Introduction on How to Commence a Civil Action
For a party who desires to institute civil actions in High Court Nigeria, there are different modes of commencing an action in High Court and there are: Writ of summon, Originating motion, Originating Summons and Petition.
Each of this mode of commencement has its originating processes.
So? To commence an action using any of this mode of Commencement of action, you have to know the implication of using each mode, and what the Rules of Court requires for each mode.
Who can commence a Civil Action in Court?
Any person in law can commence civil action. A person in law is either a natural person(human being) or an artificial person(a registered body). An unregistered body lacks the capacity to sue or to be sued. But one of the benefiting of registering a Business is that the business becomes a legal entity capable of suing and being sued.
So, if the person is a registered body, the person can sue it’s corporate name. But if the person is a natural person, the person can sue in his or her name
FACTORS TO CONSIDER BEFORE COMMENCING AN ACTION.
Before filing an action, it is important to consider:
a. The nature of the suit(subject matter as to know the appropriate court to file the suit.
b. The time the cause of the action arose.Knowing what cause of action is and when it arose will help you to know whether the action is statute barred.
c. The right persons to be sued. Parties in a suit are vital, and suing the wrong person or incompetent person will be fatal to your case.
d. The possibility of settling the matter outside court using any of the alternative dispute resolution mechanisms (ADR). ADR will certainly save you much time and resources.
e. The Rules of court. Every Court has its Rule. The Rules of court prescribe the mode of doing things and how the court system operates generally.
f. Whether you have fulfilled the condition precedent necessary for court to assume jurisdiction over your case. Condition precedent here refer to pre-action notice. Where the law provide for pre-action notice to be given before, instituting an action, you must comply with such provisions before instituting a civil suit.
g. The issue of locus Standi. Do you really have a right that need to be protected? The law has no place for “busybodies”. For you to sue,you .you must have a right that has been threathened, under threat or likely to be threathened.
WHEN IS ACTION SAID TO HAVE BEEN COMMENCED?
An action is said to have been commenced when an originating process has been filed in court, appropriate fees paid, suit number given to the case and the processes served on the adverse party.
ON WHY MODE OF COMMENCEMENT OF CIVIL ACTION IS IMPORTANT
Where a statute prescribed a particular manner or method of doing an act or exercising of authority, no other method will be allowed as substitute and it is matter outside the discretion of court. See the case of Unity Bank PLC v Igala Constr.Co Ltd(2021) 10 NWLR (PT.1785) P.415
How to Commence a Civil Action in Court.
a. Writ of Summon.
b. Originating summons
c. Originating Motion.
This mode of commencement of action. is used where the facts are not in dispute.
As noted by Legalchoices, it is used for non-contentious matters, majorly for the interpretation of documents, laws, instruments, will, deeds or contracts, languages and signs etc,whenever the rights and liabilities of parties will be determined upon the interpretation of same.See the case of Director SSS v Agbakoba(1999) 3 NWLR. (PT.595) 425
In Unilag v Aigoro(1991), 3 NWLR (PT.179) 376, it was held that originating summons can also be used where errors in court Judgement are sought to be corrected.
In actions brought by way of Originating summons, only affidavit of parties are necessary. In other words, pleadings are not used( statement of claim and it’s accompanying processes).
This is also one of the mode of commencement of actions in High Court. Petition is used to commence action in court where a statute or rule provides for it as a mode of commencement.
Under the matrimonial Causes Act and Rules, proceedings therein are commenced by way of petition. Also, winding up of companies under the Companies and Allied Matters Act are also done by Petition.
In the same way, Electoral matters under the Electoral Acts are commenced by Petition.
This mode is used for proceedings in respect of prerogative order and for enforcement of fundamental rights under the Fundamental right Enforcement procedure Rules 2009.
The prerogative orders for which mode of commencement of action can be used include: mandamus, certiorari, habeus corpus etc.
In an action commenced by way of Originating motion, the originating processes that may accompany the processes are:
a. The Originating Application or motion on Notice.
b. Statement of facts setting out the name and description of Applicant
e. Copies of documents to be relied upon. See Order 2 Rule of the Fundamental Right Enforcement procedure Rules 2009.
WRIT OF SUMMONS
This is the most prevalent mode of instituting an action in High Courts in Nigeria. This mode of commencement is used where the facts are contentious or likely going to be contentious.The most commonest example is land matters.
In the era of frontloading, a copy of the writ signed by the lawyer issuing it, together with accompanying documents is filed in court to commence an action using this mode. The accompanying documents includes:
a. Statement of Claim
b. Witness Statement on Oath
c. List of Exhibits
d. List of Witnesses to be called during trial.
e. Copies of documents to be relied on during trial.
SERVICE OF THESE PROCESSES ARE IMPORTANT
The Nigerian law system recognizes two mode of service of processes namely: Personal service and substituted service. Personal service requires the plaintiff, through the bailiff of court giving the processes directly to the person being sued(Defendant) who receives same and acknowledges recept of same.
Any other mode of service permitted by law other than this is substitud service. Substituted service could be by way of pasting the process at the last known address of the Defendant or any other place.
Now, after filing the originating processes, the said process is served on the Defendant (s) through the bailiff of court In the case of Writ of Summons, the Defendant is expected to enter appearance to the suit within 42 days. The Defendant enters appearance to the suit by filing memorandum of appearance.
The Defendant in entering appearance may enter a conditional appearance or an unconditional appearance. Where the Defendants intend to raise a preliminary objection, such a Defendant will enter a conditional appearance.
In entering appearance, the Defendant files his Statement of Defence and Counter Claim where necessary, alongside the Witness Statement on Oath, List of witnesses, List of Exhibits and copies of documents to be relied upon and same shall be served on the Plaintiff, through their counsel.
The plaintiff upon receipt of the above processes of the Defendant, shall within 14 days, file and serve on the Defendant, the Plaintiff’s Reply to Statement of Defence and Defence to Counter claim, additional Statement on Oath, and further documents to be relied upon where necessary.
BEWARE OF STATUTE OF LIMITATION
Where a statute provides for period within which an application must be brought before the court, an action commenced outside the period is said to be statute barred. See the case of Umeano v Anaekwe(2022) 6 NWLR PT.1827. P.520.
To determine whether an action is statute barred, reference is made to when the cause of action arose. The cause of action confirms the existence of a legal right that is either violated already, being violated or about to be violated. Parties must be conscious to protect their rights for equity aids the vigilant and not the indolent and only an indolent litigant can be caught up by statue of limitations.
In the case of Umeano v Anaekwe supra, the supreme court held that the effect of a statute limiting the period within which an action can be presented to court is that failure to present the action the action within the prescribed period render ls the suit incompetent and robs court of jurisdiction. See also Hasan v Aliyu(2010) 17 NWLR. (PT.1223) 547.
AN ORIGINATING PROCESS MUST BE SIGNED.
The general position of law is that an unsigned document is worthless and has no legal value. See the case of ..In the same way, an unsigned originating process has no value and Court cannot use it.
An unsigned writ of Summons ( likewise every other originating processes) is void and it cannot be cured even by subsequent amended writ. Such an error is a fundamental defect, it renders the originating process incompetent, and deprives the court of jurisdiction. See the case of Mainasara v F.B.N Plc.(2022) 6 NWLR (PT.1827) P.475.
In the case supra, the court affirmed the consequence of an unsigned writ thus:
“the result of a void writ of summons is that the case it has acted as an initiating/originating process remains incompetent and deprives the court of the jurisdiction to entertain same”.
WHO CAN SIGN AN ORIGINATING PROCESS?
Only a lawyer enrolled to practice in Nigeria or the litigant can sign an originating process to be filled in courts in Nigeria. See Solumade V Kuti supra .A firm of Solicitors is not competent to sign an originating process.
In the case of Ofuka V Izabi-Undie(2022) 3 NWLR. PT.1818., P491 – 492, the court held that once an originating process,is not signed by a litigant or his counsel, the process is invalid and the court is ousted of jurisdiction.
Where an Originating process is incompetent, the court is robbed of jurisdiction to entertain the suit. What could make an Originating process incompetent depends on the circumstances of the case . Forinstance, not signing the originating process by the counsel that prepared it or by the litigant, renders the process incompetent.