between two States? 2009 No 3(i) The proper parties in a case refer to the parties who are directly involved in the cause of action, in other words, the Plaintiff who alleges to have suffered the damage and Defendant who occasioned the damage. Mobil Producing Co. v LASEPA. The Attorneys General of the State who are the Chief Law Officers of the States are the proper party in actions involving the State. Assuming a Defendant contends that his failure to fulfil his obligation with the Claimant resulting in the action was due to the fault of a third party, and he wishes to proceed against such third party, draft the application (without the affidavit). August No 1 (f) IN THE HIGH COURT OF LAGOS STATE IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS Suit No: Between Mr. Ben Ajuwa..Claimant And M. Tobi Silas.Defendant/ Applicant And Star Bank Plc...3 rd Party/ Respondent Motion Ex-Parte Brought pursuant to Order 13 Rule 19 Lagos High Court (Civil Procedure) Rules, 2012 and Under the Inherent Jurisdiction of this Honourable Court TAKE NOTICE that this Honourable Court will be moved on the.day of.2013 at the hour of 9 o clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the defendant/applicant for the following orders: 4

5 1. An order granting leave to issue third party notice against Star Bank Plc 2. And for such further or other order as this Honourable Court may deem fit to make in the circumstances of this case. Dated this..day of Femi James James & Co. Defendant/Applicant s Solicitors No. 1 Law School Drive, Victoria Island, Lagos femijames@yahoo.com Where a Defendant is covered by an insurance policy and he wishes to proceed against the insurance company, draft the application (without any supporting documents) May No 4(c) Draft Third Party Notice: IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Suit No Between: Master Farid Collins (suing by his next friend Mr Kunle Collins). Plaintiff And 5

6 1. Senator Olowo Martins 2. KabiruKolo.Defendants/Applicants And Commerce Insurance PLC..Third Party/Respondent Motion Ex-Parte Pursuant to Order 10 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 and under the Inherent Jurisdiction of this Honourable Court TAKE NOTICE that this Honourable Court will be moved on.the.day of.2012 at the hour of 9 o clock or so soon thereafter as counsel may be heard on behalf of the defendant/applicant for: 1. An order granting leave to issue third party notice against Commerce Insurance PLC of No. 2, Adele Street, Maitama, Abuja. 2. Such further or other orders as the Honourable Court deem fit to make in the circumstances of this case. Dated..day of 2012 Joseph Agberojo Esq. Agberojo & Co Defndant Counsel No. 2 Law School Road Bwari, FCT, Abuja Assuming a Landlord executed a Power of Attorney in favour of a Solicitor to manage his property and recover possession from tenants and other incidental matters, who will be the proper parties in the suit against James Peters to recover possession. Draft the parties heading on the Plaint. August No 4 (c) Chief Ojo Benson Claimant 6

7 (Suing through his Lawful Attorney) James Peters Defendant In an action instituted by a child, hit knocked by a car, assuming the accident was partly due to the negligence of the school in allowing the child go home by himself, and it is sought join the school after the case has been commenced, draft the necessary application (without any supporting documents) May No 4(b)(i) Draft Application for Joinder of Parties: IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Suit No.. Between Master Farid Collins (Suing by his next friend Mr. Kunle Collins)..Plaintiff/Applicant And 1. Senator Olowo Martins 2. Mr. Kabiru Kolo.Defendants/Respondents 3. The Registered Trustees of Bright Star Secondary School Party sought to be joined as Defendant/ Respondent Motion on Notice Pursuant to Order 10 Rule 5 of the High Court of the Federal Capital Territory (Civil Procedure) Rule, 2004 and under the Inherent Jurisdiction of this Honourable Court TAKE NOTICE that this Honourable Court will be moved on the.day of at the hour of 9 o clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the plaintiff/applicant for: 1. An order joining the Registered Trustees of Bright Star Secondary School as the 3 rd defendant in this case. 7

8 2. Such further or other orders as the Honourable Court may deem fit to make in the circumstance of this case. Dated this day of.2012 Willian Elejo Esq Elejo & CO. Plaintiff s Counsel. No. 1 Law School Road, Bwari, FCT, Abuja For Service on: 1. The 1 st Defendant 2. The 2 nd Defendant.. 3. Party sought to be joined List the documents to be filed alongside an application for joinder of parties. May No 4(b) (ii) Affidavit Any documents to be attached as exhibits Written address PRE-ACTION CONSIDERATIONS List (with reasons) the matters you will consider before taking any action in Court No 2(b); No 3(b) Prepare a checklist of at least eight matters that you will consider as Counsel to the Plaintiff before filing a suit in your client s behalf. August No 5(a) (i) Cause of action Jurisdiction Parties ADR Pre-Action Counselling 8

9 Limitation of Action Condition Precedent/Pre-action Notice Cost of Litigation Enforceability and Realization of Judgment INSTITUTION OF PROCEEDINGS What is the best process or form to commence an action in a case where the Claimant seeks the interpretation of a clause in an agreement? Why? August No 1 (a) The best process to commence this action is by Originating Summons. This is because the action is for the interpretation of a document and the facts are not in dispute. National Bank v Alakija. Draft the process to commence an action where the Claimant seeks the interpretation of a clause in an agreement without any supporting document. August No 1 (b) Draft Originating Summons: IN THE HIGH COURT OF LAGOS STATE IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS Suit No.: Between: Mr. Ben Ajuwa..Claimant And Mr. Tobi Silas... Defendant ORIGINATING SUMMONS LET Mr. Tobi Silas of No. 2 Wuse Street, FCT Abuja within 42 days of service of this summons inclusive of the day of such service, cause appearance to be entered for him to this summons which is issued upon the application of the claimant for the determination of the following questions: Whether the purchase receipt in respect of the land situate at No. 1 Ajasa Street, Lagos qualifies as a valid document of title in accordance with Clause 4 of the Development Lease Agreement between the claimant and defendant? And upon the determination of the above question the claimant will seek the following reliefs: 9

10 1. A declaration that the purchase receipt in respect of the land at No. 1 Ajasa Street, Lagos qualifies as a valid document of title in accordance with Clause 4 of the Development Lease Agreement between the claimant and the defendant. 2. An order compelling the defendant to commence construction work on the land in accordance with clause 4 of the agreement. 3. Such other orders as the court may deem fit to make in the circumstance of the case. Dated this day of..20. This summons is issued out of Lagos State of Nigeria for service at the Federal Capital Territory, Abuja. List the documents/forms that should accompany an Originating Summons. August No 1 (c) Affidavit Exhibits to be relied on Written address Pre-Action Protocol Form 1 Order 3 Rule 8 Lagos In an action brought by the NBA challenging the appointment of a Justice of the Supreme Court and a Judge of a State High Court by the President, draft the heading, parties and the reliefs sought. August 2011 No 6 (v) IN THE FEDERAL HIGH COURT OF NIGERIA IN THE ABUJA DIVISION HOLDEN AT ABUJA SUIT NO BETWEEN: THE REGISTERED TRUSTEES OF THE NBA PLAINTIFF AND ATTORNEY GENERAL OF THE FEDERATION DEFENDANT HON JUSTICE HON JUSTICE RELIEFS 10

11 A DECLARATION that the appointment of the 2 nd and 3 rd Defendants as a Justice of the Supreme Court and a Judge of a State High Court respectively without following the due process is unconstitutional, null and void. AN INJUNCTION restraining the 2 nd and 3 rd Defendants from parading themselves as a Justice of the Supreme Court and a Judge of the High Court respectively pending the determination of the substantive suit. List the other documents that must be filed along with a statement of claim to commence an action in Lagos. May No 4(c) (i) Writ of Summons List of witnesses Statement on oath of witnesses Copies of documents to be relied on Pre- action Protocol Form 01 Order 3 Rule 2 Lagos What is the legal consequence of failure to file any of the processes necessary to commence an action in Lagos? May No 4(c) (ii) The legal consequence of failure to file the necessary processes is that the originating process will not be accepted for filing by the Registrar. Order 3 Rule 2 (2) Assuming a party intends to challenge the facts contained in an affidavit, what steps must the party take and what is the legal consequence of not taking such step. August No 1 (d). Where a party intends to challenge the facts in an affidavit, the step to take is to file a counter affidavit. The consequence of failure to file counter affidavit is that the facts in the process of the claimant will be deemed to have been admitted. Alagbe v Abimbola. Life Span of Originating Process Within what time must a writ of summons (in Lagos) be served after the date of issue and what steps would the claimant take if he is unable to serve within that period? 2009 No 2(d) The life span of a writ of summons in Lagos is 6 months in the first instance, after which it becomes invalid except renewed. Order 6 Rule 6 Lagos Rules Where the Claimant is unable to serve the process during the 6 months period, he should apply for renewal of the writ for a further period of three months. The Court can only grant 2 renewals in each case provided that an originating process shall not be in force longer than a total period of 12 months. This should 11

12 be done before the expiration of the writ. But the Claimant can still apply for renewal after the expiration of the writ. Kolawole v. Alberto. SERVICE OF PROCESS Assuming the defendant in an action is evading service of an originating process, how will you ensure that he is properly served? 2009 No 2(c) To apply to the Court for leave to serve through substituted service. Draft the application to ensure that a Defendant evading service is properly served No 3(a) Draft Substituted service: BETWEEN: IN THE HIGH COURT OF THE FEDERAL CAPITAL TERITORY, ABUJA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ALHAJI USMAN ADEBAYO..PLAINTIFF/ APPLICANT AND DAN KANO.DEFENDANT/RESPONDENT MOTION EX PARTE 12 Suit No. BROUGHT PURSUANT TO ORDER..RULE OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY (CIVIL PROCEDURE) RULES AND UNDER THE INHERENT JURISDICTION OF THE COURT TAKE NOTICE that this Honourable Court will be moved on..day of..20 at the hour of 9 O clock in the forenoon or so soon thereafter as counsel for the plaintiff/applicant may be heard on behalf of the plaintiff/applicant praying the Court for the following orders: 1. An order granting leave to the plaintiff/applicant to serve the processes in the suit on the defendant/respondent by substituted means, to wit (e.g. posting same on the conspicuous part of the premises; or by publishing same in the National Newspaper, e.g. the Guardian Newspaper, etc). 2. Such further order or other orders as the Honourable Court may deem fit to make in the circumstances. Dated this..day of..2010

13 . Success Proud, Esq. Plaintiff/Applicant s Counsel, Plot 20 Shagari Way, Wuse, Abuja, FCT Comment on the validity of an originating process served by the Plaintiff on the messenger of the Defendant Company. May No 4(d) Originating processes are required by law to be served on the defendant by personal service. Order 7 Rules 1, 2 & 9 Lagos. The service is to be effected by the Sheriff, Deputy Sheriff or other relevant officer of Court. Personal service on a company is effected delivering the process on any of the Principal Officers of the Company or by delivering at the Registered office of the Company. Section 78 CAMA. Service of a process on a messenger is invalid service. Mark v Eke. Assuming in an action against a Defendant Company with its Registered Office in Lagos, the originating processes were served in the Abuja Office, what will be your response, if any as the Defendant s Counsel? What steps would you take in Court on this issue? August 2011 No 5(a) (ii) Personal service of a Court process on a company is effected delivering the process on any of the Principal Officers of the Company or by delivering at the Registered office of the Company. Section 78 CAMA. Mark v Eke. Service of a process at the Branch or other office of the Company, not being the Registered Office is invalid service. As a Defendant Counsel, I will raise a preliminary objection to challenge the service as irregular. SERVICE OF PROCESS OUTSIDE JURISDICTION Assuming a Defendant is resident outside Nigeria and does not have a place of business in Nigeria, what steps should be taken to ensure that he is properly served with an Originating process. Would the procedure be necessary if the Defendant had been resident in or carries on business in Nigeria but in a State different from where the action is commenced? 2009 No 2(e) Where an originating process is to be served on a Defendant outside Nigeria, the steps to take to ensure that he is properly served with an Originating process is 13

14 to apply for leave of Court for the writ to be issued and served outside of jurisdiction in the foreign country. The originating process shall be sealed by the Registrar and transmitted by the Chief Registrar of the Court to the Solicitor General who shall thereafter further transmit it to the appropriate authority in that country for service on the Defendant. The writ would be endorsed for service outside the jurisdiction of Nigeria. Section 97 Sheriff and Civil Process Act. The writ must also provide that the Defendant is given not less than 30 days to answer to the writ. Section 99 Sheriff and Civil Process Act. Where the Defendant resides in or carries on business in Nigeria, but outside the jurisdiction of the Court, there will be no need for leave of Court for the writ to be served outside of jurisdiction since the whole of Nigeria is one jurisdiction under the Sheriff and Civil Process Act. Adegoke Motors v Adesanya. However, the writ would be still be endorsed for service outside the jurisdiction of Nigeria. Section 97 Sheriff and Civil Process Act and the writ must also provide that the Defendant is given not less than 30 days to answer to the writ and 42 days in the case of Lagos. In an action for breach of contract instituted at the Lagos High Court, which was challenged by the Defendants on the grounds that the Writ should have been endorsed for service outside jurisdiction and the Judge dismissed the application. Write a one page opinion on the ruling of the Court. May 2012 No 1 (2) The ruling of the Court would be wrong because where the Defendant resides or carries on business in another State and is to be served with an originating process, there be an endorsement that the process is for service outside the jurisdiction of Nigeria. Section 97 Sheriff and Civil Process Act and the writ must also provide that the Defendant is given not less than 30 days to answer to the writ (42 days in the case of Lagos). Section 99 Sheriff and Civil Process Act PLEADINGS Draft a statement of claim (not more than one page) 2010 No 3(b) Draft a statement of claim (not more than 10 paragraphs) May 2011 No 4(b) Draft a statement of claim (in not more than 7 paragraphs) May 2012 No 4(a) Draft (Statement of Claim) MATTERS THAT MUST BE SPECIFICALLY PLEADED Where a claim is based on fraud, can it be successful in the absence of specific pleading No 1 (c) 14

15 In a claim based on illegality or fraud, the action cannot succeed in the absence of specific pleading. The law requires that an allegation of illegality or fraud should be specifically pleaded and that the particulars ought also to be furnished. Adesanya v Otuewu; Onwuchekwa v NDIC; George v Dominion Flour Mills. AMENDMENT OF PLEADINGS Draft an application for the amendment of pleading. May 2011 No 1 (a) Draft Application for amendment of pleading: BETWEEN: IN THE HIGH COURT OF LAGOS IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS Molade Titus Claimant/Applicant AND Mr. Kola Lawal.Defendant/Respondent MOTION ON NOTICE Suit No. Pursuant to Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and Under the Inherent Jurisdiction of this Honourable Court TAKE NOTICE that this Honourable Court will be moved on..day of 20.. at the hour of 9 O clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the claimant/applicant for: 1. An Order granting leave to the claimant to amend Paragraph 4 of his Statement of Claim so that the plot of land referred to in this Paragraph will now be described as No. 20 Kolawole Street, Lagos Island, Lagos State, formerly known as No. 16 Isaac Street, Lagos Island, Lagos State 2. Such further or other orders as the Honourable Court may deem fit to make in the circumstances of this case. Dated this.day of..20. James Danbaba Rock Solicitors 15

16 Counsel to the Claimant/Applicant No. 1 Law School Drive, Victoria Island, Lagos For service On: Defendant/ Respondent c/o His counsel Star Solicitors No. 10 Law School Drive, Victoria Island, Lagos At what stage of proceedings can an application for amendment of pleadings be made (in Lagos)? May 2011 No 1 (b) (i) An application for amendment of pleading can be made at any time before the close of pre-trial (now case management) conference and not more than twice during trial but before the close of the case of the party. Order 24 Rule 1 Lagos At what stage of proceedings can an application for amendment of pleadings be made (in Abuja)? May 2011 No 1 (b) (ii) An application for amendment of pleading can be made at any time before the judgment. Order 24 Rule 1 Abuja. Assuming an applicant has already been granted two applications to amend his pleadings during the trial of his case, comment on the validity of the third application for amendment? May 2011 No 1(c) (iii) An application for amendment of pleading in Lagos can be made at any time before the close of pre-trial conference and not more than twice during trial but before the close of the case of the party. Order 24 Rule 1 Lagos. A third application will be invalid. APPLICATIONS CHALLENGING PLEADINGS Can a vague claim be successful? 2009 No 1(c) 16

17 A pleading can be challenged on the grounds that it discloses no reasonable cause of action, or that it is vexatious, embarrassing and frivolous. A vague claim which does not provide enough particulars is incompetent and cannot be successful. SETTLEMENT OF ISSUES/PRE-TRIAL CONFERENCE What possible sanction(s) could a Court make against a Defendant who was absent at a Pre-Trial Conference and was not represented. August 2011 No 3 (a) Where a Defendant is absent at a pre-trial conference, final judgment may be entered against him. Order 25 Rule 6 Lagos. Assuming Judgment was entered against a Defendant for default in Pre-Trial Conference, state the steps the Defendant must take to set aside the Judgment. August 2011 No 3 (b) Where a Defendant is absent at a pre-trial conference, and final judgment was entered against him. He may within 7 days apply to the Court to set aside the judgment. He must undertake to participate effectively at the Pre-trial conference. Order 25 Rule 6 Lagos. Where a Claimant s Counsel in Lagos applies for issuance of a Pre-Trial Conference Notice through his Firm s letter head with Form 17 attached and a Defendant raises an objection stating that the application was invalid since it was not done by a motion on notice as required by Order 25 (1) Lagos Rules 2004, assuming you were the Judge, write a ruling on this objection. August 2011 No 3 (c) The procedure for application for a Pre-Trial Conference Notice is by an application which shall be in Form 17- Order 25 Rule 1 Lagos. Where a Claimant applies for a pre-trial conference notice by a letter with the form 17 attached, there is substantial compliance with the Rules, notwithstanding that the application was not made by a motion as required by Order 39 Rule 1 Lagos. In an action where the Defendant failed to appear for the pre-trial conference and the Judge entered final judgment for the Claimant, the Defendant Counsel has applied to set aside the judgment, write a one page ruling on the application. May 2012 No 1 (4) Pre-trial conference is commenced with an application for issuance if a pre-trial conference in Form 17 and the applicant is issued a Pre-trial Conference Notice in Form 18. Where a Defendant is absent at a pre-trial conference, or disobey a pre-trial conference scheduling order, or is substantially unprepared to participate in the conference or fails to participate in good faith, the Court may enter final judgment against him. Where that is the case, the Defendant may within 7 days apply to the Court to set aside the judgment. He must give an undertaking to participate effectively at the Pre-trial conference. Order 25 Rule 6 Lagos. 17

18 Where a defendant fails to apply within 7 days for the judgment to be set aside, or applies after 7 days, or applies within 7 days but fail to explain the reason for his absence and to give an undertaking to participate effectively at the conference, the application. The application to set aside the judgment is hereby refused. APPOINTMENT OF JUDICIAL OFFICERS Comment on the likelihood of success of a case brought by the NBA challenging the appointment of a Justice of the Supreme Court and a Judge of a State High Court, whose appointments were done by the President on the recommendation of the Chief Justice of the Federation and duly confirmed by a Judiciary Committee set up by the President. August 2011 No 6 (i) The NBA has a good case because by Section 231(2) CFRN 1999, an appointment to the office of a Justice of the Supreme Court shall be made by the President on the recommendation of the National Judicial Council and subject to the approval of the Senate. In this case, the appointment although made by the President, it was not on the recommendation of the National Judicial Council. Also the appointment was not ratified by the Senate but by a Committee set up by the President. These were all in breach of Section 231(1) CFRN Secondly by Section 271(2) CFRN 1999, an appointment to the office of a Judge of the High Court of a State shall be made by the Governor on the recommendation of the National Judicial Council. The appointment does not require confirmation by the House of Assembly. In this case, the appointment was not made by the Governor but by the President. Consequently, the appointments are unconstitutional and invalid and liable to be declared so by the federal High Court. DOCUMENTARY EVIDENCE What amounts to sufficient pleading of a documentary evidence to warrant its admissibility in evidence? 2009 No 1(e) The criteria for the admissibility of a documentary evidence is whether the document has been pleaded, whether it is relevant and whether it is admissible, i.e. in the form required by Law for its admissibility. ACB v Gwagwada; Okonji v Njokanma. What amounts to sufficient pleading of a document is if reference has been made to it. Order 15 Rule 2 Lagos. Can a party tender his own copy of an agreement as primary evidence in a case? 2009 No 6 (iii). 18

19 Yes a party can tender his own version of an agreement as primary evidence because primary evidence includes documents executed in several parts, or in counterparts and documents made from one uniform process. Section 86 Evidence Act. Where a party intends to tender a photocopy of a private document, the original of which is with the adverse party, what proper foundation must the party lay No 6(iv) Where a party seeks to tender a private document, of which the original is with the adverse party, he should first law proper foundation by first showing that original is with the adverse party. Section 86 Evidence Act. Assuming that all the original copies of the primary documents intended to be relied upon by a Claimant are in the possession of the Defendant, how will the contents be proved at the trial? May No 4(e) Where a party seeks to tender a private document, of which the original is with the adverse party, he should first law proper foundation by first showing that original is with the adverse party. Section 86 Evidence Act. In an election petition case, the Plaintiff Counsel sought to tender the CTC of polling units results (Form EC8A(1)) and the Defendant s Counsel objected on the ground that since there were agents at all the polling units, only the original copies of the poling units results are admissible in evidence. The tribunal upheld the objection and marked the documents as tendered and rejected. Comment on the ruling of the tribunal. May No 5(2) The Tribunal was wrong to have upheld the objection to the admissibility of the election results and held that only original copies of election results are admissible. Polling units results (Form EC8A (1)) are public documents as defined in Section 102 Evidence Act By Section 90 Evidence Act, certified true copies of public documents are admissible as the only form of secondary evidence of public documents. Minister of Lands v Dr Nnamdi Azikiwe. Public Documents are mostly proved through secondary evidence (i.e. CTC). Comment on a trial Judge s decision to reject a certificate of occupancy on the grounds that it was tendered from the bar, and on the ground that it was not listed as one of the documents to be relied upon at the trial. May No 2(d) Certified True Copies of public documents and original copies of gazettes may be tendered from the bar. Other documents must be tendered through witnesses except where the adverse party agrees to the tendering of the document from the Bar. In this case, the decision of the Judge to reject the C. of O. in the absence of objection from the adverse party was wrong. Ogbuinyinya v Okudo; Agagu v Dawodu. 19

20 Failure to frontload the document does not render it inadmissible as long as it has been properly pleaded. Abuja Rules does not provide the consequences of not frontloading. The Judge would be wrong to reject the admissibility of the C of O on this ground. Comment on a trial Judge s decision to reject a witness statement on oath on the grounds that it was sworn before the Plaintiff Counsel, who is a Notary Public. May No 2(d) An affidavit shall not be sworn before a Notary public who is a Counsel to the party for whom the affidavit is to be filed shall not be admissible. In this case, the witness statement on oath, having been sworn before the Plaintiff s Counsel is inadmissible. Section 19 Notary Public Act. Buhari v INEC. Assuming in an action, a Plaintiff/Applicant attaches a photocopy of a medical report from a Government hospital and the Respondents object to the photocopy, what will be your reaction? August No 2 (f) A medical report from a Government hospital is a public document. The only form of public document accepted as secondary evidence is the CTC. A photocopy of a medical report is inadmissible. Assuming that an IPO in a Police Station investigated the report of nuisance by the loud speakers of a Defendant and wrote a report, how would the Plaintiff s Lawyer be able to tender the IPO s report in the Magistrate Court? August No 4 (e) The IPO report can be tendered through the IPO by calling him as a witness. He would be led in evidence and proper foundation will be laid before tendering the report. INTERLOCUTORY APPLICATIONS What is a party required to do to preserve the status quo in an action pending the determination of a case in Court No 2(a) In other to preserve the status quo in an action pending the determination of the substantive action in court, the Claimant should file an application for interlocutory injunction which must be supported by an affidavit. Draft the application above with the affidavit and all the relevant documents No 2(a) Draft Interlocutory injunction: Where there are two motions before the Court, one seeking to strike out the case and the other seeking to regularize it, which of the motions is the Court bound to take first No 4(b); August No 5(d) 20

21 If there are two motions pending before the Court, one that would preserve the action will be given precedence over the one that would destroy the action. Nalsa & Teem Associates v NNPC. In an application for extension of time to enter appearance and file statement of defence, what is the most important document that must be annexed to the affidavit before the Court can grant it? 2009 No 4(c) In an application for extension of time to enter appearance and file a defence, the Rules require the Defendant to show a good defence. This is usually done exhibiting such defence to the affidavit in support of the application. The application shall be done within a reasonable time. Order 10 Rule 11 Lagos. Draft an application for extension to file statement of defence out of time. August No 5(c) Draft Application for extension of time: BETWEEN: JOHN ALI IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN HOLDEN AT ABUJA Suit No:.. (Trading Under the name and style John Ali & Sons) Plaintiff/Respondent AND HOPEDAY CONSTRUCTION LTD..Defendant/Applicant MOTION ON NOTICE Brought Pursuant to Order..of the High Court of the Federal Capital Territory Civil Procedure Rule, 2004, and the Inherent Jurisdiction of the Honourable court TAKE NOTICE that this Honourable Court will be moved on the.day of at the hour of 9 O clock in the forenoon or so soon thereafter as counsel to the Defendant/Applicant may be heard praying the court for the following order(s): 1. An order enlarging the time within which the Defendant/Applicant may fie his pleadings (or Statement of Defence) in the suit. 2. An order deeming the statement of Defence and the frontloaded documents hereto attached and marked as exhibit A as properly filed and served, the proper fees having been paid. 21

22 3. Such further order or orders as the Honourable Court may deem fit deem to make in the circumstances of this suit. Dated this day of,20. Address for Service: On the Plaintiff c/o his solicitors, Name and Address of Plaintiff s Counsel Name And Address of Defence Counsel AFFIDAVIT What is the Court required to do upon being confronted with conflicts in an affidavit No 4(f); May No 6 (c) Where there are manifest or irreconcilable differences or conflicts in the depositions contained in two affidavits, then the Court will rely on oral evidence to resolve the differences. Falobi v Falobi; Olu Ibukun v Olu Ibukun. However, where there are sufficient documentary evidence to resolve the differences, the Court will rely on the documents and there will be need to call oral evidence. Nwosu v ISESA. NO CASE SUBMISSION Explain the conditions for granting a no case submission in a civil trial and the effect on the case. May No 2(e) The Conditions for the granting of a no case submission in civil cases are: if no evidence has been established by the Plaintiff; if the evidence led by the Plaintiff is so unsatisfactory or unreliable that the Court must hold that the burden of proof on the Plaintiff has not been discharged. The effect of a no case submission is that where it is upheld, the case of the plaintiff will be discharged. Where the no case fails and the defendant has been put to his election when making the no case submission, he will not be allowed to adduce evidence, for he will be deemed to have relied on the case of the Plaintiff and judgment will be given in favour of the Plaintiff. 22

23 But where the no case fails and the defendant has not been put to his election when making the no case submission, he will be allowed to adduce evidence, and subsequently address the Court. Ekpaya v Akpan. INTERPLEADER PROCEEDINGS In the event of the death of a Landlord and there are two parties laying claim to being entitled to rent, what application should a tenant make? May No 6 (a) The application that will be required is an Interpleader Summons brought in the form of an Originating Summons accompanied by an affidavit. Draft only the affidavit in support of the application above May No 6 (b) Draft Affidavit in support of Interpleader Application: If on the date fixed for the hearing of an interpleader application, and one of the Respondents failed to appear in Court despite having been served, what likely Order will the Court make against him? May No 6(e) If on the date fixed for the hearing of an interpleader application, one of the Respondents failed to appear in Court despite having been served, the Court may make an order declaring him and all persons claiming under him for ever barred against the applicant and persons claiming against. However, such order shall not affect the rights of the claimants as between themselves. Order 26 Rule 8 Abuja. SUMMARY JUDGMENT/UNDEFENDED LIST PROCEDURE What procedure would you advice a Plaintiff to adopt to obtain a speedy judgment where he believes the Defendant has no defence to the claim? 2009 No 1 (f) The procedure that will ensure speedy judgment is a Summary Judgment under Order 11 Lagos. All that is required is for the Plaintiff to show that the defendant has no defence to the claim. What are the originating processes to be filed under this procedure (in Lagos)? 2009 No 1 (f); No 3(b) Writ of Summons Statement of Claim Exhibits to be relied on at the trial Statement on oath of witnesses Application by Motion for Summary Judgment 23

24 Affidavit in support of motion Written Brief in support of motion Order 11 Rule 1 Lagos DEFAULT JUDGMENT Assuming all defendants in an action fail to enter appearance or file statements of defence within the time required by the Rules, draft the application you will file (with the affidavit) No 2(c) Draft Application setting down a suit for trial and Affidavit in support: IN THE COURT OF LAGOS STATE OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS Suit No:. BETWEEN: 1. Mrs. AB 2. Mr. CD (suing for themselves and as representatives of Lekki-Epe Residents Association) Claimants/Applicants AND 1. PREMIUM CONSTRUCTION COMPANY LTD 2. ATTORNEY-GENERAL OF LAGOS STATE Defendants/Respondents MOTION ON NOTICE BROUGHT PURSUANT TO ORDER 10 RULE 1 OF THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE RULES), 2012 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT TAKE NOTICE THAT this Honourable Court will be moved on the day of 2010 at the hour of 9 O clock in the forenoon or so soon thereafter as counsel for the Claimants/Applicants praying the court for the following orders: 1. An order on setting this suit down for hearing. 2. And such further order or other orders as this Honourable Court may deem fit to make in the circumstances. 24

25 Dated this day of 20 Charles Obi, Esq., Claimant/Applicant s Counsel, 20 xyz Crescent, Victoria Island, Lagos Address for Service: The Defendant/Respondent c/o Their Counsel, No. 3 ABC Road, Ikoyi, Lagos When is it appropriate for a Court to grant an Order setting down a suit for trial under the default judgment procedure? 2009 No 4(a) In an application for default judgment, it is appropriate for the Court to set down a suit for trial where the claim is such default judgment cannot be granted, for example in declaratory reliefs which the claimant must prove even if the Defendant admitted the facts. What are the grounds upon which the Court can set aside a default judgment? 2009 No 4(d) By Order 20 Rule 12 Lagos, the Judge is empowered to set aside any default judgment obtained under the Rules, only on the grounds of fraud, non service and lack of jurisdiction. Then by Order 10 Rule 11 Lagos, which relates only to judgment given default of appearance, the judgment can be set aside if the Defendant shows a just cause for the default. Thus any reason given by the Defendant which the Court considers to be a just cause for the default can suffice as a ground to set aside the judgment, if given in default of appearance. CIVIL EVIDENCE COMPETENCE AND COMPELLABILITY OF WITNESSES Can a Senator of the Federal Republic of Nigeria be compelled to testify in an action? May No 4(d). 25

26 The position of law is that all competent persons are compellable witnesses unless the law provides otherwise. There is no law against the compellability of an individual Senator of the Federal Republic of Nigeria. The law on legislative immunity applies to the Senate/Legislative House as a body. The immunity conferred by Section CFRN applies only to the President or Vice President and Governor or Deputy Governor. A Senator of the Federal Republic of Nigeria is a compellable witness. Section 175 Evidence Act What category of persons will you present as witnesses to tender polling units results. Explain if such persons are competent and compellable. Explain the process of compelling such witnesses. May No 5(3) The appropriate persons to call as witnesses to tender polling units results are the polling officers from the electoral body and polling agents of the parties. Polling officers and party agents are competent witnesses. All persons are competent to give evidence unless such persons are prevented from understanding the nature of questions put to them and from providing rational answers to such questions by reason of tender age, extreme old, disease (whether of the body or of the mind). Section 175 Evidence Act EXECUTION OF JUDGMENT Draft an application for the execution of a money judgment where the judgment creditor discovers that there is some money in a bank standing to the credit of the judgment debtor No 5(a); May No 5(b); May No 2(a) Draft Garnishee proceedings: IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Suit No:. BETWEEN: MR. UCHE OLOWOLAFE..JUDGMENT CREDITOR/APPLICANT AND 1. MR. BARAKAT JAGUN..JUDGMENT DEBTOR/RESPONDENT 2. PREMIER BANK PLC...GANISHEE/RESPONDENT MOTION EX-PARTE 26

27 BROUGHT PURSUANT TO ORDER RULE.JUDGMENT ENFORCEMENT RULES AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT TAKE NOTICE that this Honourable Court will be moved on day of..20 at the hour of 9 O clock in the forenoon or soon thereafter as Counsel may be heard on behalf of the judgment creditor/applicant for: 1. A garnishee order nisi attaching the sum of N10m standing to the credit of judgment debtor in account No. at the Wuse Branch of the Ganishee in satisfaction of the judgment in favour of the judgment creditor/applicant in this case. 2. And such other order that this Honourable Court may deem fit to make in the circumstances of the case. Dated this day of Funmi Ogunjobi Counsel to the Judgment Creditor/Applcant Funmi Ogunjobi & Co. What is the Order the Court upon hearing the application above? No 5(b) 10 Labiz Crescent, Upon hearing a garnishee application, the Court will order a garnishee nisi. Abuja. Upon service of the Order of Court on a Garnishee, what process would they be required to file (if any)? No 5(c); Upon being served with an Order of Garnishee Nisi, the Garnishee will need to file an affidavit of return showing the particulars of the monies in the account standing to the credit of the Judgment Debtor with the Garnishee Bank. Where a Garnishee acknowledges that a Judgment debtor indeed has money in an account with it, draft the process the Garnishee needs to file on being served with a Garnishee Order Nisi. May No 2(c) Draft Affidavit to show cause in a Garnishee proceedings: Assuming the Court is satisfied that there is money in the account of the Judgment debtor, what Order would the Court make No 5(d) Where a Court is satisfied that there is money in the account of the judgment debtor, the Court will make a garnishee order absolute compelling the payment

28 of the monies in the account of the judgment debt or with the garnishee to the judgment creditor. Write a legal opinion on the actions and steps taken by the Judgment Creditor s Lawyer in this case to realize the judgment debt and how would you proceed to realize the judgment debt if you were the Lawyer. May No 5(a); Which items of the Judgment debtor would you advice a Judgment Creditor to proceed against in the first place? May No 5(b) Execution of judgment is ordinarily levied against the movable properties (goods and chattels) of the judgment debtor but if there are no sufficient goods and chattels that can with reasonable diligence be found in the State for the payment of the debt, then the judgment creditor may apply to the Court to attach the immovable properties of the judgment debtor. However, where the judgment debtor has monies in an account, the first items that I would advise a judgment creditor to proceed against the judgment debtor will be the money in the account. APPLICATIONS PENDING APPEAL In order to prevent a party from destroying or tampering with the subject matter of litigation pending the determination of the appeal, which application will you file and where will you file it No 4 (e) In order to prevent a party from destroying or tampering with the subject matter of litigation pending the determination of the appeal, the application I will file is an injunction pending appeal. The application can be filed at either the High Court or the Court of Appeal. Being an application for injunction, it need not first be filed at the High Court before it can be made at the Court of Appeal.UBA v Mode. But if the appeal has already been entered, then the application can only be filed at the Registry of the Court of Appeal as the Lower Court would have ceased to have jurisdiction to entertain interlocutory applications in the suit. Coker v Aderemi. APPEAL Draft the application for the commencement of a valid appeal against a final judgment of a High Court which allowed an appeal against a decision of a Magistrate Court, six months ago on the ground that the Magistrate Court did not properly evaluate the evidence before it. May No 4 (c) 28