May 7, 2021 Omaplex 0 Comments

There are certain issues that affects the competence of a suit before a court. Failure to consider such issues may lead to the striking out or dismissal of a suit. These issues are:

  1. Locus Standi
  2. Applicable Law
  3. Parties
  4. Jurisdiction
  5. Rules of Courts
  6. Witnesses
  7. Documents
  8. Reliefs Sought
  9. Statute of Limitation
  10. Immunity
  11. Cost
  12. Alternative Dispute Resolution
  13. Pre-action Notice

The above issues will be explained during the lecture.

MODES OF COMMENCEMENT OF ACTION

There are various ways in commencing an action before the various courts in Nigeria. We shall first consider the modes of commencement of action at the Magistrate/District court.

COMMENCEMENT OF ACTION AT THE MAGISTRATE COURT

There are two modes of commencement of action in the Magistrate/District Courts

  1. Ordinary Summons

The procedure for using ordinary summons is that the claimant applies for a plaint and the court will issue an ordinary summons. The ordinary summons contains the particulars of claim where the claimant must plead essential facts in support of his or her claim. Ordinary summons may be used in the following cases:

  1. Claims for recovery of goods
  2. Claims for arrears of rent and recovery of possession
  3. Unliquidated damages
  4. Money Lenders action
  5. Ordinary debt cases where the Defendant is likely to deny the claim
  6. Default Summons

Default summons in the Magistrate/District court is used for summary judgment. Default summons is used to recover liquidated sum. In addition to the particulars of claim, application for default summons is supported by affidavit.

COMMENCEMENT OF ACTION AT THE HIGH COURTS

A suit is initiated by originating Originating processes. The modes of commencement of action at the;

  1. Writ of summons
  2. Originating summons
  3. Originating motions
  4. Petition
  5. Writ of Summons

A writ of summons is a document which commands the defendant to enter appearance in court within a specified number of days after service. A writ of summons is used to commence every action except if a particular rule of law provides otherwise.

The rules of courts provide that a writ of summons shall contain the following;

  1. Any relief or remedy for any civil wrong
  2. Damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or group, or property.
  3. Damages for breach of duty, whether contractual, statutory or otherwise
  4. Where the claim is based on or includes an allegation of fraud.
  5. Where an interested person claims a declaration

The Rules of the Various High Courts provides for the mandatory documents that must accompany the writ of summons and they are:

  1. Statement of Claim
  2. Witness Statement on Oath
  3. List of witnesses
  4. Copies of every document to be relied on at the trial; and
  5. Pre-action Counselling Certificate (Abuja)
  6. Originating Summons

The Originating summons is used whenever the rule or statute provides. The general rule is stated to be that it is used when the sole or principal question in issue is or likely to be one of the construction of a written law, or any instrument or any deed, will, contract or other document or some other question of law or in a circumstance where there is not likely to be a dispute as to the facts or if the rule of court or any statute specifically direct that the action shall be commenced by Originating summons.

Examples of cases that can be commenced by Originating summons are; Enforcement of Fundamental Rights, Companies proceedings, Interpretation of provisions of statutes etc.

An Originating summons is supported by an affidavit and written address.

  • Originating Motions

The Originating motion is used when provided for by a statute or a rule of court. The Supreme Court held in the case of Akunnia v. A.G. Anambra[1] that where a statute provides that proceedings may be commenced by application but does not specifically provide the procedure, originating motion should be used. Examples of actions that can be brought by originating motion includes an application for judicial review, that is in order for mandamus, prohibition or certiorari, enforcement of Fundamental Rights and also Company proceedings.

An originating motion is supported by an affidavit and written address.

  • Petition

This is a written application made to the court setting out a party’s case. If used only where a statute or rules of court provide for its use. Examples of suits that may be commenced by petition include winding up proceedings, election petition and Dissolution of Marriage.


[1] (1997) SCC 161

Preliminary Considerations Before Commencing an Action was last modified: May 7th, 2021 by Omaplex