CIVIL LITIGATION

PRACTICE HANDBOOK

Editor-In-Chief
Prof. Isa Hayatu Chiroma, SAN
Director General.

i
© Council of Legal Education
Nigerian Law School

All rights reserved. No part of this publication may be

reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording
or any retrieval system, without permission from publishers.

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ii
EDITORS

1. D.I. Efevwerhan, Ph.D., Barrister-at-Law

Deputy Director General and Head of Campus
NLS, Yenagoa

2. A.F. Afolayan Esq., LL.M., Barrister-at-Law

Director of Academics and Head of Criminal
Litigation
NLS, Abuja

3. P.C. Okorie Esq., LL.M, Barrister-at-Law

Director of Academics
NLS, Abuja

4. Yinka Odukoya (Mrs.), LL.M., Barrister-at Law

Director of Academics and Head of Civil Litigation
NLS, Lagos

5. O.O. Orimogunje Esq., Barrister-at-Law

Director of Academics and Head of Professional
Ethics and Skills
NLS, Lagos

6. C.U. Mmuozoba Esq., LL.M., Barrister-at-Law

Director and Head of Academics
NLS, Enugu

7. L.O. Alimi Esq., LL.M., Barrister-at-Law

Director and Head of Academics
NLS, Kano

8. C.O. Oba (Mrs.), Ph.D., Barrister-at-Law

Deputy Director of Academics and Head of Civil
Litigation
NLS, Abuja

iii
9. A.E. Chukwu Esq., Barrister-at-Law
Senior Lecturer and Ag Head of Academics
NLS, Yenagoa

10. Ibrahim Sule Esq., LL.M., Barrister-at-Law

Senior Lecturer
NLS, Kano

11. I.I. Adesina (Mrs.), Barrister-at-Law

Lecturer 1
NLS, Yenagoa

12. P.A. Bobai Esq., LL.M., Barrister-at-Law

Lecturer 1
NLS, Yola

13. I.U. Ononye (Mrs.) LL.M., Barrister-at-Law

Lecturer 1
NLS, Abuja

14. R. Salmanu Esq., LL.M., Barrister-at-Law

Lecturer 1
NLS, Kano

15. D. Dewan Esq., LL.M., Barrister-at-Law

Lecturer 1
NLS, Kano

16. O.J Ikwuanusi (Mrs.) Barrister-at-Law

Assistant Lecturer
NLS, Abuja

iv
PREFACE

The review of the curriculum for the vocational legal training of

aspirants to the Nigerian Bar is a core assignment that has been
painstakingly undertaken periodically in line with international
best practices. This edition is unique in that it contains: the vision
and mission of the Nigerian Law School; the lesson plans for each
module as well as the summarized explanatory notes on the topics,
all simplified for ease of comprehension on the practical training of
Lawyers in the 21st century. A user-friendly soft copy of the
practice handbook is also enclosed to enable students work at their
pace on their computer devices. The need for this practice
handbook is underscored by the fact that a harmonized version of
the revised curriculum for the hands-on interactive learning at the
Nigerian Law School has not been made available to the students
for some years now.

This work is the outcome of a concerted effort by the senior

members of the academic faculties across the campuses of the
Nigerian Law School. They have employed their years of practice
experience and versatility to synthesise leading specialized works
in this field to come up with this students cum practitioners'
companion. It is a deliberate attempt to bridge the gap and mitigate
the hardship which students of modest means may encounter at the
Law School in procuring recommended texts.

It is important to point out, however, that this practice handbook is

not a substitute for attendance at lectures, active participation in
group activities or the procurement of recommended texts. While
we have endeavoured to ensure the accuracy of the content of this
handbook, we will take responsibility for any error discovered.

1 acknowledge the invaluable contribution of all the academic

faculties in making this 2016 - 2018 Practice Handbook a reality.
Students will, no doubt, find it a treasured companion while
preparing for the Bar Final examinations and a practice compass in
the early years of legal practice.

PROF. ISA HAYATU CHIROMA, SAN

Director - General October, 2019.

v
VISION AND MISSION STATEMENTS

1. Vision Statement

1. To be a model Institution that aims to attain the highest

standards of legal education and vocational training in the
world;
2. Train lawyers grounded in the ethics of the legal profession,
who can respond to current national and international legal
challenges in a diverse society, providing leadership in
different walks of life; and
3. To maintain vocational training and capacity building for
lawyers to be intellectually and professionally effective for
meeting global challenges and ethical values.

2. Mission Statement
To:
1. educate and train law graduates in vocational skills that
would enable them function optimally as barristers and
solicitors;
2. adopt skills-based, interactive and clinical methods of
learning that would adequately prepare the graduates for
their roles as lawyers to function as teachers, advocates and
solicitors, advisers, leaders in private enterprise and public
service;
3. train students to conform to the ethics and traditions of the
legal profession and exhibit the highest sense of integrity
and candour in the discharge of their professional calling;
and
4. inculcate in its graduates the ideals of rule of law, social
justice and community service such as providing free legal
services to the indigent and encouraging the development
of opportunities for access to justice.

vi
CONTENTS

Preface .. .. .. .. .. .. iv
Mission and Vision Statement .. .. .. v
Table of Cases .. .. .. .. .. vii
List of Abbreviation .. .. .. .. xix
Introduction .. .. .. .. .. .. 1
Chapter 1: Introductory matters .. .. 55
Chapter 2: Courts with civil jurisdiction .. 61
Chapter 3: Parties to an action .. .. .. 79
Chapter 4: Commencement of actions .. .. 95
Chapter 5: Interlocutory applications .. .. 141
Chapter 6: Summary judgement .. .. .. 148
Chapter 7: Pleadings .. .. .. .. 155
Chapter 8: Pre-trial Issues and Proceedings .. 176
Chapter 9: Trial preparations/Evidence/Trial .. 186
Chapter 10: Judgements and enforcement .. 193
Chapter 11: Applications pending appeals .. 207
Chapter 12: Appeals .. .. .. .. 214
Chapter 13: Recovery of possession of premises 231
Chapter 14: Election petition .. .. .. 243
Chapter 15: Matrimonial causes ... .. 254
Chapter 16: Fundamental rights enforcements .. 271
Chapter 17: Costs and sanctions .. .. .. 288
Chapter 18: Case studies .. .. .. .. 295
INDEX .. .. .. .. .. .. 309

vii
TABLE OF CASES

A C B LTD v. Dominico Builders Co. Ltd (1992) 2 NWLR (Pt.

223) 296
A.C.N v Lamido & Ors (2012) All FWLR (Pt 630) 1316 SC
A.M.C v. NPA (1987) 1 NWLR (Pt. 51) 475.
Abiodun Adelaja vs. Yusufu Alade(1999) 4 SCNJ 225.
Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd
(2013) 13 NWLR (pt. 1370) 91
Abowaba v. Adesina (1946)12 W. A. C. A. 18
Ace Jimona Ltd v. The Nigeria Electrical Contracting Co. Limited
S. C. 589/64-
Adamolekun v. Dike 1979 NMLR
Adebisi & Ors v. Oke (1967) N.M.L.R. 64.
Adebutu v. City Engineer (1968) I NMLR 133
Adegoke Motors v. Adesanya (1989)3 NWLR 250
Adegoroye v. Adegoroye (1996) 4 NWLR (Pt. 433) 712 .
Adekeye v. Akin Olugbade (1987) 6 S.C.N.J. 137
Adelakun v. Oruku (2006) 11 NWLR Pt. 992 p. 625 at 650,
Ademola v. Sodipo (1992) 7 SCNJ 417
Adenrele Adejumo v. Government of Lagos State (1970) I All
NLR 183
Adeoye v. Jinadu (1975) 5 S.C 102
Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398
Adetona v. Igele General Enterprises Ltd (2011) 7 NWLR (Pt
1247) 535 at 564
Adeyeye v. Ajiboye (1987) 7 SCNJ I at 22
Adjarho v. Aghoghovwia (1985)[1985] 1 NSCC 376.
Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd.
(1961) 1 All NLR 366
Agip Nigeria Ltd v. Agip Petro International & Ors (2010) 5
NWLR (PART 1187) 348 at 419 H to 420
Aigboje AIG-Imoukhuede v. Dr Patrick Ifeanyi Ubah & Ors
(2014) LPELR-23965(CA)
Aiki v. Idowu (2006) All FWLR (Pt. 293) 361 CA

viii
Aja v. Okoro (1991) 9-10 SCNJ 1 at 18
Akere v. Akere (1962) WNLR 328
Akinsanya. v. U.B.A. Ltd (1986) 4 N.W.L.R. 173
Akintola v. Solano (1986) 2 N. W. L. R. 598.
Alao v. Omoniyi (1966) N.M.L.R. 161.
Alawode and Others v. Semoh (1959) 4 FS.C. 27
Alh.Aminu Ishola v. Societe Generale Bank (Nig.) Limited (1997)
2SCNJ at 6
Alhaji Isiyaku Yakubu v. Federal Mortgage Bank of Nigeria
Limited (2014) LPELR-24188(CA)
Alhaji Saude v. Abdullahi (1989)3 N.S.C.C. 177
Alhaji Tsoho Dan Amale v. Sokoto Local Government & Ors LER
(2012) SC 290/300
Amachree & Ors v. Newington, 12 W ACA 97 ,
Ambrosini v. Tinko (1929) N.L.R. 8
American Cynamid Co. v. Ethicon Ltd. (1975) 1 All ER 504
American International Insurance Company v. Ceekay Traders Ltd
(1981) 5 SC 81 .
Amodu Rufai Shitta & Ors v Momodu Ligali & Ors, (1941) 16
NLR 21 @ 23
Amudipe v. Arijori (1978) 9-10 S. C. 27
ANPP v. Goni (2012) 7 NWLR ( Pt 1298) 147
Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR 622.
Aqua Motors v. Ondo State Sports Council (1986) N.W.L.R (pt. 91)
Ariori v. Elemo (1983)1 SC 13
Atanda v. Ajani (1989) 2 N. S. C. C. 511
Attorney General of Eastern Nigeria v. A. G Federation (1964) 1
All N. L. R. 224
Atuyeye v. Ashamu (1987)1 N.S.C.C. 117
Awhinawai v. Oteri (1984) 5 S.C. or (1984) N.S.C.C. 299
Awobiyi &Sons v. Igbalaiye Brothers (1965) 4 N.S.C.C. 123
Awojobi v. INEC (2012) 8 NWLR (Pt 1303) 528
Awoniyi v Board of Customs and Excise (1990)1 NSCC. 103
Ayiwoh v. Akorede (1951 )20 N. L. R. 4
Ayoola James v. Mid-Motors Nigeria Co. Limited (1978)11
and 12 S.C 31 at 63

ix
Ayorinde v. AG (Oyo State) (1996) 2 SCNJ 198
Balogun v. L.E.D.B. (1963) 2 All N.L.R. 80
Bambo v. Aderinola (1977) 1 SC 1 at p.6
Banwo v. A. G Leventis and Co. Limited (1960) L. L. R. 78
Barclays Bank D. C. O. v. Memunatu Hassan N. L. R. 837
Barclays Bank D. C.O. v. Olofintuyi and Anor: (1961) All
N.L.R. 799
Belgore v. Ahmed (2013) All FWLR (Pt.705) 246 at 286-287 CA;
Blay v. Solomon (1947) 12 WACA 175.
Bola Ige v. Dr Victor Omololu Olunloyo (1984)1 SCNLR, 158 or
(1984)1 Sc. 258
Bonsor v Musicians Union (1955) 3 All ER 518
Bowaje v. Adediwura (1976) 6 S.C. 143
Boyle v. Sacker (1888)39. Ch.D.249
Bradbury v. Cooper(1884) 12 Q. B. D. 94
Bronik motors Ltd v. Wema Bank (1983) 6 S.C. 158 at 168
Bruce v. Oldham Press Ltd (1939) I.K.B. (697)
Buhari v. INEC (2008) 4 NWLR (Pt 1078) 546
Bullock v. London General Omnibusco (1907) 1KB 264.
Carl Zeiss Shifting v. Rayner & Keeler Ltd (No. 3) 1970 Ch. 506
Chidiak v. Laguda 1964 NMLR 123 at 125
Chief Alimi Jagunnoye and Others v. Oba Ishmael Obafemi
(1965) NMLR 140 at 142;
Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and
Another (1984) 5 S.C.79.
Chigbu v. Tonimas (Nig) Ltd (1996) 3 NWLR Pt. 593, 115 CA
Chiwete v. Amissah(1957) LLR 104
Coker v. Adetayo (1992)6 N.W.L.R. (Pt 249)612 at 652
Cole v. Agu LD/295/69
Commissioner for Lands Mid-Western State v. Osagie and Others
(1973) 6 S.C 155
Coy. v. Michael (1975) 4 SC 143
Craig v. Craig (1966)1 ALL NLR 173;
Cunsin Nig. Ltd v. Inspector General of Police (2008) 38 WRN 48

x
D. J Perera v. Motor and General Insurance Company Ltd (1971)
1. N.M. L. R.181.
DG SSS v. OJUKWU (2006) 13 NWLR (Pt. 998) 575
Dike Geo Motors Limited & Anor. v. Allied Signal Inc. & Anor.
(2006) LPELR-9812(CA)
Dike v. Union Bank (1987) 4 NMLR 958
Doherty v. Doherty (1968) N.M. L. R. 241
Dr. Imoro Kubor & Anor v . Hon. Seriake Henry Dickson & Ors
(2012) LPELR-9817(SC); (2013) All FWLR (Pt. 392).
Eboigbe v. Nigerian Airways (1985) 1 QLRN 22;
Echo Enterprises Ltd v. Standard Bank of Nigeria Limited (1989)
Economic and Financial Crimes Commission v. Ekeocha (2008)
4 NWLR (Pt. 1106) 161
Economides v. Thomopulus and Co. Limited (1956)1 F. C. 7 at 10
Edward Attah & Ors v. Chukwurah Nnacho &Ors (1965) NMLR.
28.
EIMSKIP Ltd. v. Exquisite Industries (Nig) Ltd., (2003) 105 RCN 85
Ekinwumife v. Wayne (W.A.) Limited (1989) 5 NWLR 422 at 446.
Ekun & Ors v. Messrs Younan & Sons & Anor (1959)WRLR 190,
Enigbokan v. Akinosho 22 NLR 88
Ephraim v. Agwu FSC 15/11/60 (unreported).
Etchie v. Raji (1980) FNLR 108.
Ezomo v. Oyakhire (1985) 1 NWLR 195.
Fadare v. A.G Oyo State (1982) 4 SC 1
Falobi v. Falobi (1976) 1 NMLR 169
Fasakin Foods Ltd. v. Shosanya (2006) 10 NWLR (Pt. 987) 126
Fasel Services Ltd v. NPA (2001)11 NWLR (Pt. 723) 36 at 37
Fawehinmi v. Abacha (1996) 9 NWLR (Pt. 475) 701 at 729
Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797.,
Fawehinmi v. President FRN (2007) 14 NWLR (pt. 1054) 275.
Firth and Sons v. Delas Rivas (1893) I.Q.B. 768
Gafar v Governor of Kwara State (2007) 20 WRN 170
Gani Fawehinmi v. NBA (No.1) (1989) 2 NWLR (Pt. 105) 494 at
532.

xi
Gbadebo and Another v. Fadioriaand Anor. (unreported) W.S.
CAN/33/68 June 6, 1969
Gbagbeke Okotie v. C.O.P (1959) W.R.N.R. 2 at 5
Gbenga Adekoya v. The State (2014) LPELR-2933(CA)
Gebi v. Dahiru (2012) 1 NWLR (1282) 560
George Adumu v. The Comptroller of Prisons, Federal Prisons,
Aba & Ors (2013) LPELR-22069(CA)
George and Others. v. Dominion Flour Mills Limited (1963)1 All
N. L. R. at 72
Gibbings v. Strong (1984)26 CH. D. 66.
Government of Lagos State and Others v. Chief Emeka
Odumegwu Ojukwu and Others (1986)1 N.W.L.R Part 18 at
page 621
Governor of Kogi v. Col. Hassan Yakubu (Rtd.) (2001) 6 NWLR
(pt 710) 521
Grace Amanabu v. Alexander Okafor (1966)1 All N.L.R. 205 at
207
Grace Jack v. University of Agriculture, Makurdi (2004) LPELR
– 1587 (SC)
Green v. Green (1987) 3 NWLR (Pt. 61) 480
Haco Ltd v S.M Daps Brown (1973) 1 NMLR 158
Harkness v. Bell's Asbestos and Engineering Limited (1967)
2.Q.B. 729 at 735 .
Harriman v. Harriman (1987) 2 N.S.C.C. 930.
Hassan vs Atanyi (2002) 8 NWLR(Pt.770581
Hunt v. Worsfold (1896)2 Ch.D.224.
Ibrahim v. Balogun (1997) NWLR Pt 610 254
Idris v ANPP (2008) 8 NWLR (Pt. 1088) 1
Igbodin and Others v Ovianke (1967) 9 - 10 S.C. 179 at 191.
Ikeanyi vs. A C B Ltd (1997) 2 SCNJ 93.
Ikoku v. Oli(1962) 1 All N. L. R 194 at 199-200.
Intercontractors v. U .A. C. (1988) 2 N.W.L.R. 303 at 326
Ita & Anor v. Ekpenyong & Ors (1963) E. N. L. R. 21,
Jammal Steel Structure v. ACB Ltd (1973)1 ARNLR. (Pt. 1) 208
Jatauv. Mailafiya (1998) 1 NWLR (Pt. 535) P. 682

xii
John Holt and (Liverpool) Ltd v. Fajemirokun (1961) ALL NLR
402.
Josebson Industries Co. v. R. Lauwers Import-Export. (1988)
7.S.C.N.l 93 at 112 .
Katsina Local Authority v. Alhaji Barmo Makudawa (1969) N. N.
L. R. 62 (1971) N.M. L. R. 100
Kigo (Nig.)Ltd v. Holman Brothers (Nig) Ltd (1980) N.S.C. 251
Sken Consult v. Sekondy Ukey (1981) ISC. 6 or (1981)
N.S.C.C.1.
Kolawole v. Alberto (1989) 2 SCNJ.
Kotoye v. CBN [1989] 1 NWLR (Pt. 98) 419 at 441 and 442
Kpebimoh v. Board Of Governors Western Ijaw TTC 1966 1
NMLR 130
L. E. D. B.v. Awode (1955). N. L. R. 80.
Laibru Ltd v. Building & Civil Eng. Contractors (1962) 1 All NLR
387
Lamai v. Orbih (1980) 5-7 S.C. 28
Lateef Aminu (Attorney for Alhaji Waziri Ibrahim) v.
Amade(1977) IOCCHJ 273
lbiyemi Oduye v. Nigerian Airways (1987) 2 NWLR; (1987)
Vo1.18 N. S. C. C. 521
Leedo Presidential Motel Ltd. v. Bank of the North, (1998) 7
SCNJ 328 at 353,
Leventis Motors Limited v. G.C.S. Mbonu (1962)NMLR 19,
Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 7 SC 157
Lijadu v. Lijadu (1991) 1 NWLR (pt. 169) 627 at 644
Lion Building v. Shodipe (1976)12SC 135
Lion of Africa Insurance Co. Ltd v. Stella Anuluoha (1972)1 All
N. L. R. (pt.2)32.
lkemson v. State (1989) N.S.C.C. 471.
Internal Ministry of Affairs v. Shugaba (1982) 3 NCLR 915
Lloyd v. West Midlands Gas Board (1971) LW.L.R. 749; (1971) 2
All E.R. 1240
Madarikan J Janet Alatede v. Joseph Jeje Falode & Anor. (1966)
N.M.LR 164 or (1966) 1 ALL NLR 104

xiii
Maja v. Johnson (1951) 13 WACA194.
Maja v. Samouris (2002) 9 NSCQR 546.
Majekodunmi v. Majekodunmi (1966) WNLR 191
Mandila and Karaberis Ltd v. Yesufu Otokiti (1963)1 All NNLR. 84.
Mandilas and Karaberis Ltd v. Lamidi Apena (1969) N.M.L.R.
199.
Mareva Compania Naveira S.A. v. International Bulk Carrier Ltd.
(1975) Lloyd’s Rep 509
Martins v. Nicanner (1988) 2 N.W.L.R. 75 at 83.
Marwa v. Nyako (2012) 6 NWLR (Pt 1296) 199
Maximum Insurance Company Ltd v. Owoniyi (1994) 3 NWLR
(pt. 331) 178 at 194
Metropolitan Property Ltd v. Lannou (1969)1 QB 572.
Mini Lodge Ltd v. Ngei (2007) 4 WRN 54
Minister of Lands v. Azikiwe (1969) 1 All NLR 490.
Mobil Oil Nigeria v. Agadaigho (1988) 4 S.C.N.J. 174
Mobil Producing (Nig.) Ultd v. LASEPA & Ors. (2002) 12 SCNJ 1
Mobil v LASEPA (2003)104 LRCN 240 at 268.
Mogaji vs. Odofin(1978) 4 SC 91
Mohammed v. Husseini (1998)12 SCNJ 136 at 137
Mokelu v. Federal Commissioner for Works and Housing (1976)
1 NMLR 329 at 433
Moore v. News of the World Ltd and Another (1972) I. Q. B. 441
at 448.
Morinatu and Oduka v. Kasumu and Another (1966) N.M.L.R. 28
at 31
Mr. Charles Okechukwu & Anor v. Economic and Financial
Crimes Commission (EFCC) & Ors (2014) LPELR-24079(CA)
Mrs. Ebere Okoroafor v. Owerri Municipal Council (2014)
LPELR-22847(CA)
Mukete v. N.B. C. and Another (1961) All N. L.R. 482 .
N B. N Ltd v. Alakija [1978] ANLR 231
N M Jebara v. Mercury Assurance Co. Ltd (1972) 2 U.L.L.R. 498
N.N.P.C. v. KLIFCO Nigeria Ltd. (2011) 10 NWLR (PART 1255) 209
NALSA & Team Associates v. NNPC (1991) 11 SCNJ 51

xiv
National Bank (Nig) Limited v. Shoyoye (1977) 5 S.C. 181;
National Investment Properties v. Thompson Org. Ltd (1969)1
ALL NLR.
National Investment Properties v. Thompson Org. Ltd (1969)1
ALL NLR.
National Pension Commission v. F.G.P Ltd (2014) 2 NWLR (pt.
1391) 346
Ndaba (Nig) Ltd v. U.B.N Plc (2007) 9 NWLR (pt. 1040) 439.
NDIC v. Okem Enterprises Ltd and Another [2004] 10 NWLR (Pt.
880) 107
NEPA v. Edegbero (2002)18 NWLR (Pt. 798) 79
Ngoh v. Ndoka and Another (1960) 5 F.S.C. 90 at 92 .
Nicholls v. General Manager Nigeria Railway) 4 N.L.R. 87
Nkado v. Obiano (1997)5 SCNJ 33
NNPC v. Fama Oil Ltd (2009) 12 NWLR (pt. 1156) 462
North Brewery Ltd v. Mohammed (1972) N. N. L. R. 133
Ntufam Offiong v. Eastern Nigeria Development Corporation
(1966 - 67) 10 E.N.L.R. 162 .
Nwabueze v. Obi Okoye (1988) 4 NWL R 664 .
Nwabueze v. Nwosu (1988) 4 N.W.L.R (Pt. 88) 257.
Nwankpa Lawrence v. Dennis Ewulu (1995) 7 SCNJ 197
Nwobodo v. C.C. Onoh (1984)1S.C 1
Obanye v. Okwunwa Ijoma (1930) 10 N.L.R. 8.
Obasanjo v. Yusuf (2004) 9 NWLR (PT. 877) PG. 144 at page 221
Obeya Memorial Hospital v. Attorney-General of the Federation
& Anor (1987) 7 SC (Pt. 1) 52
Obimonure v. Erinosho (1966)1 All N.L.R. 250 .
Odi v. Osafile (1985)1 N.W.L.R. 17.
Odogiyan v. Hispanic Construction Nigeria Limited (1986) 5
NWLR (Pt39)127
Odua Investment Co. Ltd v. Talabi (1997)10 NWLR (Pt 523)1 at 52
Odumosu v. A. C. B. Ltd (1976) 1. S.C. 55, 69
Oforma vs. IBWA. (1993) 4NWLR (Pt. 285)86 at 88.
Ogbolumani v. Okobi 1959 WNLR. 11
Ogugua v. The State (1998) HRLRA 167 at 187

xv
Ogunremi v. Dada (1963)1 ALL N.L R. 663.
Ojokolobo v. Alamu (1987) 2 N.S.C.C. 991
Ojora v. Odunsi (1964) 1 ALL NLR 61
Ojosipe v. lkabala 1973 1, ALL NLR Part I at Page 128.
Okafor v. A . G Anambra State (1988) 2 N.W.L.R. 736
Okafor v. Nweke (2007) All FWLR (Pt. 368) 1016 SC
Okafor v. ACB Ltd and Another (1975) 5 Sc. 89.
Okafor v. Ikeayi(1979) 3 and 4 S.C 99
Oke v Mimiko (2013) All FWLR (Pt 693) 1853.
Okereke v. Musa Yaradua SC. 246/2007
Okereke v.Ibe (2010) All FWLR (Pt. 516) 516 CA
Okorie v. Udom (1960) 5 F. S. C. 162
Okoruwa v. The State (1975) 5 S.C. 23 at 26.
Okpala v. Iheme (1989) 2 NWLR (Pt. 102) 208 at 213-214
Olabiyi v. Abiona (1955-56) WRNLR 126
Olapeyo vs. Ajegungbada (1990) 5 SCNJ at 17
Omonuwa v. Napoleon Oshodin (1985) 2 NWLR 925
Omotunde v. Omotunde (2001) 9 NWLR (Pt. 718)252
Onayemi v. Okunubi. (1966) NMLR 50.
Onyia v. Oniah (1988) 2 S.C.N.J. 136
Onyuike v Okeke (1976) NSCC 146
Oriria v. Govt.of W.Nigeria & Ors (1971) All NLR 138 ,
Oro v. Falade (1995)5 SCNJ 10
Orukumpor v. Itebu and Ors 15 W.A. C.A 39
Osadebey vs. AG (Bendel State) (1991) I NWLR (Pt. 169) 525 at
563
Osawaru v. Ezeriruka (1978) 6-7, S.C 135 at 139 - 141.
Osawere v. Ezeruka (1987) 6-7 SC 135.
Oterial Odade v. Otowodo Okujeni & Ors 1973 1 All NLR. (Part
1)156
Owoade v. Texaco Africa Ltd (1973)4 N. S. C.C. 61
Owoniyi v. Omotosho (1951) All. N.L.R. 304(1962) WNLR. 1
Oyedeji Akanbi (Mogaji) & Others v. Okunola Ishola Fabunmi &
Other (1986) 2 56 431.
Oyekoya v. G B. Ollivant (Nig) Ltd (1969) 6 N.S.C.C. 69.

xvi
Oyeledun v. Shomoye (1960) WNLR 126.
Padawa v. Jatau (2003) 5 NWLR (Pt. 813) 247
Peenok Investment ltd. v. Hotel Presidential Ltd (1982) NSCC 477.
Perestrello Ltd v. United Paint Co. Ltd,
Polini v. Gray (1979) 12 CHD. 438
Pontin v. Wood (1962) I.Q.B. 594.
RE POWER. Lindsell v. Phillips (1885) 30 Ch. D 291.
Re, Whaley v Busfield (1886) 32 Ch D 123
Reg Trustees of CA C v. Uffiem (1999) 7 NWLR Pt 610 254
Rein v. Stein (1892) I.Q.B. 753.
Rendell v. Grundy (1895)1 Q.BB. 16 CA.
Reynolds v. Coleman (1887)36 Ch. D453. CA.
Same v. Same (1969). W. L. R. 579, (1969) 3 All E. R. 479
Samson Awoyale v. Ogunbiyi (1987) 2 N.S.C.C. 1063.
Samuel v. Samuel (1879) 12 Ch. D 152.
Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212
Sea Trucks Nig Ltd v. Anigboro (2001) SC (pt 1) 56
Shodeinde and Others v. Registered Board of Trustees of the
Ahmadiya Movement in Islam - (1980) 1-2 SC 163
Sken Consult v. Sekondy Ukey (1981) ISC. 6 or (1981) N.S.S.C.I.
Sodeke & Ors v. Pelu & Ors (1979)3 LRN 227.
Sodipo v. Lemminkkainen (1985) 2 N.W.L.R. Part 8 page 1.
Sotiminu v. Ocean Steamship (1992) 5 SCNJ 1
Sowole v. Erewunmi(1961) All N L.R.712.
SPDC (Nig) Ltd v. Amadi (2011) 14 NWLR (pt. 1266) 157
Stallworthy v. Geddis(1909) 28 N. Z. L. R.366.
The British India Insurance Company (Nigeria) Limited v.
Thawroles (1978) 35. S C. 143
The Commissioner of Police, Abia State & Ors v. Uzomba Okara
& Ors (2014) LPELR-23532(CA)
Trow v. lnd Coope Ltd (1967) 3 S .l. R.633.
Tukur v. Government of Gongola State (1989) 3 NSCC 225.
Tukur v. Government of Taraba State (1997) 6 NWLR (510) 549
Tukur v. Governor of Gongola State (1988) 1 NWLR (Pt 68) p. 39

xvii
Tunji Gomez & Anor. v. Cherubim and Seraphim Society & Ors,
(2009) 10 NWLR (pt. 1149) 223
U B. A. Limited and 3 ors v. Dike Nwora (1978) 11-12 SC.
UA.C. (Technical) Limited v. Anglo Canadian Cement Ltd (1966)
N. M. L. R. 349
Uchendu v. Ogboni (1999) 4 SCNJ 64 at 76
Udoh v. Udoh (Unreported) Civil Suit NO.1/1 86/68 September 10,
1970
Ugba v PDP (2013) All FWLR (Pt 686) 544
Ugochukwu v. CCB (1996) 7 SCNJ 22
Ukegbu v. NBC (1997) 14 NWLR (Pt. 1055) 551 at 579
Uku v. Okumagba and Others (1974) 3. S.C. 35
Umar v Governor of Kano State (2006) All FWLR Pt 322 1516 CA
Ume v. Ifediora (2001) 18 NWLR (Pt. 714) 37 at 39.
Unakalamba v. C.O.P (1958) 3 FS.C. 7
Uniport v. Kraus Thompson Org. Ltd (1999) 1 N.W.L.R. (Pt.
625)93 at 94.
United Spinners Ltd v. Chattered Bank Ltd (2001) 14 NWLR (pt.
732) 195
Universal Trust Bank Ltd v. Dolmetch Pharmacy (Nig) Ltd (2007)
42 WRN 1
University of Lagos v Aigoro (1984)11 SC 152
University of Uyo & Ors v. Dr. Edet P. Akpan (2013) LPELR-
19995(CA)
Uturu v. Chima Anyaibe (1996) 1 NWLR (Pt. 439) 646 at 660-
661
Vaswani Trading Co. v. Savalakh and Co (1972) 12 SC. 77.
Vaswani v. Savalakh (1972) All NLR 922.
Vincent Bello vs. Magnus Ewek (1981) 1 SC 101
Wada Darma v. Lion of Africa Insurance Co. (1970) NNLR. 84.
Wada v. Kebbi (1962) 2 All N L. R. 73
WAEC v. Akinkunmi (2008) 9 NWLR pt. 1091, 151
Wanner v. Sampton (1959) 1 Q. B. 297, 310
Western Nigeria Housing Corporation v. Odeyemi 1/199/04
dated 2/2/66.

xviii
Western Steel works Ltd v. Iron & Steel workers Union (1986) 3
NWLR (Pt. 30) 617
Williams v. Daily Times (1990)1 N.S.C.J. 15.
Williams vs. Hope-Rising &Voluntary Funds Society (1982)2 SC
145-657
Wilson Electric Transfer Men Co. Ltd v. Electricity Commission
of New South Wale s 1968 VR. 880.
Woluchem and Ors v. Gudi and Ors (1981) 5SC 291 at 320,
(1981) NSCC. 214 at 227
Woluchem v. Wokoma (1974)3 SC 153.
Yassin v. Barclays Bank D. C. O. (1968) NMLR 380, OR (1968)
NMLR 46
Yesufu v. Cooperative Bank (1989) 2 N.S.C.C. 489

xix
LIST OF ABBREVIATIONS
A.C Appeal Cases
All ER All England Report
All NLR All Nigeria Law Reports
CCHCJ Cyclostyled Copies of High Court Judgements
C.L.R Commonwealth Law Reports
COX Cox’s Equity
Cr. App. R. Criminal Appeal Reports
East, P.L.C East Term’s Reports, Privy Council
ECSLR East Central State Law Reports
ENLR Eastern Nigerian Law Reports
ERNLR Eastern Region of Nigeria Law Reports
FNR Federation of Nigeria Reports
FRCR Federal Revenue Court Reports
FSC Federal Supreme Court
K.B King’s Bench
L.L.R Lagos Law Reports
LRN Law Reports of Nigeria
LR, PC Law Reports, Privy Council Appeals
MJSC Monthly Judgement of the Supreme Court of
Nigeria
MNLR Mid- Western Nigeria Law Reports
NCLR Nigeria Constitutional Law Reports
NCR Nigeria Criminal Reports
NLR Nigeria Law Reports
NMLR Nigeria Monthly Law Reports
NNLR Northern Nigeria Law Reports
NRNLR Northern Region of Nigeria Law Reports
NWLR Nigeria Weekly Law Reports
Q.B Queen’s Bench
QBD Queens Bench Division
SC Supreme Court
SCNJ Supreme Court of Nigeria Judgements
SCNLR Supreme Court of Nigeria Laws Reports.
TLR Times Law Reports
Vict. LR Victoria Law Reports
WACA West African Court of Appeal
WLR Weekly Law Reports
WLRN Weekly Law Report of Nigeria
WN Weekly Notes
WNLR Western Nigerian Law Reports
WRNLR Western Region of Nigeria Law Reports

xx
CURRICULUM FOR BAR PART II VOCATIONAL
EXAMINATION

THE CURRICULUM

1. Introduction
The focus of the curriculum is the achievement of a set of
outcomes at the end of the training. This curriculum intends
to make the students the centre of the learning process.
Students must be ready to prepare for lessons, by
undertaking reading assignments, exercises, tasks, role
plays, etc. as would be indicated by the tutors from time to
time. Any student who fails or neglects to carry out
assignments would be deemed not to have participated in
the class. Students should not expect that tutors would
come to the class and merely “fill” them up with
knowledge by merely dictating or repeating lines and lines
of pages of books, statutes and case reports. Every student
shall be required to fully participate in class.

2. Duration
There would be:
i. 2 weeks of induction (including a week of case
studies and mock trials);
ii. 20 weeks lecture contact;
iii. 1 week mock trials;
iv. I week of private revision before bar examination;
v. 10 weeks of Court and Law Firm attachment
(Placement clinic);
vi. 3 weeks of Attachment portfolio assessment and
evaluation;
vii. 1 week of bar final examination.

3. The 20 weeks of lectures

There would be a maximum of 4 hours teaching time per
day of 5 days of the week. This would give a total of 400
1
hours. Each day would be devoted to a specific module as
shown in the integrated curriculum composite above.

4. Delivery Mode
Delivery would be through interactive workshops. It is
hoped that the workshops would progressively be held in
small groups in line with best practices in legal education
and staff-students standard ratio.

There would be no special period set out as tutorials.

Lessons shall be presented in a way to integrate learning in
the modules with values, ethics and skills. This would give
students the opportunity to understand how ethics work in
real life and demonstrate the skills relevant to the daily
application of the subjects of the modules in practical law.

Lessons would take the form of interactive framework

teaching, discussions, simulation clinics and activities, role
plays, video demonstrations, mock trials, drafting
exercises, assignments, quizzes and tests, presentation by
guest lecturers etc. All sessions would not be passive
lessons for students. Students would be expected to
participate. Teachers shall be expected to use and adhere to
the lesson plans provided for each module as shown below
for the sessions and provide stimulating activities and
opportunities to make students participate.

Projector slides and power point presentations will be used

in the sessions. In addition, video camera and tapes may be
used for effective feedback and reviews by tutors and
students themselves.

Students should be given before any lesson, materials and

exercises or given instructions on the materials that need to
be seen before any class.

2
5. Assessment
There would be continuous assessment throughout the
course in addition to the Bar final examination. There
would be a special portfolio assessment of the court and
law office attachment (placement clinic). A student must
score not less than 70% at the portfolio assessment to be
eligible for call to the bar irrespective of the candidate‟s
score at the bar examination.
There will be a summative examination in the Civil
Litigation Module.

3
CIVIL LITIGATION COURSE CONTENTS
1. Methods of civil dispute resolution
2. Sources of civil procedure
3. Courts with civil jurisdiction
4. Parties
5. Pre-action issues
6. Commencement of Action in Magistrate and High
Courts
7. Pleadings
8. Interlocutory Applications
9. Summary Judgment Procedure
10. Pre-trial issues & proceedings
11. Trial: Evidence, Preparation of witnesses,
Examination of witnesses, Closing address and
Judgment
12. Enforcement of judgment
13. Applications Pending Appeal
14. Appeals
15. Special causes and procedure- Recovery of
premises; Procedure for enforcement of
fundamental rights; Matrimonial causes; Election
petitions.
16. Costs and Sanctions

General Learning outcomes

1. Methods of civil dispute resolution

Students should be able to demonstrate a clear
understanding of the various methods of civil dispute
resolution-litigation, ADR options etc.

2. Sources of civil procedure

Students should be able to:
i. Identify and explain the sources of civil procedure
and discuss the relevance of each source to civil
processes; and
4
ii. explain and discuss the aims, scope and application
of rules of court.

3. Courts with civil jurisdiction

Students should be able to:
i. demonstrate an understanding of the appointment
and removal of Judges;
ii. explain & discuss the meaning and scope of civil
jurisdiction of the courts and how to apply it in
practice; and
iii. identify the appropriate court to approach in a given
case or situation.

4. Parties
Students should be able to demonstrate a clear
understanding of:
i. persons who can sue and be sued at law;
ii. the appropriate parties in respect of any cause of
action; and
iii. the procedures for bringing proceedings by or
against various classes of parties.

5. Pre-action issues and Commencement of Action

i. Students should be able to demonstrate a clear
understanding of:
a. various matters that need to be considered before
commencing or defending an action such as
limitation periods, pre-action notices/conditions
precedent, litigation costs, the appropriate venue for
an action, exhaustion of available remedies,
availability of alternative dispute resolution method,
and pre-action counselling, etc.
b. how different types of proceedings are commenced;
c. the steps to take to initiate or contest actions;
d. the ethical consideration of not instituting frivolous
actions or avoiding abuse of Court process;
5
e. how court documents are brought to the notice of the
other party; and
f. the principles governing the issue and renewal of
originating processes.
ii. The students should also be able to complete
originating processes forms and draft different types
of originating processes.

6. Pleadings
i. Students should be able to demonstrate a clear
understanding of the rules relating to various
pleadings.
ii. Students should also be able to draft different types
of pleadings and explain when to file different types
of pleadings.

7. Interlocutory Applications
Students should be able to:
i. demonstrate a clear understanding of the different
applications that can be made during the currency of
an action;
ii. explain the necessary steps for obtaining
interlocutory relief;
iii. explain the procedure for applying for an injunction;
iv. apply the principles governing the grant or refusal of
an injunction in a given case;
v. explain the meaning and consequences of
undertakings given during Injunction cases; and
vi. draft and argue simple motions

8. Summary Judgment Procedure

i. Students should be able to demonstrate a clear
understanding of:
a. the procedures for obtaining different summary
judgments under the rules; and

6
b. how to apply for summary judgments in the various
jurisdictions.
ii. Students should be able to draft and argue
applications for summary judgments.

9. Pre-trial issues and Proceedings

Students should be able to:
i. explain and discuss the principles relating to-
a. proceedings in lieu of demurrer & striking out of
pleading where no reasonable cause of action is
disclosed;
b. consolidation and deconsolidation of actions;
c. interrogatories;
d. discovery of documents;
e. inspection of documents;
f. notices to admit; and
g. settlement of issues.
ii. explain and discuss the general principles,
objectives, and scope of-
a. pre-trial Conference and scheduling; and
b. Setting down for trial.

10. Trial: Evidence, Examination of Witnesses, Closing

Address and Judgment.
Students should be able to demonstrate a clear
understanding of:
i. the necessary steps or proceedings to be taken
preparatory to trial;
ii. case analysis / case theory/trial plan;
iii. rules of evidence as to-
a. competence and compellability of witnesses;
b. burden and standard of proof;
c. admissibility of documentary evidence and
necessary foundation to be laid for that purpose;
d. use of primary and secondary evidence;
e. opinion evidence and expert witness.
7
iv. how to prepare witnesses for trial;
v. the procedure for presentation of a party‟s case at
the trial;
vi. the use of subpoenas and witness summons;
vii. how to treat witness statements;
viii. principles & rules of examination of witnesses;
ix. ethical issues involved in trial;
x. the requirement of a valid judgment;
xi. the various types of judgment; and
xii. when a judgment is defective for purposes of appeal.

11. Enforcement
Students should be able to:
i. demonstrate a clear understanding of the various
methods of enforcing court judgments;
ii. explain the procedure for enforcement of judgments
intra state, inter-state, outside Nigeria and the
enforcement of the judgment of a foreign court in
Nigeria; and
iii. complete and draft necessary forms for the purpose
of enforcement of judgments, e.g., writs of
execution, garnishee proceedings and writ of
possession.

12. Applications Pending Appeal

Students should be able to:
i. demonstrate a clear understanding of the principles
and procedures for preservation of the subject matter
of a proceeding pending appeal; and
ii. draft applications for stay of execution and
proceeding.

13. Appeals
Students should be able to demonstrate a clear
understanding of:

8
i. the constitutional and procedural requirements for
exercising right of appeal; and
ii. the ethical consideration when filing or defending an
appeals.

14. Recovery of Premises

Students should be able to:
i. explain and discuss the general principles including
the courts that exercise jurisdiction for the recovery
of possession of premises;
ii. state and discuss the material facts to be proved for
recovery of possession of premises and the
procedure for recovery; and
iii. draft a notice to quit, notice to tenant of owner‟s
intention to recover possession of premises, and a
writ or plaint commencing an action for recovery of
possession of premises.

15. Matrimonial causes

Students should be able to:
i. explain and discuss the general principles including
the courts that exercise jurisdiction for Matrimonial
petitions;
ii. state and discuss the content and material facts to be
pleaded and proved in matrimonial causes petition
and explain the procedure and sequences of events
up to the conclusion of trial; and
iii. draft a matrimonial cause petition and reply.

16. Election Petition

Students should be able to:
i. explain and discuss the general principles including
the courts that exercise jurisdiction for Election
petitions;
ii. state and discuss the content and material facts to be
pleaded and proved in election petition cases and
9
explain the procedure and sequences of events up to
the conclusion of trial; and
iii. draft an election petition and reply.

17. Enforcement of Fundamental Rights

Students should be able to:
i. explain and discuss the general principles, procedure
and scope of Fundamental Rights Enforcement
Procedure Rules;
ii. draft applications under the Fundamental Rights
Enforcement Procedure Rules; and
iii. explain the similarities and differences between
Fundamental Rights Enforcement Procedure Rules
and Judicial Review/Writ of Habeas Corpus.

18. Costs and Sanctions

Students should be able to list, explain, and discuss the
principles, scope and application of costs and sanctions in
civil litigation.

LESSON PLAN
WEEK 1- INTRODUCTION PROGRAMME FOR
NEW STUDENTS

WEEK 2- MOCK TRIALS FOR NEW STUDENTS

Note: Students attention should be drawn to Week 3
Pre-class activities.
WEEK 3- OVERVIEW AND INTRODUCTORY
MATTERS
Contents
1. Overview of the civil litigation course
2. Introduction to Civil dispute resolution mechanisms-
litigation, ADR processes
3. Sources of civil procedure

10
4. Courts with Civil Jurisdiction, including
introduction to ECOWAS Court and contextualising
the problem of jurisdiction
5. Ethical issues arising from improper use of the rules
of court and wrong choice of court

Outcomes
At the end of the lesson, the students would be able to:
i. discuss the scope of the Civil Litigation course;
ii. identify and explain the sources of Civil Procedure
and discuss the relevance of each source to Civil
Processes;
iii. discuss the different civil disputes settlement
mechanisms;
iv. explain and discuss the aims, scope and application
of rules of court;
v. explain and discuss the meaning and scope of the
Civil Jurisdiction of the courts and how to apply it in
practice;.
vi. identify the appropriate court to approach in a given
case or situation; and
vii. discuss the ethical implications relating to wrong use
of rules of court and wrong choice of court as well
as consequential sanctions.

Activities before class

1. Students are required to read the topics in advance;
read the constitutional provisions on jurisdiction and
case studies 1 and 2 provided in chapter 18.
2. Students are also required to read some case law on
the problem of jurisdiction generally and jurisdiction
between the High Court of States and that of the
Federal High Court including the ECOWAS Court.
The cases should include the following: NEPA v.
Edegbenro [2002] 18 N.W.L.R. pt. 798, p. 79;
Onuoha v KRPC Ltd [2005] 6 NWLR pt. 921 p.393;
11
[2005] FWLR pt. 256, p.1356; Grace Jack v
University of Agriculture Makurdi [2004] NWLR pt.
865 p. 208; Tukur v Government of Gongola State
[1989] 4 NWLR pt. 117 p. 517; NDIC v Okem
Enterprises Ltd [2004] 10 NWLR pt. 880 p. 107;
Adetona v Igele General Enterprise Ltd (2011) 7
NWLR (Pt 1247) 535; and Wema Securities
&Finance Plc v Nigerian Agricultural Insurance
Corporation (2015) 16 NWLR (Pt 1484) 93. Tutor
would provide additional list of these cases to be
studied in advance.
3. Each student should prepare a list of the ethical
issues arising from wrong use of the rules of court
and the wrong choice of court and the consequential
sanctions.
4. Students should make a list of different dispute
settlement mechanisms.
5. Each student to make notes listing all the civil courts
and the scope of their jurisdiction including
Customary Courts/Customary Courts of Appeal and
Sharia Courts of Appeal.
6. Each student should draw a table correlating the
courts with rules and the sources of the rules.

Activities in class
1. Tutor presents an overview of the civil litigation
course/questions and answers – 30 minutes.
2. Tutor presents an overview of sources of civil
procedure generally and particularly of Rules of
court and its aims. And tutor requests students to
identify civil procedure Rules known to them and
their sources; Teacher fills in the blanks. - 30
minutes.
3. Students make presentations on different dispute
settlement mechanisms and a comprehensive list is
drawn up- 30 minutes.
12
4. Students present table correlating the courts with
Rules and the sources of the Rules-30 minutes.

15 Minutes Break

5. Tutor presents an overview of the issues of

jurisdiction generally and jurisdiction between the
Federal High Court and High Court of States with
questions and answers. The discussion should
include comparison of cases such as NEPA v
Edegbenro [2002] 18 N.W.L.R. pt. 798, p. 79.,
Onuoha v K.R.P. C. Ltd [2005] 6 N.W.L.R. pt. 921
p. 393; [2005] All FWLR Pt. 256, 1356; BPE v.
National Union of Electricity Employees (2010) and
Osakwe v. FCE Asaba and cases such as ; Grace
Jack v University of Agriculture Makurdi; Tukur v
Government of Gongola State, Adetona v Igele
General Enterprise Ltd and Wema Securities &
Finance Plc v Nigerian Agricultural Insurance
Corporation (NAIC)- 45 minutes.
6. Students are presented with questions/exercises
requiring them to identify the appropriate courts
having jurisdiction from different perspectives of
case studies 1 and 2. The questions/exercises should
be done in groups and sample answers taken by the
tutor and general discussions follow-45 minutes.
7. Sample presentation and discussion on ethical issues
and sanctions arising from wrong use of rules and
choice of court- 20 minutes.
8. Assessment- questions and answers- 10 minutes.
(NB: Students’ attention should be drawn to
Week 4 Pre-class activities).

13
WEEK 4 – PARTIES TO A CIVIL SUIT
Contents
1. Types of parties; Capacity to sue and be sued;
Classes of legal persons; Representative actions and
procedure.
2. Joint plaintiffs/Joint defendants.
3. Class actions.
4. Joinder/Misjoinder of parties; Alteration of parties;
Survival of parties.
5. Third party notice or proceedings.
6. Ethical issues involved in acting for and against a
party in litigation under duties of lawyer to client,
courts, the state and the legal profession.

Outcomes
At the end of the lesson, the students would be able to:
i. state the persons that can sue and be sued at law,
select the appropriate parties in respect of any cause
of action and discuss the capacity in which parties
sue or are sued, and explain the effects of suing or
being sued in a wrong capacity;
ii. explain the procedures for bringing proceedings by
or against various classes of parties and
representative suits;
iii. discuss the scope of class actions;
iv. explain the procedure for joinder and alteration of
parties;
v. discuss the principles and scope of third party
proceedings.
vi. draft the various applications on parties; and
vii. identify and discuss ethical issues involved in acting
for and against a party in litigation under duties of
lawyer to client, courts, the state and the legal
profession.

14
Activities before class
1. Students would be required to read the topic in
advance of the lesson and the cases provided by
tutor, such as Green v Green and Mobil v LASEPA.
2. Students should make a list of types and various
classes of parties and persons that can sue or be sued
at law.
3. Students should make a short note on the meaning
and scope of class actions under the Lagos State
Civil Procedure Rules.
4. Students should prepare their opinion on joinder and
alteration of parties using Case Study 2 and come to
class with same.
5. Students should bring to class precedent copies of
applications for joinder or alteration of parties and
third party proceedings application.
6. Students should prepare 3 applications using case
study 2 and bring them to class, namely:
a. Joinder of NDIC as a co-defendant;
b. striking out the name of NDIC as co-defendant
assuming they were originally joined as party;
c. joining ABC Insurance PLC (the company that
insured the consignment).
7. Students should make a list of likely ethical issues
that may arise in acting for and against a party in
litigation under duties of lawyer to client, courts, the
state and the legal profession.

Activities in class:
1. Tutor gives an overview of Nos. (i) to (iii) outcomes
and presents hypothetical or real cases on (i) to (iii)
outcomes and students discuss the cases in their
groups and sample presentations and discussions
follow – 50 minutes.

15
2. Tutor presents different causes of actions and
scenarios for students to identify proper parties – 30
minutes.
3. Tutor gives an overview on the procedure for
joinder and alteration of parties and students present
their opinion on joinder and alteration of parties
using Case Study 2 – 40 minutes.

15 MINUTES BREAK

4. Tutor gives an overview on the principles and scope

of third party proceedings – 20 minutes.
5. Students present the 3 applications namely:
a. joinder of NDIC as a co-defendant;
b. striking out the name of NDIC as co-
defendant assuming they were originally
joined as party;
c. joining ABC Insurance PLC (the company
that insured the consignment)- 40 minutes.
6. Short Quizzes are given to students on likely ethical
issues and discussions follow –40 minutes.
7. General assessment – 20 minutes (NB: Students’
attention should also be drawn to Week 5 Pre-
class activities).

WEEK 5
1. PRELIMINARY MATTERS: PRE-ACTION
ISSUES
2. COMMENCEMENT OF ACTIONS IN THE
MAGISTRATE COURT
Contents
1. Preliminary consideration before commencing an
action or defending an action viz: limitation periods,
pre-action notices/conditions precedent, locus
standi, the appropriate venue for an action, cause of
action, exhaustion of available remedies and their
16
effect on the jurisdiction of a court, litigation costs,
availability of alternative dispute resolution method
and pre-action counselling, ethics against frivolous
actions or avoiding abuse of court process.
2. Reflections on the relevance to the preliminary
considerations of matters such as interviewing and
counselling skills, letter writing, duty to client,
accountability, cost and charges.
3. Commencement of action in the Magistrate Court.

Outcomes
At the end of this lesson students would be able to:
i. discuss and explain various matters that need to be
considered before commencing or defending an
action, such as limitation periods, pre-action
notices/conditions precedent, litigation costs, the
appropriate venue for an action, exhaustion of
available remedies, availability of alternative dispute
resolution method and pre-action counselling, cause
of action, remedies, ethics against frivolous actions
or avoiding abuse of court process;
ii. identify preliminary issues in case studies;
iii. discuss the relevance to the preliminary
consideration of subjects such as interviewing and
counselling skills, letter writing, duty to client,
accountability, cost and charges; and
iv. explain the general principles and procedure for
commencing actions in the Magistrates Court of
Lagos State and the procedure before the Small
Claims Courts.

Activities before class

1. Students should read case studies 1 and 2 in addition
to other case studies to be provided by the tutor and
identify in writing the preliminary issues in the case
studies.
17
2. Students should prepare pre-action counselling
certificates and bring samples to class.

Activities in class
1. Tutor gives an overview of general principles and
the procedure for commencing actions in the Lagos
State Magistrate Court including the procedure in
the Small Claims Courts – 30 minutes.
2. Students and Tutor brainstorm on the relevance to
the preliminary issues of subjects such as
interviewing and counselling skills, letter writing,
duty to client, accountability, cost and charges – 30
minutes.
3. Presentations of pre-class assignments are made by
students and discussions follow. Discussions to
cover most preliminary issues whether identified in
the cases or not – 60 minutes.

15 MINUTES BREAK

4. Tutor presents quiz on general principles and

procedure for commencing actions in the Lagos
State Magistrate Court and procedure at the Small
Claims Courts.- 40 minutes.
5. Using modified case study 1 (modified by the tutor),
students complete a Claim (provided to students) to
commence an action. Sample presentations and
discussions follow – 40 minutes.
6. General assessment – 20 minutes
(NB: Students’ attention should also be drawn to Week
6 Pre-class activities).

18
WEEK 6 – COMMENCEMENT OF ACTIONS IN
THE HIGH COURT
Contents
1. Form and mode of commencement of action
2. The concept of frontloading
3. Issue of originating processes
4. Service of originating process
5. Renewal of originating process
6. Effect of non-compliance
7. Appearance and default of appearance
8. Ethical issues that arise from the conduct of a lawyer
in commencing an action in court.

Outcomes
At the end of the lesson students would be able to:
i. explain how different types of proceedings are
commenced and the steps to take to initiate or
contest actions and the effect of noncompliance;
ii. complete writs of summons and list documents that
should be frontloaded using Case studies 1 and 2;
iii. explain how court documents are brought to the
notice of the other party; review and critique sample
affidavit of service;
iv. discuss the principles governing the issuance and
renewal of originating processes;
v. discuss and explain the principles governing
appearance and default of appearance;
vi. discuss ethical issues that arise from the conduct of a
lawyer in commencing an action in court.

Activities before the class

1. Students in a composite table make a list of different
types of proceedings and the form used to
commence each type of proceedings.
2. Students are to be given in advance duly completed
sample writ of summons and requested to read in
19
advance Orders 1-10 High Court civil procedure
Rules Lagos and Abuja.
3. Students are to read in advance, Case Studies 1 and
2 and complete 2 writs of summons in advance
using the 2 case studies. Students are required to
come to class with e-copies of their completed writ
of summons; they should also produce a list of
document necessary to be attached on each of the 2
completed writs using the case studies. Students
should be required to have these documents in a file.
4. Students are to make a list of steps to be taken by
either party (including filing appearance) after the
issuance of a writ of summons and the consequences
of failure to take any of the steps.
5. Students are to make a list of the Rules of
Professional Conduct that may arise from the
conduct of a lawyer in commencing an action in
court.

Activities in class
1. Tutor presents an overview of commencement of
action in the High Court– 45 minutes.
2. Tutor presents quiz on different types of proceedings
and the form used to commence each type of
proceedings – 30 minutes.
3. General discussions on service of documents, issues
and renewal of originating processes and a review of
a sample affidavit of service presented by the tutor –
45 minutes.

15 MINUTES BREAK

4. Students make sample presentation of completed

writs and lists of documents to be frontloaded with
justifications for listing the documents shown;
Discussions on presentations follow -60 minutes.
20
5. Students present list of steps to be taken by either
party (including filing appearance) after the issue of
a writ of summons and the consequences of failure
to take any of the steps and discussions follow- 25
minutes.
6. Students present list of the Rules of Professional
Conduct that may arise from the conduct of a lawyer
in commencing an action in court – 25 minutes.
7. Assessment: questions and answers – 10 minutes

(NB: Students’ attention should also be drawn to Week

7 Pre-class activities).

WEEK 7 – INTERLOCUTORY APPLICATIONS

Contents
1. Meaning of interlocutory applications
2. The principles and scope of examples of
interlocutory applications and relief like Interim and
interlocutory injunctions, Mareva Injunction, Anton
Piller injunction; and interpleader.
3. The meaning, types and contents of a motion.
4. Affidavit evidence.
5. Drafting and arguing simple motions (affidavits in
support inclusive).
6. Ethical issues involved in abuse of ex-parte
injunctions, swearing of affidavits by counsel,
suppression of facts in ex parte applications.

Outcomes
At the end of this lesson students would be able to:
I. explain the meaning of interlocutory applications
and list examples;
II. explain and discuss the principles and scope of
examples of interlocutory applications and relief like
Interim and interlocutory injunctions, Mareva
Injunction, Anton Piller injunction; and interpleader;
21
III. explain the meaning, types and list the contents of a
motion;
IV. discuss the principles regarding affidavit evidence;
V. draft and argue simple motions (affidavits in support
inclusive); and
VI. discuss ethical issues involved in abuse of ex-parte
injunctions, swearing of affidavits by counsel, and
suppression of facts in ex parte applications.

Activities before class

1. Students are to read the topic in advance of the
lesson including case law, the case studies, and
examples of drafted motions and interlocutory
applications. Students are to bring to class precedent
samples of motions and interlocutory applications.
2. Students are to make notes on the: (a) meaning of
interlocutory applications and list examples; (b) the
principles and scope of examples of interlocutory
applications and relief like, Interim and interlocutory
injunctions, Mareva Injunction, Anton Piller
injunction; and interpleader; (c) the meaning, types
and the contents of a motion; (d) the principles
regarding affidavit evidence.
3. Students are to read the NJC Judges‟ rule on ex
parte applications and make a list of decided cases
where abuse of ex parte applications was discussed.
4. Students are to be paired to prepare in advance
motions for interim and interlocutory injunctions.
Using the case studies, a set of students draft motion
for interim injunction (case study 2) while the other
set draft a motion for interlocutory injunction(case
study 1). Set 1 students hand over the motion for
interim injunction to set 2 students while set 2
students hand over their motion for interlocutory
injunction to set 1. Set 1 students draft an affidavit
in opposition to the motion for interlocutory
22
injunction while set 2 students acting as judges
prepare ruling/judgment on the motion for interim
injunction. The application for interlocutory
injunction should also be accompanied with an
address of not more than one page. All students are
to come to class with an e-copy of their motions,
counter affidavit, addresses and judgment.

Activities in the class

1. Students and Tutor discuss meaning of interlocutory
applications and list examples – 30 minutes.
2. Students and Tutor discuss the principles and scope
of interim and interlocutory injunctions, Mareva
Injunction, Anton Piller injunction and interpleader
– 60 minutes.
3. Brainstorm/discussions on ethical issues involved in
abuse of ex-parte injunctions, swearing of affidavits
by counsel, and suppression of facts in ex parte
applications. Discussion should be supported with
Rules and case law– 30 minutes.
15 MINUTES BREAK
4. Students and Tutor discuss the meaning, types and
list the contents of a motion, and the principles
guiding affidavits and affidavit evidence, tutor
assisting – 40 minutes.
5. Presentations of the motions already prepared by
students before class are made by way of moving the
motion and opposition arguments/the student-
judges‟ rulings are presented and general
discussions follow – 1 hour 20 minutes.
6. Assessment: Questions and answers/Quiz – 30
minutes
(NB: Students’ attention should also be drawn to Week
8 Pre-class activities).

23
WEEK 8 – SUMMARY JUDGMENT PROCEDURE
Contents
1. Summary Judgment Procedure
2. Types of summary judgment
3. Default judgments
4. Undefended list procedure (Abuja)
5. Summary judgment – Order 11 and 13 procedure
(Abuja and Lagos)
6. Duty of a lawyer in a summary judgment procedure

Outcomes
At the end of this lesson Students would be able to:
i. list types of and explain the scope of the principles
of summary judgments;
ii. explain the procedures for obtaining different
summary judgments under the rules and distinguish
summary judgments from default judgments;
iii. draft and argue applications for summary
judgments; and
iv. discuss the ethical duties of a lawyer in a summary
judgment procedure.

Activities before class

1. Students read the subject in advance of the class
including the Rules of Lagos and Abuja relating to
summary judgment/procedures.
2. Students in a composite table make a list of the
distinguishing factors (comparatively) between
undefended list of Abuja FCT High Court Rules and
Order 11 and 13 summary judgment procedures of
Abuja and Lagos High Court Civil Procedure Rules
respectively. Students are to bring e-copies of the
composite table to the class.
3. Students make a list of different types of default
judgments.

24
4. Students should be paired to exchange applications
for summary judgment using case study 1. Using the
case studies, a set of students draft application for
summary judgment in the undefended list (case
study 1) while the other set draft application for
summary judgment under Order 11(case study 1).
Set 1 students hand over their documents to set 2
students while set 2 students hand over their
documents to set 1. Set 1 students draft documents
in opposition to the documents served on them while
set 2 students do the same. Students must provide all
the documents required by the rules and the
presentation in the class would be through power
point slides. So e-copies are to be brought to class.
5. Students should prepare in writing ethical issues that
may arise and the ethical duties of a lawyer in such
cases in a summary judgment procedure.

Activities in class
1. Tutor gives an overview of lesson- 30 minutes.
2. Students present the composite table comparing
undefended list procedure and Order 11/13 summary
judgement procedure; and a list of different types of
default judgments - 30 minutes.
3. Using the writ of summons produced by students in
WEEK 6 and case studies 1 and 2 students are
grouped to discuss the application of different
summary judgment procedures and the
consequences of any step to be taken- 25 minutes.
4. Sample presentations are made by groups and
discussions follow – 30 minutes.
5. Assessment: Questions and answers - 5 minutes.

15 MINUTES BREAK

25
6. Some students are made to argue their cases for
summary judgment. The rest of the students listen as
Judges and write short judgments/ruling- 60
minutes.
7. 10 minutes interval for students to conclude their
judgments/ruling (at this stage the structure of the
judgment would not be in issue). Students present
their judgments and discussions follow- 30 minutes.
8. Students present ethical issues that may arise and the
ethical duties of a lawyer in such cases in a
summary judgment procedure – 20 minutes.
9. Assessment: questions and answers – 10 minutes.

(NB: Tutor also presents WEEK 9 pre-class activities

and take home assignment on the subject PLEADINGS –
References (including books and case law) for advance
reading; case studies. Students are paired to use the 2 case
studies and exchange pleadings in advance of the class on
PLEADINGS, one person acting as plaintiff in case 1 and
the other acting as plaintiff in case 2 and the pleadings to
be typed. Students also are to be given a precedent
statement of claim and statement of defence and they
would be required to individually read them and write in
typed form a one page opinion on the precedent pleadings.)

WEEK 9 – PLEADINGS
Contents:
1. Functions of pleadings
2. Drafting of pleadings - Content of pleadings; Facts
that must be specifically pleaded; Raising Points of
Law in pleadings (See Order 17 Lagos and Order 23
Abuja); Formal requirement of pleadings; What will
amount to General traverse, Specific Denial,
Admission of facts, Negative pregnant traverse,
Confession and avoidance, Set –Off and Counter
claim.
26
3. Filing and service of pleadings; When to file a reply,
reply and defence to counterclaim; Default of
pleadings and close of pleadings.
4. Amendment of pleadings, and procedure for
amendment
5. Filing further and better particulars of pleading.
6. Value: professional responsibility to disclose all
necessary facts so as not to mislead the Court or the
opposing Counsel; need not to plead untrue or
frivolous facts. See Orders 17 – 19; 21 and 23 Lagos
State High Court Civil Procedure Rules; Orders 15-
18 20–21, 23 & 25 High Court of FCT Abuja Civil
Procedure Rules.

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the principles relating to the
functions, and drafting of pleadings;
ii. explain the procedures for filing, service, close and
default of pleadings, amendment and filing further
and better particulars;
iii. draft pleadings (and observing ethics and rules of
professional responsibilities in Drafting pleadings);

Activities before class

1. Students make notes on the functions and principles
for drafting pleading; procedure for filing, service,
close and default of pleadings, amendment and
filing further and better particulars.
2. Students are paired to use the 2 case studies and
exchange pleadings in advance of the class on
PLEADINGS, one person acting as plaintiff in case
1 and the other acting as plaintiff in case 2 and the
pleadings to be typed. Students also are to be given a
precedent statement of claim and statement of
defence and they would be required to individually
27
read them and write in typed form a one page
opinion on the precedent pleadings.

Activities in class
1. Teacher gives an overview of the general principles,
with students‟ contribution; and teacher and students
together develop checklists of principles on the
outcomes including ethics and rules of professional
responsibilities in drafting pleadings – 1 hour 30
minutes.

15 MINUTES BREAK

2. Students present pleadings exchanged pre-class and

the prepared legal opinion on the sample pleadings
for general discussion- 2 hours.
3. General debrief and Assessment: questions and
answers- 30 minutes.

NB. Assignment for Week 10- Actions to be completed

before week 10 lesson
1. Students as paired in week 9 would, using the Lagos
and Abuja Rules, discuss the principles and
application of striking out pleadings for disclosing
no reasonable cause of action; interrogatories and
discovery of documents; make a note for
presentation in the class on the relevance of these
processes to the pleadings they exchanged for week
9 lesson. If they find the principles relevant, they
exchange the necessary documents in typed form but
if not relevant, give reasons for this position in a
written note for presentation in the class. The same
approach should also be taken for issues such as
notice to admit facts, inspections, etc.
2. Students should also be grouped in 3s or not more
than 4s to commence with the exchange of
28
necessary documents and hold a Case Management
Conference/ Pre-trial Conference using one of the
cases in which pleadings were exchanged in week 9.
One or two (where they are grouped in 4s) of the
students would act as Judges for the Case
Management Conference/ Pre-trial Conference. The
Judge is expected to produce a report as the Rules
provides.
3. In addition to any other documents that may be
produced by a group, each group of 3 or 4 must file
(exchange) and settle issues from the pleadings
chosen for the pre-trial conference.

WEEK 10 – PRE-TRIAL ISSUES AND PRE-TRIAL

PROCEEDINGS
Contents
1. Striking out Pleading where no reasonable cause of
action disclosed, etc.
2. Interrogatories
3. Discovery of documents
4. Inspection of documents
5. Notices to admit
6. Settlement of issues
7. Pre-trial conferencing and scheduling.

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the principles relating to
Striking out Pleading where no reasonable cause of
action is disclosed, etc., interrogatories, discovery of
documents, inspection of documents, notices to
admit, and settlement of issues;
ii. explain & discuss the general principles, objectives
& scope of Case Management Conference/ Pre-trial
Conference and scheduling;
iii. settle issues for trial.
29
Activities:
1. Teacher gives an overview of the principles relating
to striking out pleadings where no reasonable cause
of action is disclosed, etc., interrogatories, discovery
of documents, inspection of documents, notices to
admit, and settlement of issues, with questions and
answers – 30 minutes.
2. Students make presentations of assignment No. 1
above (given in week 9) and general discussions
follow – 1 hour.

15 MINUTES BREAK

3. Groups make presentation of their report of how

they commenced and conducted a Case
Management Conference/ Pre-trial Conference and
the documents exchanged (filed) including the final
report of the pre-trial Judge. Discussions follow – 1
hour.
4. Groups make presentations of issues filed and
settled and discussions follow including assisting in
fine-tuning settled issues in standard form – 1 hour.
5. Debrief and assessment – 30 minutes
(NB: Students’ attention should also be drawn to Week
11 Pre-class activities).

WEEK 11 – TRIAL PREPARATION AND

EVIDENCE 1
Content
1. Case analysis/ Case theory/ Trial Plan
2. Rules of Evidence as to Burden and Standard of
Proof, Admissibility of Documentary Evidence and
the necessary foundation to be laid for that purpose,
Use of Primary and Secondary Evidence.

30
Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss rules of evidence as to the
burden and standard of proof, and admissibility of
different types and forms of evidence, admissibility
of documentary evidence and the necessary
foundation to be laid for that purpose, use of
primary and secondary evidence; and
ii. prepare a trial plan, a case theory and identify
relevant evidence in a case.

Activities before Class

1. Read the Evidence Act 2011 on admissibility of
different kinds of evidence.
2. During weeks 9/10 lessons, students were grouped
in 3s or 4s to hold pre-trial conference on one of the
2 cases on which they exchanged pleadings. For
week 11 lesson, the same group of 3s or 4s should
meet to discuss the lesson for week 11 and divide
themselves into 2- one group acting for the
claimant/plaintiff and the other acting for the
defendant. The student(s) should prepare their case
theory and trial plan for each of the parties.
3. Students should have samples of the trial plans.

Activities in class;
1. Tutor and students in plenary discuss the principles
of burden and standard of proof of evidence and
admissibility of different types and forms of
evidence – 45 minutes.
2. Tutor presents guidelines/checklist on how to
prepare trial plan/case theory- 20 minutes.
3. Students as grouped (see activities before the class)
conduct group work and each party (i.e. either for
31
plaintiff or defendant) produces a trial plan and case
theory for their case and also identifying the relevant
evidence they would use in their case looking at the
issues settled in their case, their pleading and the
witness statements produced for this lesson.
Students may be free to conduct their work outside
the class – 55 minutes.

15 MINUTES BREAK

4. Tutor gives an overview on the Rules as to the

Admissibility of Documentary Evidence and the
necessary foundation to be laid for that purpose; Use
of Primary and Secondary Evidence - 40 minutes.
5. Groups make presentation of their trial plan, case
theory and identified relevant evidence in their case.
Discussions follow – 1 hour.
6. Debrief and assessment – 20 minutes
(NB: Students’ attention should also be drawn to
Week 12 Pre-class activities)

WEEK 12 – TRIAL PREPARATION AND

EVIDENCE 2
Content
1. Opinion Evidence and Expert Witnesses
2. Witnesses generally including Special Witnesses
like Children, Experts and Hostile Witnesses
3. Use of Subpoenas, Witness Summons and
Statements
4. Refreshing Memory
5. Competence and Compellability of Witnesses.

Outcomes
At the end of this lesson students would be able to:
32
i. explain the principles regulating the evidence of
special witnesses like children, experts and hostile
witnesses;
ii. prepare witness statements obeying ethical rules;
iii. explain and discuss the principles regarding
competence and compellability of witnesses;
iv. explain and discuss the use of subpoenas and
witness summons.

Activities before Class

1. During weeks 9/10 lessons, students were grouped
in 3s or 4s to hold pre-trial conference on one of the
2 cases on which they exchanged pleadings. For
week 12 lesson, the same group of 3s or 4s should
meet to discuss the lesson for week 12 and divide
themselves into 2- one group acting for the
claimant/plaintiff and the other acting for the
defendant. The student(s) acting for the plaintiff
should prepare witness statements on oath and serve
the other party and the defendant should also do the
same for the defence case. Students should also
make a list of ethical guideline in the preparation of
a witness statement.
2. Students should have samples of subpoenas and
witness summons.

Activities in Class
1. Tutor in plenary explains and discuss the principles
regarding competence and compellability of
witnesses; discusses how to prepare witness
statements obeying ethical rules; explain and discuss

33
the use of subpoenas and witness summons - 50
minutes.
2. Tutor gives an overview on the competence and
compellability of witnesses; use of subpoenas and
witness summons (for competent and compellable
witnesses) using the pleadings and cases produced
by the students to question the students for answers
and illustration- 40 minutes.

20 MINUTES BREAK

3. The Tutor discuss how to treat special witnesses like

children, experts and hostile witnesses – 40
minutes.
4. Debrief and assessment – 20 minutes

(NB: Students’ attention should also be drawn to

Week 13 Pre-class activities).

WEEK 13 – TRIAL – EXAMINATION OF

WITNESSES
Content
1. Procedure of Presentation of a Party‟s Case
2. Examination-in-Chief
3. Cross Examination
4. Re-examination
5. Tendering documents and other exhibits during
Examination of Witnesses
6. Ethics of Examination of Witnesses
7. Presentation of a Video on Trial.
Outcomes
At the end of this lesson students would be able to:
i. explain and discuss the role, principles including
ethics, scope and techniques of examination -in-
34
chief, cross-examination and re-examination of
witnesses;
ii. explain and discuss the procedure and foundation
for tendering documents and other exhibits during
examination of witnesses;
iii. examine a witness in chief and tender documents
or other exhibits
iv. cross examine and re-examine a witness

Activities before class;

Students are to read the topic in advance of the class lesson
and make notes on the role, principles including ethics,
scope and techniques of examination-in-chief, cross-
examination and re-examination of witnesses; the
procedure and foundation for tendering documents and
other exhibits during examination of witnesses.

Activities in class;
1. Tutor and students in plenary discuss the role,
principles including ethics, scope and techniques of
examination-in-chief, cross- examination and re-
examination of witnesses; and the procedure and
foundation to be laid for tendering documents and
other exhibits during examination of witnesses– 50
minutes.
2. Tutor presents guidelines/checklist on examination-
in-chief and presents short scripted role plays
(including scenarios where documents are tendered)
that students would be made to critique in relation to
the checklist/guidelines on examination in chief-40
minutes.
3. Each Student is requested to prepare in writing in a
sequence they may be presented, examination-in-
35
chief questions based on one of the cases in which
the student prepared statement of claim in week 9
and opening statement in Law in Practice Week 12-
30 minutes.

15 MINUTES BREAK

4. Students groups (i.e. those of 3s or 4s) of week 10

would be required to prepare to present examination
of witnesses based on the pleadings and witness
statements exchanged. The Judge or judges of the
groups in week 10 would now act as witnesses. The
witness statements used by the groups in week 11
would be used here. The plaintiff/claimant in the
group would prepare the witness for examination in
chief (and re-examination if necessary) while the
defendant would get ready to cross examine the
same witness- 20 minutes. Party in each group use
not more than 5 minutes each to examine or cross-
examine a witness and additional 2 minutes for re-
examination where necessary. The Tutor acts as
Judge and time-keeper. Discussions should follow
each group‟s presentations. No objections should be
allowed during each examination but students
should be asked to make note of any objections they
may have to any question and present it during the
discussions that follow. Tutor would need to make
the students take note of the manner of presenting
examination-in-chief in jurisdictions like Lagos
where witness statements are generally adopted.
Where a video clip is a matter that dwells on
criminal litigation, the attention of the students need

36
be drawn to that and noting any difference between
any forms in the process from civil litigation. - 1
hour 40 minutes.
5. Students continue to present activity 3 or Tutor
plays video clips like the Inns of Court School of
Law Training Series “There are two sides to a
story”- 10 minutes.
6. General discussions and Assessment – 20 minutes

(NB: Students’ attention should also be drawn to

Week 14 Pre-class activities).

WEEK 14 – CLOSING ADDRESS AND JUDGMENT

Contents
1. Closing address: role and functions; format,
structure, content, delivery, and ethics in presenting
closing address.
2. Judgment: meaning, characteristics of good
judgment, types, requirement and procedure for
delivery of judgment.

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the role, and functions of closing
or final address in a trial;
ii. present a closing address;
iii. explain and discuss the meaning, characteristics of
good judgment, types, requirement and procedure
for delivery of judgment.

Activities before class

1. Students are to read the topics in advance of the
class lesson. Students are also to prepare one page
opinion on one judgment on a case from the law

37
report pointing out any strengths and weaknesses in
the judgment.
2. The week 10 students groups prepare in writing and
present within their groups closing addresses in their
cases (week 10 )- plaintiff/Claimant against
Defendant while the judges in each group make a
note of opinion on the closing addresses.

Activities in class
1. Tutor and students in plenary discuss the role, and
functions of closing or final address in a trial format,
and presents guidelines/checklist on, structure,
content, delivery, and ethics in presenting closing
address - 30 minutes.
2. Groups present the same closing addresses prepared
in activity 2 above in plenary and the judges in each
group also read their criticism or opinion (not
judgments) on the closing addresses. Each person to
use not more than 3 minutes to present his/her
closing address and the judge‟s opinion. Discussions
follow- 1 hour 10 minutes.

15 MINUTES BREAK

3. Tutor and students in plenary discuss the meaning,

characteristics of good judgment, types, requirement
and procedure for delivery of judgment- 40
minutes.
4. Students present their opinion on one judgment from
a law report and discussions follow- 30 minutes.
5. Tutor presents quizzes on judgments and general
discussions and assessment – 30 minutes.

(NB: Students’ attention should also be drawn to Week

15 Pre-class activities).
38
WEEK 15 – ENFORCEMENT OF JUDGMENT AND
APPLICATIONS PENDING APPEAL
Contents
1. Enforcement of judgment: methods for enforcement
and execution, processes and limitations in the
enforcement of interstate and foreign judgments.
2. Applications and orders pending appeal.

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the best methods for the
enforcement and execution of judgments and the
processes and limitations involved in the
enforcement of interstate and foreign judgments;
ii. explain and discuss various forms, purpose,
principles, scope and procedure of applications
pending appeal; and
iii. draft applications for stay of execution, stay of
proceedings and injunctions pending an appeal.

Activities before class

1. Students are to read the topics in advance of the
class lesson.
2. Students should also receive from the Tutor and
study precedent copies of applications pending
appeal.
3. Students should draft applications pending appeal
based on the modified case studies.

Activities in class
1. Tutor and students in plenary discuss the best
methods for the enforcement and execution of
judgments and the processes and limitations
involved in the enforcement of interstate and foreign
judgments– 50 minutes.

39
2. Tutor presents quizzes and discussions follow
review of answers- 50 minutes.

5 MINUTES BREAK

3. Tutor and students in plenary discuss various forms,

purpose, principles, scope and procedure of
applications pending appeal- 50 minutes.
4. Tutor presents checklist of principles for drafting
applications for stay of execution, stay of
proceedings and injunctions pending an appeal and
using case studies 1 and 2 as modified by the tutor
for this purpose, students review their draft of these
applications- 30 minutes.
5. Students present their drafts of activity 4 and general
discussions follow – 50 minutes.
6. Assessment – 10 minutes

(NB: Students’ attention should also be drawn to Week

16 Pre-class activities).

WEEK 16 – APPEALS
Contents
1. Right of Appeal and appeal with leave of court
2. Procedure for appeals and extension of time to
appeal matters related to appeals in the Court of
Appeal
3. Respondents notice and cross-appeal
4. Drafting notice of Appeal
5. Brief of Arguments.

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the scope of right of appeal and
procedure for appeals;

40
ii. explain and distinguish between a Respondent‟s
notice and a cross-appeal;
iii. draft a notice of appeal and brief of arguments.

Activities before class

Students are to read the topic in advance of the class lesson.
In addition to text books, students should read and
familiarise themselves with the Court of Appeal Rules, the
1999 Constitution on the Court of Appeal‟s jurisdiction,
composition, right of Appeal, etc; and case law.

Activities in class
1. Tutor and students in plenary discuss the scope of
right of appeal and procedure for appeals, notice of
appeal, respondent‟s notice and a cross-appeal.
Tutor would present precedents of notice of appeal
and respondent‟s notice in hard copies or by
power point slides - 50 minutes.
2. Tutor presents short judgments based on case studies
1 and 2 and checklist of guidelines for drafting
notice of appeal and students are required to draft 2
notices of appeal- 20 minutes.
3. Students present drafted notices of Appeal and
discussions follow- 40 minutes.

15 MINUTES BREAK

4. Activity No. 3 continues – 30 Minutes.

5. Tutor presents guidelines for drafting brief of
arguments and precedents or examples- 20 minutes.
6. Based on the notices of appeal drafted by students
Tutor pairs the students to draft and exchange brief
of arguments for and against. One person drafts an
appellant‟s brief in one of the cases and serves the
other who drafts a respondent‟s brief. During this
activity each student would be an appellant in case 1
41
and respondent in case 2. Students may carry out
this activity outside the class – 40 minutes.
7. In the class students present their briefs and
discussions follow – 30 minutes.
8. Assessment – 10 minutes.

(NB: Students’ attention should also be drawn to Week

17 Pre-class activities).

WEEK 17 – RECOVERY OF POSSESSION OF

PREMISES
Contents
1. General principles, jurisdiction
2. Procedure for recovery of possession of premises;
notice to quit and notice of owners intention to apply
to recover possession
3. Writ or plaint commencing an action for the
recovery of possession of premises

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the general principles including
the courts that exercise jurisdiction for the recovery
of possession of premises;
ii. state and discuss the material facts to be proved for
recovery of possession of premises and the
procedure for recovery;
iii. draft a notice to quit, notice to tenant of owner‟s
intention to recover possession of premises, and a
writ or plaint commencing an action for recovery of
possession of premises.

Activities before class

1. Students are to read the topic in advance of the class
lesson. Students are to see and bring to the class
copies of precedents of notices to quit, notice to
42
tenant of owners intention to recover possession and
writ or plaint commencing the action in court.
2. Tutor should present case studies to students in
advance of the class lesson.

Activities in class
1. Tutor and students in plenary discuss the general
principles including the courts that exercise
jurisdiction for the recovery of possession of
premises; the material facts to be proved for
recovery of possession of premises and the
procedure for recovery- 50 minutes.
2. With the case studies presented, students are
grouped to discuss and give legal opinion on the
cases presented.The grouping and the group
discussions - 30 minutes.
3. Groups report in plenary with their opinion on the
case Studies and discussions follow- 40 minutes.

15 MINUTES BREAK

4. Students draft notice to quit and notice to tenant of

owners intention to recover possession based on the
case studies/scenarios presented by tutor – 20
Minutes.
5. Students present drafts and discussions follow- 40
minutes.
6. Students draft writ or plaint based on the case
studies and the notices drafted – 15 minutes.
7. Students present activity No. 6 and discussions
follow – 35 minutes.
8. Assessment – 10 minutes

(NB: Students’ attention should also be drawn to Week

18 Pre-class activities).

43
WEEK 18 – ELECTION PETITION
Contents
1. General principles, jurisdiction and composition of
Election Petition Courts/Tribunals
2. Contents of election petitions
3. The procedure: Commencement of election petition
and the sequences of events up to conclusion of trial
4. Drafting Election Petitions

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the general principles including
the courts that exercise jurisdiction for election
petitions;
ii. state and discuss the content and material facts to be
pleaded and proved in election petition cases;
iii. explain the procedure and sequence of events
involved in election petitions up to the conclusion of
trial;
iv. discuss standard of proof in election petitions: (a) on
a general proof (b) where fraud, illegality, crime, etc
is alleged.
v. draft an election petition and the reply to it.

Activities before class

1. Students are to read the topic in advance of the class
lesson including the Statutes (such as Evidence Act,
Sections 135 & 136), Rules and Case law on the
subject, including Nwobodo v. Onoh, Ajasin v.
Omoboriowo, Torti v. Ukpabi, Ngige v. Obi. They
are also to read and bring to the class precedents of
Election petitions and Reply.
2. Tutor should present at least 2 case studies to
students in advance of the class lesson. Students

44
would be required to use the case studies to draft
petitions and replies.
3. Tutor would also present a list of judicial decisions
on election petition and request students to read
these in advance for discussion in the class.

Activities in class
1. Tutor and students in plenary discuss the general
principles including the courts that exercise
jurisdiction for election petitions; the content and
material facts to be pleaded and proved in election
petition cases; and the procedure and sequences of
events up to the conclusion of trial- 1 hour.
2. With the case studies presented, students are paired
to draft and exchange election petitions and reply.
One student in each group becomes petitioner in one
case and the other petitioner in the other case. 10
minutes.
3. Students draft and exchange their petitions and each
partner drafts a reply to the petition exchanged.
This can be done outside the class – 50 minutes.

15 MINUTES BREAK

4. Presentation of report of activity 3 and discussions –

1 hour.
5. Tutor presents quizzes, cases or scenarios and
students are grouped to discuss them and present
their positions/answers (E.g. of quizzes: What would
be the implications of: filing petitions after the
statutory period?..., amending petitions after the
statutory period?..., filing an unsigned or undated
petition?..., filing a petition that has no
prayers/reliefs?..., failure to pay for security for
costs? etc) – 25 Minutes.

45
6. Groups present report of activity 5 and discussions
follow – 25 minutes.
7. Assessment – 10 minutes.

(NB: Students’ attention should also be drawn to Week

19 Pre-class activities).

WEEK 19 – MATRIMONIAL CAUSES

Contents
1. General principles, jurisdiction and courts for
matrimonial causes
2. Contents of matrimonial petition
3. The Procedure: Commencement of matrimonial
matters and the sequences of events up to conclusion
of trial
4. Drafting matrimonial causes petitions

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the general principles including
the courts that exercise jurisdiction for matrimonial
petitions;
ii. state and discuss the content and material facts to be
pleaded and proved in matrimonial causes petition
and to explain the procedure and sequences of
events up to the conclusion of trial;
iii. draft a matrimonial cause petition and reply;

Activities before class

1. Students are to read the topic in advance of the class
lesson including the Matrimonial Causes Act and the
Rules and Case law on the subject. Students are to
see and bring to class copies of precedents of
matrimonial causes petitions and reply.
2. Tutor should present at least 2 case studies to
students in advance of the class lesson. Students
46
would be required to use the case studies to draft
petitions and replies.
3. Tutor would also present a list of judicial decisions
on matrimonial petition and request students to read
these in advance for discussion in the class.

Activities in class
1. Tutor and students in plenary discuss the general
principles including the courts that exercise
jurisdiction for matrimonial causes; the content and
material facts to be pleaded and proved in
matrimonial causes petition and the procedure and
sequences of events up to the conclusion of trial- 1
hour.
2. With the case studies presented, students are paired
to draft and exchange petitions and reply. One
student in each group becomes petitioner in one case
and the other petitioner in the other case. 10
minutes.
3. Drafting and exchange of petitions and reply. This
can be done outside the class – 50 minutes.

15 MINUTES BREAK

4. Presentation of report of activity 3 and discussions –

1 hour.
5. Tutor presents quizzes, cases or scenarios and
students are grouped to discuss them and present
their positions/ answers- 25 minutes.
6. Groups present report of activity 5 and discussions
follow – 25 minutes.
7. Assessment – 10 minutes.

(NB: Students’ attention should also be drawn to Week

20 Pre-class activities).

47
WEEK 20
1. COSTS AND SANCTIONS IN CIVIL
LITIGATION

2. FUNDAMENTAL RIGHTS ENFORCEMENT

PROCEDURE
Contents
1. Fundamental Rights Enforcement Procedure: Courts
with jurisdiction; modes of application and drafting;
remedies; applicable rules; advantages,
disadvantages and limitations of the rules;
Comparison of Fundamental Rights Enforcement
Procedure with Judicial Review and Writ of Habeas
Corpus.
2. Costs and Sanctions

Outcomes
At the end of this lesson Students would be able to:
i. explain and discuss the general principles, procedure
and scope of Fundamental Rights Enforcement
Procedure Rules, including the courts that exercise
jurisdiction over Fundamental Rights Enforcement;
ii. draft applications under the Fundamental Rights
Enforcement Procedure Rules;
iii. explain the similarities and differences between
Fundamental Rights Enforcement Procedure Rules
and Judicial Review/Writ of Habeas Corpus.
iv. list, explain and discuss the principles, scope and
applications of costs and sanctions in Civil
Litigation;

Activities before class

1. Students are to read the topics in advance of the
class lesson including the Fundamental Rights
Enforcement Procedure Rules, provisions of the

48
High Court Rules on Costs and Sanctions, and Case
law on the subjects.
2. Tutor should present at least 1 Case Study to
students in advance of the class lesson. In the class,
the students would be required to use the Case Study
to draft Applications to enforce fundamental rights
under the Rules.
3. Students would also be required to draw up in
advance a composite table of costs and sanctions in
a comparative manner between the High Court
Rules of Lagos and Abuja. Each student would
present his/her table in the class. The table should be
in this format:

49
CIVIL PROCEEDINGS COSTS AND SANCTIONS

S/N SUBJECT LAGOS ABUJA

1 Irregular O.7- May set 0.5 May set aside /

proceedings aside/costs costs

2. Late O.11 R.5-N1000 Defendant shall be

appearance for each day of bound by provisions
default of Or 56 r.10 or any
amount that the
Chief Judge may
determine from time
to time.
3. Frivolous Not specified but Counsel personally
suit general provisions liable for costs – Or
on award of cost 2 r. 8
against legal
practitioner for
certain defaults.
Questionable cases
Questionable and abuse of process
cases and abuse sanctioned under the
of process rules of professional
sanctioned under conduct- R.24(2) &
the rules of (3) RPC
professional
conduct- R.24(2)
& (3) RPC

Irregular proceedings: O.7 Lagos- May set aside/costs O.5

Abuja- May set aside/ costs
50
Late appearance: O.11 R.5 Lagos- N1000 for each day of
default, Or 9 r.5 Abuja- defendant shall be bound by
provisions of Or 56 r.10 or any amount that the Chief Judge
may determine from time to time.
Frivolous suit: Lagos- Not specified but general provisions
on award of cost against legal practitioner for certain
defaults; Questionable cases and abuse of process
sanctioned under the rules of professional conduct- R.24(2)
& (3) RPC. Abuja-Counsel personally liable for costs – Or
2 r.8; Questionable cases and abuse of process sanctioned
under the rules of professional conduct- R. 24(2) & (3)
RPC.
Activities in class
1. Tutor and students in plenary discuss the general
principles, procedure and scope of Fundamental
Rights Enforcement Procedure Rules, including the
courts that exercise jurisdiction over Fundamental
Rights Enforcement – 1 hour.
2. With the case studies presented, students draft
applications to enforce fundamental rights under the
Rules- 20 minutes.
3. Presentation of the drafts and discussions – 40
minutes.

15 MINUTES BREAK

4. Tutor and students discuss the similarities and

differences between the fundamental rights
enforcement procedure and Judicial review/writ of
habeas corpus- 30 minutes.
5. Tutor presents quizzes/questions and answers on
Activity 4 - and students are randomly appointed to
discuss them and present their positions/answers
(E.g. of quizzes: What are the similarities and
differences between Fundamental Rights
Enforcement Procedure and Judicial Review? What
51
are the similarities and differences between
Fundamental Rights Enforcement Procedure and
Writ of Habeas Corpus? List sequentially the
processes involved in fundamental rights
enforcement procedure.) – 30 Minutes.
6. Students present prepared composite tables of pre-
class assignment on costs and sanctions under the
High Court Civil Procedure Rules of Lagos and
Abuja and discussions follow – 50 Minutes.
7. Assessment – 10 minutes

52
CHAPTER ONE
INTRODUCTORY MATTERS

THE FOCUS OF THE SUBJECT

Civil Procedure is one of our bodies of adjectival laws. Its
focus is to provide orderly and possibly expeditious
methods for citizens to assert and defend their claims in
court. The central role Civil Procedure plays in litigation
lies in the fact that no matter how good a case appears to
be, if it is not canvassed before the court according to the
rules laid down by law, the consequences may be grave to
the litigant. Counsels have been known to lose very good
cases by some kind of lackadaisical application of rules of
practice and procedure. The rules of procedure are binding
on parties as they are supposed to guide every step taken by
a litigant in an action from commencement till judgment
(including enforcement) and appeals.

Our approach to the study of this subject has always been

to expose students to the rules of court and guide them on
how to apply these rules. Civil Procedure Rules are found
in the Constitution, Sheriff and Civil Process Act/Laws,
Statutes, Case Laws, Rules of Court e.g. Supreme Court
Rules, Court of Appeal Rules, Federal High Court Rules,
National Industrial Court Rules, High Court Rules,
Magistrates‟ Court Rules, Customary Court Rules etc and
also practice directions.

Sometimes, our ex-students complain that they meet

glaringly different situations in practice from the supposed
guide they got at the Law School. The reality remains that
as diverse as Nigeria is, so are the laws and rules
applicable. For instance, there are 36 states and the Federal
Capital Territory, Abuja. Each state has its own High
Court Rules, Magistrate Court Rules and Customary Court
Rules. The attempt by the Nigerian Law Reform
53
Commission in 1987 to introduce a code of Uniform Civil
Procedure for the High Courts in Nigeria though quite
commendable has not been resoundingly successful. Most
states have modified the rules. Even Kano state which
retained the uniform rules for some years has also
jettisoned same and introduced the Kano High Court (Civil
Procedure) Rules of 2014. Since we cannot take students
through the respective rules of court as adopted and/or
modified, by some states, reference will be made only to
the High Court of the Federal Capital Territory Abuja
(Civil Procedure) Rules 2018 and High Court of Lagos
State (Civil Procedure) Rules 2019, subsequently referred
to as the Abuja Rules 2018 and Lagos Rules 2019. The
substance in the various rules of court is basically the same.
Students must be familiar with Court forms e.g. format for
Writ of Summons, Originating Summons, Petitions,
Originating Motions etc. These forms are normally
annexed to the Rules of Court.

Students must also be familiar with ORDERS and RULES

e.g. ORDER 10 RULE 10 which is usually abbreviated as
O.10 R. 10. Orders may loosely be said to refer to "actions"
capable of being taken in Court while the Rules refer to the
procedures of taking such actions e.g. Order 12 Lagos State
Rules 2019 provides for "Default of Appearance" and Rule
2 states "where any defendant fails to appear, a claimant
may proceed upon default of appearance under the
appropriate provisions of these rules upon proof of service
of the originating process" (Order 12 Rule 2, Lagos Rules
2019).

Since Nigeria has a lion share of the global phenomenon of

case glut in courts, an attempt has been made to incorporate
alternative methods of resolving disputes. Most
importantly, we have incorporated some aspects of the
sweeping reforms that have given civil proceedings a new
54
outlook. Most of these reforms are incorporated in the
latest amendment to the Supreme Court Rules of England
1997. These reforms aimed at more purposeful and
expeditious disposal of matters in court are already being
implemented in countries such as Australia, Canada and
USA. Some of these reforms include relaxation of the rules
of hearsay evidence and relaxation of some technical rules
that give rise to cumbersome interlocutory proceedings.
This also includes the advance exchange of written
statements on oath of witnesses to replace examinations in
chief, etc. The approach recommended for students is to
first of all understand the rules as they are and often times
ponder over their efficacy and what should be done to
improve them.

SOURCES OF CIVIL PROCEDURE

A. RULES OF COURT

Every court has its own rules e.g. Supreme Court Rules
1985, Court of Appeal Rules 2016, Federal High Court
Rules 2009 and High Court (for convenience, reference in
the course will be made to Abuja Rules 2018 and Lagos
Rules 2019 only), Sharia Court of Appeal Rules,
Customary Court of Appeal Rules, Magistrates Courts
Rules, District Court Rules, Customary Court Rules. Rules
of Court are the primary focus of our study of Civil
Procedure.

Who makes the rules of court?

It is always the statute creating the court that states who
should make rules of the court e.g. The 1999 Constitution
as amended creates State High Courts. Section 274 of the
Constitution provides that the Chief Judge of a state may
make rules for regulating the practice and procedure of the
High Court of the State (including the service and

55
execution of all civil and criminal processes) subject to the
provision of any law made by the House of Assembly of a
State. In respect of service and execution of court processes
especially of superior courts of record, it is the Sheriff and
Civil Process Act contained in chapter S6, Laws of the
Federation 2004, Volume 14 that is the principal
legislation. This is because Second Schedule, Part One of
the 1999 Constitution as amended providing for exercise of
legislative powers, has service and execution of court
processes as item 57 in the exclusive legislative list, the list
reserved for the National Assembly.

It follows therefore that rules of court made in exercise of

the powers conferred by Section 274 of the Constitution as
amended especially as regards service and execution of
court processes or under the respective High Court Laws,
must conform to the Sheriff and Civil Process Act
contained in Chapter S6, Vol 14, Laws of the Federation of
Nigeria, 2004 or be void to any extent of it inconsistency.
Otherwise, if strictly followed as it ought to be, States are
precluded from legislating on service and execution of
court processes of superior courts of record which is in the
exclusive list. See Nwabueze v Obi Okoye [1988] 10 - 11
SCNJ. 60.

For the Federal High Court, Section, 254 of the 1999

Constitution as amended provides that subject to the
provisions of any Act of the National Assembly, the Chief
Judge of the Federal High Court may make rules for
regulating the practice and procedure of the Federal High
Court. The Federal High Court Rules 2009 is the applicable
rules for practice and procedure in the Federal High Court.
Section 248 of the 1999 Constitution as amended provides
that subject to the provisions of an Act of the National
Assembly, the President of the Court of Appeal may make
rules regulating the practice and procedure of that court. In
56
the exercise of the powers conferred on him under the
aforementioned section, the then President of the Court of
Appeal made the Court of Appeal Rules 1981 amended in
1984. This was further amended by the Court of Appeal
Rules 2002 and those of 2007 and 2011. But the current
one in use now is the Court of Appeal Rules 2016. Section
236 of the Constitution as amended vests in the Chief
Justice of Nigeria the responsibility of making rules for
practice and procedure of the Supreme Court. Presently, the
applicable rules in the Supreme Court as made by the then
Chief Justice of Nigeria, Hon. Justice G. S. Sowemimo, is
the Supreme Court Rules 1985.

We shall be referring to the rules of courts in our

discussions of the general principles of Civil Procedure.
Incidentally, the rules of court are not an end in themselves;
they are merely the means to the end of litigation, which is,
when judgment is handed down. This may be said to be a
lacuna in all the court rules. Enforcement of Judgment is
subject to the procedure provided in the Judgment
(Enforcement) Rules, annexed to the Sheriff and Civil
Process Act and the Sheriff and Civil Process Laws of the
respective States. We shall use the High Court of the
Federal Capital Territory Abuja (Civil Procedure Rules)
2018, as well as the High Court of Lagos State (Civil
Procedure) Rules 2019. Needless to say Lagos is the
commercial capital of Nigeria and nearly 70% of the
lawyers in Nigeria are based in Lagos and more than that
percentage of the volume of litigation in Nigeria are in
Lagos. Both Lagos rules and the Abuja rules represent a
departure from the Uniform Rules. The Uniform Rules
were represented by the Kano Rules of 1988 but Kano has
since departed from the uniform rules by introducing its
2014 Rules which largely followed the Lagos Rules of
2012.

57
B. STATUTE CREATING THE COURT

Examples are section 8 (2) Court of Appeal Act which

confers power on the appropriate authority to make rules of
the Court of Appeal; section 7 of the Supreme Court Act
and section 25 of the Court of Appeal Act which provide
for filing of notice of appeal. Conflict between rules and
statute is resolved in favour of statute.

C. OTHER STATUTES

(i) The Sheriffs and Civil Process Act/Law and the

Judgment (Enforcement) Rules: These clearly deal with the
appointment and duties of sheriffs; the enforcement of
judgment and orders and the service and execution of civil
process of the courts throughout the Federation and the
States.
(ii) Foreign Judgment (Reciprocal Enforcement) Act,
1961. This Act regulates the enforcement of foreign
judgments in Nigeria.
(iii) Companies and Allied Matters Act. The Companies
and Allied Matters Act contains provisions enabling
applications to be made to the Federal High Court in
respect of a company or for other proceedings to be taken
under the general law. Under the Act the Company
Proceedings Rules 1992 and Company Winding Up Rules
2001 and the Company Winding Up (Amendment) Rules
2013 were made which stipulates the practice and
procedure for the winding up of company.
(iv) Matrimonial Causes Act and the Matrimonial Causes
Rules 1983. This Act and Rules regulates practice and
procedure in matrimonial causes in the State High Courts.
(v) The Admiralty Jurisdiction Act and the Admiralty
Jurisdiction Procedure Rules 2011. The Rules was made
pursuant to section 21 of the Admiralty Jurisdiction Act
1991 and the rules apply to every admiralty cause or matter
brought before the Federal High Court.
58
(vi) Companies Income Tax Act and Federal High Court
(Tax Appeals) Rules 1992. The Rules was made under the
Companies Income Tax Act for the purpose of regulating
procedure in respect of appeals made from Appeal
Commissioners to the Federal High Court.

D. CONSTITUTION

This enables the making of rules of court and other

procedural rules. Examples are section 46(3) of the
Constitution of the Federal Republic of Nigeria 1999 as
amended which enables the making of the Fundamental
Right Enforcement Rules; section 248 and 236 which
enable the making of Court of Appeal and Supreme Court
Rules respectively. The Constitution also directly provides
for practice and procedure e.g. provision on right of appeal.

E. DECISIONS OF COURT ON PROCEDURE

This arises in the course of interpretation of rules of court

(including formulation of new rules) that the courts have
developed over the years. These are not stated in any rules
or statutes but laid down in decisions of superior courts in
the course of interpretation of rules or statutes. Examples
include the requirement of addressing the court before
making an order of non suit. See Craig v Craig (1966)1
ALL NLR 173; Lion Building v Shodipe (1976)12SC 135.
However, this rule is presently provided in some High
Court Rules. For example, Order 34 (1) of the Lagos
Rules 2019 provides thus:
Where satisfactory evidence is not given entitling the
claimant or Defendant to the Judgment of the Court, the
Judge may suo motu or on application non-suit the
claimant, but the parties‟ Legal Practitioners shall have the
right to make submissions about the propriety or otherwise
of making such order

59
Also, the rule that a court should not permit a defence
counsel to make a no-case submission except he elect to
stand by the submission, without given evidence is a
practice of court enunciated in judicial decisions. Ikoro v
Safrap (Nigeria) Ltd (1977) SC 123

F. PRACTICE DIRECTIONS
Practice Direction is a direction given by the appropriate
authority stating the way and manner a particular rule of
court should be complied with, observed or obeyed. See
University of Lagos v Aigoro (1984)11 SC 152. Non-
compliance with the Practice Direction is fundamental as it
vitiates all steps taken at the trial resulting in nullity. See
Nwankwo v Yar’adua (2010)12 NWLR (Pt.1209)518.

60
CHAPTER TWO
COURTS WITH CIVIL JURISDICTION

SUPREME COURT OF NIGERIA

This is apex court in the hierarchy of courts in Nigeria. It
consists of the Chief Justice and such number of Justices of
the Supreme Court not exceeding twenty-one as may be
prescribed by an Act of the National Assembly: Section
230(2) 1999 Constitution.
It has both original and appellate jurisdiction – See S. 232
of the 1999 Constitution and S. 1(1) of the Supreme Court
(Additional Original Jurisdiction) Act 2002 for the original
jurisdiction of the Court. The Court hears appeals from the
Court of Appeal – S. 233 of the 1999 Constitution.

COURT OF APPEAL
The Court of Appeal is next to the Supreme Court in the
hierarchy of courts in Nigeria. It consists of a President and
such number of Justices of the Court of Appeal not less
than forty-nine of which not less than three shall be learned
in Islamic Personal Law and not less than three also learned
in Customary Law. It should be noted that the number of
Court of Appeal Justices was increased to ninety by Court
of Appeal (Amendment) Act 2013. The Court has original
and appellate jurisdiction. Its original jurisdiction lies in the
determination of the election of the President or Vice
President and allied matters – S. 239 of the 1999
Constitution. The Court hears appeals from the High
Courts, National Industrial Court, Customary and Sharia
Courts of Appeals, National and State Houses of Assembly
Election Tribunals, Governorship Election Tribunals, Court
Martial and other tribunals See Ss. 240 and 246 of the 1999
Constitution.

THE FEDERAL HIGH COURT

See generally Sections 249-253 of the Constitution 1999.
61
The Federal High Court was first established by the Federal
Revenue Court Act of 1973 and known under that statute as
the Federal Revenue Court. It was restyled the Federal
High Court by section 230 (2) of the Constitution 1979.
The civil jurisdiction of this court is as defined by section 7
(1) of the 1973 Act. However, under the constitution
additional jurisdiction was conferred on the court.

Section 251 1999 CONSTITUTION vests the Federal

High Court with jurisdiction as follows:
Notwithstanding, anything to the contrary contained in this
Constitution and in addition to such other jurisdiction as
may be conferred upon it by an Act of the National
Assembly, the Federal High Court shall have and exercise
jurisdiction to the exclusion of any other court in civil
causes and matters arising from:
a) the revenue of the Government of the Federation in
which the said government or any organ thereof or a
person suing or being sued on behalf of the said
Government is a party;
b) the taxation of companies and other bodies established
or carrying on business in Nigeria and all other persons
subject to Federal taxation;
c) customs and excise duties and export duties, including
any claim by or against the Department of Customs and
Excise or any member or officer thereof, arising from
the performance or purported performance of any duty
imposed under any regulation relating to customs and
excise duties and export duties;
d) banking, banks, other financial institutions, including
any action between one bank and another, any action by
or against the Central Bank of Nigeria arising from
banking foreign exchange, coinage, legal tender, bills of
exchange, letter of credit, promissory note and other
62
fiscal measures: Provided that this paragraph shall not
apply to any dispute between an individual customer
and his bank in respect of transactions between the
individual customer and the bank;
e) the operation of the Companies and Allied Matters Act
or any other enactment replacing that Act or regulating
the operation of companies incorporated under the
Companies and Allied Matters Act;
f) any Federal enactment relating to copyright, patents,
designs, trade marks, and passing off, industrial designs
and merchandise marks, business names, and
commercial industrial monopolies, combines and trusts,
standards of goods and commodities and industrial
standards;
g) any admiralty jurisdiction, including shipping and
navigation on the River Niger or River Benue and their
affluent and on such other inland waterway as may be
designated by any enactment to be an international
waterway, all Federal ports, (including the constitution
and powers of the ports authorities for Federal ports),
and carriage by sea;
h) diplomatic, consular and trade representation;
i) citizenship, naturalization and aliens, deportation of
person who are not citizens of Nigeria, as follows:
extradition, immigration into and emigration from
Nigeria, passport and visas;
j) bankruptcy and insolvency;
k) aviation and safety of aircraft;
l) arms, ammunition and explosives;
m) drugs and poisons;
n) mines and minerals (including oil fields, mining,
geological surveys and natural gas);
63
o) weights and measures;
p) the administration or the management and control of the
Federal Government or any of its agencies;
q) subject to the provisions of this Constitution, the
operation and interpretation of this Constitution in so
far as it affects the Federal Government or any of its
agencies; and
r) any action or proceeding for a declaration or injunction
affecting the validity of any executive or administrative
action or decision by the Federal Government or any of
its agencies; Provided that nothing in the provisions of
paragraph (q), (r) and (s) of this subjection shall prevent
a person from seeking redress against the Federal
Government or any of its agencies in an action for
damages, injunction or specific performance where the
action is based on any enactment, law or equity.

The Federal High Court shall also have and exercise

jurisdiction and powers in respect of treason, treasonable
felony and allied offences. Further, it shall also have and
exercise jurisdiction and powers in respect of criminal
causes and matters in respect of which jurisdiction is
conferred by sub-section 1 of this section.

THE ADMIRALTY JURISDICTION OF THE

FEDERAL HIGH COURT
Admiralty jurisdiction was conferred on the Federal High
Court by section 9 (i) (d) of the 1973 Act but as the Decree
does not define the scope of Admiralty jurisdiction, the
limit of Admiralty jurisdiction of the court is understood as
prescribed by the Administration of Justice Act of England
1956. See American International Insurance Company
v. Ceekay Traders Ltd (1981) 5 SC 81. By section 7 (i) (g)
(h) of the 1956 English Act, the Admiralty' jurisdiction of
64
the High Courts covers (i) any claim for loss or damage to
goods carried in ship (ii) any claim arising out of any
agreement relating to the carriage of goods in ship.
The cause of action, to cover admiralty jurisdiction must
inter alia have arisen on the high seas. The goods must
have been lost when they were being carried in ship as
cargo and not lost after they had been offloaded from the
ship. See A.M.C v. NPA (1987) 1 NWLR (Pt. 51) 475.

Note that disputes arising out of International Documentary

Credits do not always come under the admiralty
jurisdiction of the Court. Here five contracts are involved
in the letter of credit i.e. the contract between the buyer and
the seller, the contract between the buyer and the issuing
bank, the contract between the confirming bank and the
issuing bank, the contract between the seller and the
confirming bank; contract of affreightment between the
supplier and the ship owner. The Supreme Court held that
dispute arising from a contract between the buyer and the
issuing bank does not fall under matters of admiralty as it
has nothing to with admiralty. Federal High Court is now
vested with exclusive jurisdiction in admiral matters. It
should be noted that under the Admiralty Jurisdiction Act
1991, the scope of admiralty has been extended to include
matters which ordinarily were not considered admiralty
matters, e.g. damages arising from oil pollution.
On the jurisdiction of the Federal High Court, see the
following cases:
1. Bronik motors Ltd v. Wema Bank (1983) 6 S.C. 158 at
168
2. Jammal Steel Structure v. ACB Ltd (1973)1 ARNLR.
(Pt. 1) 208
3. American International Insurance Company v. Ceekay
Traders Ltd (1981) 5 SC 81
4. Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt.
49) 212
65
5. Awoniyi v Board of Customs and Excise (1990)1
NSCC. 103
6. NEPA v. Edegbero (2002)18 NWLR (Pt. 798)
79 NDIC v. Okem Enterpises Ltd and Another [2004]
10 NWLR (Pt. 880) 107
7. Wema Securities and Finance Plc v. NAIC [2015] 16
NWLR (Pt. 1484) 93

THE STATE HIGH COURTS (HIGH COURT OF

FCT AND OF THE STATES)
These are courts of general and wide jurisdiction limited
only by provisions of the constitution that expressly
exclude or curtail their jurisdiction. See generally
Sections 255-257 (for FCT) and Sections 270-274 (for
States).
Under 1979 Constitution, the State High Courts were courts
of unlimited jurisdiction and as such any matter could be
commenced there. See. section 236 CFRN 1979. In
Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49)
212 (supra) the Supreme Court held that the State High
Court can exercise concurrent jurisdiction on matters upon
which the Federal High Court can exercise jurisdiction. See
also Awoniyi v Board of Customs and Excise (1990)1
NSCC. 103 (Supra). Note however, the provisions of
section 38 of the Copyright Decree 1988 conferring
exclusive jurisdiction on the Federal High Court. See also
section 560 of the Companies and Allied Matters Decree,
which defines a court in the Decree to mean the Federal
High Court. The foregoing provisions limited the extensive
powers of the State High Courts to exercise unlimited
jurisdiction so far as they relate to matters therein
concerned.
Under 1999 Constitution the Jurisdiction of the State High
Court is limited by section 251 of the Constitution, which
confers exclusive jurisdiction on the Federal High Court in
certain matters.
66
CONCURRENT JURISDICTION OF THE FEDERAL
HIGH COURT AND THE STATE HIGH COURTS
Certain matters are concurrently adjudicated upon by both
the Federal High Court and the State High Courts. These
are matters pertaining to a banker-customer relationship
under the proviso to s. 251(1)(d) of the 1999 Constitution;
reference of questions of law; and fundamental rights
enforcement matters.

Matters arising from a Banker – Customer Relationship

under the Proviso to S. 251 (1) (d) of the 1999
Constitution.
The Supreme Court has held in FMBN v. NDIC [1999] 2
SCNJ 57 and NDIC v. Okem Enterprises (2004) 4 SC (Pt.
2) 77 that in a dispute arising from a banker-customer
relationship, both courts share the jurisdiction to adjudicate
on same. The proviso, the court said, limits the exclusivity
of the jurisdiction conferred on the Federal High Court in
the preceding subsection but not to divest the Court of the
jurisdiction.

Reference of Questions of Law

Matters of reference of questions of law as to interpretation
or application of the Constitution from inferior courts to the
Federal and States High Courts, under S. 295 (1) of the
1999 Constitution is also concurrently shared by both
courts. The matter must be “a substantial question of law” –
Okenwa v. Military Governor of Imo State (1996) 6 SCNJ
22 at 234; African Newspapers of Nigeria Ltd. v. The
Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137 at
149; Bamaiyi v. AG. (Fed) (2001) 7 SCNJ 346 at 356;
[2001] 8 NWLR (Pt. 715) 270; Akan v. AG (Rivers) (1982)
3 NCLR 881. Once the Supreme Court has pronounced on
a provision of the Constitution, the question of
interpretation or application of same ceases to be a
67
substantial question of law to be referred – Rossek v. ACB
(1993) 10 SCNJ 20 at 60

Fundamental Human Rights Enforcement Cases

Another area where both the Federal High Court and State
High Courts have concurrent jurisdiction is the area of
enforcement of fundamental human rights entrenched in
Chapter IV of the 1999 Constitution – section 46 (1) and
(2). The section provides:

Any person who alleges that any of the provisions of this

Chapter has been, is being or likely to be contravened in
any State in relation to him may apply to a High Court in
that State for redress.
Subject to the provisions of this Constitution, a High Court
shall have original jurisdiction to hear and determine any
application made to it in pursuance of the provisions of this
section and may make such orders, issue such writs and
give such directions as it may consider appropriate for the
purpose of enforcing or securing the enforcement within
that State of any right to which the person who makes the
application may be entitled under this Chapter.

Note that while subsection 1 empowered a rights victim to

approach a High Court in the State of breach, which High
Court has been held to mean both the Federal High Court
and the State High Court, subsection 2 makes the
jurisdiction conferred on both courts, “subject to the
provisions of this Constitution”. This means that both
courts must exercise its jurisdiction under section 46 in
conjunction with the jurisdiction conferred on them under
sections 251, 257 and 272 of the Constitution – Tukur v.
Government of Gongola State [1989] 4 NWLR (Pt. 117)
517; Inah v. Ukoi. [2002] 9 NWLR (Pt. 773) 563 at 588

68
But contrast Grace Jack v. University of Agriculture,
Makurdi [2004] 5 NWLR (Pt. 865) 208 where the Supreme
Court held that both courts have jurisdiction irrespective of
parties or subject matter. However, in Wema Securities and
Finance Plc v. NAIC [2015] 16 NWLR (Pt. 1484) 93 the
apex court ruled that the jurisdiction of both courts must be
guided by the constitutional provisions; and both courts
must operate within its own jurisdiction. See also Adetona
v. Igele General Enterprises Ltd [2011] 7 NWLR (Pt.
1247) 535 at 564, where the Supreme Court seemed to
return to the ratio in Tukur v. Government of Gongola
State, when it held that the exercise of this jurisdiction by
the Federal High Court is only where the fundamental right
threatened or breached falls within the enumerated matters
on which that court has jurisdiction and further held that
the same rule applies to the High Court of a State. This
decision though obiter, is however persuasive. A cursory
look at the two decisions, i.e. Tukur and Grace Jack seems
to suggest that while in Tukur’s case, the court considered
both S. 42(1) and (2) of the 1979 Constitution which is
ipssissima verba with S. 46(1) and (2) of the 1999
Constitution, their Lordships only laid emphasis on S.
42(1) in Grace Jack hence the seeming confusion. In view
of later decisions cited above, it is safer to rely on Tukur’s
decision as far as the concurrent jurisdiction of both courts
on issue of fundamental rights is concerned.

POWER OF TRANSFER OF CASES FROM

FEDERAL HIGH COURT
Under the Federal High Court Act, section 22 (2) provides
that no cause or matter shall be struck out by the Federal
High Court merely because such matter or cause was taken
to the Federal High Court instead of the High Court of a
State in which it ought to have been brought and the judge
of the Federal High Court before whom such cause or

69
matter is brought may cause such cause or matter to be
transferred to the appropriate High Court of the State.
The Supreme court held that although, the word used in the
section is "may", such word must be constructed as
imposing an obligatory duty and that it will be absurd to
hold that a discretion is given because when a judge of the
Federal High Court holds that he has no jurisdiction and
then refuses to order a transfer, he can neither strike out the
case nor dispose of it in any other manner. See section 26
of the Act for the power of the F.H.C see also Mokelu
v. Federal Commissioner for Works and Housing (1976) 1
NMLR 329 at 433; A.M.C v. NPA (1987) 1 NWLR (Pt. 51)
475.

POWER OF TRANSFER OF CASES FROM STATE

HIGH COURT
The power to transfer must be in accordance with the rules
of practice and procedure applicable to the State High
Court. The Supreme Court held that the Lagos State High
Court under Section 22 (3) of the Federal High Court Act
had no power to transfer a case before it to the Federal
High Court after deciding that it had no jurisdiction over
such a case. The appropriate step to take is to strike out the
action. The rationale for this decision was that the Federal
High Court Act being a federal law could not regulate
practice and procedure in the State High Court in view of
section 274 of the Constitution which vests same in the
Chief Judge of the State subject to laws made by House of
Assembly of the State. See A.M.C v. NPA (1987) 1 NWLR
(Pt. 51) 475. Fasakin Foods Ltd. v. Shosanya (2006) 10
NWLR (Pt. 987) 126
There are however, provisions in the High Court Laws for
transferring matters to Magistrates Courts/District Courts.
See section 55 High Court Law of Lagos State 2015;
section 65 High Court Act of FCT.

70
SHARIA COURT OF APPEAL
The Court shall in addition to any other jurisdiction as may
be conferred upon it by a Law of a State exercise appellate
and supervisory jurisdiction in civil proceedings involving
questions of Islamic Personal Law. See section 277 (2)
1999 Constitution for matters the court can adjudicate
upon. They relate to marriage, family relationships, gift,
wills, guardianship of infants, succession, maintenance or
guardianship of a physically or mentally infirm Muslim.
The Court also has jurisdiction on any question where all
the parties are Muslims and have elected that the case be
determined in accordance with Islamic personal law.

CUSTOMARY COURT OF APPEAL

Section 280 (1) of the 1999 Constitution provides that there
shall be for any state that requires it a Customary Court of
Appeal. It consists of a President and such number of
Judges as may be prescribed by the House of Assembly of
a State. The President and Judges are appointed by the
Governor on the recommendation of the National Judicial
Council.

NATIONAL INDUSTRIAL COURT

The Constitution of the Federal Republic of Nigeria (Third
Alteration) Act 2010, S. 2, inserted a new S. 6(5)(cc) to the
1999 Constitution, which established the National
Industrial Court as a superior court of record and clothed it
with the powers of a High Court (S. 254D (1) of the 1999
Constitution as amended by S. 5(c), Constitution of the
Federal Republic of Nigeria (Third Alteration) Act 2010).

JURISDICTION OF THE NATIONAL INDUSTRIAL

COURT
Under S. 254(C)(1) of the 1999 Constitution as amended
by the Third Alteration Act, the National Industrial Court
is, notwithstanding the provisions of sections 251, 257, 272
71
and anything contained in the Constitution and in addition
to such other jurisdiction as may be conferred upon it by an
Act of the National Assembly, vested with exclusive
jurisdiction to hear and determine civil causes and matters:
a) relating to or connected with any labour,
employment, trade unions, industrial relations and
matters arising from workplace, the conditions of
service, including health, safety, welfare of labour,
employee, worker and matters incidental thereto or
connected therewith;
b) relating to, connected with or arising from Factories
Act, Trade Disputes Act, Trade Unions Act, Labour
Act, Employees' Compensation Act or any other Act
or Law relating to labour, employment, industrial
relations, workplace or any other enactment
replacing the Acts or Laws;
c) relating to or connected with the grant of any order
restraining any person or body from taking part in
any strike, lock-out or any industrial action, or any
conduct in contemplation or in furtherance of a
strike, lock-out or any industrial action and matters
Connected therewith or related thereto;
d) relating to or connected with any dispute over the
interpretation and application of the provisions of
Chapter IV of this Constitution as it relates to any
employment, labour, industrial relations, trade
unionism, employer's association or any other
matter which the Court has jurisdiction to hear and
determine;
e) relating to or connected with any dispute arising
from national minimum wage for the Federation or
any part thereof and matters connected therewith or
arising there from;
f) relating to or connected with unfair labour practice
or international best practices in labour,
employment and industrial relation matters;
72
g) relating to or connected with any dispute arising
from discrimination or sexual harassment at
workplace;
h) relating to, connected with or pertaining to the
application or interpretation of international labour
standards;
i) connected with or related to child labour, child
abuse, human trafficking or any matter connected
therewith or related thereto;
j) relating to the determination of any question as to
the interpretation and application of any-
i. collective agreement;
ii. award or order made by an arbitral tribunal
in respect of a trade dispute or a trade union
dispute;
iii. award or judgment of the Court;
iv. term of settlement of any trade dispute;
v. trade union dispute or employment dispute as
may be recorded in a memorandum of
settlement;
vi. trade union constitution, the constitution of
an association of employers or any
association relating to employment, labour,
industrial relations or work place;
vii. dispute relating to or connected with any
personnel matter arising from any free trade
zone in the Federation or any part thereof;
k) relating to or connected with disputes arising from
payment or non-payment of salaries, wages,
pensions, gratuities, allowances, benefits and any
other entitlement of any employee, worker, political
or public office holder, judicial officer or any civil
or public servant in any part of the Federation and
matters incidental thereto;
l) relating to-

73
i. appeals from the decisions of the Registrar of
Trade Unions, or matters relating thereto or
connected therewith;
ii. appeals from the decisions or
recommendations of any administrative body
or commission of enquiry, arising from or
connected with employment, labour, trade
unions or industrial relations; and
iii. such other jurisdiction, civil or criminal and
whether to the exclusion of any other court or
not, as may be conferred upon it by an Act of
the National Assembly;
m) relating to or connected with the registration of
collective agreements.
Subsections
(2) Notwithstanding anything to the contrary in this
Constitution, the National Industrial Court shall have the
jurisdiction and power to deal with any matter connected
with or pertaining to the application of any international
convention, treaty or protocol of which Nigeria has ratified
relating to labour, employment, workplace, industrial
relations or matters connected therewith.

(3) The National Industrial Court may establish an

Alternative Dispute Resolutions Centre within the Court
premises on matters which jurisdiction is conferred on the
court by this Constitution or any Act or Law:
Provided that nothing in this subsection shall preclude the
National Industrial Court from entertaining and exercising
appellate and supervisory jurisdiction over an arbitral
tribunal or commission, administrative body, or board of
inquiry in respect of any matter that the National Industrial
Court has jurisdiction to entertain or any other matter as
may be prescribed by an Act of the National Assembly or
any Law in force in any part of the Federation.

74
(4) The National Industrial Court shall have and exercise
jurisdiction and powers to entertain any application for the
enforcement of the award, decision, ruling or order made
by any arbitral tribunal or commission, administrative
body, or board of inquiry relating to, connected with,
arising from or pertaining to any matter of which the
National Industrial Court has the jurisdiction to entertain.

(5) The National Industrial Court shall have and exercise

jurisdiction and powers in criminal causes and matters
arising from any cause or matter of which jurisdiction is
conferred on the National Industrial Court by this section
or any other Act of the National Assembly or by any other
law.

(6) Notwithstanding anything to the contrary in this

Constitution, appeal shall lie from the decision of the
National Industrial Court from matters in sub-section 5 of
this section to the Court of Appeal as of right.
On the jurisdiction of the National Industrial Court, see
Coca-Cola (Nig) Ltd v. Akinsanya [2017] 17 NWLR (Pt.
1593) 74 at 130, per Eko, JSC; Skye Bank Plc v. Iwu [2017]
16 NWLR (Pt. 1590) 24

ECOWAS COMMUNITY COURT OF JUSTICE

The Community Court of Justice is established by the
Economic Community of West African States (ECOWAS)
as a regional court with civil jurisdiction over all member
States. The decisions of the Court are binding on all
member states, community institutions, individuals and
corporate bodies. Its composition, jurisdiction and powers
are contained in the Protocol of the Community Court of
Justice 1991 as amended by the Supplementary Protocol
2005.

75
JURISDICTION OF THE COMMUNITY COURT
The Court has jurisdiction to hear and determine any
dispute relating to the following:
a) the interpretation and application of the Treaty,
Conventions, Protocols, regulations, directives and
decisions of the Community;
b) the failure by Member States to honor their
obligations under the Treaty, Conventions and
Protocols, regulations, directives, or decisions of
ECOWAS;
c) the provisions of the Treaty, Conventions and
Protocols, regulations, directives or decisions of
ECOWAS Member States;
d) the Community and its officials;
e) the action for damages against a Community
institution or an official of the Community for any
action or omission in the exercise of official
functions.
f) Cases of violation of human rights that occur in any
Member State;
g) the Court shall have jurisdiction over any matter
provided for in an agreement where the parties
provide that the Court shall settle disputes arising
from the agreement;
h) any specific dispute referred to the Court by The
Authority of Heads of State and Government.

MAGISTRATES’S COURTS AND DISTRICT

COURTS
Magistrates‟ Courts are courts of summary jurisdiction
created by the law of the House of Assembly of a State as
courts of summary jurisdiction i.e., matters are determined
therein without pleadings or briefs filed by the parties. In
the Southern part of Nigeria, Magistrates‟ Courts are
presided over by “Magistrates”. But when a Magistrates‟
Court sits in its civil jurisdiction in the Northern parts of
76
Nigeria, it is called a “District Court” and its presiding
officer is referred to as a “District Judge”. It is only
referred to as a “Magistrates‟ Court” when it sits in its
criminal jurisdiction and the presiding officer becomes a
“Magistrate”.

In Lagos, the Magistrates‟ Courts Law 2009, vests civil

jurisdiction on the Magistrates‟ Courts under section 28
thereof, over all personal actions arising from contract, tort
or both, where the debt or damage claimed, whether as a
balance of account or otherwise, is not more than ten
million Naira (N10,000,000.00) at the time of filing; all
actions between landlord and tenant for possession of any
land, agricultural, residential or business premises or house
claimed under agreement or refused to be delivered up,
where the annual rental value does not exceed ten million
Naira (N 10,000,000.00) at the time of filing; This amount
is exclusive of claim of arrears of rent and mesne profits,
which may claimed in addition not minding the fact that the
total claim exceeds ten million Naira (N 10,000,000.00);
appointment of guardian ad litem and to make orders, issue
and give directions relating to their appointment; and grant
of injunctions or orders to stay, waste or alienate or for the
detention and preservation of any property, the subject of
such action or to restrain breaches of contract or tort; and to
handle appeals from the Customary Court – See s. 28(1)(a)-
(e), Magistrates‟ Courts Law

SMALL CLAIMS COURT (LAGOS)

Lagos State recently created within the Magistrates‟ Courts
system, some courts designated as Small Claims Courts.
See Small Claims Court Practice Directions 2018. The
main objective of the small claims court is to provide easy
access to an informal, inexpensive and speedy resolution of
simple debt recovery disputes in the Magistrates‟ Courts.
77
The bases for commencement of action in a Small Claims
Court are the same for the regular Magistrates‟ Courts. The
claim must be for a liquidated money demand in a sum not
exceeding N5,000,000.00 (five million naira), excluding
interests and costs; and the Claimant shall have prior to
filing the action, served on the Defendant, a letter of
demand as in Form SCA 1.

78
CHAPTER THREE
PARTIES TO AN ACTION

Capacity to sue or be sued as a party in an action plays a

very important if not decisive role in Civil Litigation. The
general principle is that an action, by or against a person
who is incompetent in law is void and irremediable. Courts
may however grant an amendment to regularize parties so
far as the effect of the amendment would not be to wipe out
one set of proceedings and substitute another.

Under the new rules in both Lagos and the Federal Capital
Territory, Abuja, a person who institutes an action in court
against another person is referred to as the “Claimant”. The
names of the persons proposed as plaintiffs/claimants
and/or defendants or "applicants/petitioner and
respondents" must be clearly set out in the writ of summons
or other originating processes as the case may be. If this
requirement is not met, the proper order the court may
make in the circumstances is striking out the suit.

For an action to be competent, parties must be legal persons

i.e. either natural persons or an artificially created legal
person e.g. a limited liability company. If the legal capacity
of a plaintiff/claimant or a defendant is raised, the onus lies
on the person claiming that he has capacity to prove his
competence to conduct the action. If a party is proved not
to be competent to sue or defend the action, he may be
struck out of the suit. If the incompetent party is the
plaintiff/claimant, the action itself may be struck out. See
Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant
Ltd. (1961) 1 All NLR 366. In Amodu Rufai Shitta & Ors v
Momodu Ligali & Ors, (1941) 16 NLR 21 @ 23 twelve
individuals who described themselves as Executive of the
Central Mosque Lagos and who sued in that capacity were

79
held to be nothing more than a collection of individuals
with no capacity to sue.

TYPES OF PARTIES
It is important to bring the appropriate parties before the
court in order for the court to be able to properly determine
the case and also so that the judgment of the court will
become binding on such parties.
There are basically four types of parties to an action
namely:
(a) Proper Parties
(b) Desirable Parties
(c) Necessary Parties
(d) Nominal Parties
See generally (1) Green v. Green (1987) 3 NWLR (Pt. 61)
480 Compare with the case of Mobil Producing (Nig.) Ultd
v. LASEPA & Ors. (2002) 12 SCNJ 1. (2 )Hassan v. Atanyi
(2002) 8 NWLR(Pt.770581 (3) Peenok Investment ltd. V.
Hotel Presidential Ltd (1982) NSCC 477.
(4) Padawa v. Jatau (2003) 5 NWLR (Pt. 813) 247.

JOINDERS OF PARTIES
All persons may be joined in one action as Claimants in
whom any right to relief is alleged to exist whether jointly
or severally and judgment may be given for such Claimants
as may be found to be entitled to without any amendments.
See Order 13 Rule 1, FCT High Court (Civil Procedure)
Rules 2018 and Order 15 Rule 1, High Court of Lagos
State (Civil Procedure) Rules 2019 for similar provision.

Providing for who may be defendants, Order 13 Rule 4

FCT High Court (Civil Procedure) Rules 2018 and Order
15 Rule 4 High Court of Lagos State (Civil Procedure)
Rules 2019 both provide that any person may be joined as
defendants against whom the right to any relief is alleged to
exist whether jointly, severally or in the alterative.
80
Judgment may be given against one or more of the
defendants as may be found to be liable according to their
respective liabilities without any amendment.

Although the purpose of the above provision is to prevent

multiplicity of actions wherever possible i.e. where several
persons could maintain separate actions which arose from
the same transaction or series of transactions and which
could be determined under a common question of law or
fact, it is difficult to deduce from them what manner of
persons qualify as claimants or as defendants.

It had been held that although the above provisions cover

joinder of parties, they do not cover joinder of causes of
action. In Amachree & Ors v. Newington, 12 W ACA 97,
the plaintiff and others were detained by District Officer
Newington. They jointly sued the defendants for false
imprisonment. It was held that each of the plaintiffs had a
separate cause of action which may be determined on the
respective damages suffered by them. Akinola Aguda,
learned author and jurist in his book, Principles of Practice
and Procedure, is however of the opinion that if the causes
of action arise from one transaction, it would be correct to
institute a common action.

The Abuja Rules and Lagos Rules have made provision for
the following classes of parties:-

1. Partners may sue or defend in any of the following

3 different ways namely: (1) in the name of the firm,
but any party to the action may apply to the court for
a statement of the names of the partners to be
furnished or verified on oath or as the court may
direct. See Order 13 rules 25 and 26 Abuja High
Court Rules 2018; Order 15 rule 24 of Lagos High
Court Rules 2019 (2) All the partners of the firm &
81
(3) one or more of the partners as representatives of
the firm/partnership. See Marki v. Hassan Said
(1961) All NLR 502; Iyke Med. Merchandise v.
Pfizer Inc. (2001) 10 NWLR (Pt. 722) 540
2. Infants, lunatics and persons of unsound mind are
generally categorized and referred to as “Persons
under legal disability” both under the Lagos and
Abuja rules. Under the rules they may respectively
sue or defend by their guardian or guardians
appointed for that purpose. See Order 13 Rule 11 of
FCT Abuja Civil Procedure Rules 2018 and Order
15 Rule 9 of Lagos State High Court (Civil
Procedure) Rules 2019
3. Trustees, Executors and Administrators may sue and
be sued on behalf of or as representing the property
or estate of which they are trustees or
representatives without joining any of the
beneficiaries.
4. The Rule did not provide for legal capacity of
Married Women. Under Common Law, marriage
divested a woman of her capacity to contract. This is
as a result of the common law presumption of legal
unity of spouses. Husband and Wife were regarded
as one person. The common law rules in this regard
were essentially designed to preserve family unity
and domestic harmony. Therefore, a husband and
wife could be sued jointly but could not sue each
other. But the Married Woman Property Act 1882 as
amended in 1893 changed the position and gave
married women capacity to enter into contracts and
sue and be sued in respect of their separate property
as if they were unmarried. Therefore under the Act,
a married woman could maintain civil action against
all persons including her husband in respect of her
pre-marriage contracts or properties for the security
and protection of her separate property.
82
5. Registered Associations which are registered under
Part C of CAMA can sue and be sued in their
registered names (i.e the registered trustees of that
association- section 590 CAMA). See Bambe v.
Yesufu Aderinola (1977) 1 SC 1. Example is the
Registered Trustees of Nigerian Bar Association.
6. Unincorporated Associations cannot sue as they are
not legal persons. Generally they cannot sue or be
sued in their names. However they can sue through
their members or officers are representatives of the
association. But in Kpebimoh v. Board Of
Governors Western Ijaw TTC 1966 1 NMLR 130,
the court held that an unincorporated body
empowered by law to do certain acts which could
result in injury to others must be assumed to be
impliedly clothed with the power to sue and be sued.
Compare this case with the case of Gani Fawehinmi
v. NBA (No.1) (1989) 2 NWLR (Pt. 105) 494 at
532, where it was held that an Unincorporated
Association is just an association of members and
can only sue and be sued through its members or
officers as representatives of the Nigerian Bar
Association (NBA) since the NBA was not an
incorporated association. However after this
decision, it was found that the NBA had already
been registered at the Corporate Affairs Commission
as Registered Trustees of the NBA sometime in
April 1983. It can therefore sue and be sued as the
“Registered Trustees of the NBA”. The decision of
the court in Gani Fawehinmi v. NBA is therefore no
longer the law as it relates to NBA not being
registered.
7. Registered Business names can sue or defend an
action in the name of their owners and there must be
an indication under the name that the owner is

83
trading under the name and style of the business
name. See Okechukwu v. Ndah (1967) NMLR 366.
8. Trade Unions can be sued in their registered names.
In Bonsor v Musicians Union (1955) 3 All ER 518
it was held that though an unincorporated body, the
Musicians Union could be sued for breach of
contract as a legal entity and that damages could be
recovered out of the Union funds.
9. In the case of Statutory Bodies they can sue and be
sued in their statutory or corporate names.
10. Actions for and against Government will be
commenced and defended by the Attorney General
of the Federation and the State as the case may be.

SUITS IN A REPRESENTATIVE CAPACITY

(REPRESENTATIVE ACTION)
Where there are numerous persons having the same interest
in one matter, one or more of such persons may sue or be
sued or may be authorized by the court or judge in
chambers to defend the matter on behalf of the others.
Examples include suits by or against executor/
administrators, trustees, holders of Power of Attorney, land,
family or communal matters. The reason behind the
provisions in the Rules of Court permitting representative
actions include: - Convenience for the court and the parties,
the need not to overcrowd the courts with parties whose
interest would be adequately protected by some responsible
members of the group. See Order 13 rule 14 Abuja High
Court Rules 2018; Order 15 rule 12 Lagos High Court
Rules 2019. See also the case of Tessi Opebiyi v. Oshoboja
& Ors. (1976) 9 – 10 SC 195

Under both rules the need to seek leave of court to sue in a

representative capacity seems to have been dispensed with.

84
CLASS ACTIONS:
This is a type of representative action and it is provided for
under both the FCT Abuja rules, 2018 and the High Court
of Lagos State rules, 2019. It will apply in a situation where
in any proceedings the person or class of persons or some
other members of that class that may be interested in the
subject matter cannot be ascertained or cannot be readily
ascertained or if ascertained cannot be found or if
ascertained and found, it is expedient for the purpose of
efficient procedure that one or more persons be appointed
to represent that person or class or member of the class.

In the above instance the judge may make an appointment

of a person or persons for the purpose of the proceedings.
The decision of the Judge in the proceedings shall be
binding on the person or class of persons so represented.
See Order 13 rule 15 Abuja Rules 2018; Order 15 rule 13
Lagos Rules 2019. NOTE however that the scope of
application of the Class Actions vary from one jurisdiction
to another.

NON-JOINDER AND MISJOINDER OF PARTIES

Non-joinder refers to when all persons who may be entitled
to or who claim some shares or interest in the subject
matter of the suit or who may likely be affected by the
result have not been made parties. If this situation arises,
the court may either on the application of any of the parties
or suo motu order that the names of any party who ought to
have been joined or whose presence before the court is
necessary to effectually and completely adjudicate upon
and settle the questions involved in the proceedings be
added.
The court may adjourn the suit to a future date with a
direction that such person or persons should be joined as
parties to the action either as claimants or defendants in the
suit as the case may be. Every party whose name is added
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as defendant shall be served with the originating processes
or notice in the manner prescribed in this Rules or in such
manner as may be prescribed by the court and the
proceedings against such person shall be deemed to have
begun on the service of such originating processes or
notice. On proof of due service of such notice, the person
or persons so served, whether he or they appeared or not,
shall be bound by the proceedings. See Order 13 rule 18 (3)
& (5) High Court of FCT Abuja (Civil Procedure) Rules
2018; and Order 15 Rule 16 (3) & (5) of High Court of
Lagos State (Civil Procedure) Rules, 2019, for similar
provisions.

Mis-joinder on the other hand refers to when parties were

improperly joined in an action either because they have no
cause of action or any interest whatsoever in the suit. The
court may at any stage of the proceedings and on such
terms as appear to the court to be just, order that the name
or names of any party or parties improperly joined, whether
as claimants or defendants be struck out. See Order 13 rule
18 (2) of the High Court of FCT Abuja (Civil Procedure)
Rules, 2018 and Order 15 rule 16 (2) Lagos State High
Court (Civil Procedure) Rules 2019. The Court may do this
either suo motu or on the application of a party to the suit.
However, if several claimants in a suit start disagreeing
among themselves or canvassing conflicting interests, the
court may strike out the name of one of them and make him
a defendant.

Similarly, in the case of non-joinder, the court has a

discretion which it may exercise suo motu or on the
application of either party to order the joinder of a person
who ought to be made a party, so that all the matters in
dispute will be completely determined between all the
parties concerned. A party desiring to be joined in an action
may make an application by motion on notice supported by
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an affidavit and written address deposing to the reasons for
seeking to join the action. All existing parties in the suit
must be served with a copy of the application. See also
Onayemi v. Okunubi. (1966) NMLR 50.

JOINDER OF PERSONS JOINTLY AND/OR

SEVERALLY LIABLE
Order 13 rule 7 Abuja High Court Rules 2018 and Order 15
rule 7 Lagos High Court Rules 2019 both provide that “a
claimant may at his option join as parties to the same
action, all or any of the persons severally or jointly and
severally, liable on any contract, including parties to bills
of exchange and promissory notes”. Consequently, when a
person has a joint and several demands against more
persons than one, either as principals or sureties, it will not
be necessary for him to bring before the court as parties, all
persons liable thereto. He may at his option proceed against
any one or more of the persons severally or jointly liable.

Both the Abuja and Lagos High Court (Civil Procedure)

Rules further provide the procedure to be adopted where a
claimant is in doubt as to persons from whom he may seek
redress. See Order 13 rule 8 Abuja High Court rules 2018
and Order 15 rule 8 Lagos High Court Rules 2019. In such
circumstances, a claimant may join two or more defendants
such that the question as to which (if any) of the defendants
is liable and to what extent may be determined between all
the parties by the court. See also the case of Ekun & Ors v,
Messrs Younan & Sons & Anor (1959)WRLR 190, where
two drivers of different vehicles collided with and caused
damage to the plaintiff. The two drivers were blaming each
other for the damage. The court recognized that it was
proper for the plaintiff to sue both parties and claim
damages severally and in the alternative, but not jointly.
See Bullock v. London General Omnibusco (1907) 1KB
264.
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Generally the following guiding principles have emerged in
considering joinder of parties:
1. before parties are joined in the same suit,
counsel must consider whether the defendants
or any of them would have a good ground for
a counter claim against any of the plaintiffs,
which will embarrass the others;
2. whether the plaintiffs are likely to put up
conflicting cases inter se: Sodeke & Ors
v. Pelu & Ors (1979)3 LRN 227.
3. the impecuniosity of the other plaintiffs in
case of joint liability for costs.

Note however that where it was not convenient for the

plaintiffs to institute a joint action, each may institute his
own action and they may consolidate the actions later. On
consolidation of cases, see Ume v. Ifediora (2001) 18
NWLR (Pt. 714) 37 at 39.

CHANGE OF PARTIES
Circumstances may change while a matter is still pending
in a Court of Law. The following situations may arise
(a) A party may become bankrupt or die.
(b) An unmarried female may get married.
(c) There may be an assignment, transmission or devolution
of the interest or liability of the party in the pending suit.
In (a) above, since a dead party cannot physically take part
in the proceedings, his place must of necessity be
succeeded to by the Personal Representatives to his Estate
or whoever inherited his properties-the inheritance of assets
goes with liabilities including pending litigation. Also the
action involving a person who subsequently became
bankrupt must be succeeded to by his trustees in
bankruptcy. There are however, exceptions to the above
rules. In some cases the death of a party automatically
88
extinguishes the action e.g. enforcement of contracts of
personal service or torts of assault and battery.

In the foregoing circumstances, the Lagos High Court Civil

Procedure Rules, and the Abuja High Court (Civil
Procedure) Rules provide that the death of a claimant or
defendant shall not cause a suit to abate or terminate if the
cause of action survives. If there are two or more claimants
or defendants and one of them dies, if the cause of action
survives to the surviving claimant or claimants alone or
against the surviving defendant of defendants alone, the
suit shall proceed at the instance of the surviving claimant
or claimants, and against the surviving defendant or
defendants. See Order 13 rule 30 Abuja rules 2018; Order
15 rule 29 Lagos rules 2019

Where the action only survives for both the surviving

claimant or claimants and the legal representatives of a
deceased claimant jointly; on the application of the legal
representatives of the deceased claimant, the court may
have his name in place of the deceased claimant and the
suit shall proceed at the instance of the surviving claimants
and the legal representatives of the deceased claimant. If
the legal representatives of the deceased claimant did not
apply to have their name substituted for that of the
deceased or show interest in the matter after they had been
served with a notice to appear, the action will proceed and
they will be bound by the judgment given in the same
manner as if the action had proceeded co-jointly with
surviving claimants.

DEATH OF A SOLE DEFENDANT OR A SOLE

SURVIVING DEFENDANT
Where one of several defendants or a sole surviving
defendant dies, if the cause of action survives, but not
against the surviving defendant or defendants alone, and
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also in the case of death of a sole defendant or sole
surviving defendant, the plaintiff may apply to the court
specifying the name, description and place of abode of any
person whom he alleges to be the legal representative of
such defendant and whom he desires to be made the
defendant in his stead. The court shall thereupon enter the
name of such representative in the suit in place of such
defendant and issue an order to him to appear on a day to
be therein mentioned to defend the suit and the suit shall
proceed normally as if such representative had originally
been made a defendant or had been party to the former
proceedings in the suit.

PARTIES BY INTERVENTION
From the general rules of court laid down for joinder of
parties and from conventional practice, parties may be
allowed to intervene in an action where they were not
originally claimants or defendants. Any person who makes
himself a party to a suit on his own intervention is referred
to as an intervener. In Oriria v. Govt. of W. Nigeria &
Ors (1971) All NLR 138, the Supreme Court was
considering Whether the provisions of the High Court
rules of Western Nigeria (O.7 R 10 (1 & 2) were wide
enough to admit the joinder of two parties who
were interveners. The court held that it was. The Court
also held that Order 15 R 6( 2) RSC England permits that a
person who is not a party may be added as a
defendant against the wishes of the clamant either on the
application of the defendant or on his own intervention or
in rare cases by the court of its own motion.
The Supreme Court has also laid down the conditions for
joining interveners as follows:-
(a) That looking at the facts of the case, the intervener
ought to have been joined in the first instance
b. that the joinder of the intervener as a party would be
necessary to enable the court effectively and
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completely determine or settle all the questions involved in
the matter.
(c) the intervener must satisfy the court that his presence is
necessary for an effective adjudication of the matter, and:-
(d) That the claimant must have a claim against him which
the claimant desires to pursue and that his interest is
identical with that of the defendant. See Oyedeji Akanbi
(Mogaji) & Others v. Okunola Ishola Fabunmi & Other
(1986) 2 56 431.
Generally the courts would not compel a claimant to
proceed against a party he does not desire to sue.
The procedure for joining an intervener either as claimant
or defendant is by motion on notice, supported by an
affidavit and written address to be served on all existing
parties. Oterial Odade v. Otowodo Okujeni & Ors 1973 1
All NLR. (Part 1)156. The test which the court will apply
in considering whether or not to grant the application to
intervene is whether the relief which the claimant is
seeking will directly affect the intervener in the
enjoyment of his legal rights. Therefore, the court, will
grant an application for intervention by a person who
claims to own or have interest in a piece of land, title to
which is in dispute in court between two parties. See
Samuel v. Samuel (1879) 12 Ch. D 152.
Since it is the rules governing joinder of parties that
permits the intervention of parties, can it be said that a
party may intervene or join or be joined in an action after
judgment or on appeal?

In Laibru Ltd v. Building & Civil Eng. Contractors (1962)

1 All NLR 387 the precedent seemed to have been laid that
an order of joinder or substitution of parties could be made
on appeal. In that case, the Federal Supreme Court by a
majority of 2-1 (Bairaman and Brett FJJ, Taylor FJ
dissenting) held that where, by a mistake of law the lower
court refused to substitute or join a party as claimant, who
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should have been substituted or joined and especially
where joinder of such a party did not involve any
amendment to the pleadings or affect the substantive rights
of the other parties to the action, the Supreme Court on
appeal, on its own motion can order the joinder of such a
party for all purposes of the action without remitting the
case back to the High Court.
Taylor F J dissenting said "I concede that we have the
power to order that a person not a party who will be
affected by the result, be joined in a suit, but it is in my
view a far different thing for this court to make such an
order in the face of the pleadings and the ground of appeal
and relief, claimed, all of which have not been amended".
Note: The Federal Supreme Court Rules provided for a
Notice to Appear to be served on a party who ought to, but
had not shown interest in a matter. In Lagos and Abuja it is
possible to obtain an ex-parte order against such a party
compelling him to participate in the pending suit. Note
where a defendant is added or substituted, the claimant
shall amend the originating process accordingly and the
amended originating process shall be filed and served on
the new defendant in the same manner as the original
defendant unless otherwise directed by the Judge. See
Order 13 rule 20 Abuja High Court Rules 2018; Order 15
rule 18 Lagos High Court Rules 2019

THIRD PARTY PROCEEDINGS

Third party proceedings are special proceedings created by
the rules of court in favour of a defendant only, or in
favour of a Plaintiff who is himself a Defendant in a
counterclaim. The procedure allows the joinder of a third
party by the Defendant not for the purpose of prosecuting
the suit in court but for the purpose of prosecuting another
action between the Defendant and the third party in the
same suit between the Defendant and the Plaintiff.

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The objective of a third party proceeding is to prevent
multiplicity of actions – Bank of Ireland v. Union Bank of
Nigeria Ltd (1998) 7 SCNJ 385; Soyinka v. Oni (2011).
A Defendant desirous of joining a third party shall apply to
the court or a judge in chambers by way of ex parte
application for leave to issue and serve a third party notice.
As in other motions, the application shall be supported by
an affidavit stating the grounds for believing that the third
party may bear eventual liability – O. 15 r. 19(1), Lagos, O.
13 r. 21 Abuja.
The application shall be supported by a written address-
O.43 r. 1(2) Abuja; O. 43 r 1(2) (a) Lagos.
A third party may be joined if the court is satisfied that he
may bear eventual liability whether wholly or partly – O.
15 r. 19(1), Lagos, O. 13 r. 21 Abuja.

The effect of a third party notice is to make the third party a

party in the suit in the same manner as if he had been sued
in the ordinary manner by the defendant.

See Okafor v. ACB Ltd and Another (1975) 5 Sc. 89. Here,
the respondent bank had sued the defendant for the
recovery of the loan granted to him. The defendant joined
the appellant for liability to contribution. In the third party
proceedings that ensued, the defendant had alleged in his
statement of claim against the 3rd party appellant, that he
and the appellant were subscribers and directors of a
limited liability company. That both of them negotiated for
and obtained the loan on behalf of the company and that the
loan was wholly utilized for the business of the company.
The application for leave to join the company as proper
third party instead of the appellant was granted by the trial
Judge. The Supreme Court however criticized the trial
Judge for granting the application at the very late stage of
93
the proceedings because it would have entailed substantial
amendment of pleadings and introduction of fresh
evidence.

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CHAPTER FOUR
COMMENCEMENT OF ACTIONS

The discussion here relates to preliminary considerations

before commencing an action as well as the mode of
institution of actions in the Magistrates‟ Courts in Lagos
state and also the High Courts of both, the Federal Capital
Territory, Abuja and Lagos State. Note also the relevance
to the preliminary consideration, matters such as
interviewing and counselling skills, letter writing, duty to
client, accountability, cost and charges.

NB. Reference will also be made to the procedure in the

National Industrial Court. The applicable laws and rules
are:
For the Magistrates Court in Lagos, see the
Magistrate Courts law (2009), the Magistrate courts
rules (2009);
1. For the High Court‟s (Abuja and Lagos), see the
High Court Laws (Abuja & Lagos), High Court
Civil Procedure Rules of the FCT (2018) and the
High Court Civil Procedure rules of Lagos State
(2019).

NB: The National Industrial Court Rules and Sheriffs and

Civil Processes Law.

A. PRELIMINARY CONSIDERATIONS BEFORE

COMMENCING AN ACTION:
It must be noted that before instituting or indeed defending
an action in court, a party should as a matter of preliminary
issue consider the following:
1. Existence of a reasonable cause of action. Cause of
action refers to facts sufficient to give rise to an

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action entitling the claimant to a relief in law. See
Mobil v LASEPA (2003)104 LRCN 240 at 268.
2. Capacity of Parties.
3. Litigation cost.
4. Exhaustion of available remedies and their effect on
jurisdiction.
5. Satisfaction of all conditions precedent such as
service of pre action notices etc
6. Pre action counselling. (NB. How to draft pre action
counselling certificate. Abuja rules)
7. Availability of Alternative Dispute Resolution
methods.
8. Jurisdiction of the Court; (Monetary - especially
Magistrates Court – s.28 MCL Lagos, territorial and
subject matter)
9. Venue
10. Locus Standi (i.e. standing to sue which is
determined by interest in the subject matter). See
expansive view of „interest‟ in FAWEHINMI v
AKILU (1987) 4 NWLR (Pt. 67) 797; and
FAWEHINMI v. PRESIDENT FRN (2007) 14
NWLR (pt. 1054) 275.
11. Statutory limitations. An action is statute barred
where it is brought outside the statutory limitation
period prescribed by the various statutes of
limitation.

Note the relevance of a lawyer‟s Interviewing, counselling

and letter writing skills as well as ethical duties of a lawyer
to his client as accountability etc to the preliminary
considerations.

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B. COMMENCEMENT OF ACTIONS IN THE
MAGISTRATES’ COURTS
See the Magistrates‟ Courts Law (Lagos), No. 16, 2009
(MCL) which repealed the 2003 law as amended in 2007
and the Magistrates Court (Civil Procedure) Rules (MCR),
see 4th Schedule Magistrates Court Law. Note also the
provisions of the Sheriffs and Civil Process Laws for
purposes of service of processes and enforcement of
judgments.

NB. Grades of Magistrates‟ Courts have been abolished in

Lagos S.93 (1) MCL S. 2009.

Subject matter includes all personal actions arising from

contracts, torts etc., actions between landlord and tenant
etc. S. 28.
Also note that the Magistrates‟ Court have jurisdiction
throughout Lagos divided into Magisterial Districts. See
monetary jurisdiction N10, 000, 000.00 (Ten Million
Naira), S. 28 MCL 2009. In tenancy matters, rental value
determines jurisdiction not cumulative arrears of rent over
a period. S. 28 (1) (b)

1. PLACE OF INSTITUTION OF ACTIONS

For actions that may be commenced in the Magistrates‟
Court of Lagos State see Order 1 Rule 1 & 2 MCR.
a. Where defendant resides or carries on business in
Lagos;
b. The cause of action arose wholly or in part in Lagos;
c. Where the claimant sues as an assignee of a debt or
other things in action, the action may be commenced
in Lagos if the assignor might have commenced it in
Lagos but for the assignment.

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2. MODES OF COMMENCING ACTIONS IN THE
MAGISTRATES COURT IN LAGOS.
There are basically two modes of commencing civil action
under the MCR 2009, viz;
i. Action by claim. Order.1 R.1 MCR;
ii. Action by Originating Application. Order.1 R.2
MCR

See actions that may be commenced by claim.

ACTIONS BY CLAIM
Actions commenced by claim could be for the issuance of:
i. Ordinary summons in Civil Form 1 – See Order 1 R.
or,
ii. Summary summons in Civil Form 4 – See Order 3
R. 1.
Ordinary summons is issued for contentious matters, while
Summary summons is used in actions involving liquidated
money demands with or without interest.

APPLICATION FOR ORDINARY SUMMONS

The application for ordinary summons is by the claimant
filing copies of his claim together with the particulars of
claim showing his cause of action, and his pecuniary or
other claim must be furnished with copies sufficient for
each additional defendant if more than one. The Magistrate
then issues the summons as in Civil Form 1. Civil Form 4A
is annexed for use by the defendant for admissions, defence
or counterclaim as the case may be. The court may strike
out any action which discloses no reasonable cause of
action. See Order 1 Rules 4 & 5. The court shall issue the
summons together with the particulars of claim filed to be
served on the defendant who shall appear on a date
determined by the registrar not less than 5 days after
ensuring service has been effected. See Order 2 r 1.
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Defendant may then respond to the claim by either asking
for further particulars, admission, defence, a counterclaim
or tender. See Order 2 r 4, 5 & 6 MCR. Take note of the
time limits for taking steps by defendant. Also note the
timelines for responding by the defendant.
Summary summons may be exchanged for ordinary
summons if not served within the stipulated time upon
payment of prescribed fees. See order 3 r 9 MCR 2009.

FORMAT AND CONTENTS OF PARTICULARS OF

CLAIM
Actions by claim as stated above are commenced by filing
particulars of claim which contains the facts forming the
substance of the claim and the reliefs sought by the
claimant. The format of the particulars is as follows:
1. Headed in the court including the suit number,
2. Contain the names of the parties
3. The title
4. The body which contains the facts succinctly
describing the parties, the facts constituting the
cause of action and the reliefs.

The specific fact to be stated in the body of the claim

depends on the subject matter as set out hereunder:

1. Ordinary Debt Cases: The particulars should show

dates of all items, goods or other debts, and also cash
received or credits. Note: Where the claimant is willing
to abandon the excessive portion of his claim so as to be
able to commence his proceedings in the Magistrate
Court or District Court, this fact must be noted at the
end of the particulars.

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2. Unliquidated damages: In claims for unliquidated
damages, the claimant can state that he limits his claim
to a certain sum, which will then in general be deemed
to be the amount claimed, which certainly affects the
court fee to be paid or in relation to any award of costs
against an unsuccessful claimant.

3. Moneylender's Action: In money lender's action the

particulars of claim must show that the Claimant was at
the date of the loan, a duly licensed money lender and
also state the following:
i. the date of the loan;
ii. the amount actually lent;
iii. the rate per cent of interest charged;
iv. the date of the note or written memorandum of
contract;
v. the date the contract was signed by the borrower;
vi. the date when a copy of the contract was sent or
delivered to the borrower;
vii. payment received, with the date of payment;
viii. amount of every sum due to the claimant;
ix. the date the same became due; and
x. amount of interest accrued due thereon and
unpaid

4. Hire Purchase Claims: In action for recovery of goods

let under Hire-Purchase agreements, the particulars of
claim must state:

i. the date of the agreement and the parties thereto;

ii. the goods claimed;
iii. the amount of the hire-purchase price;

100
iv. the amount paid by or on behalf of the hirer;
v. amount of the unpaid balance of the hire-
purchase price;
vi. the date when the right to demand delivery of the
goods accrued;
vii. the amount if any claimed as an alternative to the
delivery of the goods; and
viii. the amount claimed in addition to delivery of the
goods or the alternative money claim, stating
which.

5. In Possession Cases: The Claimant can join a claim for

mesne profit, arrears of rent, damages for breach of
covenant, or payment of the principal money or interest
secured by a mortgage or charge. A full description of
the property in question, together with a statement of
the net annual rateable value (or if not having a separate
rateable value, the rent (if any) and the grounds on
which possession is claimed, must be included in the
particulars.

6. Claims on Mortgages: Claims by a mortgagor to

recover moneys secured by his mortgage or charge
(whether principal or interest), must show the following
particulars:
i. the date of the mortgage or charge;
ii. the amount of principal money lent;
iii. the amount still due with interest; and
iv. what if any, proceedings have been taken by the
claimant in respect of the property mortgaged
and whether he has obtained possession thereof.
In regard to claims for possession of the
mortgaged property, the claimant must give the
details required at (ii) and (iii) above and add
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particulars of the proceedings taken in respect of
the principal money or interest.

7. Claims against the State: In proceedings against the

State, the particulars of claim must contain information
as to the circumstances in which it is alleged the
liability of the State has arisen and as to the government
departments and officers of the State concerned.

LIFE SPAN OF SUMMONS

3 months. Claimant is at liberty to file a fresh claim. See
Order 2 rule 3 MCR 2009

AMENDMENT OF CLAIMS:
The claimant's claim can be amended at any time before
judgment with leave of court by filing and delivering
amended particulars. The amount of the claim can be
increased, in this case, an additional court fee may become
payable. The court at the hearing may allow or disallow the
amendment.
NB;
1. See ADR
2. Service. Personal, substituted with leave of court by
motion. See Order 5
3. Provisions on joinder of parties, persons under
disability, change of parties – Order 5 MCR
4. Third Party Procedure – Order 7
5. Amendments – Order 8
6. See maximum number adjournments -Order 9
7. Evidence and Witnesses – Order 14
8. Mediation and Conciliation –Order 16
9. Trial – Order 17
10. Judgment and Orders – Order 19

102
SPECIMEN SCENARIOS AND THE PARTICULARS
OF CLAIM DRAFTED IN RESPECT THEREOF

A. STATEMENT OF AJAYI ABEOKUTA

I am a carpenter and live at 21, Onilegogoro Street, Lagos.
I work at the Railways, Ebute-Metta. On the 24th
September, 2015 at the Jolly Bar, Onike Street, Lagos, one
James Fighter of 18, Idumota Avenue, Lagos inflicted very
severe injury on my body by hitting me with a beer bottle.
I had very deep lacerations on the head and was treated for
shock in the hospital. I paid N250.00 Naira for medical
treatment. I had much pain and I could not go to work for
two weeks thereby losing N5000.00 Naira being my wages
for the period. I wish to sue James Fighter for damages. I
spent an additional N60.00 Naira for medical treatment.
Draft the application.

IN THE MAGISTRATE COURT OF LAGOS

IN THE LAGOS MAGISTRATE DISTRICT
HOLDEN AT LAGOS
CLAIM NO:
BETWEEN
AJAYI ABEOKUTA CLAIMANT
AND
JAMES FIGHTER DEFENDANTS

PARTICULARS OF CLAIM
1) The Claimant has suffered damages from the Defendant
on the 24th day of September, 2010 at the Jolly Bar,
Onike Street, Lagos.
2) The Defendant assaulted the Claimant by violently
striking him on the head and face with a beer bottle
whereby the Claimant was severely injured and was put
to great pain and incurred expenses and suffered loss

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PARTICULARS OF PERSONAL INJURIES:
i. The Claimant was severely bruised on his head and
face, and he suffered severely from shock.
ii. The Claimant had deep laceration on the head.
iii. Loss of earning for two weeks from 24th September,
2015 to 6th October, 2015.

1. Medical treatment N 310.00 Naira

2. Loss of earnings for
2 weeks N 5000.00 Naira
From 24.9.15 to
6.10.15
3. General Damages N 250.00 Naira
TOTAL N5.560.00 Naira

And the Claimant claims N 5, 560.00 Naira being special

and general damages.

Dated in Lagos this .................. day of November, 2015.

S.A. UKO
Claimant's Solicitor
24, Oron Crescent, Lagos.
Claimant's Address:
24 Calabar Street, Lagos.
Defendant's Address:
31, Ikot Ekpene Way, Lagos.

B. STATEMENT OF MALLAM GARUBA JARA

I am Grade One Certificate Teacher and teach at Popular
Secondary Modern School, a school owned by Mr.
Nwanko Ogine.
On the 14th September 1980 one Peter Ojoke of 33,
Karakata Avenue, Lagos wrote a letter to Mr. Nwanko
Ogine the proprietor of the School where I teach containing
the following words:
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"Mallam Garuba Jara goes about town deceiving people
that he is a Grade Two Certificate Teacher, which he is not.
He attended Grade Three Training College at a town in
Ondo State and after teaching for a number of years, he
passed the Grade Two Teachers Examination externally. In
addition to this qualification, he passed one subject
(Economics) at the Advanced Level and the General
Certificate of Education Examinations.
Does this qualify a person as Grade One Certificate
Teacher? No. Mallam Garuba is a crook. You should
dismiss him from your school".
This is a false statement. I passed the Grade One Teacher
Examination in 1960. I now tender my Certificate. This
letter was injurious to my reputation and I am worried
about it. Since the writer has failed to correct his statement
and to apologize to me for this false statement, I intend to
sue him for damages, claiming about N1, 000.00 Naira.
Assignment: Draft the application for summons.

ABANDONMENT OF CLAIM
A claimant may at any time before trial, abandon any part
of his claim and the abandonment shall be entered in the
records of the court. See Order 8 R. 4 Magistrates' Court
Rules Lagos

APPLICATION FOR SUMMARY SUMMONS

Summary summons may be issued where the Claimant files
a claim and request by letter to the registrar for the
endorsement of the claim as a summary summons. See
Order 3 r 1. Note the exceptions to the filing of summary
summons; infants, actions against money lenders etc.

PROCEDURE
1. Claimant's Counsel prepares a letter applying for a
summary summons.

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2. The application must be supported by the particulars
of claim.
3. Counsel leaves copies with the Registrar to assess
the necessary fees to be paid by the Claimant.
4. The summons in Civil Form 4, Form 4A and the
claim is served on the defendant.

ORIGINATING APPLICATION
Any proceedings authorised to be commenced in court and
not required by any law to be commenced otherwise, may
be commenced by originating application and shall be
referred to as an action. See Order 1 R 8 MCR 2009.

SERVICE
The Summons must be served personally. Where personal
service is impossible or inconvenient substituted service
may be allowed. See generally Order 5 MCR. The
judgment obtained on a summary Summons is as valid as
one obtained after a full hearing. It may be regarded as a
judgment by consent of the parties, but sometimes it may
turn out to be judgment obtained in the absence of the
defendant.
In the latter case, the judgment may be set aside by the
magistrate court on the application of the defendant if he is
able to satisfactorily disclose a bona fide defence to the
claim.

COMMENCEMENT OF ACTION IN THE HIGH

COURT

VENUE
The Rules in the respective jurisdictions provide for the
appropriate venue for commencement of actions in relation
to the type of action. For land matters, mortgages or
charges thereon, personal property distrained or seized for
any reason, it is the judicial division where the land is
106
situate or the distress or seizure took place. O. 4 r. 1(1)
Lagos and O. 3 r. 1 Abuja.
Actions for breach of contract or for Specific performance:
commenced in the judicial division where the contract
ought to have been performed or where the defendant
resides or carries on business. O. 4 r. 1(3) Lagos and O. 3 r.
3 Abuja.

For corporate bodies, the place of residence is the place of

its central control and management. See Kraus Thompson
Organisation Ltd v University of Calabar (2004) 4 SC (pt.
1) 65 at 86; See also Unit Construction Company Ltd v
Bullock (1960) AC 351
Note that for purposes of service of processes, office does
not mean head or registered office. Such service can validly
be rendered at any of its branch offices. Bello v NBN
(1992) 6 NWLR (pt. 246) 206

Note: Mark v Eke (2004) 5 NWLR (pt.865) 54 says proper

personal service must be at company‟s registered office.
This appears to overrule Bello v NBN
For actions against public officers or for recovery of
penalties and forfeitures, the action shall be commenced
where the cause of action arose. See O. 4 r. 1(2) Lagos and
O. 3 r. 2 Abuja.

Where there is more than one Defendant resident in

different judicial divisions, the action can be commenced in
any one of the judicial divisions. In all other circumstances,
actions are to be commenced where the Defendant resides
or carries on business or where the cause of action arose.
Actions commenced in the wrong judicial division may be
tried there unless the Chief Judge otherwise directs. O 4 r. 3
Lagos; O 3 r 6 Abuja; Egbe v Agbara (1997) 1 SCNJ 91 at
107

107
MODE AND PROCEDURE FOR COMMENCEMENT
There are basically 4 modes for commencement of action.
See O. 2 r. 1 Abuja
1. Writ
2. Originating Summons
3. Originating motions or
4. Petitions
In Lagos, though O. 5 r.1(1) recognizes other modes of
commencement of action as may be provided for in the
rules or any applicable law (e.g. Petition for proceedings in
revenue matters under O.60 r.3-see Form 40),however, the
Order specifically provides for only two general modes of
commencement of action in Lagos, namely:
1. By Writ
2. By Originating Summons
See O.5 r.1 and r.4 Lagos

ORIGINATING MOTIONS
Used where the Rules or any written law prescribes for it. It
is usually used for prerogative writs or orders such as
prohibition, certiorari, mandamus and habeas corpus. Used
also for enforcement of fundamental human rights though
the Fundamental Rights Enforcement Procedure Rules
provides that such action may now be commenced by any
originating process approved by the court. Where a statute
recommends the use of application for commencement,
without providing for the procedure, Originating Motion
should be used. See Akunnia v AG Anambra (1977) 5 SC
16
Parties are referred to as Applicant and Respondent. During
the proceedings, the hearing of the motion is the trial.
Usually headed “In the matter of the subject matter and in
the matter of the enabling statute”.

108
PETITIONS
Used when the Rule or any written law prescribes for it.
Usually used for winding up of Companies. S. 410 CAMA.
It is also used for electoral matters and matrimonial
proceedings S. 54 of MCA. Parties are called Petitioner and
Respondent. It is also headed like originating motions

O.2 r. 1 of Abuja merely mentions the use of petitions as

one of the means by which actions may be commenced.
Note however that the petitioner‟s residence or an address
within jurisdiction, his occupation and address for service
of the Respondent must be stated if he petitions in person,
but if he petitions by his Legal Practitioner, then the
petitioner‟s address, name or firm and address of the Legal
Practitioner must be stated.
Where the Legal Practitioner is an agent of another, the
name or firm and address of the principal must be stated.

ORIGINATING SUMMONS
Used to commence action when it is provided for by the
Rules or any written law. Usually used for construction of a
written law or any instrument, deed, will, contracts or other
documents or where there is no likelihood of disputes as to
facts. See Director of SSS v Agbakoba (1999) 3 NWLR
pt.595 p. 425; Adeyelu II v Ajagungbade III (2007) 14
NWLR (pt. 1053) 1 at 14. See also O. 5 rr. 4 of Lagos and
O. 2 r. 3 (1-3) Abuja. It may also be used where errors in
judgments are sought to be corrected. See UNILAG v
Aigoro (1991) 3 NWLR pt.179 p. 376
Originating Summons are in FORMS 3, 4 and 5 of
Appendix to Lagos and Abuja Rules O. 5 r 5(3) of Lagos
insists that originating summons must be accompanied by
the following documents:

1. affidavit setting out the facts relied upon;

2. Exhibits relied upon at the trial;
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3. A written address in support of the application; and
4. Pre-action protocol Form 01
Note that O. 2 r. 3(5) Abuja replaces protocol Form 01 with
pre-action counselling certificate.Main function is to obtain
a direction from court and not to dispute facts. See Doherty
v Doherty (1969) NMLR 24. Where an action is wrongly
commenced by originating Summons, the trial court may
either strike it out or convert it to writ of summons and
order for pleadings. See PDP v Atiku (2007) 3 NWLR (Pt.
1022) 515 at 541 Note that where the question to be
determined arises in the administration of an estate or a
trust, then the summons is titled “In the matter of the estate
or trust”

WRIT OF SUMMONS
This is used to commence all actions unless a particular
Rule or law prescribes otherwise. See O. 5 r. 1(1) Lagos
and O. 2 r. 2 (1) Abuja. It is used usually for contentious
actions. Where there is uncertainty as to which process to
employ, use writ. See Doherty v Doherty supra

Endorsement of the Writ

1. If the claimant sues or the defendant or any of the
defendants is sued in a representative capacity, the
Writ must show it.
2. In probate actions the endorsement must show
whether the claimant claims as creditor,
administrator, legatee, next-of-kin, heir-at-Law,
successor under native law devisee or in any other
character.
3. In all cases in which the Claimant desires to have an
account taken the Writ must be indorsed with a
claim that account be taken.

110
4. In actions for libel the endorsement on the Writ must
state sufficient particulars to identify the publication
which is the subject matter of the complaint.
5. In all cases, the parties to the action should be
correctly described and at the back of the writ a
concise statement of the nature of the claim must be
stated.
6. If a person acting under a Power of Attorney sues on
behalf of the donor, it is the name of the donor not
that of the donee that should appear on the writ. D. J
Perera v Motor and General Insurance Company
Ltd (1971) 1. N.M. L. R.181.

For endorsement of the Writ generally, See Order 6 of the

High court Civil Procedure Rules (Lagos) 2019. Also for
endorsement of claim and claimant's Address See O. 4
Rules 6 and 7 Abuja Rules.

FRONT LOADING SYSTEM

For the front-loading concept, see O.5 r. 1 (2) Lagos and
O.2 r. 2(2) Abuja. In Lagos the writ must be filed along
with:
1. Statement of claim
2. List of witnesses
3. Written statement on oath of witnesses except those
on subpoena. (Uduma v Arunsi (2012) 7 NWLR
(pt.1298) 55 at 96 – need not take any format)
4. Documents to be relied on at the trial
5. Pre-action protocol Form 01.(certifies that claimant
has attempted out-of-court settlement
unsuccessfully) O. 5 r. 1(2). Note that failure to
comply with rule shall nullify the action. See O. 5 r.
1(3)
NOTE: An unsworn statement of a witness or any other
defect in a statement is a mere irregularity which will not
111
invalidate or render inadmissible such statement or any
document tendered therein. Whatever defect in the original
oath is cured by the second oath made in court before the
judex prior to the adoption of the statement by its maker
and his subsequent cross- examination. See Aregbesola v
Oyinlola (2011) 9 NWLR (pt. 1253) 458 at 462; Agagu v
Mimiko (2009) 7 NWLR (pt.1140) 342 INEC v AC (2009)
2 NWLR (pt. 1126) 524 at 615

Subpoenaed witnesses are usually served with special

witness summons in Forms 28-31 Abuja to give evidence
or deliver documents on behalf of the party calling them,
on a specified date and time. This requirement of filing
upfront the statement of claim and these other documents
with the writ is what we refer to as the frontloading system.
The registrar is empowered to reject a writ that is not filed
with these documents and if he should accept them in error,
the court will still strike out the writ. See Jabita V Onikoyi
(2004) All FWLR (pt. 233) 1625 at 1647. However the
case of Olaniyan v Oyewole (2008) 5 NWLR (pt. 1079)
114 says that such failure should be treated as an
irregularity

The Abuja Rules in O. 2 r 2(2) and r. 8 prescribes in place

of the pre-action protocol Form 01, the filing of certificate
of pre-action counselling in Form 6 signed by the legal
practitioner and litigant as evidence that parties have been
advised as to the relative weakness and strength of their
cases as well as the availability of ADR with an
undertaking to pay the cost of the litigation should the
action turn out to be frivolous.
By O. 2 r. 9 of Abuja, all processes filed at the registry
shall bear the seal of the counsel filling the suit as evidence
that such counsel is fully enrolled as a legal practitioner
and qualified to practice in Nigeria. This is absent in the
Lagos Rule.
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The purpose of the use of the frontloading system are:
1. Quick dispensation of justice
2. Avoidance of frivolous actions
3. Is a catalyst for ADR
4. Removes springing of surprises on parties
5. Reduces the incidence of frivolous adjournments
6. Helps court and counsel in effective case
management.

ISSUE OF ORIGINATING PROCESS

The writ is prepared as in Form 1, 2 and 33 in the
appendix to the rules by claimant or his counsel in an A4
quality paper. O.6 r.1 Abuja and O. 8 r. 1 Lagos
Writ is deemed issued once it is sealed by the registrar
though in practice it is also signed. O.8 r. 2(1) Lagos; O. 6
r. 2(1&3) Abuja
The writ of summons essentially commands the Defendant
to enter appearance to the action instituted against him at
the instance of the Claimant within the time limited on the
writ; and warning that should Defendant fail to do so, the
claimant shall proceed to enter judgment against him.
Every writ of summons must contain the following:
1. The heading of the court showing the judicial
division.
2. The name, description and capacities of the parties
(eg where they sue in representative capacity, this
must be stated on the writ).
3. Address of the Defendant within jurisdiction.
4. The nature of the claim against the Defendant
normally endorsed on the reversed side of the writ
not a separate paper.
Endorsement of the claim on an attached paper is a
fundamental defect. See Nwoye v Road Construction Ltd
(1966) NMLR 254. This is what is called general
endorsement. Special endorsement is when it is
accompanied with a statement of claim. Where however the
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claim is not contained on the reverse side, a continuation in
a separate paper is allowed. See Alatede v Falode (1966)
All NLR 101 at 103.
With the advent of the frontloading system, it may be safe
to say that all writs are specially endorsed. Where claimant
is represented by counsel, the name and address of the
claimant‟s counsel within jurisdiction should be stated as
the person issuing the writ and not the name of his firm
otherwise it can be set aside for being defective. See
Okafor v Nweke (2007) 10 NWLR (pt. 1043) 521 at 533
The address of the claimant within jurisdiction must be
stated else it becomes defective if objection is raised by the
Defendant. See Sken Consult v Ukey (1981) 1 SC 6
Apart from the requirement as to endorsement of the claim
and the address of the claimant within jurisdiction which
are fundamental, every other defect may be treated as mere
irregularity which can be rectified by amendment. Such
objection to defects must also be timeous. Time for
entering appearance is usually stated on the writ not in the
Rules. In Abuja, it is 14 days while Lagos is 42 days

RENEWAL OF THE WRIT

The writ is valid for 6 months in the first instance. O. 6 r. 6
of Abuja and O. 8 r. 6 Lagos Rules. Note that the Abuja
Form stipulates that the writ must be served within 3
calendar months. This looks like an error as being
inconsistent with O.6 r.6 Abuja. Concurrent writ is a
duplicate of an original writ issued either at the same time
as the original writ or at any time while the original writ is
valid. It is valid in the first instance for the unexpired
period of validity of the original writ. O. 6 r. 9 Abuja and
O. 8 r. 9 Lagos Rules.

In Abuja, the writ may be renewed only twice provided that

no originating process shall be in force for longer than a
total of 9 months. O. 6 r. 7 Abuja. This looks like an error
114
because if original life span is 6 months and renewal is 3
months for two times, it will give 12 months and not 9
months. Application for renewal may be made before the
expiration of the writ.O.6 r 6(2) Abuja. In Lagos, where the
writ cannot be served before the expiration of the validity
period, the court may on application made to it before the
expiration, renew the life of the writ for a further period of
3 months. Such renewal shall not be more than two upon
good cause and prompt application so that no originating
process shall be in force for longer than 12 months. Such a
suit may be struck out. O. 8 rr. 6 & 7 of Lagos

In Lagos, application for renewal must be brought before

the expiration of the 6 months period.O. 8 r 6(1) Lagos. In
Alao v Omoniyi (1966) NMLR 161, the court dismissed an
application for renewal which was brought after the
expiration of the writ on the ground that the writ had
become void at the time of the application. However, in
Kolawole v Alberto (1989) 1 NWLR (pt. 98) 382, the
Supreme Court held that the application may be made
either before or after the expiration of the writ and that the
rule regarding extension of time also apply to renewal of
writs. Note however that the above decision was given
under the old rule. Application for renewal is by motion ex
parte supported by affidavit disclosing the reason for
failure to serve within the life span of the writ.
In both rules now there is a Fast Track procedure in which
matters allocated to it must be concluded and judgment
delivered within 9 months. See O 59 r. 1 Lagos; O.37 r.4
Abuja does not state the time limit
Note the condition for fast track.

APPEARANCE
The Defendant is commanded by the writ to cause an
appearance to be entered for him within 14 days in Abuja
and 30 days if it is to be served out of jurisdiction. The
115
Defendant in Lagos is to enter appearance within 42 days.
Appearance is entered by the defendant completing and
filing Form 11 or 12 in the appendix called Memorandum
of Appearance. O. 11 r. 1 Lagos and O. 9 r. 1(1) Abuja
respectively.
In Lagos, a defendant entering appearance shall not later
than 7 days thereafter serve a sealed Memorandum of
Appearance on the Claimant‟s Legal Practitioner or the
Claimant if he sues in person. See O. 11 r. 1 (3) Lagos.
By entering appearance, the defendant is deemed to:
i. Acknowledge service of the writ;
ii. Submit to the jurisdiction of the court;
iii. Indicate willingness to contest the action.
Where appearance is entered after the time specified on the
writ, the cost as prescribed by the CJ for every day of such
default and any other cost shall be borne by the defendant
or the person making the application. The Lagos Rule
makes the defendant liable for additional penalty fee of
N1000 each day of the default. A person under legal
disability enters appearance by his guardian.

CONDITIONAL APPEARANCE
This is an appearance entered by the defendant under
protest. It indicates that the defendant intends to either
challenge the jurisdiction of the court, or the issuance of the
writ or the service thereof or other irregularities. The
defendant does this by adding the word “conditional”
before “appearance” in the Memo of appearance. After the
entry of conditional appearance, the defendant must
promptly and without taking any further steps, raise the
objection by way of motion on notice otherwise, he would
be taken to have waived his right of objection. The court
will rule on the objection before proceeding with the
substantive suit.
Note that substantive or subject matter jurisdiction can be
raised at any time even on appeal, whether conditional
116
appearance was entered or not because here, jurisdiction
cannot be vested by acquiescence of the parties. Mobil
Producing v LASEPA
Note also that the entry of a conditional appearance in
order to protest improper service does not amount to
submission to the jurisdiction of the court. Holman
Brothers (Nig) Ltd v Kigo (Nig) Ltd. (1980) NSCC 251
A party may without entering any form of appearance
challenge the jurisdiction of the court by straight filing a
motion or summons supported by affidavit stating the
ground on which the challenge is based.

WAYS OF PROTESTING DEFECT IN A SUIT

1. Defendant may enter a conditional appearance and later
file a motion or summons raising the objection.
2. He may without filing any form of appearance file a
motion or summons to set aside a defective writ or the
service thereof.
3. He may also without any form of appearance bring an
application challenging the jurisdiction of the court.

DEFAULT OF APPEARANCE
Where the defendant fails or neglects to enter appearance
within the time limited on the writ for entry of appearance,
the claimant may apply for judgment. Such judgment is
default judgment. That is, in default of appearance. In
Abuja, such judgment can only be entered in cases of
liquidated money demand, actions for recovery of lands or
money lenders action. O. 10 Abuja.
In Lagos, judgment in default of appearance is obtainable
by the claimant in respect of actions for detention of goods,
mesne profit, and recovery of land and liquidated money
demands. See O. 12 Lagos.
In all other circumstances, the claimant is not entitled to
judgment in default of appearance but can only apply for
the matter to be set down for hearing in the process of
117
which he might get judgment. See O. 12 r. 10 Lagos. Such
judgment termed default judgment can only be set aside
upon show of payment of penalty, good cause for
defaulting and good defence shown by the defendant, if
application for it is brought within a reasonable time. O.10
r. 11 Abuja
Note that where there is more than one defendant, only
those defendants that defaulted in appearance may have
judgment entered against them. See O. 12 rr 3 Lagos and
O. 10 r. 6 Abuja.

EFFECT OF NON-COMPLIANCE WITH THE

RULES OF COURT
Non-compliance may occur in many ways. E.g. use of
wrong originating process, improper endorsement of the
writ, failure to obtain leave to issue a writ that is for service
outside jurisdiction, giving the defendant less than 30 days
to respond to a writ served outside jurisdiction etc.
In Abuja, non-compliance is to be treated as irregularity
and shall not nullify the proceedings, judgment or
document. O. 5 r. 1
Order 5 Rule I (Abuja) 2018 provides as follows:
1- (1) where in beginning or purporting to begin any
proceeding, there has by reason of anything done or left
undone, been a failure to comply with the requirements of
these rules, the failure shall not nullify the proceedings.
(2) Where at any stage in the course of or in connection
with any proceedings there has by reason of anything done
or left undone been a failure to comply with the
requirements as to time, place, manner or form, the failure
shall be treated as an irregularity and may not nullify such
step taken in the proceedings. The Judge may give any
direction as he thinks fit to regularize such steps.
(3) The Judge shall not wholly set aside any proceedings
or the writ or other originating process by which they were
begun on the ground that the proceedings were required by
118
any of these rules to be begun by an originating process
other than the one used - Olaniyan v Oyewole (supra). The
court may give any direction as he thinks fit to regularize
such step. The court may also allow such amendment to be
made as will bring it into compliance with the rules, upon
terms as it deems fit. But in Lagos, anything that is done or
left undone under O.5 rr. 1 (2) and 5 dealing with
accompanying documents during commencement, nullifies
the proceedings if such failure occurs in the cause of
commencing or initiating the action, but if the failure
occurs after commencing the action, it is to be treated as an
irregularity and the judge may give direction as he thinks
fit to regularise the defect. O 7 r. 1 Lagos.

In Lagos, application to set aside for irregularity may be

made by motion only while Abuja admits of summons or
motion and the grounds for the objection shall be stated –
See O. 5 r. 2 Abuja and O. 7 r. 2 Lagos. Such application
must be made within a reasonable time and before the party
complaining has taken any fresh step after becoming aware
of the irregularity. O.5 r. 2(1) of both Rules; Oti v Mobil
Oil (1991) 7 NWLR (pt. 206) 700; Skenconsult v Ukey
(supra); Adegoke Motors v Adesanya (1989) 5 SCNJ 80.
Also note that most of the Rules enjoin the courts to
employ the approach that will do substantial justice
between the parties.

APPLICATION TO SET ASIDE FOR

IRREGULARITY
Order 7 R. 2 Lagos and O. 5 r. 2 Abuja states as follows:
2. (1) An application to set aside any step taken in the
course of any proceeding for irregularity may be allowed
where it is made within a reasonable time and before the
party applying has taken any fresh step after becoming
aware of the irregularity.

119
(2) An application under this rule may be made by
motion and the grounds of objection shall be stated in the
motion.
Harkness v. Bell's Asbestos and Engineering Limited
(1967) 2.Q.B. 729 at 735

(1) Applications should be made within a reasonable

time:-
Reynolds v. Coleman (1887)36 Ch. D453. CA.
Pontin v. Wood (1962) I.Q.B. 594.

(2) Before the party applying has taken any fresh step.
Rein v. Stein (1892) I.Q.B. 753; Josebson Industries Co.
v R. Lauwers Import-Export (1988) 7 SCNJ 93 at 112.
Boyle v Sacker (1888)39 Ch.D.249 Firth and Sons v Delas
Rivas (1893) I.Q.B. 768 Hunt v Worsfold (1896) 2 Ch. D
224. Kigo (Nig.)Ltd v Holman Brothers (Nig) Ltd (1980)
N.S.C. 251. Alhaji Saude v Abdullahi (1989)3 N.S.C.C.
177.

(3) What constitutes a Waiver?

Rendell v. Grundy (1895)1 Q.B. 16 CA. Ezomo v.
Oyakhire (1985) 2 S.C. 260; Adegoke Motors v. Adesanya
(1989) 3 NWLR 250; Nwabueze v. Obi Okoye (1988) 4
NWL R 664; Onyia v Oniah (1988) 2 S.C.N.J. 136;
Attorney General of Eastern Nigeria v. A. G Federation
(1964) 1 All N. L. R. 224; Ariori v Elemo (1983)1 SC 13
supra
(4). The ground of objection must be stated in the
summons or notice of motion.
Cole v. Agu LD/295/69 of 25th August 1969 by Taylor C.J.
Adenrele Adejumo v Government of Lagos State (1970) I
ALL N.LR 183
A defendant before entering an unconditional appearance
or on entering a conditional appearance shall be at liberty
to take out a summons to set aside the service upon him of
120
the writ or other process, or to discharge the order
authorizing such service. The summons must state the
ground of the application and be supported by an affidavit.

The following are some grounds on which such an

application might be made:
1. That the case is one in which leave to issue the writ
was required, and the plaintiff took no steps to
obtain leave.
2. That the writ contains none, or no sufficient
endorsement of claim.
3. That the writ does not state in what division of the
High Court the action is being brought.
4. That the defendant was fraudulently induced to
come within the jurisdiction for the sole purpose of
serving him with a writ.
5. That the service of the writ was defective e.g. that
the defendant asked to be shown the original writ
and his request was not complied with, or that writ
was "served" by affixing it to the land without the
leave of the court having been obtained.

From these examples it will be seen that the objections

made at this stage are often ones of a purely technical kind.
In such cases, it may be thought courteous (if time allows)
to write to the claimant suggesting that he should correct
the irregularity, and only apply to set aside the writ or
service if this informal approach is unproductive. For, if the
application to set aside succeeds, the plaintiff will very
probably issue a new writ or re-serve the original one.
Once an unconditional appearance has been entered, it
would be too late to make technical objections to the writ
or service. The most effective remedy of the defendant is
not to enter appearance and to use the non-compliance as a

121
ground for setting aside the service of the writ of summons.
This was the procedure adopted by the defendant and
endorsed by the Supreme Court of Nigeria in National
Bank (Nig) Limited v. Shoyoye (supra) (1977) 5 S.C. 181;
and Sken Consult v. Sekondy Ukey (1981) ISC. 6 or (1981)
NSSC I (supra). If the defence wants to challenge the
jurisdiction of the court in the matter he has one of the
three options:
1. He can file a conditional appearance and bring an
application to have the writ or service set aside. See
Kigo (Nig.)Ltd v. Holman Brothers (Nig) Ltd
(1980) N.S.C. 251
2. He can instead of filing a conditional appearance
bring an application by way of motion or summons
to have the case set aside Sken Consult v. Sekondy
Ukey (1981) ISC. 6 or (1981) NSCC 1. See National
Bank (Nig) Limited v. Shoyoye (supra) (1977) 5
S.C. 181 supra.
3. He can proceed with the case but while the case is
still pending bring an application to have the case set
aside because of lack of jurisdiction. Attorney
General of Eastern Nigeria v. A. G Federation
(1964) 1 All N. L. R. 224. A defence served after
expiration of the prescribed time but before
judgment has been given cannot be disregarded and
will generally prevent the claimant from getting
judgment even though it is not served until after the
claimant has served his notice for judgment. An
application for extension of time within which to file
and serve the statement of defence and the
accompanying processes will be required. Or 19 r. 7
(4) R. S.C. England. Gibbings v Strong (1984)26
CH. D. 66.
122
The Supreme Court of Nigeria adopted the position under
the English Law in the case of Adjarho v Aghoghovwia
[1985] 1 NSCC 376. UBA Limited & 3 Ors v Dike Nwora
(1978) 11-12 SC 1
NOTE: Most High Court Civil Procedure Rules provides
that "where a matter arises in respect of which no
provisions or no adequate provisions are made in the rules,
the court shall adopt such procedure as may in its view, do
substantial justice between the parties concerned".

WHEN IS AN ACTION COMMENCED?

An action is commenced when the claimant has done all
that is required of him to do in law to commence the action
(i.e. Filing the writ and paying the requisite fees). What is
left to be done is a domestic affair of the court and its staff.
See Alawode v Semoh (1959) 4 FSC 29; Nicholls v
General Manager Nig. Railway Corporation (1938) 14
NLR 87 where, by NRC Ordinance, action must be
commenced within 6 months of the cause of action and
counsel had filed and paid within time but the court clerk
was delayed while conveying it from Abeokuta to Ibadan.
Action held to have commenced at payment.

SERVICE OF PROCESSES
See O. 9 Lagos and O. 7 Abuja
Both Rule talk about originating process simpliciter to be
served by Sheriff, Deputy Sheriff, Bailiff, Special Marshal
or other officer of the court. The CJ may also appoint and
register any Law Chambers, Courier Company or any other
person to serve court processes and such person shall be
called process server. The Abuja rule has added that it may
also be served by electronic means mutually agreed
Note that in Ramon v Jinadu (1986) 5 NWLR (pt. 39) 100,
it was held that “other officer of the court” includes a legal
practitioner.

123
By O.9 r. 1(3) Lagos and O. 7 r. 1(3) Abuja, where a party
is represented by a Legal Practitioner, service of court
processes of which personal service is not required, may be
made on such Legal Practitioner or a person under his
control.

PERSONAL SERVICE
Originating process shall be served by delivering the
document to the person to be served. That is the person
named in the process. This is called personal service, the
document being duly certified.
Personal service of an originating process will not be
required where the Defendant has in writing authorised his
Legal Practitioner to accept service and such Legal
Practitioner enters appearance O. 9 r. 3 Lagos and Abuja.
The Lagos Rules however adds “provided that such written
authority shall be attached to the Memorandum of
Appearance filed by such Legal Practitioner.”
In all other circumstances where personal service is not
expressly required by the rules, processes shall be
sufficiently served by leaving it with an adult person in the
address for service or any other means as the court may
order.

SUBSTITUTED SERVICE
Where however, prompt personal service cannot be
effected, a claimant, upon application supported by
affidavit setting forth the grounds upon which the
application is brought can obtain an order of substituted
service. See Order 9r.5 Lagos High Court Rules 2019.
Under Order 7 Rule 11 (2) Abuja rules, the court may order
substituted services if it appears to the court (either after or
without an attempt at personal service) that for any reason,
personal service cannot be conveniently effected.

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SERVICE OUTSIDE JURISDICTION (THE STATE
OF ISSUE)
In FCT and Lagos, there is no requirement for leave to
issue a writ to be served outside jurisdiction. The earlier
rules of court which contained this requirement have been
omitted. Accordingly, all previous decisions relating to this
should be read with caution.
Order 9 rule 16 of the Lagos Rules however, provide that
subject to the provisions of the Sheriff and Civil Process
Act, Cap S6, Laws of the Federation, 2004 if an originating
process issued in a state is r to be served upon a defendant
outside the state, the process shall be endorsed with the
following notice: „„This writ of summons (or as the case
may be) is to be served out of Lagos State of Nigeria and in
the ...................... .................State.‟‟

The service of originating process outside the state of issue

is a matter on exclusive legislative list and is accordingly
covered by the provisions of the Sheriffs and Civil Process
Act (SCPA).
By section 96 of the SCPA, leave is not required to serve
originating process outside jurisdiction.
However by section 97 and 99 of the Act a writ of
summons (defined to include all originating processes) for
service out of the state in which it was issued shall, in
addition to any other endorsement or notice required by the
law of such state, have endorsed thereon, a notice stating
the state it was issued in and also the state it is to be served
in and that the defendant to be served has not less than
thirty days within which to enter appearance. See generally
sections 96-103 SCPA
Note that there are conflicting decisions of the Supreme
Court on the effect of non compliance with these
provisions. In summary note the following two positions.
One position is that non compliance renders the writ and/or
service of it voidable and the defendant who complains of
125
such non-compliance is entitled ex debitio justiciae to have
the writ/service set aside provided he has not taken fresh
steps in the matter which will amount to a waiver of the
irregularity complained of. Odu’a Investment Co. Ltd v
Talabi (1997) 10 NWLR (Pt. 523) 1.
The other position is that failure to comply is not a mere
irregularity but a fundamental defect that renders the writ
incompetent and goes to the root of the jurisdiction and
affects the competence of the court. Owners of MV
‘Arabella” v Nigeria Agricultural Insurance Corp
(2008) 11 NWLR (Pt 1097) 182
The position in Odu‟a is preferable because the provisions
are for the benefit of the defendant and it should be
possible for the defendant to be able to waive the
requirement upon being served with the writ. Note also that
similar requirement in the rules of court are treated as mere
irregularity.

But note the following judicial decisions in respect of these

provisions of the SCPA. The Supreme Court held in
Nwabueze v. Obi Okoye (1988) 4 NWL R 664 that failure
to comply with the provisions of the Sheriff and Civil
Process Act as to service is a matter which goes to the very
root of the service. The service but not the writ can upon
application be set aside. See Ezomo v. Oyakhire (1985) 1
NWLR 195. Adegoke Motors v. Adesanya (1989)3 NWLR
250. Sken Consult v. Sekondy Ukey (1981) I SC 6 or
(1981) N.S.S.C.I. (1981) 1 SC 6. See the Australian, case,
of Wilson Electric Transfer Men Co. Ltd v. Electricity
Commission of New South Wales 1968 VR. 880.
On section 99 SCPA see Sken Consult v. Sekondy Ukey
(1981) ISC. 6 or (1981) N.S.S.C.I. (supra) and Ezomo v.
Oyakhire (1985) 1 NWLR 195. supra.. Any defendant who
intends to object to non compliance with the above
requirements (i.e. failure to obtain leave before issue of
writ for service outside state of issue, or failure to give 30
126
days notice under section 99 or non compliance with the
provisions of section 97 must make preliminary objection
before trial by motion on notice. See Ezomo v. Oyakhire
(1985) 1 NWLR 195. (supra), if not, he will be deemed to
have waived his right to object and as the Supreme Court
noted in Ariori v. Elemo (1983)1 SC 1 3 "a person who is
under no legal disability and having full knowledge of his
rights or interest, conferred on him by law, and who
intentionally decides to give them (or some of them up)
cannot be heard to complain that he has not been permitted
the exercise of those rights that he has been denied the
enjoyments of those interests". See Adegoke Motors v.
Adesanya (1989)3 NWLR 250, See also Alhaji Saude v.
Abdullahi (1989) 3 N.S.C.C. 177
See also the case of Odua Investment Co. Ltd v. Talabi
(1997)10 NWLR (Pt 523)1 at 52, Ogundare JSC (leading)
held that: "Non - compliance with section 97 and or Section
99 of the Sheriff and Civil Process Act and the rule of
Court requiring leave of the Court or a Judge for a writ to
be served out of jurisdiction renders the writ and or service
of it voidable and the defendant who complains of such non
- compliance is entitled ex-debito justitiae to have same set
aside as was done in Sken Consult v. Sekondy Ukey
(1981) ISC. 6 or (1981) N.S.S.C.1 (Supra), Nwabueze v.
Obi Okoye (1988) 4 NWLR 664. (Supra), provided he has
not taken fresh steps in the matter which will amount to a
waiver of the irregularity complained of.

PROOF OF SERVICE
By O. 7 r. 13 (Abuja), the process server shall after service
promptly depose to and file an affidavit setting out the fact,
date, time, place and mode of service, describing the
process served and shall exhibit the acknowledgement of
service. Poof of service by email shall be evidenced by
affidavit with a printout of an email notifier attached
thereto. The affidavit shall be prima facie proof of service.
127
The Lagos Rules under O. 9 r. 15 only talks about
recording of service in a register designated for that
purpose, stating the method of service, mode of service,
and the manner used to ascertain that the right person was
served.

DAYS OF SERVICE
Service is to be effected between the hours of 6 am and 6
pm. Abuja Rule however added that if service is effected
after 6 pm the same shall be deemed to have been effected
on the next service day. Service shall be done on every day
except Sundays and public holidays save in exceptional
circumstances as may be authorized by the court. See O. 7
r. 15 Abuja and O. 9 r. 14 Lagos.

For Modes of Service for Persons Under Disability see O.7

r 5 Abuja and O.9 r.6 Lagos
Prisoner or Detainee, see O.7 r 6 Abuja and O.9 r.7 Lagos
Partners see O.7 r 7 Abuja and O.9 r.8 Lagos
Service on corporation or company see O.7 r 8 Abuja and
O.9 r.9 Lagos
Service on foreign corporation or company see O.7 r 9
Abuja and O.9 r.10 Lagos
Service to a local Agent of a principal outside jurisdiction
see O.7 r 10 Abuja and O.9 r.11 Lagos
Service Outside Nigeria and Service of Foreign Process see
O.8 Abuja and O.10 Lagos
S. 97 – endorsement
S. 99 30 days return date

128
Affidavit of Service
IN THE HIGH COURT OF THE FEDERAL CAPITAL
TERRITORY ABUJA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
SUIT NO.
BETWEEN
A.B
TOGUN........................................................CLAIMANT
AND
C.D
KPOTOS....................................................DEFENDANT
I..........................................................Make oath and state as
follows:
I did on the ...................................... day of
.........................20..................at ..............................(state
where) personally serve C.D KPOTOS, the above named
defendant(s) (or one of the above named defendants) with a
true copy of the Writ of Summons in this action which
appeared to me to have been regularly issued out of the
High Court Registry of the ................Judicial Division of
the High Court of the Federal Capital Territory, Abuja
,against the above named defendant (or defendants) at the
suit of the above named claimant(or claimants) which was
dated the..........................day of
.......................20....................
2. At the time of the said service, the said Writ and the
copy thereof were subscribed (and endorsed) in the manner
and form prescribed by the Rules of the High Court.
3. I did on the .................................day
of.....................20.........................endorsed on the said Writ
the day of the month and the week of the said service on
the defendant.
...............................................................
(jurat)
This Affidavit is filed on behalf of the claimant
129
…...........................................
Signature of Deponent

FORMS AND PRECEDENTS

CIVIL COURT FORMS IN THE MAGISTRATE

COURTS CIVIL
CIVIL FORM 1
ORDINARY SUMMONS
Order 1, Rule 4

IN THE ……………………MAGISTRATES‟ COURT

Claim No ………………

Between
..........………………………………………….Claimant
And
………………………………………………...Defendant

The Claimant‟s claims –

………………...…………………………………………
₦ k Debt or Damages (particulars are attached)
……………………………………………….. Court Fee
……………………………………………………..Other
Disbursements…………………………………….......Costs
……………………………………………………………..
_______ Total………₦ _______ You are hereby
summoned to appear at ………………………………….
Magistrates‟ Court ………………………………………
(Address of Court) on the …………………… day of
……………………………………., 20 …………….. at
………………………o‟clock in the ……………. noon

130
when the claim will be heard. To the Defendant. DATED
this …………………….day of ……………………….., 20
……………… ………………………………………
Registrar NOTE – Form 4A is attached. You are advised to
read it carefully and to complete it and return it to the
registrar of the Court if you have a counterclaim or a
defence or wish to admit the claim and thus save costs.50
Your attention is also called to Order 2 Rules 1, 5 and 6 of
the Magistrates‟ Court (Civil Procedure) Rules.

CIVIL FORM 4
SUMMARY SUMMONS
Order 3, Rule 1

IN THE ……………………………...MAGISTRATES‟
COURT OF LAGOS (Title as in Form 1) TO THE
DEFENDANT The Claimant claims – ₦ k Debt
(particulars are attached)
……………………………………………… Court Fees
……………………………………………………. Other
Disbursements …………………………………… Costs
………………………………………………………...…__
______ Total ……………. ₦ ________ Judgment may be
obtained against you and enforced without further notice
unless within ten days of the service of this summons
inclusive of the day of service you: Pay the total amount of
the claim and costs into court or Send to the Court an
Admission, Defence or Counterclaim for which the
attached form should be used. DATED this
…………………. day of ……………., 20 …………
……………………………. Registrar INSTRUCTIONS
(1) If you admit the claim or any part of it, pay the amount
admitted and costs into court within ten days after service
of this summons, inclusive of the day of service. If you

131
require longer time for payment complete the form of
ADMISSION attached.
(2) If you dispute the claim or any part of it, complete the
form of DEFENCE attached.
(3) If you have a claim against the claimant, complete the
form of COUNTERCLAIM attached.
(4) After completing and signing the form, deliver it to the
registrar of the Court not later than ten days after service of
this summons inclusive of the day of service. Unless you
make an admission and proposal for payment which is
accepted, you will receive notice from the Court of a day
on which you will have an opportunity of being heard on
your proposal for payment, defence or counterclaim.
(5) Delay in payment or in returning the form may add to
the costs.
(6) You can obtain help in completing the form at any
Magistrates‟ Court office.
(7) Payment otherwise than in cash to the registrar of the
Court is made at the payer‟s risk.

ORIGINATING APPLICATION ORDER 2 Rule 11

This is used when facts are not in dispute. The procedure is
usually for interpretation of documents.

132
HIGH COURT OF LAGOS STATE (CIVIL
PROCEDURE) RULES

FORM 1
General Form of Writ of Summons
(Order 5 R. 2)
20 ....................... .
In the High Court of Lagos State
In the ..................Judicial Division
Between:
AB...................................................................... Claimant
And
CD.................................................................... Defendant

To C.D of ....................................................... .in the

........................................ of .............................................
You are hereby commanded that within 42 (forty-two) days
after the service of this writ on you inclusive of the day of
such service, you do cause an appearance to be entered for
you in an action at the suit A. B. and take notice that in
default of your so doing the claimant may proceed therein,
and judgment may be given in your absence.

DATED this .............. day of ................ 20

Signature of Registrar
Memorandum to be subscribed on the writ
N.B:
This writ is to be served within 6 (six) calendar months
from the date thereof, or, if renewed, within three calendar
months from the date of the last renewal, including the day
of such date, and not afterwards.
The defendant may enter appearance personally or by
Legal Practitioner either by handing in the appropriate
forms, duly completed, at the Registry of the High Court of
the Judicial Division in which the action is brought or by

133
sending them to the Registry by registered post or by
electronic means.
Endorsements to be made on the writ before issue thereof-
The claimant's claim is for, etc. (b)
...........................................................................................
This writ was issued by G. H. of .......................... whose
email, phone number and address for service ( c) is
........................................................................................agent
for ....................... of ............................................ Legal
Practitioner for the said claimant who resides at (d)
........................................................................(mention the
city, town or district and also the name of the street and
number of the house of the claimant's residence if any)
Endorsement of email, phone number and address for
service of Legal Practitioner to be made on the copy of the
writ.
This writ was served by me .......................................... on
the Defendant accompanied by
A Statement of Claim;
A list of witnesses to be called at the trial;
Written statement on oath of the witnesses except
witnesses on subpoena;
A list and copies of all document to be relied on at
the trial;
Pre-action Protocol Form 01

(here insert mode of service) on the.......................day

of........................ 20.............................
Indorsed the………………………………………………
day of .................. 20......................................

...................................................................
(Signed)
......................................................................
(Address)

134
Note:
(a) Heading and Title - if the action is for administration
the writ must be headed "In the matter of the Estate of
....................... deceased". If it is a debenture holder's action
the writ must be headed in the matter of the company, and
in a probate action. "In the Estate of A. B., deceased. A
writ of summons claiming administration of a trust or
settlement may be instituted "In the matter of the (Trust or
settlement)".
(b) Endorsement of Claim- If the claimant sues or
defendant is sued in a representative capacity, the
endorsement must state in what capacity the claimant sues
or the defendant is sued. See Order 6 R. 2. If the claim is
for a debt or liquidated demand only, the Endorsement,
even though not special, must strictly comply with the
provisions of Order 6 R. 4, including a claim for four days'
cost.
(c) Probate Actions - In these actions the endorsement of
claim must show the nature of the claimant's interest, under
which he claims (Order 6 r. 3), and the alleged interest of
the defendant.
(d) Address for Service - see Order 6 R. 6. The address
must be within the jurisdiction.
(e) Address of Claimant -In the case of a company in
liquidation the claimant's address should read
“........................................ claimants, who is a company in
liquidation.
The liquidator is (name of liquidator) of (address of
liquidator)".
In the case of a foreign corporation within the meaning of
part II of the Companies and Allied Matters Act the
Claimants address should read ..........................................
(Claimants): a foreign corporation within the meaning of
the Companies and Allied Matters Act. The registered
name and address of the person to be served are (here add
registered name and address)"
(f) Endorsement of Service - See O. 9 r. 13.
135
Before the writ is issued the following certificate must be
indorsed on it:
The Registry, High Court of Lagos State.
In the .................................................................................
Judicial Division.
A sufficient affidavit in verification of the endorsement on
this writ to authorize the sealing thereof has been produced
to me this .............................................Day of................ 20
.........................
......................................................................................
Signature

FORM 2
Writ For Service Out Of The Jurisdiction
(Order 5, r. 3)
To C. D. of.
.........................................................................................you
are hereby commanded that within (here insert the
number of days directed by the Court or Judge ordering the
service or notice) days after the service of this writ on you,
inclusive of the day of such service, you do cause an
appearance to be entered for you in
the...................................Judicial Division of the High
Court of Lagos State in an action at the suit of A. B.: and
take notice, that in default of your so doing the plaintiff
may proceed herein, and judgment may be given in your
absence.

Dated this ..................... day of. ................ 20 ............ by

order of the court.
...........................................................
Signature of Registrar
Memorandum to be subscribed on the writ
N.B: This writ is to be served within three calendar months
from the date there of, or if renewed within three calendar

136
months from the date of the last renewal, including the day
of such date and not afterwards.
The defendant (or defendants) may appear hereto by
entering appearance (or appearances) either personally or
by Legal Practitioner at the Registry of the Judicial
Division in which the writ is issued.
This writ was served (as in Form No. 1)
Endorsement to be made on the writ before the issue
thereof:
N.B: This writ is to be used where the defendant or all
the defendants or one or more defendants is or are out
of the jurisdiction.
Note:
The above endorsement "N.B." must be on every writ or
concurrent writ for service out of the jurisdiction.
The endorsement "N.B" need not be made on a writ against
defendants domiciled abroad, but whom it is intended to
serve within the jurisdiction.
Endorsement: - if the claim is for a debt or liquidated
demand only, the endorsement, even though not special,
must strictly comply with the provisions of Order 6 R. 4
(1), including a claim for costs.
See also notes to Form No.1, supra.

137
FORM 3
General Form of Originating Summons
(Order 5 r.5(1))
In the High Court of Lagos State
In the................................. …..Judicial Division
Suit No... Note:
(Heading and Title- if the action is for Probate or
Administration, the Originating Summons must be
headed: “In the Matter of the Estate
of........................................................... AB deceased. If
the action is in respect of administration of a Trust or
settlement, it must be headed “In the Matter of the Trust
or Settlement.”

Between:

A.B......................................................................Claimant
and
C.D and
E.F...................................................................Defendants
Let .................................. of .................................... in
within 21 (forty-two) days after the service of this
summons on him, inclusive of the day of such service,
cause an appearance to be entered for him to this summons
which is issued upon the application of
...........................whose email, phone number and address
are................................................................................and
who claims (state the nature of the claim), for the
determination of the following questions: (state the
questions).
DATED the ..................... day of ................... 20..............
This summons was taken out by...............................Legal
Practitioners for the above-named
...............................................................................................
.......................................................................................

138
Indorsement of email, phone number and address of Legal
Practitioner. See Order 6 Rule 6

FORM 4
Originating Summons for taxation of Costs and
Arbitral Award etc under
(Order 5 R 5 (1) )
.
In the High Court of Lagos State
In the
Judicial......................................................…….Division
Suit No............
In the matter of A. B., a Legal Practitioner (Re Taxation of
costs, etc.) (or as may be).
Let A. B. of .................................... attend the Court, (or
Chief registrar's Office) HIGH COURT LAGOS, on the
......................... day of.......................... 20.................. at 9
O'clock in the forenoon (on the hearing of an application on
the part of ....................................... ). (State relief sought).
(If for leave to endorse award under the Arbitration Law,
ap. Add, "And that the respondent do pay the costs of this
application to be taxed."
DATED the ...................... day of ................... 20.............
This summons was taken out by
......................................................Legal Practitioner for the
above named indorsement of email, phone number and
address of Legal Practitioner to be made on the copy of the
summons or forthwith after service.
Note:
It will not be necessary for you to enter an appearance in
the HIGH COURT REGISTRY, but if you do not attend
either in person or by your Legal Practitioner, at the time
and place above mentioned (or at the time mentioned in the
endorsement thereon), such order will be made and
proceedings taken as the Judge may think just and
expedient.
139
FORM 5
Form of ex-parte Originating Summons
(Order 5 R. 5(1)
In the High Court of Lagos State
In the..................................................Judicial Division
Suit No........................
In the matter of A. B. an infant (or as may be). Let all
parties concerned attend before the Judge or (Chief
Registrar's Office). High Court, Lagos State, on the
................................ day of ............................ 20..............
at..............................in the forenoon or so soon thereafter as
Counsel may be heard on the above application on the part
of the above named A. B., an infant, by C. D. his next
friend, that (state the nature of claim and relief sought)
This summons was taken out by. ............................. of
email, phone number and
address................................................agents.........................
............................ of email, phone number and
address...............................................................................
Legal Practitioner for the Applicant
NOTE: Specimen forms must be confirmed from the
statute to avoid mistakes

140
CHAPTER FIVE
INTERLOCUTORY APPLICATIONS

Interlocutory applications are applications made to court in

the course of pending proceedings. The need for an
interlocutory application may arise following the
occurrence or threatened occurrence of an event while
substantive proceedings are still pending in court. The
application may either be made to Court i.e. to the Judge
sitting in open court or to the Judge sitting in chambers, i.e.
a Judge in chambers.
An interlocutory application is required under the Rules to
be made to the open court, or Judge in chambers, by
motion.

MOTIONS
A motion is an application made to court for the grant of a
relief prayed for. Therefore, another name for a motion is
an „application.‟ It is usually in writing and may be brought
during the pendency of an action. Where an action has
already been commenced and is pending in court at the
time the motion is filed, such a motion is called an
interlocutory motion. There are two types of motions, viz:
motion ex parte and motion on notice.

MOTION EX PARTE
A motion ex parte is one heard in the absence of the other
party i.e. the other party is not put on notice. In Leedo
Presidential Motel Ltd. v. Bank of the North, (1998) 7
SCNJ 328 at 353, the Supreme Court laid down two
circumstances under which an application may be brought
ex parte:
1. When, from the nature of the application, the interest of
the adverse party will not be affected.
2. When time is of the essence of the application, i.e., in
situations of urgency.
141
It should however be noted that a motion ex parte is a
mandatory originating process in certain proceedings like
enforcement of habeas corpus, certiorari and other
prerogative orders etc. See O. 47 r. 2(2) (Abuja, 2018).
A motion ex parte for injunction shall not be heard unless a
motion on notice in respect of it has been filed. See O. 43 r.
3(1) (Abuja, 2018)
In Lagos, the ex parte order abates after 7 days unless
extended by the Court. In Abuja an order of injunction
made ex-parte shall lapse after 7 days but upon application
the court may extend it if it is satisfied that the motion on
notice has been served and that such extension is necessary
to in the interest of justice or to prevent an irreparable or
serious mischief. See O. 43 r. 3 (2) & (3) (Abuja, 2018)

MOTION ON NOTICE
A motion on notice, like the name implies puts the other
party on notice of the application before court, i.e., the
other party is mandatorily served with it.

CONTENTS OF MOTION
i. A motion shall be in the prescribed form and should
contain the heading of the court in which it is
brought as well as the parties, indicating which of
the parties is Applicant or Respondent.
ii. It shall state whether it is ex parte or on notice.
iii. It may state the Law or rule of court under which it
is brought. But some Rules of court make it
mandatory that a motion „shall state the rule of court
or enactment under which the application is
brought.‟ This requirement is specifically provided
for under O. 43 r. 1 of the Abuja Rules 2018 but in
other jurisdictions using the Uniform Rules, it has
been a matter of practice to state the rule or Law

142
under which the application is brought.
Notwithstanding the use of the mandatory word
„shall‟ in some Rules of Court, the Supreme Court
has held in Uchendu v. Ogboni (1999) 4 SCNJ 64
at 76 that failure to state the rule or law under which
an application is brought is not sufficient to make
the application incompetent or the order made
thereunder, invalid, so long as there is a rule or law
vesting the court with jurisdiction to make the order.
See also the related decisions of the court in Eboigbe
v. Nigerian Airways (1985) 1 QLRN 22; Maja v.
Samouris (2002) 9 NSCQR 546.
iv. It shall contain the prayers or reliefs sought.
v. It shall be dated and signed by the Applicant or his
counsel if he acts by one.
vi. It shall contain the Respondent‟s address for service.

AFFIDAVIT TO ACCOMPANY MOTIONS

Every motion to court shall be supported by an affidavit
setting out the facts on which the Applicant intends to rely.
See O. 43 r. 1 (Abuja, 2018); O. 43 r. 1(1) (Lagos, 2019)

CONFLICT IN AFFIDAVITS
Where there is a conflict on material facts deposed to by
the parties, it is imperative for the court to take oral
evidence in order to be able to resolve the conflict and
make a finding of fact. See Falobi v. Falobi (1976) 1
NMLR 169
However, where there is documentary evidence that can
resolve the conflict, the court may dispense with oral
evidence. See EIMSKIP Ltd. v. Exquisite Industries (Nig)
Ltd., (2003) 105 LRCN 485

143
ORDER OF HEARING MOTIONS
Where there are two motions, one seeking to terminate the
proceedings on ground of irregularity; and the other
seeking to regularize the irregularity, the latter one is to be
heard first. See NALSA & Team Associates v. NNPC
(1991) 11 SCNJ 51.

INTERPLEADER
Where a person is in possession of property or money
claimed by two or more persons, and the person in
possession is uncertain as to who is the rightful owner, the
person in possession may apply to court for relief by way
of interpleader to compel the contending claimants to
interplead; i.e. to take proceedings between themselves in
order to determine who is entitled to the subject matter.
This is provided for under the Rules in both Abuja and
Lagos. See O. 48 (Abuja, 2018); O. 47 (Lagos, 2019)
There are two types of interpleaders, namely, the Sheriff‟s
interpleader and the stakeholder‟s interpleader. The
Sheriff‟s interpleader is used in circumstances where a
sheriff in execution of a judgment attaches property, which
is claimed by a third party who is not the judgment debtor.
Stakeholder‟s interpleader is one by any other person not
being a sheriff.

PROCEDURE FOR INTERPLEADER

The application for interpleader is made by summons (O.
47 r. 2 Lagos, O. 48 r.5 Abuja),.The application shall be
supported by an affidavit stating (a) that the applicant
claims no interest in the subject matter of the dispute
except charges for costs, (b) that the applicant does not
collude with any of the claimants, and (c) that the applicant
is willing to pay or transfer the subject matter into court, or
dispose of it as the court or judge may direct - Order 47
rule 2 Lagos; Order 48, rule 2 Abuja.

144
The application shall be supported by an affidavit stating
inter alia:
1) that the applicant claims no interest in the subject-
matter in dispute other than charges for costs;
2) that the applicant does not collude with any of the
claimants; and
3) that the applicant is willing to pay or transfer the
subject-matter into court or to dispose of it as the court or
judge in chambers may direct. O. 48 r 2 (Abuja); O. 47 r 2
(2) (Lagos)
See generally, O. 48 (Abuja, 2018), and O. 47 (Lagos,
2019)

INJUNCTIONS
An injunction is an order of court restraining the
Respondent from doing an act. An injunction is an
equitable remedy. So, it is at the discretion of the court.
However, the court is expected to exercise its discretion
judiciously and judicially. See Ayorinde v. AG (Oyo State)
(1996) 2 SCNJ 198. Injunctions could either be interim or
interlocutory. For distinction between the two, see Kotoye v
CBN [1989] 1 NWLR (Pt. 98) 419 at 441 and 442

INTERIM INJUNCTION
An interim injunction is one granted to preserve the status
quo until a named date or until further order or until an
application on notice can be heard. It is granted in
situations of extreme urgency and normally on ex parte
application. The affidavit in support of the application must
disclose the urgency otherwise it will not be granted. It is
granted to maintain the status quo ante till when the
Respondent can be heard, and it is usually for a shorter
duration. See Kotoye v CBN supra, O. 7 r. 8 (Abuja).

145
INTERLOCUTORY INJUNCTION
As has been said above, an interlocutory injunction is
granted after all parties have been heard, and it lasts during
the pendency of the suit.

PRINCIPLES FOR GRANT OF AN INJUNCTION

The principles guiding the grant or refusal of an injunction
are the same in interim and interlocutory injunctions except
for the requirement of a situation of real urgency for an
interim injunction. They were stated in the case of Obeya
Memorial Hospital v. Attorney-General of the Federation
& Anor (1987) 7 SC (Pt. 1) 52 as follows:
1) Legal Right: There must be an existing legal right
capable of being protected.
2) Substantial issue to be tried.
3) Balance of convenience. Irreparable damage or injury.
The Applicant must show that he will suffer irreparable
damage or loss not capable of being compensated in
damages.
4) Conduct of the parties.
5) Undertaking as to damages.
See also American Cynamid Co. v. Ethicon Ltd. (1975) 1
All ER 504

MAREVA INJUNCTION
This is an injunction restraining a Defendant who is not
within the country or jurisdiction but has assets in the
country or jurisdiction from removing his assets within the
jurisdiction, or disposing of them. See Mareva Compania
Naveira S.A. v. International Bulk Carrier Ltd. (1975)
Lloyd‟s Rep 509; Sotiminu v. Ocean Steamship (1992) 5
SCNJ 1

ANTON PILLER INJUNCTION

This is an injunction normally made ex parte and in
camera, permitting the Applicant to enter into the premises
146
of the Respondent to search and seize, detain and preserve
goods or articles in possession of the Respondent. This is
normally granted in cases of infringement of copyrights,
trademarks or patents. See Anton Piller K.G.
v. Manufacturing Processes Ltd. (1976) 1 All ER 779.
There is now a statutory provision for making an Anton
Piller order in Nigeria under Section 25(1) of the Copyright
Act Cap C28 LFN 2004; formerly Section 22 Cap 68 LFN
1990.

147
CHAPTER SIX
SUMMARY JUDGMENTS

Summary Judgment is a judgment given in favour of the

Plaintiff/Claimant summarily without going through a full
trial. To enter summary judgment the only things the court
will consider is the Writ of summons, pleadings of the
parties, application for summary judgment, affidavit in
support of the application, counter affidavit and/or
documents to be relied upon and written address where
necessary.
Summary judgments are usually given where the
Plaintiff/Claimant has established that the defendant does
not have a good defence to the action. They are usually
given on the merit as final judgments and can only be set
aside on appeal.

On the other hand default judgments are also judgments

given summarily in default of a party failing or neglecting
to enter an appearance or file a defence to an action
commenced in court against such party. See Order 10 rule 2
and Order 21 Abuja High Court rules 2018; Order 12 rule 1
and Order 22 High Court of Lagos State rules 2019
respectively for judgment in default of appearance and
defence. However in the case of judgment entered in
default it can be set aside upon an application that is
brought before the court timeously in such respect.

There are various types of summary judgment procedures

under the rules of court namely:- Summary Judgment under
Order 13 of Lagos Rules 2019 and Order 11 of Abuja Rules
2018, Summary Judgment under the Undefended List
Procedure under Order 35 of Abuja High Court rules,
Summary Judgment based on admission of facts and
documents, Summary judgment on application for accounts
and Consent Judgment.
148
However for the purpose of our study under this topic we
will only be discussing the Summary Judgment procedures
under Order 13 of Lagos State Order 11 of Abuja and the
Undefended List Procedure under Order 35 of Abuja.

SUMMARY JUDGMENT UNDER THE

UNDEFENDED LIST UNDER THE FCT ABUJA
RULES
Order 35 rule 1(1) of the High Court of the Federal Capital
Territory, Abuja provides that:
“Where an application in Form 1, as in the
Appendix is made to issue a writ of summons in
respect of a claim to recover a debt or liquidated
money demand, supported by an affidavit stating the
grounds on which the claim is based, and stating that
in the deponent's belief there is no defence to it, the
Judge in chambers shall enter the suit for hearing in
what shall be called the "Undefended List".

A writ of summons for a suit in the undefended list shall

contain the return date of the writ. Order 35 rule 1(2) Abuja
rules. The Claimant shall deliver to the Registrar on the
issue of the writ of summons, as many copies of the
supporting affidavit as there are parties against whom relief
is sought, for service. Order 35 rule 2 Abuja rules.
A party who intends to defend the suit shall deliver to the
Registrar before 5 days to the day fixed for hearing, a
notice in writing that he intends to defend, together with an
affidavit disclosing a defence on the merit and the court
may give him leave to defend upon such terms as it may
think just. Order 35 rule 3(1) Abuja rules.
Where leave to defend the suit has been granted the
defendant, the suit shall then be removed from the
Undefended List and placed on the ordinary cause list and

149
the court may order pleadings or proceed to hearing
without further pleadings. Order 35 rule 3(2) Abuja rules.
If a defendant does not deliver a notice of defence and an
affidavit or is not given leave to defend, the suit shall be
heard as an undefended list and judgment given
accordingly. See Order 35 rule 4 Abuja rules.
A court may call for hearing or require for oral evidence
where it feels so compelled at any stage of the proceedings
under Rule 4. See Order 35 rule 5 Abuja rules.

Any judgment obtained under the undefended list is a

judgment on the merit.
See Leventis Motors Limited v GCS Mbonu (1962)NMLR
19,
UA.C. (Technical) Limited v Anglo Canadian Cement Ltd
(1966) N. M. L. R. 349

If a defendant does not within time deliver a notice of

intention to defend and an affidavit required by the rules
but before judgment applies to the court by motion on
notice supported by affidavit disclosing a defence on the
merits and satisfactorily explaining his neglect, the court
may allow him to defend the matter on terms as it deems
just. The court may also grant an adjournment to a party
who merely files a notice of intention to defend, to enable
him take the proper steps e.g. filing an affidavit disclosing
a defence. See John Holt and (Liverpool) Ltd
v. Fajemirokun (1961) ALL NLR 402.
Most States in the Federation have this undefended list
procedure in their High Court Rules. See Order 23 Uniform
Rules (Kano Rules), Order 23, Oyo; Order 24, Anambra,
Order 11, Rivers etc. The procedure is also obtainable in
the Federal High Court. See Order 12, Federal High Court
(Civil Procedure) Rules 2009.

150
NOTE that the Lagos High Court Civil Procedure Rules,
2019 do not contain this procedure. What is obtainable in
Lagos is Summary Judgment under Order 11. Previously
Order 21 procedure (Abuja) rules 2004 now Order 35
(2018) rules Abuja and Order 23 Uniform rules had its
equivalent in Order 60 of the old Lagos High Court Civil
Procedure Rules of 1994. However the current Lagos Rules
2019 do not contain it.

SUMMARY JUDGMENT UNDER ORDER 11 ABUJA

HIGH COURT RULES 2018 AND ORDER 13 HIGH
COURT OF LAGOS RULES 2019.
Order 11 of the Abuja High Court (Civil Procedure) Rules
2019 provides that

“Where a claimant believes that there is no defence

to his claim, he shall file with his Originating
Process, the statement of claim, the exhibits, the
depositions of his witnesses and an application for
summary judgment which application be supported
by an affidavit stating the grounds for his belief and
a written brief in support of the application.”

Order 13 rule 1 of the Lagos High Court rules also has a

similar provision to the above although the rules require for
the filing of “list and copies of documents to be relied
upon.”
A claimant shall deliver to the Registrar as many copies of
all these processes and documents for the use of the court
and for service on the defendants. See Order 11 rule 2
Abuja rules and Order 13 R. 2 Lagos rules. Furthermore
service of all the processes and documents shall be effected
on the defendant(s) personally in the manner provided
under Order 7 of the Abuja rules and Order 8 of the Lagos
Rules respectively.. See Order 11 rule 3 Abuja rules and
Order 13 rule 3 Lagos rules.
151
A party who intends to defend the suit shall file the
following:
(a) Statement of defence;
(b) Depositions of his witnesses;
(c) Exhibits to be used in his defence;
(d) Counter affidavit; and
(e) A written brief in reply to the application for summary
judgment.

NOTE that these documents are to be filed not later than

the time prescribed for defence. See Order 11 r. 4 Abuja
rules and Order 13 r. 4 Lagos rules.

Where it appears to the Judge that the defendant has a good

defence and ought to be permitted to defend the claim, he
may be granted leave to defend. However where it appears
to the Judge that the defendant has no good defence, the
Judge may thereupon enter judgment for the claimant. On
the other hand where it appears to the Judge that the
defendant has a good defence to only part of the claim and
no defence to the other parts of the claim, the Judge may
enter judgment for that part of the claim for which there is
no defence and grant leave to defend that part to which
there is a defence. See O. 11 r. 5 Abuja rules and O. 13 r. 5
Lagos rules.

Where there are several defendants and it appears to the

court that some of them have good defence and ought to be
permitted to defend and the others don't have good defence
and ought not to be permitted to defend, those with good
defence may be permitted to defend and the Judge shall
enter judgment against those who have no good defence.
See Order 11 rule 6 Abuja rules and Order 13 rule 6 Lagos
rules.

152
Note that parties are at liberty to expatiate their written
briefs by advancing oral submissions before the Judges.
See Order 11 R. 7 Abuja rules.

Note: also that this procedure was only obtainable under

the Lagos rules under Order 11 Lagos rules 2012 and not
provided for in Abuja 2004 rules but is now provided for
under both the Abuja rules 2018 and Lagos rules 2019.
Note: Compare the provisions of the Undefended List
procedure under Order 35 Abuja rules with the Summary
Judgment procedure under Order 11 Abuja rules 2018
Rules and Order 13 Lagos rules 2019.

OTHER TYPES OF SUMMARY JUDGMENT

PROCEDURE
The following are other types of summary judgment
available under the rules:
1. Order 12 Abuja and Order 14 Lagos - Summary
judgment on application for accounts.
2. Order 20 Abuja and Order 21 Lagos - Summary
Judgment on admission of facts and documents.
3. Order 39 rules 6 & 7 Abuja and Lagos – Entry of
Summary Judgment.
4. Order 60 Abuja and Order 57 Lagos - Summary
proceedings for possession of landed property
occupied by squatters or without the owner's
consent.
5. Order 10 rule 2 and Order 21, Abuja 2018 and
Order 12 rule 1 and Order 22 Lagos 2019. These
provisions deal with Judgment in default of
appearance and pleadings which though not strictly
summary judgment procedures because they are not
judgments on the merits, are however judgments
given in favour of a party without a trial. Note Order
4 rule 4(1) Abuja 2018 and Order 6 Rule 4(1) Lagos
Rules 2019 which provides: "where the claim is for
153
debt or liquidated demand only, the originating
process shall state the amount claimed for debt or in
respect of such demand with costs and shall further
state that the defendant may pay the amount with
costs to the claimant's Legal Practitioner within the
time allowed for appearance and that upon such
payment the proceeding shall terminate".

APPLICATION FOR JUDGMENT AND FOR THE

ENTRY OF JUDGMENTS:
Both the FCT Abuja rules and Lagos State High Court
rules make provisions for application for judgment and for
the entry of judgment after delivery. See Order 39 Abuja
and Lagos rules.

154
CHAPTER SEVEN
PLEADINGS

Pleadings, strictly speaking are written statements of facts

filed by parties in an action and served between the
opposing parties stating concisely the facts upon which the
parties base their case. Pleadings are filed in cases
commenced by Writ of summons in the High Court.
Examples of pleadings are statements of claim, statement
of defence, reply, counter claims, set-off, further and better
particulars etc.

The various rules of court make provisions for pleadings.

In Abuja, the provisions are in Order15- 18 of the High
Court of the Federal Capital Territory, Abuja (Civil
Procedure) Rules 2018, while in Lagos, the provisions are
in Order 17 – 22 of the High Court of Lagos State (Civil
Procedure) Rules 2019.

FUNCTIONS OF PLEADINGS
1. Pleadings help to ascertain with as much certainty as
possible the various matters actually in dispute
among the parties and those in which there is
agreement between them: Morinatu and Oduka
v. Kasumu and Another (1966) N.M.L.R. 28 at 31;
Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398;
Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 365
A Pleading must be sufficient, comprehensive and
accurate: Ayoola James v. Mid-Motors Nigeria Co.
Limited (1978)11 and 12 S.C 31 at 63.
Parties are bound by their pleadings: Ambrosini v. Tinko
(1929) N.L.R. 8: North Brewery Ltd v. Mohammed (1972)
N. N. L. R. 133; G.U.O.Okeke & Sons Ltd v. Usifor (2008)
1 All FWLR p. 280.

155
Note that a party will only be permitted to call evidence to
support his pleadings and if evidence is in fact adduced
contrary to his pleadings such evidence must be expunged
when the judge is considering the case: National
Investment Properties v. Thompson Org. Ltd (1969)1 ALL
NLR.

2. Pleadings help to avoid springing of surprises. The

rule of natural justice – audi alteram partem- demands
not only that both parties be heard but also that neither
of them be allowed to surprise the other by raising
unforeseen issues: Ita & Anor v. Ekpenyong & Ors
(1963) E. N. L. R. 21, George and Others.
v. Dominion Flour Mills Limited (1963)1 All N. L. R.
at 72; Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429)
93 at 125. It is the duty of counsel to raise objection to
the admission of evidence to an issue not pleaded. But if
he fails to take this objection at the trial and such
evidence is wrongly admitted, he may raise the point on
appeal: Minister of Lands v. Azikiwe (1969) 1 All NLR
490. ; Abowaba v. Adesina (1946)12 W. A. C. A. 18;
Owoniyi v. Omotosho(1961)All N.L.R. 304; (1962)
WNL.R. Lloyd v. West Midlands Gas Board (1971)
LW.L.R.749; (1971) 2 All E.R. 1240. A plaintiff or
claimant however, is allowed to lead evidence on any
matter raised in the defendant's pleading, Adenuga v. L.
T.C., Igbodin and Others v Ovianke(1967) 9 - 10 S.C.
179 at 191.
Evidence in respect of matters not pleaded really goes to no
issue as the Court should not allow such evidence to be led;
Woluchem and Ors v. Gudi and Ors(1981) 5SC 291 at
320, (1981) NSCC. 214 at 227.
In National Investment Properties v. Thompson Org. Ltd
(supra) the Supreme Court held as follows:
“A plaintiff must call evidence in support of his pleadings
and evidence which is in fact adduced, which is contrary to
156
his pleadings should never be admitted. It makes no
difference that the other side did not object to the evidence
or that the judge did not reject it. It is of course the duty of
Counsel to object to inadmissible evidence. And the duty of
the trial court anyway is to refuse to admit inadmissible
evidence. But if not-withstanding this, evidence is still
through an oversight or otherwise admitted, then, it is the
duty of the court when it comes to give judgments to treat
the inadmissible evidence as if it had never been admitted.”
Similarly, there is no issue between the parties in respect of
matters expressly admitted on the pleadings and therefore
no evidence is required in reference to those matters as
facts admitted needs no further proof. See section 123
Evidence Act 2011. See also The British India Insurance
Company (Nigeria) Limited v Thawroles (1978) 35. S C.
143

3. Pleadings serve as a guide to the court as to the

precise matters it is called upon to decide between
the parties.
The court is bound by the pleadings of the parties and is not
to determine issues or award reliefs not raised or sought by
the parties. OGIEMIEN V. OGIEMIEN (1967) NMLR
245.

Any judgment that does not answer or determine the issues

raised as being in controversy between the parties is in
error and bound to be set aside on appeal.

4. Pleadings constitute permanent records of the issues

and questions raised and determined between the
parties.
This constitutes a public record for posterity and
prevents re-litigation of the issues as a plea of res judicata
can be raised on such issues.

157
5. Pleadings show on whom the burden of proof lies on
the respective issues raised.
See Sections 131(1), 132 and 133 of the Evidence Act
2011. See also S.B. BAKARE V. ACB LTD. (1986) 5 SC
48.

6. The nature of pleadings served on the parties will

determine the proper approach to be adopted in
meeting the opponent’s case. For example, whether to
ask for further and better particulars or to take out
proceedings in lieu of demurrer or for non-disclosure of
a reasonable cause of action, ask for judgment on
admission, apply for consolidation of actions and so on.

SUMMARY OF ADVANTAGE OF PLEADINGS

a) Before the actual hearing of the case, a party knows the
case of his opponent and can thus prepare his own to
meet it. This prevents unnecessary waste of time and
consequently costs. It may be that in some cases there is
no dispute as to any facts of the case whatsoever, in
which case only legal points will be argued thus
reducing the time spent in hearing the case and
therefore costs; See Akintola v. Solano(1986) 2 N. W.
L. R. 598.
b) It may also happen that through the pleadings the
parties get to know that there is really nothing to fight
about in which case the plaintiff or claimant may
withdraw part of or all his claims or the defendant may
submit to judgment in respect of some or all of the
claims against him.
c) Determination of issues of fact or points of law in the
case based on the pleadings will form the basis of the
plea of res judicata in any subsequent proceedings.
SUMMARY OF CONTENTS OF PLEADINGS
a) Every pleading must contain only material facts. – O17
R2 Lagos; O 15 R2 Abuja.
158
b) It must contain only material facts, but not law or legal
argument or conclusion
c) It must not state the evidence by which the facts are to
be proved; and
d) It must contain the reliefs being sought by the parties. –
O18 R 1(1) or O15 R1 Abuja.

MATTERS WHICH MUST BE SPECIFICALLY

PLEADED
a) Charge of fraud or the commission of crimes or any
fact showing illegality: Adeoye v. Jinadu (1975) 5
S.C 102; Onyuike v Okeke (1976) NSCC 146;
Fabunmi v. Agbe (1985) 5 SC
b) In a matrimonial or other cause based upon adultery,
the particulars of the alleged acts of adultery must be
'specifically pleaded including the times and places
of each act of adultery as well as particulars of the
person with whom the adultery is allegedly
committed: Ikoku v. Oli (1962) 1 All N. L. R 194 at
199-200.
c) In libel cases the particulars of the alleged libel have
to be pleaded in order to make it easily identifiable.
The precise words have to be set out. If the words do
not specifically refer to the plaintiff or claimant, he
must plead those facts from which he wants the
Court to infer that the libel refers to him; Bruce
v. Oldham Press Ltd (1939) I.K.B. (697): Okafor
v. Ikeayi(1979) 3 and 4 S.C 99. In slander cases the
precise words used and the names of the persons to
whom they were uttered must be pleaded: Bradbury
v. Cooper(1884) 12 Q. B. D. 94, particulars of the
times and the place where the words were uttered
should be pleaded. If the libel or slander is in a
159
foreign language, the actual words allegedly written
or spoken must be set out in the foreign language,
followed by a literal translation thereof: Sowole
v. Erewunmi (1961) All N L.R.712. Also in a case
of defamation, if the defence is that of qualified
privilege or fair comment, this must be specially
pleaded:.Simonds v. Dunne (1871) and the Court
may not permit an amendment raising the plea after
the close of evidence: Stallworthy v. Geddis (1909)
28 N. Z. L. R.366.
d) If special damages are claimed, the details of those
must be specially pleaded: Mukete v. N.B. C. and
Another (1961) All N. L.R. 482; Otaru & Sons v.
Idris (1999) 68 LRCN 823.
e) Estoppel must be specially pleaded: Owoniyi v.
Omotosho(1951) All. N.L.R. 304(1962) W. N. L. R.
1: Obanye v. Okwunwa Ijoma(1930) 10 N.L.R. 8.
f) A purchaser of legal estate, subject to a prior
equitable mortgage must specially plead that he is a
purchaser for value without notice. Failure to plead
that defence or call evidence to establish lack of
notice, raises a presumption that the purchaser had
notice of the prior mortgage. Barclays Bank D. C.O.
v. Olofintuyi and Anor: (1961) All N.L.R. 799
g) Unenforceability of a document must always be
pleaded: N M Jebara v. Mercury Assurance Co. Ltd
(1972) 2 U.L.L.R. 498; and where a party fails to
plead the facts which renders a document
unenforceable against him, it is not open to the
Court to consider it. See also the dictum of Charles
J In Barclays Bank D. C. O. v. Memunatu Hassan
N. L. R. 837.
160
h) Where a contract is not ex facie illegal and the
question of illegality depends on the circumstances,
as a general rule, the Court will not entertain
arguments on the question of illegality unless it was
raised by the pleading: George and Others.
v. Dominion Flour Mills Limited (1963)1 All N. L.
R. at 72.
i) A statutory exception to a general statutory
immunity from liability must be specially pleaded
by the party. Wada v. Kebbi(1962) 2 All N L. R.
73; Moore v. News of the World Ltd and Another
(1972) I. Q. B. 441 at 448. Therefore, where the law
prohibits the institution of the proceedings, or
prescribes a notice of intention to institute the
proceedings, i.e. a pre-action notice, defendant who
intends to rely on the absence of such notice as a
defence must raise it in his pleadings - Katsina
Local Authority v. AlhajiBarmoMakudawa(1969)
N. N. L. R. 62 (1971) N.M. L. R. 100.
j) Facts relied upon for bringing a particular
transaction within the ambit of particular Act, e.g.
Money Lenders Act (Cap) 124 should be specially
pleaded: Banwo v. A. G Leventis and Co. Limited
(1960) L. L. R. 78; Katsina Local Authority
v. Alhaji Barmo Makudawa (supra). An allegation
that a failure of a condition precedent to found the
plaintiffs claim exists must be specially pleaded by
the defence: Yassin v. Barclays Bank D. C. O.
(1968) NMLR 380, OR (1968) NMLR 46. See also
the Lion of Africa Insurance Co. Ltd v. Stella
Anuluoha (1972)1 All N. L. R. (pt.2)32.

161
k) A written agreement must be pleaded, however,
where it is not pleaded and the pleadings of the
plaintiff or claimant is not in conflict with it, or it
was admitted by consent, a court of appeal will not
allow an appeal against a judgment founded on the
agreement; Mandila s and Karaberis Ltd v. Yesufu
Otokiti (1963)1 All N. N. L. R. 84.
l) In a claim for declaration of title to land based upon
inheritance from ancestors, the claimants must plead
the names or the histories of the several ancestors.
m) The defence of laches, acquiescence and undue
influence must be specially pleaded:
Adeoyev. Jinadu (1975) 5 S. C. 102: Gbadebo and
Another v. Fadioriaand AnO. (unreported) W.S.
CAN/33/68 June 6, 1969. Similarly, Waiver of a
condition of an agreement must be pleaded: Wada
Darma v. Lion of Africa Insurance Co. (1970) N.
N. L. R. 84. Where the basis of an action is res ipsa
1oquitor; this must also be specifically pleaded
either by specific reference to that maxim or by
pleading facts which justify the application of it:
Adebisi & Ors v. Oke(1967) N.M.L.R. 64.
n) Items of loss alleged to constitute special damages
have to be particularized in the plaintiffs pleading:
Odumosu v. A. C. B. Ltd (1976) 1. S.C. 55, 69: See
also Perestrello Ltd v. United Paint Co. Ltd, Same
v. Same (1969). W. L. R. 579, (1969) 3 All E. R.
479.

FORMAL REQUIREMENTS OF PLEADINGS

1. The pleadings must be headed in the title of the
court in which the action is commenced.
162
2. It must have a suit number.
3. The names of the parties must be set out on the
pleading (together with the capacity in which they
are suing or defending where this is necessary).
4. A pleading must bear its own heading i. e. statement
of claim or statement of defence as the case may be.
5. It must be arranged in paragraphs and numbered
consecutively.
6. It must state facts in a chronological order, that is, in
the sequence in which they occurred.
7. It must state facts positively, precisely, distinctly,
briefly and in the active voice.
8. Pronouns should be avoided as they may create
ambiguity and there must be consistency in
nomenclature.
9. Dates and numbers are to be written in figures but
may also be expressed in words. Order 15 R. 2
Abuja Rules
10. Pleading must be dated and signed by a legal
practitioner or by the party if he sues or defends in
person.
11. It must contain the address of the counsel that settles
it.
12. It must contain the address for service on the other
party.
13. It is also important that the paper on which it is
written must be good and of durable quality.

SPECIFIC PLEADINGS

STATEMENT OF CLAIM
The statement of claim is an elucidation and amplification
of the claim of the plaintiff as summarily endorsed on the
163
writ. It is a kind of elaboration of what you have on the
writ.

It is the first pleading and it is usually contained in a

separate document from the writ and filed simultaneously
with the writ. The writ merely states the nature of the
claim and the relief claimed while the statement of claim
give details of the claim and alleges facts on which it is
based.

A statement of claim has 3 important parts viz.

1. The introductory averments
2. The body
3. The prayer or relief

When the statement of claim is filed, it supersedes the writ.

See Elf (Nig.) Ltd. V. Sillo [1994] 7 – 8 SCNJ 119;
Enigbokan v. AIICO (Nig.) Ltd. (1994) 6 SCNJ 168;
Udechukwu v. Okwuka (1956) 1 FSC 70. This means that
any matter which is stated in the writ but omitted in the
statement of claim is deemed to have been abandoned.
However, it must be noted that although the statement of
claim supersedes the writ, nevertheless, it must confine
itself to the cause of action indorsed upon the writ of
summons.

STATEMENT OF DEFENCE
This is the pleading filed by the Defendant in response to
the allegations of fact in the Claimant‟s statement of claim.
It may, therefore, respond to allegations in the statement of
claim in the following ways:
1. Admission
2. Traverse
3. Confession and avoidance
4. Objection on point of law
5. Set off and
164
6. Counterclaim.

As with the statement of claim, a statement of defence

needs to conform to the formal requirement of pleadings.
The defence should deal with the plaintiff‟s allegation in
the order in which they are set out in the statement of
claim. It may be convenient to deal with facts to be
admitted followed by facts that elaborate or explain such
admissions.

Then, facts denied followed by facts elaborating on them,

after which confession, avoidance, objections on points of
law set-off and counterclaim would be taken. The order
chosen must depend on the facts presented and how it may
have been dealt with in the statement of claim.

TRAVERSE
In simple terms, to traverse means to deny the allegations
in the statement of claim. Any allegation not traversed is
deemed to be admitted. By common practice a general
traverse in the following form is accepted and when it is
employed; it puts the opponent to the proof of the facts
stated or alleged in the statement of claim. It is employed
where a legal practitioner has no instructions on particular
allegation and it is usually put at the beginning of the
pleading. It is stated thus:
Save and except as is hereinafter expressly admitted
the defendant denies each and every allegation of
fact contained in the Statement of Claim as if same
were set out herein and traversed seriatim.

See Mandilas and Karaberis Ltd v. Lamidi Apena (1969)

N.M.L.R. 199.:
Wanner v. Sampton (1959) 1 Q. B. 297, 310; Ace Jimona
Ltd v. The Nigeria Electrical Contracting Co. Limited S. C.

165
589/64- May 1966, Edward Attah and Others
versus Chukwurah Nnacho and Ors (1965) N.M.L.R. 28.

TRAVERSE MUST NOT BE EVASIVE

One of the essential rules of pleadings is that defendant's
pleading shall deny all material averments in the statement
of claim as the defendant intends to deny at the hearing.
Every allegation of fact which is not specifically denied or
stated not to be admitted shall be taken as established.
Denial should therefore not be evasive. It should meet the
pointed-out instances pleaded in the statement of claim and
where any allegation of fact in the statement of claim has
not been specifically denied or by implication, the plaintiff
is not even obliged to establish it by evidence. See
Economides v. Thomopulus and Co. Limited (1956)1 F. C.
7 at 10. The law and rules of pleadings do allow a general
traverse the only effect of which is to cast on the plaintiff
the burden of proving the allegation thus generally denied.
See Ace Jimona Ltd v. The Nigeria Electrical Contracting
Co. Limited S. C. 589/64- delivered in May 1966. It must
be noted that a general traverse is not enough to controvert
material and essentially important averments in the
statement of claim. See Akintola v. Solano (1986) 2 N. W.
L. R. 598. Therefore, in answer to an allegation that the
defendant offered a bribe of N 1000.00 Naira, it is not
sufficient to say that the defendant denies that allegation
but it should be stated that the "defendant never offered a
bribe of N1,000.00 Naira or any other sum". Similarly, it is
not sufficient for the defendant in an answer to the
plaintiff's allegation that he had been paid sum of N500.00
Naira, to say that "defendant was never paid the sum of N
500.00 Naira". He must go further to say that he had not
been paid the sum of N 500.00 Naira or any other sum. If it
is the case that he had been paid some sum of money, he
should state the actual sum he had been paid. In an action
for slander it is not sufficient for the defendant to deny that
166
he spoke the words alleged to be defamatory but must go
further to say that he never uttered any words to be of like
effect". Similarly, where a petitioner in divorce proceeding
alleges that the parties are domiciled in this country it is
defective pleading merely to deny that fact without at the
same time alleging what the respondent considers to be the
domicile of the parties. See Udoh v. Udoh (Unreported)
Civil Suit NO.1/1 86/68 September 10, 1970.

Where a defendant states "The defendant is not in a

position to admit or deny the allegation contained in
paragraph 6 of the statement of claim", it has been held that
such traverse is not a proper traverse and amounts to no
denial at all. See Lewis & Peat (NRI) Ltd. V. Akhimien
(1976) 7 SC 157; Akintola v. Solano (1986) 2 N. W. L. R.
598. But in Aja v. Okoro (1991) 9-10 SCNJ 1 at 18, it was
held that in circumstances where the facts are only known
to the Plaintiff, it would constitute a proper traverse. In
Ugochukwu v. CCB (1996) 7 SCNJ 22, it was held that the
court should look at other paragraphs of the statement of
defence in order to determine whether it amounts to an
admission or denial.

SET-OFF AND COUNTER CLAIM

See generally O. 15 r. 1 Abuja and O. 17 r. 1 (2) & (3)
Lagos
A set –off is a monetary claim set up as defence, to a claim
contained in the statement of claim whilst a counterclaim is
in fact a claim by defendant against the plaintiff or claimant
in the same proceedings. The life of a set-off revolves
around the claimant‟s claim. If the claimant‟s claim is
terminated, the set-off abates. Whilst therefore the claimant
need not make a reply to a set–off he must set out in his
reply a defence to a counter-claim. A counter-claim from
the point of view of pleading is like statement of claim and
is governed by the same rules of pleading.
167
A counter-claim should for all practical purposes be
regarded and treated as an independent action. Therefore,
whether the original action is stayed, discontinued or
dismissed the counter-claim may proceed to trial. See O. 17
r. 11 Lagos. The usual practice is to separate the facts relied
upon to sustain a counter-claim from the remaining part of
the statement of defence and to arrange them in numbered
paragraphs under the heading "Counter-claim".

REPLY
This is used by the plaintiff to answer new issues raised in
the statement of defence such as in cases of confession and
avoidance. It is not necessary to file a reply if its only
purpose is to deny the allegations made in the statement of
defence because of the principle of implied joinder of
issues. Facts may be traversed in the reply as follows:

“The plaintiff joins issues with the defendant on paragraph

X of his defence”.

The plaintiff is not allowed to raise a new cause of action

or allege facts inconsistent with the statement of claim in
the reply. This can only be done by amendment of the
statement of claim.

TIME FOR FILING PLEADINGS

Under the Lagos Rules, a statement of claim must
accompany the writ as well as list of witnesses, witness
statement on oath, copies of documents to rely on at the
trial and pre-action protocol Form 01. See Order 5 Rule 2.
A defendant shall file his statement of defence, set off or
counterclaim, if any, not later than 42 days after service on
him of the claimant's originating process and
accompanying documents. See O. 17 r. 1(2) High Court
Rules, 2019, Lagos. A claimant shall within 14 days of
service of the statement of defence and counterclaim, if
168
any, file his reply, if any, to such defence or counterclaim –
O. 17 r. 1(4) and O. 20 r. 1 Lagos

Under the Abuja Rules, O. 2 r. 2(2) requires a claimant to

serve a statement of claim, list of witnesses, witness‟
statement on oath, copies of document to be relied on at the
trial and certificate of pre-action counselling Form 6 along
with the writ of summons. The defendant who enters
appearance in and intends to defend an action, shall within
21 days after the service of the statement of claim and the
writ of summons on him, serve a statement of defence on
the claimant, along with copies of documents mentioned in
the statement of defence to be used in evidence, witnesses
statement on oath and a certificate of pre-action counseling.
Claimant has 14 days to reply, if there is no reply, there is
implied joinder of issue. O. 15 r. 2 and 3 Abuja.

EXTENSION OF TIME TO FILE PLEADINGS

Where a party is out of time to file pleadings, he may apply
for extension of time to do so. The application is by motion
on notice supported by affidavit which must disclose
reasons for failing to file pleadings within time. The
application also be supported by a written address. See O.
48 r. 4 Lagos and O. 49 r. 4 Abuja.

169
(SPECIMEN OF STATEMENT OF CLAIM)
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: LD/123/92

BETWEEN:
KOLATAWIN FINANCE CO. LTD CLAIMANT
AND
1. KATAKARA NIGERIA LIMITED
2. ISIAKA ALOWOASAN DEFENDANTS

STATEMENT OF CLAIM
1. The claimant is a limited liability Finance and
Securities House with registered address at LSDPC
House, 11th Floor, NnamdiAzikiwe Street, Lagos
within the jurisdiction of this Honourable Court.
2. 1st Defendant is a general trading and
merchandising company incorporated under the
Companies Act 1990 with its business address at
NO.100 Malu Road, Ajegunle, Apapa within the
jurisdiction of this Honourable Court.
3. The 2nd Defendant is the Managing Director of the
1st Defendant Company and has personally
guaranteed the payment of a loan facility of N60,
000.00 Naira granted the 1st Defendant by the
Plaintiff and resides at No 5 Mopol Road, Apapa
within the jurisdiction of this Honourable Court.
4. On 20th August, 2004, the claimant advanced a loan
facility of N60, 000.00 Naira to the 1st Defendant
and it was agreed between the parties as follows:-
a. That the principal sum ofN60, 000.00 Naira
together with management fee ofN18,000

170
were to be paid by the 1st Defendant on or
before the 17th November, 2004.
b. That in the event of default the 1st Defendant
shall pay N500. 00 per day as penalty.
5. The claimant avers that despite several reminders
served on the Defendants to honour their obligation,
they have persisted in their default to date.
6. The claimant's Solicitor has also made a formal
demand on the defendants without any response
from them.
7. The claimant will rely at the trial on the following:-
a. 1st Defendant's letter of application for loan
dated 16th August, 2004.
b. The claimant's letter of offer to the 1st
Defendant dated 31st of August, 2004 and the
written acceptance slip signed by the 1st
Defendant.
c. The claimant's letter dated 20th August, 2004
to the 1st Defendant formally disbursing the
loan facility.
d. The claimant's letter to the 1st Defendant
dated 16th April 2005 and 2nd December,
2005.
e. 2nd Defendant's hand written note to the
Plaintiff dated 27th February, 2005.
f. The Guarantee executed by the 2nd
Defendant.
g. The claimant's solicitors letter to the
Defendants dated 20th December 2005.

8. WHEREFORE the claimant claims as follows:

171
a. The sum of N60,000.00 being the principal
loan
b. The sum of N18,000.00 being the
management fee
c. The sum N100,000.00 general damages for
breach of contract
d. The cost of this action

Dated this …………. day of …………………. 2015

…………………………………..
Barista O. Loya Esq.
Barista, Barista & Associates
(Claimant‟s Counsel)
No. 1 Tutu Mayo Street
Obalende,
Lagos State.
Email: [email protected]
Tel: 070722269945, 0805802277

FOR SERVICE ON:

The 1stDefendant
100 Malu Road, Ajegunle
Lagos.
The 2nd Defendant
No. 100 Malu Road
Ajegunle Lagos.

172
(SPECIMEN OF STATEMENT OF DEFENCE)
IN THE HIGH COURT OF LAGOSSTATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Suit No. LD/5432/74

BETWEEN:
CHUKWUKA AYOTUNDE CLAIMANT
AND
UMARU EFFIONG DEFENDANT

STATEMENT OF DEFENCE

1. Save and except as are herein expressly and specifically

admitted the Defendant denies each and every allegation
contained in the claimant's Statement of Claim as if each of
such allegations were herein set out and traversed seriatim.
The Defendant never wrote or printed or published
any of the words set out in paragraph 6 of the
Statement of claim.
The Defendant avers that none of the said words of
the alleged publication contained in paragraph 6 of
the statement referred to was understood to refer or
is capable of referring or of being understood to
refer to the claimant as alleged or at all.
The Defendant says that the said words do not bear,
nor understood to bear nor are they capable of
bearing any of the meanings alleged in the statement
of Claim.
The Defendant avers that the said words are not
defamatory.
The claimant has not suffered the alleged or any loss
or damage.

173
The Defendant will contend at the trial of this action
that the claimant is not competent to bring this
action.
Whereof the Defendant say that the claimant is not
entitled to claim as per his Writ of summons and
that this claim be dismissed with substantial costs.

Dated this .................................. day of . ............... 2005

Babasoki Akuna Esq

Babasoki & Co.
No. 4, Babasoki Street
Ajegunle, Lagos State
E – mail: [email protected]
Tel: 070722269945, 0805802277

FOR SERVICE ON:

The Claimants
C/O Their Counsel
Fair Weather Chambers
No. 2, Abokina Crescent
Igbogbo Okobo
Ikorodu
Lagos.

NOTE:
Under O. 19 r. 1 of the Lagos Rules, the statement of
defence shall be a statement in summary form and shall be
supported by list and copies of all documents and a list of
witnesses and their deposition.

NOTE ALSO:
Order 17 rule 1 (2) Lagos which provides that a defendant
shall file his statement of defence, set-off or counterclaim,
174
if any, not later than 42 days after service on him of the
claimants originating process and accompanying
documents.

Order 17 R. 1 (4) & (5) Lagos provides that a claimant

shall within 14 days of service of the statement of defence
and counterclaim if any, file his reply, if any, to such
defence or counterclaim provided that if such claim in the
counterclaim ought to be in an independent proceeding, a
Judge may order that the counterclaim be excluded.

Under the Abuja Rules 2018, it is provided in Order 15

Rule 1(2) and Order 17 Rule 1 to the effect that a defendant
who enters appearance in, and intends to defend an action
shall, within 21 days after the service of the statement of
claim and the writ of summons on him, serve a statement of
defence on the plaintiff, along with copies of documentary
evidence, list of witnesses and their written statement on
oath.

A claimant shall within 14 days of service of the statement

of defence and counterclaim if any file his reply and
defence if any to such defence or counterclaim – O. 15 r.
1(3) (Abuja)

175
CHAPTER EIGHT
PRE-TRIAL AND TRIAL PROCEEDINGS

PROCEEDINGS IN LIEU OF DEMURRER

The term demurrer was derived from the Latin word
"demorare" which means to "wait" or "stay". See Bambo v.
Aderinola (1977) 1 SC 1 at p 6. It is a common law
procedure that was contained in some of the old rules of
procedure in Nigerian courts. A party may make a
demurrer application to challenge his opponent's pleading
on a point of law, while he refrains from pleading, until the
determination of the demurrer. This procedure has been
abolished in virtually all the rules of procedure. See Order
23 Rule 1 of the Federal Capital Territory Abuja (Civil
Procedure) Rules 2018; Order 24 Rule 1, of the High Court
of Lagos State (Civil Procedure) Rules, 2019 subsequently
referred to as the Abuja Rules 2018 and the Lagos Rules
2019 respectively. In its place, most rules now contain
provisions for proceedings in lieu of demurrer.

Under the new procedure, any party may raise by his

pleading any point of law, and any point so raised may be
disposed of by the trial Judge prior to, at or after the trial.
See Order 23 Rule 2 (1) and 24 Rule 2 (1) Abuja and Lagos
Rules 2018 and 2019 respectively. Under the Abuja Rules,
if the Court or Judge is of the opinion that the decision of
such point of law substantially disposes of the whole
action, or any distinct cause of action, ground of defence,
set off, counter-claim, or reply therein, the Court or Judge
may thereupon dismiss the action or make such other Order
therein as may be just. See Order 23 Rule 2 (2) of the
Abuja Rules, 2018. While, under the Lagos Rules, If in the
opinion of the judge, the decision on such point of law
substantially disposes of the whole proceedings or any part
of it, the judge may make such decision as may be just. See
Order 24 Rule 2 (2) of the Lagos Rules 2019.
176
An application under this procedure, if brought before the
hearing of the suit, must be made by motion on notice
setting out the point of law for determination. See Order 43
Rule 1 Abuja Rules 2018 and Lagos Rules 2019. Such
application may also be made orally provided all the parties
are in court and consent thereto. See Olabiyi v. Abiona
(1955-56) WRNLR 126. An application can only be made
in lieu of demurrer after the defendant has joined issues
with the plaintiff by filing a statement of defence. This
distinguishes the proceedings in lieu of demurrer from a
demurrer procedure. See Order 23, Rule 2 (1) and 24 Rule
2 (1) Abuja and Lagos Rules 2018 and 2019 respectively.
See also, Fadare v.A.G Oyo State (1982) 4 SC 1

STRIKING OUT PLEADING FOR NON

DISCLOSURE OF CAUSE OF ACTION OR
DEFENCE
The Court or judge may order any pleading to be struck out
for non-disclosure of reasonable cause of action or answer,
and where a pleading is shown to be frivolous or vexatious
may consequently order the action to be stayed or
dismissed or judgment to be entered accordingly as may be
just. See. Order 23 Rule 3 Abuja Rules 2018 and Order 17
Rule 17(1) Lagos Rules 2019. The applicant applies by
motion or summons, clearly indicating the particular order
sought i. e. dismissal or striking out, the pleading being
attacked and the ground of the attack. See Carl Zeiss
Shifting v. Rayner & Keeler Ltd (No. 3) 1970 Ch. 506

PRETRIAL AND CASE MANAGEMENT

CONFERENCE AND SCHEDULING
Pretrial Conference and Scheduling is provided under
Order 27 of the Abuja Rules 2018 while Case Management
Conference and Scheduling is provided under Order 27 of
the Lagos Rules, 2019.
177
Order 27 Rule 10 of the Abuja Rules 2018, provides that
within 7 days after close of pleadings, the claimant shall
apply for the issuance of a Pretrial Conference Notice as in
Form 19 and the Court shall cause to be issued to the
parties and their legal practitioners (if any) a Pre-trial
Conference Notice as in Form 19 accompanied by a Pre-
trial Information sheet as in Form 20. On the hand, Order
27 Rule 1 of the Lagos Rules, 2019, provides that within
14 days after close of pleadings the claimant shall apply for
the issuance of a Case Management Conference Notice as
in Form 17 and the judge shall cause to be issued to the
parties and their legal practitioners where applicable, a
Case Management Conference Notice in Form 17
accompanied by a Case Management Information Sheet in
Form 18.
The purposes of the Pre-trial and Case Management
Conference and Scheduling are:
a) disposal of matters which must or can be dealt with
on interlocutory application.
b) giving such directions as to the future course of the
action as appear best adapted to secure its just,
expeditious and economical disposal.
c) promoting amicable settlement of the case or
adoption of alternative dispute resolution.
d) Fix trial dates. This fourth purpose is only provided
under the Abuja Rules. See Order 27 Rule 10 (2)
Abuja Rules 2018 and 27 Rule 1(2) Lagos Rules
2019. If the claimant does not make application for
Pretrial or Case Management Conference, the
defendant may do so or apply for an order to dismiss
the action. Order 27 Rule 10 (3) Abuja Rules 2018
and 27 Rule 1 (3) Lagos Rules 2019.

178
At the Pre-trial or Case Management Conference, the Judge
may make an order for:
a) Formulation and settlement of issues
b) Amending pleadings and further and better
particulars;
c) The admission of facts and other evidence by
consent of the parties;
d) Controlling and scheduling of discovery, inspection
and production of documents, etc. For further
details. See Order 27 Rule 10 (13) Abuja Rules 2018
and 27 Rule 2 Lagos Rules 2019

For sanction on failure to attend Pre-trial or Case

Management Conference, see Order 27 Rule 16 of Abuja
Rules 2018 and 27 Rule 5 of Lagos Rules 2019. After the
Pre-trial or Case Management Conference the Judge issues
a report. See Order 27 Rule 15 of Abuja Rules 2018 and 27
Rule 4 of Lagos Rules 2019.

DISCOVERY AND INSPECTION

Discovery may be of facts otherwise called interrogatories
and of documents (inspection)

PARTIES TO DISCOVERY Discovery whether of facts

or documents is available to any party to the proceedings
and as long as there is a question for decision between them
in that proceedings. There must be an issue to be
determined between the parties. Discovery is not a limited
to adversarial parties, i.e the plaintiff or claimant and
defendant. Even two co-defendants can apply for
discovery, once there is an issue to be determined between
such parties. The court may also order discovery to be
made between a plaintiff and a third party.

179
DISCOVERY OF FACTS (INTERROGATORIES)
This is a procedure whereby a party obtains admissions
from his opponent by asking questions in the form of what
are known as interrogatories.
Object of Interrogatories:
a) To support the case of the interrogating party.
b) To weaken the case of the party being interrogated.
c) To ascertain to some extent the case of the opponent
and the facts he is going to rely on at the trial.
d) By answering interrogatories, the party interrogated
will be placing facts on record from which he cannot
resile.

PROCEDURE:
Discovery of facts is made by delivery of interrogatories as
in Form 21 under the Abuja Rules 2018 and Form 19 under
the Lagos Rules 2019. The interrogatories shall be
delivered within 7 days of the close of pleadings and shall
form part of the pre-trial or case management conference as
the case may be. See, Order 28 Rule I and 2 Abuja Rules
2018 and 29 Rule 1 (1) (3) Lagos Rules 2019

ADMISSIBLE AND INADMISSIBLE

INTERROGATORIES
ADMISSIBLE INTERROGATORIES:

1. Facts directly in issue and any fact the existence or

non-existence of which is relevant to the existence
or non-existence of the facts directly in issue.
2. Interrogatories, the answer to which will support the
case of the party interrogating or to destroy that of
his opponent.
3. In considering the admissibility of interrogatories,
the pleadings are of vital importance, since

180
pleadings determine matters in dispute between the
parties.

INADMISSIBLE INTERROGATORIES
1. Questions as to Credit.
2. Interrogatories as evidence which the interrogating
party intends to adduce on the proof of facts which
he alleges.
3. Contents of documents.
4. Fishing Interrogatories e.g. matters outside the
pleadings.
5. Oppressive interrogatories.

See, Abubakar v Yar’ Adua (2008) 4 NWLR (Pt.1078)465 ,

Famuyide v Irving & Co. Limited (1992)9 SCNJ 63

OBJECTIONS
1. Scandalous.
2. Irrelevant or inadmissible or not made bonafide

See: Order 28 Rule 4 Abuja Rules 2018 and 29 Rule 3

Lagos Rules 2019

ANSWERS TO INTERROGATORIES
Interrogatories are answered by affidavit as in Form 22
under the Abuja Rules and Form 20 under the Lagos Rules
to be filed within 7 days or such other time as the Judge
may allow. Two copies of the affidavit in answer shall be
delivered to the registrar. The answers are in the form of
depositions in affidavit. Where there is any objection to
answering the interrogatories this should be stated in the
affidavit. Order 28 Rule 5 and 6 Abuja Rules 2018 and 29
Rule 4 (1) (2) Lagos Rules 2019. Where the party
interrogated intends to answer, he should deal with each

181
question individually. Further answer to interrogatories
may be required.

USING ANSWER TO INTERROGATORIES AT

TRIAL
1. A party may use one or more of the answers or any
part of the answers of the party interrogated at the
trial. NOTE the duty of court on the use of answers
to interrogatories.
2. Admissions made in a reply to interrogatories are
conclusive of the facts admitted.

NON-COMPLIANCE WITH ORDER FOR

INTERROGATORIES
1. It could constitute contempt of court. Order 28 Rule
11 Abuja Rules 2018 (equivalent to Order 29 Rule 9
Lagos Rules 2019) provides thus: “An order for
interrogatories or discovery or inspection made
against any party if served on his legal practitioner
shall be sufficient service to grant an application for
cost against a party for disobedience of the order.
See also Order 28 Rule 12 Abuja Rules 2018 and 29
Rule 10 Lagos Rules 2019.

2. If any person interrogated omits to answer or

answers insufficiently, the pre-trial or case
management judge shall on application issue an
order requiring him to answer or to answer further as
the case may be. Order 28 Rule 7 Abuja Rules 2018
and 29 Rule 10 Lagos Rules 2019.

DISCOVERY OF DOCUMENT (INSPECTION)

This is a procedure whereby a party can cause his opponent
to make available to him before the trial material
documents in the opponent's possession for him to use in
182
the trial of the case. Usually the party making the
discovery is relying on the document, but does not have
either the primary or the secondary evidence of the
documents.

PROCEDURE:
Discovery of document is made by a writing request to any
other party in an action to make discovery on oath of the
documents that are or have been in his possession, custody,
power or control, relating to a matter in question in the
case. Request for discovery shall be served within 7 days of
close of pleadings and shall form part of the agenda of pre-
trial conference or case management conference. The party
on whom such a request is served shall answer on oath
completely and truthfully within 7 days of the request or
within such other time as the court may allow and shall be
dealt with at the pretrial or case management conference.
Under the Abuja Rules 2018, the answer shall be in Form
23 and under the Lagos Rules 2019, the answer shall be in
Form 21. See Order 28 Rule 8 Abuja Rules 2018 and 29
Rule 6 Lagos Rules, 2019

DOCUMENTS FOR DISCOVERY WHICH THE

COURT CAN ORDER
These are documents, which are:
a) related to any matter in question in the suit
b) which are or have been in the possession or power
of the party ordered to make the discovery. See
Order 28 Rule 8 Abuja Rules 2018 and Order 29
Rule 6 (1) Lagos 2019
NOTE: Documents privileged from production e.g.
incriminating documents, documents the production of
which is against public interest, documents containing
confidential information between a legal practitioner and
his client etc.
See section 184-196 Evidence Act, 2011
183
SETTLEMENT OF ISSUES
This is a further process at narrowing the issues after
pleadings have been filed by parties. Parties isolate issues
for the determination by the court. The issues are in the
form of questions which go to the merit of the case. Issues
can be formulated by either party to a case or by the court
suo motu. All the civil procedure rules provide for
settlement of issues. It is now a pre-trial requirement in
Abuja and Lagos Rules to settle issues. See Order 27 Abuja
Rules 2018 and 30 Lagos Rules, 2019

PROCEDURE
Under the Abuja Rules within 7 days after conclusion of
pleadings parties are required to submit in writing to the
registrar the material facts in controversy between them in
the form of issues which shall be noted by the court and set
down for trial. Order 27 Rule 1 Abuja Rules 2018. Under
the Lagos Rules, issues of facts in dispute in any
proceedings shall be defined by each party and filed within
14 days after close of pleadings. Order 30 Rule 1(1) Lagos
Rules 2019.

PURPOSE OF SETTLEMENT OF ISSUES

The Court of Appeal stated the rationale behind settlement
of issues in the case of Mrs. Ebere Okoroafor v. Owerri
Municipal Council : (2014) LPELR-22847(CA)

The settlement of issue by the parties clearly and precisely

defines the issue for trial. The essence of the issue settled is
that if the court found after the trial of the only issue,
incidence of armed robbery is, expressly or impliedly,
excluded from condition for liabilities by the Appellant the
Respondent's claim fails and would be liable to dismissal
otherwise the Appellant loses and the Respondent would be
entitled to all the reliefs sought in his claim. The nature of

184
the issue settled does not admit of further investigation of
other issues the parties having so agreed.

Per Ekpe, J.C.A. (Pp.12-13, paras. C-B) citing the court‟s

decision in Maximum Insurance Company Ltd v. Owoniyi
(1994) 3 NWLR (pt. 331) 178 at 194

See On amendment of issues and Maximum Insurance

Company Ltd v. Owoniyi (supra)
NOTE: Under the Abuja Rules where a party fails to
submit issues for trial, the court may proceed to set down
the matter for hearing upon the issues submitted by the
other party. Order 27 Rule 2 Abuja Rules, 2018. Under
both the Abuja and Lagos Rules, where parties differ on the
issues the pretrial or case management judge may settle the
issues. Order 27 Rule 3 Abuja Rules, 2018 and 30 Rule 1
(2) Lagos Rules, 2019. Under the Abuja Rules, if neither
party submits issues for trial, the court shall give notice to
them to attend settlement of issues. Order 27 Rule 4 Abuja
Rules 2018. Issues may be settled without any previous
notice at any stage of the proceedings, at which all parties
are actually present or at the hearing. Order 27 Rule 5
Abuja Rules, 2018. The court may amend the issues or
frame additional issues at any time before judgment if it
shall appear necessary for the purpose of determining the
real question or controversy between the parties. Order 27
Rule 6 Abuja Rules 2018. The court also directs parties to
settle all documentary evidence which the parties intend to
rely on at the trial. Order 27 Rule 7 Abuja Rules 2018.
Where it appears to the court, that the decision of any
question or issues arising in a matter when determined
separately from the matter substantially disposes of the
cause or matter or renders the trial of the matter
unnecessary, it may dismiss the matter or make such other
order or give such judgment as may be just. Order 27 Rule
8 Abuja Rules, 2018.
185
CHAPTER NINE
TRIAL PREPARATION/EVIDENCE/TRIAL

CASE ANALYSIS/ THEORY OF CASE/ TRIAL

PLAN
Counsel ought to analyse facts presented to him during
interview with client/litigant or his witnesses. Following an
analysis of facts and documents presented at any interview,
it will be possible to formulate a case theory and a trial
plan.
The case theory of a party to a suit should, as much as
possible, reveal the party‟s version of the case. It should
be able to provide a insight into the facts and the
applicable law of the version of the case for the propounder
of the theory. A case theory should be terse and not
verbose- it has been suggested that it should not exceed a
paragraph (S. Lubet: Modern Trial Advocacy, 4th Edition,
NITA, p.7-8)
A trial plan should provide a bird‟s eye view of the entire
cause of action, including the elements of such cause of
action that would be required to be proved by the claimant
or disproved by the opposite party, the available evidence
and the witnesses through whom such evidence would be
proved at the impending trial. The plan is drawn up in a
tabular form.

EVIDENCE
Although there are several modes of classification or
categorization of evidence, the basic means of proof of
facts- evidence- during a trial are: (1) oral evidence (2) real
evidence, and, (3) documentary evidence ( which is
inclusive of the computer-generated evidence).

ORAL EVIDENCE
As a general rule, oral evidence must be given on oath or
made upon affirmation – section 205 EA.
186
It must be direct: s. 126 EA. It must not run contrary to the
rule against hearsay – s, 37 & 38 Evidence Act; Shivero v
State.

REAL EVIDENCE
See S 127 EA
Where a “material thing” referred to in oral evidence is
movable, it is produced in court and tendered through the
relevant witness. If it is admitted it becomes an exhibit.
If such object is immovable, for instance a piece of land,
the court may proceed to the locus in quo. The court may
conduct or even conclude the trial at the locus.
Alternatively, the court may conduct an inspection at the
locus, with witnesses pointing at or identifying the relevant
objects, things or places. Such witnesses give evidence at
the trial that later holds in the regular court room.

DOCUMENTARY EVIDENCE
It must not be hearsay evidence- s. 37, 38, 83, & 126 EA
The twin conditions are:
(1) the maker of the statement in a document must have
had personal knowledge of the facts in the statement, or,
he must have made the statement in the performance of a
duty to record information supplied to him by a person who
had such personal knowledge of the facts – s. 83 EA
(2) the maker of the statement must be called as a witness
in the proceedings- s.83 EA
Note the exceptions to the requirement that the maker of a
documentary statement has to be called as a witness- s. 83
(1) & (2) EA
A statement made in a document by a person interested at a
time when proceedings were pending or anticipated
involving a dispute on any fact that the statement might
tend to establish is inadmissible: s. 83(3) EA. For a
definition of a “person interested” see s. 258 EA.

187
Documents may be (a) public documents or (b) private
documents- s.102 EA
Contents of a public document may be proved by primary
evidence, i.e, the original document, or, in lieu of such
primary evidence by the production of a certified copy or
certified true copy (CTC) of the document – s. 85 – s. 91
& s. 114 EA; Udo v State (2016) 12 NWLR (Pt. 1525) 1
See the conditions/criteria for the admissibility of a
certified true copy of a public document in section 104 EA
A certified true copy of a public document may be
produced from the bar: Ogbuayiya v Obi-okudo. (1979) 6-
9 SC 32
Proof of contents of any private document is generally by
primary evidence. Secondary evidence may however be
adduced in lieu of the primary evidence of a private
document after an appropriate foundation is laid for its
admissibility. This is done by providing an explanation for
the whereabouts of the primary evidence.- S, 85-91 EA

COMPUTER GENERATED EVIDENCE

For procedure in tendering computer generated evidence:
see the Supreme Court decision in DR. IMORO KUBOR &
ANOR V. HON. SERIAKE HENRY DICKSON & ORS
CITATION: (2012) LPELR-9817(SC)
See s. 84 Evidence Act
A party seeking to tender any computer-generated
evidence must show by oral evidence or by a certificate
issued pursuant to section 84 (4) of the Evidence Act that:
the document containing the statement was produced by the
computer within a time when the computer was regularly
used for the storage or processing of information for the
regular activities of any individual or corporate entity
involved;
that, as a matter of course, the computer has been
regularly supplied with (a) information similar to that
which is contained in the statement in the document, or (b)
188
information of the kind of which the information in the
document is derived from;
at all time material to the production of the document , the
computer operated properly or if it did not, that the
improper operation did not affect the production of the
document, or its accuracy;
the information in the statement in the document is a
reproduction of, or, is a derivation of information supplied
to the computer in the ordinary course of business.

The certificate may be given and signed by a person who

either occupies a responsible position in relation to the
operation of the relevant device or in the management of
the relevant activities- section 84 (4) EA; Kubor v Dickson
supra

TRIAL

1ST STAGE-
EXAMINATION–IN–CHIEF
Section 214 EA –It is the examination by a party of his
own witness
It is an opportunity for the claimant to state his own case;
and for the defendant to state his own defence
NB- Leading questions are not allowed – except with
permission of court in respect of introductory/undisputed
matters
in respect of nervous/confused witness – In respect of
hostile witness

PROCEDURE
1. The witness enters the witness box and he is sworn
or affirmed by the registrar or any officer of court
that he is going to say the truth and nothing but the
truth

189
2. The witness is then guided by counsel calling him
on introductory matters about his name, address, and
occupation
3. The witness will then be guided to adopt his witness
statement by asking him:
a. if he can remember making any witness
statement
b. And if he sees the statement how can he
identify it
c. The witness then is presented with the
statement and upon confirming that it is his
statement he would be asked what he wants
the court to do with it
d. After that the counsel apply that the statement
be adopted as witness testimony in the case
e. NB (In the past, before frontloading was
introduced, the witness then used to be
guided to tell the court the whole relevant
story about the matter before the court,
involving the parties in an orderly manner)
f. If there is any document to be tendered
through the witness, counsel will refer the
witness to a paragraph such is mentioned in
the statement or any of the pleadings and
tender such document accordingly
4. The witness may thereafter be cross-examined and
re-examined before leaving the witness box.

190
2ND STAGE-
CROSS EXAMINATION

THE BASIS
Note as follows:
a) Section 36(6) (d) CFRN. OKEREKE V IBE (2010)
ALL FWLR (Pt 516) 516 CA – denial, is breach of
fair hearing.
b) Section 215(1) EA is a second step in examination
of witness
c) Section 214(2)EA – is defined
d) Any of the parties cross examines any witness called
by the other party.
e) A party can also cross examine his own hostile
witness

REASONS FOR CROSS EXAMINATION

1. To establish and advance your own case

2. To attack the other side's case. This done by:

a) destroying material facts testified in chief;
b) discrediting the witness---- to show that his
evidence is unworthy of belief by reason of
bias, interest or his lack of honesty or lack of
knowledge of the events to which he testified;
c) If an expert – destroy his qualification.
Note that indecent, scandalous, insulting and annoying
questions are not allowed in cross examination. S.227, 228
Evidence Act

3RD STAGE-RE-EXAMINATION
This is the examination of a witness after he has been
cross-examined. However, it is also optional to re-examine
a witness - except where ambiguities arose from cross
examination there may be no need for re-examination.
Power granted under section 215(1)(3) EA
191
Note that fresh matters cannot be raised except with leave
of court
BUT the other party must be allowed to cross examine on
the witness on such fresh matters
See CHIGBU V TONIMAS (NIG) LTD (1996) 3 NWLR
Pt. 593, 115 CA
See also section 84 of the Evidence Act 2011

192
CHAPTER TEN
JUDGMENTS AND ENFORCEMENT

JUDGMENT
This refers to a reasoned decision of the court which is
delivered at the end of a trial after hearing the parties to the
suit. At the conclusion of the evidence and final addresses,
the Court delivers its judgment. Judgment may be delivered
at once or the court may adjourn the delivery of the
judgment to a definite date or reserve the judgment sine
die.

GENERAL PRINCIPLES
1. The judgment of the Court shall be in writing. The
Court has no power to deliver an oral judgment to be
reduced to writing later on. S. 294(1) Constitution of the
Federal Republic of Nigeria, 1999,Unakalamba v. C.O.P
(1958) 3 FS.C. 7: Okoruwa v. The State (1975) 5 S.C. 23 at
26.
2. A consent judgment may be entered but has to be
exactly agreed by the parties.
3. Once a trial judge delivers his judgment in a suit, he
becomes functus officio i.e. he ceases to be seized of the
matter and he may not re-open it for any purpose
whatsoever except in the following circumstances:
(a) To correct clerical error or mistakes.
(b) To set aside a default judgment obtained in absence of
one party or in default of pleadings.
(c)To set aside a judgment obtained by fraud.
(d) Where the judgment is a nullity.
See Omotunde v. Omotunde (2001) 9 NWLR (Pt. 718)252.
See also Commissioner for Lands Mid-Western State v.
Osagie and Others (1973) 6 S.C 155. But he can make
ancillary orders e.g. order for stay of execution of the
judgment or for payment of the judgment debt by
installment for which there are statutory provisions.
193
4. A Court cannot directly or indirectly set aside a previous
order made by a court of competent and concurrent
jurisdiction: Uku v. Okumagba and Others (1974) 3. S.C.
35. Grace Amanabu v. Alexander Okafor (1966)1 All
N.L.R. 205 at 207. Only the Court that gave judgment has
jurisdiction to set it aside for fraud.

Note that where a judge made an order which is a nullity,

that judge or another judge of Co-ordinate jurisdiction can
set the order aside. See Sken Consult v. SekondyUkey(1981)
1 SC. 6 or (1981) N.S.S.C.I. (supra) Obimonure v.
Erinosho(1966)1 All N.L.R. 250.
A Court has inherent jurisdiction to vary its order so as to
carry its own meaning or in cases where the language used
is doubtful, in order to clarify the position or correct a
clerical error: Orukumpor v. Itebu and Ors 15 W.A. C.A
39. But this does not entitle the Court to give a different
effect to the order. Orukumpor v. Itebu (supra).
5.Section 294(1) of the Constitution of the Federation 1999
states that every Court established under the Constitution
shall deliver judgment not later than 90 days after
conclusion of evidence and final addresses.
See also the following cases:
Chief Dominic OnuorahIfezue v. Livinus Mbadugha
and Another (1984) 5 S.C.79.
Odi v. Osafile(1985)1 N.W.L.R. 17.
Sodipo v. Lemminkkainen (1985) 2 N.W.L.R. Part 8 page 1.
Samson Awoyale v. Ogunbiyi(1987) 2 N.S.C.C. 1063.

The effect of the foregoing cases is that a judgment

delivered after 90 days from the conclusion of final
addresses is a nullity being a judgment delivered without
jurisdiction of the court. Where however the judge adjourns
before the expiration of the 90 days for further address the
date will start to run from the conclusion of the last
address. In Chukwuogor’scase the Supreme Court held that
194
final addresses within the context of Section 258 (1) of the
1979 constitution, (now Section 294 (1) of 1999
Constitution) must be the last in the series of addresses
after which judgment is delivered there and then or is
reserved for delivery at a future date.
Note however Section 294 (5) 1999 Constitution is to the
effect that a judgment is not a nullity for the simple reason
that it is given after the expiration of three months (90
days) from the conclusion of final addresses unless it has
occasioned a substantial miscarriage of justice. See
Ojokolobo v. Alamu (1987) 2 N.S.C.C. 991

DISTINCTION BETWEEN FINAL AND

INTERLOCUTORY DECISIONS
NOTE: Also the distinction between final and interlocutory
decisions. See the case of Omonuwa v. Napoleon
Oshodi [1985] 1 NSCC 147and Akinsanya. V. UB.A. Ltd
(1986) 4 N.W.L.R. 173 where Omonuwa v. Napoleon
Oshodi [1985] 1 NSCC 147was explained.
From the decision, a final judgment is a judgment that has
determined all the rights and liabilities of the parties. In the
case of Ex-parte Moore, a test was laid down to the
following effect: When a decision is given and there is no
cause for the parties to go back to the same court that gave
the decision (if it were right), then it is a final decision. But
even If the decisions were right, and the parties still have to
continue with their case before the same court that gave the
decision, such decision is interlocutory decision. It is in this
respect that the courts have held that when a judge decides
that it has jurisdiction over a case, such decision is a final
judgment, see Akinsanya.v. UB.A. Ltd (1986) 4 N.W.L.R.
173(supra).
Note also the importance of the distinction between final
decision and interlocutory decisions with respect to how an
appeal may lie against each of them and the time limit
within which to file such appeals. For a final decision, an
195
appellant has three months within which to appeal. But in
case of interlocutory decision, he has 14 days within which
to appeal. See Section 25 (2) (ii), Court of Appeal Act of
1976. Also, where a decision is final, an appeal lies as of
right (that is, there is no need to obtain the leave of the
court), and if the decision is interlocutory (and the appeal is
not on ground of law) the leave of the court should be
obtained. See Section 220 (1) (a) (b) 1979 Constitution.
Section 241 (1) (a) and (b) of the 1999 Constitution. See
also Aqua Ltd v. Ondo State Sports Council (1988) 4
NWLR 622.

FURTHER READINGS

ON MEANING OF SUBJECT MATTER

See
(a) Blacks Law Dictionary (6th Ed.) (1881-1991) 841-842.
(b) Nwadialo. F. - Civil Procedure in Nigeria (2nd Ed.)
Unilag Press Publication (2000) 704.
(c) Efevwerhan, D.I. Principles of Civil Procedure in
Nigeria (3rd Ed.) Snaap Press Ltd (2013) P. 346

ON CHARACTERISTICS OF A VALID JUDGMENT

(a) Delivery in Writing - See Section 294, 1999
Constitution of Nigeria
(b) Delivery in Open Court- See Order 40 UR. See also
Lord Denning (MR) Metropolitan Property Ltd
v. Lannou(1969)1 QB 572.
(c) Proper Evaluation of Evidence - See
Mogaji v. Odofin(1978) 4 SC 91
Woluchemand Ors v. Gudiand Ors(1981) 5SC 291 at 320,
(1981) NSCC. 214 at 227.
Vincent Bello v. Magnus Ewek(1981) 1 SC 101
Uchendu v. Ogboni(1999) 4 SCNJ 64 at 76
(d) Confinement of Judgment to Issues raised and Claims
Sought -
196
See AbiodunAdelaja v. YusufuAlade(1999) 4 SCNJ 225.
Jatauv. Mailafiya(1998) 1 NWLR (Pt. 535) P. 682
Ikeanyi v. A C B Ltd (1997) 2 SCNJ 93.
(e) Delivery of Judgment Within Time - See Section 294
(1) 1999 Constitution of Nigeria. Note however -
Section 294 (5)1999 Constitution.

METHOD/APPROACH TO WRITING JUDGMENTS

See Nwankpa Lawrence v. Dennis Ewulu(1995) 7 SCNJ
197
Oro v. Falade(1995)5 SCNJ 10 - Nkado v. Obiano(1997)5
SCNJ 33.In Adeyeye v. Ajiboye (1987) 7 SCNJ I at 22,
Oputa JSC, laid down the proper form of writing judgments
as follows:

“The proper approach for any trial court is to first set the
claim(s); then the issues arising from those pleadings.
Having decided on the issues in dispute, the trial judge will
then consider the evidence in proof of each issue; then
decide on which side to believe and this has got to be a
belief based on preponderance of credible evidence and the
probabilities of the case. After this the trial judge will
record his logical and consequential finding of facts. It is
after such findings that a trial court can then discuss the
applicable law against the background of his findings of
facts”.

TYPES OF JUDGMENT
(a) Consent judgment - See Section 241(2)1999
Constitution of NigeriaWoluchem v. Wokoma(1974)3 SC
153.
Jozebson Ind. Ltd v. Lauwer Import and Exp. Limited
(1988) 7 SCNJ 93.
(b) Default Judgment - See Orders 14 and 27of the High
Court of the Federal Capital Territory (Civil Procedure)
Rules 2004; Mohammed v. Husseini (1998)12 SCNJ 136
197
at 137; Williams v. Hope-Rising and Voluntary Funds
Society (1982)2 SC 145-657
Osadebey v. AG (Bendel State) (1991) I NWLR (Pt. 169)
525 at 563
(c) Interlocutory and Final Judgment - See Section 241
(1) 1999 Constitution of Nigeria -Section 242 same
Constitution; Section 213 (3) 1979 Constitution Section 25
Court of Appeal Act;Omonuwa v. Napoleon Oshodin
(1985) 2 NWLR 925 – BLAY v. SOLOMON (1947) 12
WACA 175.
(d) Orders of Non-suit and Dismissal- See Okpala v.
Iheme(1989) 2 NWLR (Pt. 102) 208 at 213-214 Olapeyo v.
Ajegungbada(1990) 5 SCNJ at 17

DELIVERY OF JUDGMENTS BY APPELLATE

COURTS
See Section 294(2) 1999 Constitution - Section 11 Court
of Appeal Act.
Alh.AminuIshola v. SocieteGenerale Bank (Nig) Limited
(1997) 2SCNJ at 6

Note that S. 285(8) of the 1999 Constitution as amended

(by S. 9 of the Second alteration Act 2010) now permits
courts in all final appeals arising from an election tribunal
or court to adopt the practice of first delivering judgments
orally and giving reasons thereof at a later date. However,
the Supreme court in ANPP V. GONI (2012) 7 NWLR held
that this will only be applicable to a final court, which
decision is final and not an appellate court, which decision
will be subject to further appeal. For instance, the Court of
Appeal can only indulge in this practice, while sitting as a
court of final resort in respect of appeals arising from
election petitions and no more.

198
EXECUTION AND ENFORCEMENT OF
JUDGMENTS
Enforcement is the last stage of the judicial process after
the legal right, claim or interest has ended in a judgment or
order which remains to be enforced. It is the process
whereby a judgment or order of court is enforced or to
which it is made effective according to law.
Most judgments require compliance with their terms. It is
only in the case of a declaratory judgment which merely
declares what the right of a party is, without imposing any
sanction on a defendant or directing either of the parties to
do anything that execution is not called for or levied.
Also, execution will be unnecessary where there is
voluntary compliance with the judgments and orders of the
courts. The problem of enforcement arises where the
judgment debtor refuses or neglects to comply with the
terms of the judgment. The judgment debtor will then be
compelled through enforcement or execution of the
judgment to comply with the court‟s judgment. Note that
enforcement is not limited to judgments but includes orders
of court. See Section 19 (1) Sheriffs and Civil Process Act.

THE NEED FOR THE COURT TO GUARD ITS OWN

JUDGMENT JEALOUSLY BY ENFORCING SAME
See Oforma v. IBWA. (1993) 4NWLR (Pt. 285)86 at 88
See NWADIALO (Supra) at 965

LAWS REGULATING EXECUTION OF

JUDGMENTS
See the Sheriffs and Civil Process Act. (Cap. S6) Laws of
Nigeria (2004).
Sheriffs and Civil Process Laws of the States and the
Judgments (Enforcement) Rules made there under.

199
PARTIES TO EXECUTION
Note that there are two parties to the enforcement of
judgment - the Judgment Creditor and Judgment Debtor i.e.
the Successful and unsuccessful parties. Where the
Judgment Creditor resorts to garnishee proceedings to
enforce a judgment, there are usually three parties, the
judgment creditor becomes the Garnishor, the Judgment
Debtor and a third party against whom the proceedings are
taken, called the Garnishee. See. Section 19(1) Sheriffs and
Civil Process Act. (Cap. S6) Laws of Nigeria (2004).
Adebutu v. City Engineer (1968) I NMLR 133
Ekinwumife v. Wayne (W.A.) Limited (1989) 5 NWLR422
at 446.

TIME WITHIN WHICH TO COMPLY WITH

COURT JUDGMENTS
Judgment of a court of competent jurisdiction is to be
complied with immediately. See Order 39 High Court of
the Federal Capital (Civil Procedure) Rules 2018 which
admits of certain exceptions.

INSTALMENTAL PAYMENT OF JUDGMENT

DEBT
When any judgment or order directs the payment of money,
the court may, for any sufficient reason, order that the
amount shall be paid by instalments, with or without
interest. The order may be made at the time of giving
judgment, or at any time afterwards and may be rescinded
upon sufficient cause at any time. See O. 39 High Court of
the Federal Capital (Civil Procedure) Rules 2018;
See A C B LTD v. Dominico Builders Co. Ltd (1992) 2
NWLR (Pt. 223) 296

MODE OF ENFORCEMENT
The method of enforcing a particular judgment will depend
on the type of judgment whether it is a money judgment,
200
land judgment or other judgments. Thus, the Supreme
Court in the case of Tukur v. Governor of Gongola State
(1988) 1 NWLR (Pt 68) p. 39 itemized the methods of
enforcing different kinds of judgment as follows:
1. A judgment or order for the payment of money may
be enforced by a writ of fieri facias, garnishee
proceedings, a charging order, a writ of
sequestration or an order for committal on judgment
debtor summons.
2. A judgment for possession of land may be enforced
by a writ of possession, a writ of sequestration or
committal order.
3. A judgment for delivery of goods may be enforced
by a writ of specific delivery or restitution of their
value, a writ of sequestration or a writ of Committal.
4. A judgment ordering or restraining the doing of an
act may be enforced by an order of committal or a
writ of sequestration against the property of the
disobedient person.

All these methods of execution are contained in the Sheriffs

and Civil Process Act and Laws.

WRIT OF FIERI FACIAS

The writ of fieri facias also known as writ of execution
(Form 3, 1st schedule to the SCPA) is issued first against
the moveable properties of the Judgment debtor (J.D.) But
wearing apparels, bedding of the J.D. or his family or his
implements of trade to the value of ten naira are exempted.
See S. 25(a) SCPA. If no moveable property of the JD can
with reasonable diligence be found or such is insufficient to
satisfy the judgment debt, the Judgment creditor( JC) shall

201
by a motion on notice apply for a writ of execution against
the immoveable properties of the JD. See S.44 SCPA

GARNISHEE PROCEEDINGS
Garnishee proceeding is brought by the JC making an ex
parte application supported by an affidavit and a written
address. The affidavit is as in form of the Schedule to the
SCPA. It shall state :
a) Names, addresses and occupation of the judgment
creditor, the judgment debtor and the garnishee
b) The fact that judgment has been given and what date
c) The fact that judgment has been recovered and is
still unsatisfied,
d) The amount of the judgment that remains unsatisfied
e) The fact that a third party (the garnishee) who is
within the State is indebted to the JD.
In Zenith Bank Plc v Omenaka &Anor (2016) LPELR-
40327 (CA) the Court held that the judgment debtor is a
mere passive or nominal party in a garnishee proceedings
overruling Nigerian Breweries Plc v Chief Worhi Dumuje
& Anor (2015) LPELR -25583(CA)
The court upon the hearing of the application may make an
order nisi asking the garnishing to come and show cause
why he should not pay the amount. The order nisi must be
served on the garnishee and the JD at least 14 days before
the hearing. See S.83 (2) SCPA. The order nisi becomes
absolute if the court is not satisfied with the explanation of
the garnishee. NB service of the order nisi on the garnishee
attaches the debt.
An order nisi shall not be made where the money sought to
be attached is in the hands of a public officer in his official
capacity except consent to such attachment is first obtained
from the AGF or AG of State. See S.84 SCPA However see
202
Purification Techniques Nig Ltd v A.G of Lagos State
(2004) 9 NWLR pt 879, 665.

ENFORCEMENT OF JUDGMENTS – INTRA-STATE

AND INTER-STATE

INTRA – STATE JUDGMENTS

A judgment delivered in a court may be enforced in another
judicial division or district in the same state. This is
possible where for example; the judgment debtor has
property in another judicial division or district but not in
the judicial division or district where the judgment was
delivered. The registrar of the court that issues the writ of
execution, called the “home court” sends the process for
execution to his counterpart in the division or district where
the process is to be executed, called the “foreign court”.
The process is accompanied by a warrant in Form 11 to the
Act, requesting and authorizing execution in the foreign
court. The registrar of the foreign court acts on the process
on receipt, as if it were issued in his court.

INTER-STATE JUDGMENTS
This applies in circumstances where judgment given in one
State is to be executed in another state where the judgment
debtor resides or has his property. To achieve this, the
judgment creditor applies to the registrar of the court that
gave the judgment to issue him with a certificate of
judgment. The judgment creditor shall then take the
certificate of judgment which must be signed and sealed by
the registrar, to the state of execution and register the
certificate with the registrar of a court of similar
jurisdiction in that state. The registrar of the enforcing
court shall enter the particulars of the certificate in a book
called “the Nigerian Register of Judgments”. However,
before the judgment can be enforced on registration, the
judgment creditor must depose to an affidavit stating:
203
(a) That the amount in the process has become due but
unpaid; or
(b) That the act ordered to be done remains undone;
(c) That the person ordered to forbear from doing an act has
disobeyed the order.

ENFORCEMENT OF FOREIGN JUDGMENTS

In Nigeria, enforcement of judgments of the court of a
foreign country by a Nigerian court is achievable by either
action at common law or reciprocity or reciprocal
enforcement.

Action at Common Law:

At common law, a judgment of the court of one country
may be enforced in a foreign country by way of an action
commenced in the court of the foreign country, with the
judgment as the cause of action. The judgment creditor
must then institute an action in a Nigerian court claiming
the reliefs granted him in the foreign court. The judgment
then shall be the cause of action and the action need not go
through the pith and hog of a substantive trial.
Generally speaking, only the judgments of a superior court
of a foreign country will be enforced in Nigeria and this
can only be done by a High Court in Nigeria. In other
words, it must be a court of an equivalent status with a
Nigerian High Court or more. Such a judgment may be
enforced in a Nigerian High Court irrespective of whether
or not the foreign court would reciprocally enforce
judgments of Nigerian courts. For the enforcement action
to be successful, the foreign judgment must meet the
following requirements:
(a) The judgment must be final and conclusive;
(b) The judgment must have been delivered by a competent
court in terms of jurisdiction;

204
(c) The judgment must be for a definite sum of money,
provided that it is not money recoverable as tax, fine or
penalty;
(d) If the judgment is for a res other than money, the res
must have been situate at the jurisdiction of the foreign
court that gave the judgment
as at the time of delivery.

By Reciprocal Enforcement:
Enforcement of foreign judgment under this process is
done on the basis of reciprocity, i.e. the foreign country
whose court delivered the judgment, must also be ready to
enforce judgments of Nigerian courts in its courts. Such
countries that render reciprocal enforcements to Nigeria are
those to be listed in an order made by the Minister of
Justice under Part 1 of the Foreign Judgments (Reciprocal
Enforcement) Act. Currently, no country has been listed.
But judgments from commonwealth countries can be
registered under the Reciprocal Enforcement of Judgment
Act CAP 175 LFN 1958 . See Grosvenor Casinos Ltd v
Ghassan Halaou (2009) 10 NWLR pt 1149, 309

JUDGMENT CERTIFICATE
Section 104 Sheriffs and Civil Process Act. (Cap. S6) Laws
of Nigeria (2004) .

REGISTRATION OF JUDGMENT CERTIFICATE

Section 105 Sheriffs and Civil Process Act. (Cap. S6) Laws
of Nigeria (2004). .

COSTS OF PROCEEDINGS AND EXECUTION

See Section 106 Sheriffs and Civil Process Act. (Cap. S6)
Laws of Nigeria (2004), Section 107 Sheriffs and Civil
Process Act. (Cap. S6) Laws of Nigeria (2004). Section
108 S and Sheriffs and Civil Process Act. (Cap. S6) Laws
of Nigeria (2004).
205
PENAL CONSEQUENCES OF NON-COMPLIANCE
WITH COURT JUDGMENT
a. Judgment Summons
b. Committal to Prison -Sections 55, 58, 60 and 65 S
and Sheriffs and Civil Process Act. (Cap. 56) Laws of the
Federation of Nigeria (2004).
DISOBEDIENCE TO COURT ORDERS, DECREE
OR JUDGMENT
Government of Lagos State and Others v. Chief Emeka
Odumegwu Ojukwu and Others (1986)1 N.W.L.R Part 18
at page 621

206
CHAPTER ELEVEN
APPLICATIONS PENDING APPEALS

STAY OF EXECUTION:
By an order for stay of execution a successful party in the
lower court is restrained from enforcing the judgment given
in his favour pending the determination of an appeal
against that judgment or stay of Execution pending Appeal.
See generally Order 58 High Court Lagos (Civil Procedure)
Rules 2019 and Order 61 High Court Civil Procedure Rules
of the Federal Capital Territory and the case of Lijadu v
Lijadu (1991) 1 NWLR (pt. 169) 627 at 644. Ordinarily,
without an order of stay of execution, a successful party at
the lower court will go ahead to enforce the judgment
obtained. But as happen in most cases, the judgment debtor
may be dissatisfied with the judgment of the lower court
and may seek to appeal against it. In this situation, if the
judgment debtor files his notice of appeal without more, the
judgment creditor will still be able to enforce that judgment
because an appeal alone does not operate to stay the
enforcement of the judgment. See S. 17 of the Court of
Appeal Act Cap C36, Laws of the Federation of Nigeria
2004 and the case of Vaswani v Savalakh (1972) All NLR
922.

In order to preserve the res and maintain the status quo

ante, the judgment debtor seeking to prevent the
enforcement of the judgment of the lower court must in
addition to filing his notice of appeal, bring an application
for stay of execution pending the determination of the
appeal so filed without which irremediable or irreparable
damage may be done to the subject matter of the appeal and
render the judgment of the appellate court nugatory should
the appellant succeed at the court of appeal. The statutory
provisions for appeals, in the circumstance, become
meaningless. It is to avoid this kind of state of affairs that
207
the court upon the application of the judgment debtor,
grants an order for stay of execution pending appeal.
However, this order is not granted for the asking. It can
only be granted in respect of executor judgment and upon
the fulfilment by the applicant of conditions set out in the
case of Lijadu v Lijadu (supra) restated in National Pension
Commission v F.G.P Ltd (2014) 2 NWLR (pt. 1391) 346
ratio 2 as follows:
a) The ground of appeal must raise substantial legal
issues in an area of law that is novel or recondite;
b) The application must disclose special circumstances
why the application should granted;
c) The application must disclose why matters should be
put in status quo or preserve the res so as not to
render the appeal nugatory
See Aboseldehyde Laboratories Plc v Union Merchant
Bank Ltd (2013) 13 NWLR (pt. 1370) 91
For meaning of recondite see NNPC v Fama Oil Ltd (2009)
12 NWLR (pt. 1156) 462; Balogun v. Balogun (1969) 1
ALL NLR 349
Recondite point of law needs to co-exist with special
circumstance to warrant grant of stay of execution.
a) The special circumstances envisaged for the grant of
this order are;
b) Where the subject matter of the dispute will be
destroyed if stay is not granted;
c) Where a situation of helplessness will be foisted on
the court especially an appellate court;
d) Where execution will paralyse a party‟s right of
appeal;
e) Where the order of court will be rendered nugatory;
and

208
f) Where execution will prevent a return to status quo
if the appeal succeeds.
g) See Ndaba (Nig) Ltd v U.B.N Plc (2007) 9 NWLR
(pt. 1040) 439; SPDC (Nig) Ltd v Amadi (2011) 14
NWLR (pt. 1266) 157.

STAY OF PROCEEDINGS PENDING APPEAL

Just like stay of execution and injunction pending appeal,
stay of proceedings is also aimed at preserving the res to
maintain the status quo. An order of stay of proceedings
suspends the proceeding in the lower court until an appeal
on an issue arising there from is determined by the
appellate court. Such an appeal is generally an interlocutory
one. After the decision of the appellate court, the
proceedings in the lower court resumes, subject to the
decision. See United Spinners Ltd v Chattered Bank Ltd
(2001) 14 NWLR (pt. 732) 195.

The power for making these orders are either statutory,

inherent or both and are exercisable by either the trial court
or the appellate court. See S. 6 (6)(C) CFRN
An application is however first made in the lower court in
keeping with the provision which stipulates that where it is
provided in the Rules that an application may be made to
the court below or to the court of Appeal the application
should be made first in the court below and if refused may
now be brought before the Court of Appeal within 15 days
of the refusal. Order 6 rule 3 & 4 Court of Appeal Rules
2016 The applicant must in this case annex to the
application the following documents.
i. Certified true copy of the notice of appeal
ii. The ruling against which the appeal is being brought
iii. The ruling of the lower court refusing the appeal

209
iv. The application at the lower court with the
supporting affidavit without which the application is
incompetent.

Order 6 rule 7 Court of Appeal rules 2016; Ojosipe v.

lkabala 1973 1, ALL N. L. R Part I at Page 128.

INJUNCTION PENDING APPEAL

To ensure that the status quo of the subject matter of an
appeal before the judgment in trial court is maintained till
the appellate court hands down its own decision, an
unsuccessful plaintiff may apply to the court for an
injunction against the defendant preventing him from
disturbing that status quo during the same period.
For the purpose of maintaining the status quo pending the
determination of an appeal, recourse may also be had to an
order of injunction where the judgment of the lower court
is executory.
A defendant unless he counterclaims cannot have a
judgment to execute for he has not asked the court for any
relief or remedy. A judgment is executed against the
defendant. He is therefore the party who asks for a stay.
However, if the plaintiff's claim or action is dismissed and
he appeals against the decision, while the appeal is pending
it is necessary that the res in the suit be preserved so that if
the appeal court finds in his favour the appeal would not
have been rendered nugatory. How can he get the status
quo undisturbed and the res preserved? He cannot apply for
stay of execution for there is no judgment to execute.
However, he can apply for an injunction.

In Shodeinde and Others v. Registered Board of Trustees

of the Ahmadiya Movement in Islam - (1980) 1-2 SC 163
the Plaintiffs action was dismissed but he was granted
injunction to restrain the defendant from the jurat until
determination of appeal. It was argued in the Supreme
210
court that since the High court had dismissed the
application it lacked the jurisdiction to entertain the
application for injunction. IDIGBE J. SC Held: That the
Court that dismissed the application can still preserve the
res i.e. the subject matter of litigation should it become
necessary to do so: Polini v. Gray (1979) 12 CHD. 438.
Plaintiff's claim was for a share in an intestate estate as
next-of-kin of the deceased. After commencing the action
he got an order of injunction restraining any dealing with
the fund into which part of the estate had been converted.
The trial court dismissed the action but continued the
injunction.
On Appeal to the Court of Appeal the decision of the lower
court was affirmed.
As the plaintiff was about to further appeal to the House of
Lords, she applied to the Court of Appeal to have the
injunction continued pending that appeal. In granting the
application, the Court of Appeal held that since if the
plaintiff ultimately succeeded in the House of Lords, her
success would be useless unless the fund was protected in
the meantime, the injunction ought to be continued pending
the appeal.
Okafor v. A . G Anambra State (1988) 2 N.W.L.R. 736.
After the plaintiff had filed his statement of claim, the
action was dismissed upon an objection raised by the
defendants.
The plaintiff appealed to the Court of Appeal and also
applied to the trial court for a stay of execution of the
judgment pending the determination of the appeal. The trial
judge refused the application on the ground that he merely
dismissed the action and did not make any order which
could be stayed.
In the appeal against the refusal, the Court of Appeal
granted the application and declared null and void the
action of some of the defendants which in effect destroyed
the substratum of the dispute while the appeal in the
211
substantive suit and the application for stay to their
knowledge were pending before the Court of Appeal and
the High Court respectively. Contrast Polini v. Gray
(1979) 12 CHD. 438

POWER OF THE COURT TO GRANT INJUNCTION

PENDING APPEAL
The High court has an inherent power to grant the
application See Ogunremi v. Dada (1963)1 ALL N.L R.
663. In the case of the Court of Appeal the power is also
inherent as well as statutory, see S. 17 Court of Appeal Act
which inter alia empowers the court to make interim order
or grant any injunction. See also Order 4 rule 6 Court of
Appeal rules 2016; Akeem & Ors v. University of Ibadan
(2002) FWLR (Pt. 85) 221

CONSIDERATION FOR GRANT

If there is an arguable point in the plaintiff's appeal, the
Court may grant his application. Government of Lagos
State and Others v. Chief Emeka Odumegwu Ojukwu
and Others (1986)1 N.W.L.R Part 18 at page 621. See also
Martins v. Nicanner (1988) 2 N.W.L.R. 75 at 83. and
Vaswani Trading Co. v. Savalakh and Co (1972) 12 SC.
77.
Supreme Court held that in an application for stay of
execution, the following matters would be considered:-
a) The chances of the applicant on appeal - if the
chances are virtually nil, then a stay may be refused.
b) The nature of the subject matter in dispute, whether
maintaining the status quo until a final determination
of the appeal in the case will meet the justice of the
case.
c) Whether if the appeal succeeds, the applicant will
not be able to reap the benefit of the judgment on
appeal.

212
d) Where the judgment is in respect of money and
costs, whether there is a reasonable probability of
recovering these back from respondent if the appeal
succeeds. Union Bank v. Odusote Bookstore (1994)
3 SCJN 1
e) Poverty is not a special ground for granting a stay of
execution except where the effect will be to deprive
the applicant of the means of prosecuting his appeal.
See Uniport v. Kraus Thompson Org. Ltd (1999) 1
N.W.L.R. (Pt. 625 )93 at 94.
See also, Intercontractors v. U .A. C. (1988) 2 N.W.L.R.
303 at 326;
Nwabueze v. Nwosu (1988) 4 N.W.L.R (Pt. 88) 257.
See Fasel Services Ltd v. NPA (2001)11 NWLR (Pt. 723)
36 at 37
Olojode v. Olaleye (2010) 4 NWLR (Pt. 1183) 1 at 43

213
CHAPTER TWELVE
APPEALS

MAGISTRATE OR DISTRICT COURT TO THE

HIGH COURT
The various State High Courts have appellate jurisdiction
to hear and determine all appeals from the decisions of the
Magistrates Courts in the Southern State - whether original
or appellate and those of the District Courts in the North -
in the exercise of their original jurisdiction, See Section 28
High Court Law 1973 (Lagos) Cap 57. By Section 70
Magistrates' Court Law (Law No 16) 2009 Lagos, a right of
appeal exists over a decision, judgment or order of a
Magistrate where it:
i. is given in respect of sum of N10, 000, 000.00
ii. determines directly or indirectly a claim or question
respecting money, goods or other properties or any
civil rights or other matters of the amount or to the
value of N10, 000, 000.00.
iii. is given in respect of an adoption order or made as
an interim order in respect of adoption proceedings.

In the foregoing, a person aggrieved may appeal to the

High Court. A person aggrieved, apart from the original
parties to the case, includes persons who also have interest
in the subject matters of the case. The other person may
with leave of the court, file an appeal in the proceedings.
See Maja v. Johnson (1951) 13 WACA194.

NB. Appeals shall be as of right where an appeal arises

from a matter over which a Magistrate Court also sat on
appeal from a customary court. S. 70 MCL 2009. Note also
that no right of appeal exist in respect of interlocutory
decisions of a Magistrates‟ Court. S. 70(3) MCL 2009.

214
TIME FOR APPEAL
30 days from the date of the decision. The procedure is by
filing Notice of Appeal in the Magistrate or District Court
that gave the decision. Note that in the North, oral notice
could be given after which a written notice shall be filed
within 30 days.

COMPOSITION
Usually constituted by a Judge of the High Court. See
Section 272 (2) CFRN 1999, Section 29 HCL (Lagos). In
the North, appeal from the District Courts are heard by two
Judges of the High Court.

APPEALS FROM HIGH COURT TO COURT OF

APPEAL
The Court of Appeal, a superior court of record is
established by Section 237 (1) Constitution of the Federal
Republic of Nigeria 1999.
Its jurisdiction is to hear and determine appeals to the
exclusion of any other court from the Federal High Court,
State High Courts, Sharia Court of Appeal of a State and
the Customary Court of Appeal of a State, Code of Conduct
Tribunal and the National States Houses of Assembly
Election Tribunals – s.246 CFRN 1999.

COMPOSITION
It is duly constituted by three justices of that court. See
Section 247 Constitution of the Federal Republic of Nigeria
1999. If an appeal is from the Sharia Court of appeal, there
must not be less than three justices learned in the Islamic
personal law sitting and if from Customary Court of
Appeal, not less than three justices learned in customary
law shall sit. A justice who disagrees with the majority may
give a dissenting opinion. See Section 9 Court of Appeal
Act. CAP C36, LFN 2004, Note Section 10 of the Act
215
which empowers a single justice to exercise any power
vested in the Court of Appeal except that of final
determination of the cause or matter.

EXERCISE OF A RIGHT OF APPEAL:

Exercisable (a) at the instance of a party to a case or (b)
with the leave of the Court at the instance of any other
persons having an interest in the matter. The exercise shall
also be in accordance with any law and rules of court
regulating the powers, practice and procedure of the Court
of Appeal. See Section 243 CFRN. 1999. Note that in
exercising the right of appeal, in civil case, it can either be
as of right or with the leave of the court. For the exhaustive
list, see Section 241 and 242 Constitution of the Federal
Republic of Nigeria 1999, Aqua Motors v. Ondo State
Sports Council (1986) N.W.L.R (pt. 91),Harriman
v. Harriman (1987) 2 N.S.C.C. 930., Ademola v. Sodipo
(1992) 7 SCNJ 417
Where leave is required to appeal, the court usually grant
the leave (1) where the question is one of general
importance decided for the first time or, (2) where there is
rare and substantive complaint which a Trial-Judge, though
he may not agree with, considers arguable. See
Adamolekun v. Dike 1979 NMLR Where the complaint is
frivolous, leave will be refused. Ojora v. Odunsi (1964) 1
ALL NLR 61.

TIME FOR APPEAL

If the decision is an interlocutory decision, the notice of
appeal must be filed within 14 (fourteen) days from the
date of the decision. If it is a final decision, the notice of
appeal must be filled within three months. See Section 24
Court of Appeal Act, CAP C 36 LFN 2004. Where leave is
required to appeal, the application for leave must be to the
High Court. It has been decided by case law that the notice
of appeal must be filed within the relevant time
216
notwithstanding the fact that leave is first obtained and the
computation of time starts from the date the decision is
given and not when the leave is obtained. Where therefore
because of delay in obtaining leave time has already
elapsed, an application must be brought for an extension of
time within which to file the notice of appeal. See Bowaje
v. Adediwura (1976) 6 S.C. 143; Amudipe v. Arijori (1978)
9-10 S. C. 27; Lamai v. Orbih (1980) 5-7 S.C. 28;
Odogiyan v. Hispanic Construction Nigeria Limited (1986)
5 NWLR (Pt39)127

PROCEDURE FOR LEAVE TO APPEAL:

The following items must accompany an application for
leave to appeal.
a) Notice of motion for leave to appeal duly completed
(FORM 5).
b) A certified true copy of the judgment of the High
Court sought to be appealed against.
c) A copy of the proposed grounds of appeal. Note that
the application for leave to appeal is usually made
ex-parte to the High Court. It may also be made on
Notice. If the application is refused; a similar
application can be made to the Court of Appeal
within 15 days after the date of the refusal. This
latter application however is always on notice to the
other party. In this case, a copy of the order of the
High Court refusing the application must
accompany the application to the Court of Appeal.

Note that an appellant can apply for an extension of time

within which to appeal where he had not utilized the time
allowed by the law. The application is made to the Court of
Appeal, not the High Court. In granting this application, the
Court normally considers whether there is a genuine reason
for failure to appeal within time which may include
inadvertence or negligence on the part of the Counsel or
217
where delay is attributed to the Court. See Bowaje v.
Adediwura (supra). The appellant must also show that he
has prima facie good grounds of appeal. See Yesufu v.
Cooperative Bank (1989) 2 N.S.C.C. 489.
NOTE: That where leave is required to appeal and the
applicant is out of time, the proper application to make at
the Court of Appeal will be for the TRINITY PRAYERS
viz:
(i) Extension of time to seek leave to appeal
(ii) Leave to appeal
(iii) Extension of time within which to file the Notice of
Appeal. See Reg Trustees of CA C v. Uffiem (1999) 7
NWLR Pt 610 254; Ibrahim v. Balogun (1997) NWLR Pt
610 254.

NOTICE OF APPEAL
Appeals are brought to the Court of Appeal by Notice of
Appeal in FORM 3. The notice must state the following:
(a) The grounds of appeal whether a misdirection or error
in law, the particulars of such misdirection and/or errors
shall be stated except in case of omnibus grounds or where
the ground embody the particulars, if not, the ground shall
be struck out. Okorie v. Udom (1960) 5 F. S. C. 162;
Osawere v. Ezeruka (1987) 6-7 SC 135.
Note the distinction between misdirection in law and error
in law. A ground cannot be both at the same time. See
Chidiak v. Laguda 1964 NMLR 123 at 125. No ground of
appeal which is vague or general or which discloses no
reasonable ground is permitted except the general ground
that the judgment is against the weight of evidence. See
Awhinawai v. Oteri (1984) 5 S.C. or (1984) N.S.C.C. 299;
Atuyeye v. Ashamu (1987)1 N.S.C.C. 117. Where the
ground of appeal is that inadmissible evidence was wrongly
admitted or admissible evidence was wrongly refused,
Section 251 of the Evidence Act should be borne in mind in
that such omission will not ipso facto affect the judgment
218
of the court if it did not affect the judgment of the lower
court. See Ibuluya v. Dikibo.
(b) The notice of appeal must state whether it is the whole
or part of the decision of the court below that is appealed
against. If part, the part must be specified.
(c) It must also state the exact nature of the relief sought,
and the names and addresses of the parties directly affected
by the appeal.
A notice of appeal if filed without leave or if filed out of
time without obtaining an order for extension of time, is
invalid.
The appellant cannot be heard in respect of any ground of
appeal not contained in the notice of appeal. The court may
however allow appellant to amend the grounds of appeal
upon paying the necessary fees or upon such terms as it
deems fit. See National Investment Properties v. Thompson
Org. Ltd (1969)1 ALL NLR.
The Court of Appeal should not allow additional evidence
to be adduced unless the fresh evidence could not, by
exercise of reasonable diligence, have been obtained for
use at the trial court where the evidence was not available.

PROCEDURE FOR FILING APPEAL

The appeal is brought by the filing of the notice of appeal
at the registry of the High Court or the court below within
the period stipulated by law depending on whether it is a
final or interlocutory decision. Where leave is required,
such leave must be sought in order to commence the
appeal. Where out of time an application for extension
needs to be made to the court of appeal.

PROCEDURE AFTER FILING THE NOTICE OF

APPEAL
The Registrar of the High court will serve on each party
mentioned in the Notice of Appeal, a true copy of the
notice of appeal, within thirty (30) days, the respondent
219
must file 20 copies with the Registrar, notice of the full and
sufficient addresses for service according to the number
required by the Registrar. A copy will be forwarded to the
Registrar of the Court of Appeal and the Appellants as
well. The consequence of failure to file the notice of
addresses for service is that it would not be necessary to
serve on the respondent any other proceedings in the appeal
or any notice of hearing in the appeal.

SETTLEMENT OF RECORD
The Registrar of the High court writes to the parties to
settle the documents to be included in the record of appeal,
with certain conditions imposed such as (i) deposit to be
paid by the appellant for the estimated cost of compilation
and forwarding of the record of appeal. (ii) the deposit of
money for entering into bond by the appellant for the due
prosecution of the appeal and the payment of the costs of
appeal.

RECORD OF APPEAL
The record of appeal will contain the following documents:
a) Index
b) A statement by the Registrar of the High Court
giving brief particulars of the case and including a
schedule of the fees paid.
c) Copies of the documents by the Registrar of the
High Court.
d) A copy of the notice of appeal and other relevant
documents filed in connection with the appeal. With
the following documents set out below, the Registrar
of the High Court shall transmit the record of appeal
to the Registrar of the Court of Appeal.
e) A certificate of service of the Notice of Appeal.
f) A certificate that the conditions imposed by the
Registrar of the High Court have been fulfilled.
g) Twenty (20) copies of the record.
220
h) Case file in the High Court containing all papers or
documents filed by the parties in connection with
the case in High Court. See Order 8 rules 7 & 10
Court of Appeal Rules 2016
A notice that the record has been sent to the Court of
Appeal shall be sent to those who filed notice of address for
service, by the Registrar of the High Court.
Note generally that an appeal does not operate as a stay of
proceedings but upon application to it, the Court of Appeal
can order a stay either conditionally or unconditionally. To
be competent, an appeal from the decision sought to be
stayed must have been filed by the party applying for a
stay. See Mobil Oil Nigeria v. Agadaigho (1988) 4 S.C.N.J.
174

RESPONDENT'S NOTICE
Order 9 Rule 1, Note: a respondent who not having
appealed from the decision of the High Court, desires to
contend on appeal that the decision of the court should be
varied either in any event of the appeal being allowed in
whole or part must file a respondent's notice - Appeal Form
10A to the effect specifying the portion of the judgment to
be varied. Where a Respondent intends to urge the Court
of Appeal to affirm the judgment of the lower court on
grounds other than those relied on by the trial Judge, he
shall do so by filing a Respondent‟s Notice in form 10B.
Note however that a respondent seeking to set aside a
finding which is crucial and fundamental to the case can
only do so through a substantial cross appeal. See Adekeye
v. Akin Olugbade (1987) 6 S.C.N.J. 137; Williams v. Daily
Times (1990)1 N.S.C.J. 15.
A respondent's notice given under Order 9 Rule 1 must be
served on all the parties. In case of an appeal against an
interlocutory order, the service must be within 15 days, in
any other case, it must be within one month after the
service of notice of Appeal on the respondent.
221
PRELIMINARY OBJECTION
A respondent intending to rely upon preliminary objection
to the hearing of the appeal shall give the appellant three
clear days notice thereof before the hearing setting out the
grounds of objection and shall file such notice together
with twenty copies thereof with the Registrar of the Court
of Appeal within the same time. It must be in accordance
with Form 11. See Order 10 Rule 1 CAR 2016

BRIEFS OF ARGUMENT
An appellant is required to file in the Court of Appeal a
brief of argument within forty five (45) days of the receipt
of the Record of Appeal. See Western Steel Works Ltd v.
Iron and Steel Workers Union (1986) 3 NWLR Pt. 30 Pg.
617. The respondent is required to file his own brief within
thirty (30) days of service of the appellant's brief on him.
Where an appellant fails to file his brief, he will not be
heard in oral argument except by leave of the court.
Where new points are raised in the respondent's brief of
argument, the appellant may within 14 days of the service
of the respondent's brief but not later than three clear days
before the date set down for the hearing of the appeal, file a
reply to the brief which should deal with the new points so
raised. Failure of the appellant to file the reply within the
specified time, will be taken as an admission of the new
points or issues arising from the respondent's brief
A good brief as a general rule should be brief, (not
exceeding 35 pages O. 19 R. 3(6) (a) Court of Appeal
Rules 2016) containing an address for service, what are in
appellant's view, the issues arising in the appeal as well as
any point taken in the court below which the appellant
wishes to abandon and any point not taken in the High
Court below which he seeks the leave of the court to argue.
See O. 19 r. 3(1)-(6) generally for the content of brief of
argument.

222
In formulating the issues, Counsel should note the
distinction between issues for determination and grounds of
appeal. The grounds of appeal filed accentuate the defects
in the judgment sought to be set aside, while the issues for
determination accentuate the crux of the reason
encompassing one or more grounds of appeal for the
determination of the appeal. The issues for determination
flow from the grounds of appeal. Where they do not, they
go to no issue. They must be fundamental in order to be
entertained by the court.

BRIEF WRITING
Brief writing was first introduced into the practice and
procedure in our superior courts by the Supreme Court
Rules of 1977, which was revoked and re-enacted by the
Supreme Court Rules of 1985. Brief writing was only
recently introduced at the Court of Appeal level by Court
of Appeal (Amendment) Rules 1984. Presently order 18
CAR 2011 governs the settling of briefs.
Before 1977, appellants Counsel at the Supreme Court had
to prepare his case and appear to argue orally before the
bench. The oral argument had to be written down by the
Justice and all references to the rules of law and evidence
would be read in open court and important points also
written down by the justice in their own hands.
A brief is referred to in both Order 19 r.2 of the Court of
Appeal Rules 2016 and Order 6, Rule 5 of the Supreme
Court Rule as "A succinct statement of his argument in the
appeal". The Appellant is required within 45 days of the
receipt of the records of appeal to file in the court and serve
on the respondent a written brief. The brief may be settled
by Counsel and must contain, what in the view of the
appellant are the issues arising in the appeal.
Upon receipt of the appellant's brief the respondent is
required to file and serve on the appellant within 30 days a
respondent's brief. The appellant may himself, if necessary,
223
also within 14 days after service of the respondent's brief,
file and serve on the respondent a reply brief. For details of
what must appear on the respondent briefs, please see Order
18 Rules 3 (1)-(5).
It should be noted, however, that except with the leave of
the court no oral argument would be allowed in support of
any argument raised in the brief on behalf of any party for
whom no brief has been filed. Great pains must be taken to
set down in accordance with the rules of procedure, well
thought out argument on the case of your client either as
appellant or respondent.
It is important for Counsel to properly formulate the issues
for determination, which must be based on the grounds of
appeal, many practitioners have lost their appeals in spite
of apparently well written briefs. The first lesson is that the
question to be submitted for determination must have been
an issue submitted to the lower court for determination. In
the case of Balarabe Musa v. The State, Oputa J S. C.,
stated:
Learned Counsel for the appellants should be well advised
to know that they can only urge on appeal, points arising
from a decision of a trial court on an issue submitted to it
for determination. If no such question has been submitted it
cannot form the basis of a ground of appeal or, an issue for
determination in a brief.
The second lesson is that an appeal court can only
"determine issues which have been submitted to it for
determination". Stressing the need to raise issues for
determination in briefs, Justice Uwaifo J. C. A. in the case
of Echo Enterprises Ltd v. Standard Bank of Nigeria
Limited (1989) stated:
I wish to remark that in none of these briefs of argument
filed were any issues for determination raised. There is
need to always comply with rules of briefs writing in order
that relevant issues may be considered as a guide.

224
The third lesson is that issues for determination in a brief
must relate to the grounds of appeal. Counsel is advised to
read very carefully the decision in the case of Atanda v.
Ajani (1989) 2 N. S. C. C. 511 and some of the cases
referred to in that case. On the whole, fifty-four Nigerian
cases and five foreign cases were referred to.
Commenting on the necessity to relate issues for
determination to grounds of appeal the Supreme Court held
(per NNAEMEKA - AGU, J.S.C.) -
Indeed none of the four issues for determination as
formulated by the respondent has any relevance to the
grounds of appeal before the court. This court has stated a
number of times that a respondent's primary duty is to
support the judgment appealed against by showing that the
contentions of the appellants as to the grounds of error are
without merit. Also if they have cross-appealed, they
cannot formulate issues as it were, "in nubibus" - hanging
in the skies.
Again, in the case of lkemson v. State (1989) N.S.C.C.
471. Karibi-Whyte, J.S.C. observed:
Both counsel have not appreciated the fact that the issue for
determination must necessarily arise from the grounds of
appeal filed, and could not have an independent existence.
Counsel should learn, as a fourth lesson, that issues for
determination in an appeal are not the same as the grounds
of appeal filed. Karibi- Whyte, J.S.C., in the same
judgment stated that:
Whereas the grounds of appeal filed accentuate the defects
in the judgment sought to be set aside, the issues for
determination accentuate the crux of the reasons
encompassing one or more grounds of appeal for the
determination of the appeal.

225
OUTLINE OF A BRIEF

1. Introduction or Preliminary Statement

2. Questions or issues for determination.

3. Statement of facts.

4. The Argument.

5. Summary and Conclusion.

6. List of Legal Authorities.

7. Addresses for service

226
FORMS
CIVIL FORM 3
IN THE COURT OF APPEAL
NOTICE OF APPEAL
(Order 6, Rule 1)
BETWEEN
AB………………………………………...APPELLANT
And
BC………………………………………RESPONDENT
TAKE NOTICE that the Plaintiff/defendant being
dissatisfied with the decision/ that part of the decision/that
part of the decision more particularly stated in paragraph 2*
of the . . . . . . . . . . Court contained in the judgment/order *
of ………. doth hereby appeal to the Court of Appeal upon
the grounds out set in paragraph 3 and will at the hearing of
the appeal seek the relief set out in paragraph 4.

And the Appellant further states that the names and

addresses of the persons directly affected by the appeal are
those set out in paragraph 5.
2. Part of decision of the lower court complained of…
3. Grounds of appeal;
1)
2
3) etc.
4. Relief sought from the Court of Appeal:
5. Persons directly affected by the appeal
Name Address
1)
2)
3 , etc.

DATED this... ... day of........20 ...…………….

Appellant,
Whose address for service …………………….

227
CIVIL. FORM 5
IN THE COURT OF APPEAL
NOTICE OF MOTION FOR LEAVE TO APPEAL
(Order 6, Rule 7)

Between…………………………………. APPELLANT

And
……...………………………………… RESPONDENT
TAKE NOTICE that the Court of Appeal will be moved on
……………… at in the forenoon or as soon thereafter as
Counsel can be heard on the hearing of an application for
leave to appeal against the decision of the ……………
Court on the ……. Day of …… 20……
AND further take notice that the grounds of this application
are –
AND further take notice that the following documents are
exhibited in this application
DATED this . . . . . . . Day of. . . . . . . . .20. . . . .
---------------------------------------------
Applicant or his legal representative,
To:
THE REGISTRAR,
COURT OF APPEAL
AND …………………

228
CIVIL FORM 10A
IN THE COURT OF APPEAL
NOTICE BY RESPONDENT OF INTENTION TO
CONTEND THAT DECISION OF COURT BELOW
BE VARIED
Order 9 Rule 1
Between
AB ………………………… Appellant
and
BC …………………………Respondent
TAKE NOTICE that upon hearing the above appeal the
respondent herein intends to contend that the decision of
the court below dated the ….. day of …… 20….. shall be
varied as follows-
1.
2.
3.

DATED this . . . . . . . Day of. . . . . . . . .20. . . . .

…………………
Respondent

On Notice to –
State the variation which will be asked for.

229
CIVIL FORM 10B
IN THE COURT OF APPEAL
NOTICE OF INTENTION TO CONTEND THAT
JUDGMENT SHOULD BE AFFIRMED ON
GROUNDS OTHER THAN THOSE RELIED ON
BY THE COURT BELOW
Order 9, Rule 2

Between ……………………...…………… Appellant(s)

and
………………………...………………… Respondent(s)
TAKE NOTICE that upon the hearing of the above appeal
the respondent intends to contend that the decision of the
court below dated the ……day of …… 20….. shall be
affirmed on grounds other than those relied on by the court
below
AND TAKE NOTICE that the grounds on which the
Respondent intends to rely are as follows–
1.
2.
3. etc.

DATED this . . . . . . . Day of. . . . . . . . .20. . . . .

. . . . . . . ………….
Respondent

On Notice to –
…………………..
…………………..
…………………..
Plaintiff/Defendant/Respondent

230
CHAPTER THIRTEEN
RECOVERY OF POSSESSION OF PREMISES

INTRODUCTION
In order to regulate the relationship between Landlords and
Tenants and prevent arbitrary increment of rents, unlawful
ejection of the tenants and illegal holding over by tenants,
laws have been enacted by the Governments of this
country. Today, every state of the federation and the
Federal Capital Territory, Abuja, has its own laws
regulating recovery of possession of premises. However,
the procedure is virtually the same across the country with
minor variations.

The Recovery of Premises Act, Cap. 544, Laws of The

Federal Capital Territory of Nigeria (Abuja) 2007 regulates
the recovery of both residential and non-residential
Premises in the Federal Capital Territory, Abuja. Although
this Act was made by the National Assembly, its
application is limited to the Federal Capital Territory,
Abuja. See S. 299 of the Constitution of the Federal
Republic of Nigeria, 1999, as amended.

There are corresponding laws in the states. The provisions

of these laws are similar. In Lagos State, the Lagos State
Tenancy Law 2011, the Recovery of Premises Law
Cap.118 Laws of Lagos State 1973 and the Magistrates‟
Court Law of Lagos State No.16 2009 regulates the
recovery of possession of both residential and non-
residential premises in Lagos. While the Rent Control and
Recovery of Residential Premises Law of Lagos State 1997
applies to residential premises only. It should be noted that
the Rent Control and Recovery of Residential Premises
Law 1997 has not been formally abrogated with the
abolition of the Rent Tribunal by section 48 of the Lagos
State Tenancy Law 2011, but the Law is dormant.
231
It should also be noted that by S.1 (3) of the Lagos State
Tenancy Law 2011, the new law does not apply to Apapa,
Ikeja G.R.A, Ikoyi and Victoria Island. So the other
existing laws take care of those areas.

WHO IS A "TENANT"?
Under section 47 of the Tenancy Law "tenant" is defined as
follows "In this law, unless the context otherwise requires
"tenant" includes a sub-tenant or any person occupying any
premises whether of payment of rent or otherwise but does
not include a person occupying premises under a bonafide
claim to be the owner of the premises". The Supreme
Court, pronouncing on the meaning of tenant under Section
40 (1) of the Rent Control and Recovery of Residential
Premises Edict No. 6 of Lagos State 1997 which is
essentially the same as section 47 above, held that the only
requirement for one to fall under this definition of a
statutory tenant is lawful occupation of the premises. The
distinction between a tenant and a licensee (under the
common law principles) is not a good guide on deciding
who qualified as a tenant under the edict and thus entitled
to the statutory notice. See lbiyemi Oduye v. Nigerian
Airways (1987) 2 NWLR; (1987) Vo1.18 N. S. C. C. 521
Interpreting a similar provision under the Recovery of
Premises Ordinance (Cap 193) Laws of Nigeria, the court
in Enigbokan v. Akinosho 22 NLR 88 per Hubbard, Ag. F.
J. said "If my view of the evidence is correct, it is material
whether the appellant was a servant or a licensee".
(Shifted backward)

COURTS WITH JURISDICTION IN RECOVERY OF

PREMISES CASES
Jurisdiction on this matter lies with the Magistrates Courts
(District Courts in the F.C.T) and the High Court. See
Sections 2 of the Recovery of Premises Act, Abuja and the
Tenancy Law of Law, 2011. In Abuja the monetary
232
jurisdiction of the District Court is now limited to a
maximum of N5 Million Naira, depending on the grade of
the Court. See the District Court (Increase of Jurisdiction of
District Court Judges) Order, 2014. In Lagos, the
jurisdiction of the Magistrates Courts is limited only to a
maximum of N10 Million Naira for all Magistrates Courts.
See S. 28(1)(b) of the Magistrate Court Law No. 16, Lagos,
2009. However, once he annual rental value of the premises
falls within the above amounts, the Courts will have
jurisdiction notwithstanding that the amounts claims as
arrears of rent and mesne profit are above those amounts.
See for instance the Proviso to S.28(1)(b), Magistrate Court
Law, No. 16, Lagos, 2009.

PROCEDURE FOR RECOVERY OF PREMISES

Procedure for Recovery of Premises is precisely the same
in all the jurisdictions, it is highly technical and a strict
compliance with the provisions and Rules is essential. If
not, the whole proceedings will result in nullity.

The procedure involves four basic stages:

a) Obtaining letter of authority where necessary;
b) Termination of tenancy by notice where necessary;
c) Service of 7 days‟ notice of owner‟s intention to
recover possession;
d) Commencement of proceedings before the
appropriate court.

LETTER OF AUTHORITY
Statutory notices may be issued by the landlord or by his
agent. Where a Landlord's agent, whether a solicitor or a
layman is employed to serve statutory notices under the
recovery of premises laws, he must have been specially
authorized in writing by the landlord. See the cases of
Ayiwoh v. Akorede (1951)20 N. L. R. 4, Coker v. Adetayo
(1992) 6 N.W.L.R. (Pt 249)612 at 652. In Balogun
233
v. L.E.D.B. (1963) 2 All N.L.R. 80, it was held that a
Solicitor unless specially authorized in writing by the
landlord should not sign the statutory notice required by
Section 7 of the Recovery of Premises Act, and that such
notice (to quit) if signed by unauthorized agent cannot be
subsequently ratified.

NOTICE TO QUIT
Except where a tenancy expires by effluxion of time as in
the case of tenancy for a fixed period or where the tenancy
expires by operation of law as in the case of failure of a
monthly or quarterly tenant to pay rent for a prescribed
period in Lagos, a tenancy must be terminated by
appropriate notice as a condition precedent to recovery of
possession by action.

LENGTH OF NOTICE TO QUIT

Where there is no express stipulation as to the length of
notice to be given by either party to the tenancy agreement
to determine the tenancy, the following period of time shall
be given:
a) In the case of tenancy at will or a weekly tenancy, a
week's notice;
b) In the case of a monthly tenancy a month's notice;
c) In the case of a quarterly tenancy, 3 months‟ notice,
d) In the case of half-yearly tenancy, 3 months‟ notice
e) In the case of yearly tenancy, 6 months‟ notice

It should be noted that half-yearly tenancy is only provided

for under the Lagos State Tenancy Law, 2011. The nature
of the tenancy for the purpose of determining the proper
notice to terminate a tenancy shall, in the absence of any
evidence to the contrary, be determined by reference to the
mode of payments of rent. See sections 8 and 13 of the
Recovery of Premises Act, Abuja and Lagos State Tenancy
Law, 2011 respectively.
234
Parties are bound by their tenancy agreement. Where there
is an agreement regarding notice to be given for
termination of tenancy relationship, then that agreement
will prevail. It is only in the absence of such agreement that
the statutory provisions as set out above will apply. See
sections 8 of the Recovery of Premises Act, Abuja and
section 13 of the Lagos State Tenancy Law, 2011.

EXPIRY OF NOTICE TO QUIT

Notice to quit mentioned above may be given at any time
before the date of termination of the current term of
tenancy, but they shall not be effective if the time between
the giving of the notice and the time when the tenancy is to
be determined is less than those respectively set out above
(Section 9 of the Recovery of Premises Act, Abuja)

For example, if a yearly tenancy is to end on the 31st of

December, 2019, for a quit notice to be effective, it must be
for a duration of six months i.e. six calendar months within
the period of the calendar year ending on the 31st of
December 2019, or the six calendar months‟ notice
terminating exactly on the 31st of December, 2019. Lateef
Aminu (Attorney for Alhaji Waziri Ibrahim v. Amade
(1977) IOCCHJ 273 Awobiyi and Sons v. Igbalaiye
Brothers (1965) 4 N.S.C.C. 123. The same principle
applies to the other categories of tenancies, for example
one month's notice i.e. a calendar month‟s notice. See
Osewaru v. Ezeiruka (1978) 6 or, 7 S. C. 135 at 139(11),
1.0-13, Oyekoya v. G B. Ollivant (Nig) Ltd (1969) 6
N.S.C.C. 69.
Where the tenancy is for a fixed term i.e. 5 years, the notice
shall expire on the eve of anniversary of the tenancy except
the agreement provides otherwise. See Owoade v. Texaco
Africa Ltd (1973) 4 N. S. C.C. 61.

235
However, under the Lagos State Tenancy Law, 2011, for a
quarterly tenant, half-yearly tenant and yearly tenant the
notice need not terminate on the eve of the anniversary of
the tenancy but may terminate on or after the date of
expiration of the tenancy. See section 13 (4) of the Lagos
State Tenancy Law, 2011.

CONTENTS OF NOTICE TO QUIT

The written notice to quit must state the following:
1. The fact that the tenant should quit and deliver up
possession of the premises which must be clearly
described.
2. The situation of the premises (the town, or district
and number of street).
3. The kind of tenancy (whether at will, weekly,
monthly etc.
4. The date the notice to quit is to expire.

The notice is then dated and signed by the person giving

the notice (See Form B. C. or D and TL2 or TL3) Schedule
to the Recovery of Premises Act, Abuja and Lagos State
Tenancy Law, 2011 respectively.

NOTICE OF OWNER'S INTENTION TO APPLY TO

RECOVER POSSESSION
If on the expiry of the notice to quit and tenant or any
person occupying the premises, or any part thereof shall
neglect or refuse to quit and deliver up possession of the
premises or of such part thereof, the owner or his agent
may cause the person so neglecting or refusing to quit and
deliver up possession to be served with a written notice
signed by the owner or his agent of the owner's intention to
proceed to recover possession on a date not less than seven
clear days from the date of service of the notice. For
example, if notice is served on a Monday, seven clear days

236
will expire at midnight on the following Monday, (Notice
is usually served between 6 a.m. and 6 p.m., in any case
during day light). Here the landlord is referred to as the
owner because the relationship of landlord and tenant has
been terminated at expiry of the notice to quit. The notice
shall be in (Form E or TL 4) See section 7 and 16 of the
Recovery of Premises Act, Abuja and Lagos State Tenancy
2011 respectively. Also, see Chiwete v. Amissah (1957) 1.
LLR 104.

WRIT OR PLAINT/CLAIM AGAINST PERSON

REFUSING TO DELIVER UP POSSESSION
If at the expiration of the time stated in the owner's notice
of his intention to apply to recover possession and the
tenant or any person holding or claiming through or under
him fails, refuses or neglects to quit as demanded, the
owner or his agent may file a Writ or a Plaint/ Claim
depending on whether the action is taken at the High Court,
District Court or Magistrates Court. The appropriate Court
is that of the district or division where the premises is
situated. The originating process shall contain facts to the
following effect:
a) That the Plaintiff is entitled to the possession of the
premises, which were let by the plaintiff to the
defendant. Brief but accurate description of the said
premises.
b) The period of the tenancy and the rent attached.
c) The date of expiration or determination of the
tenancy under notice to quit.
d) The fact of the notice in writing of the intention of
the plaintiff to apply to recover possession of the
premises. A duplicate of the notice in Form E or TL
4 must be attached.
e) A description of how the service of the notice in
Form E or TL 4 was effected.
237
f) That in-spite of the notice in Form E or TL 4, the
defendant has refused or neglected to deliver up
possession of the said premises and still detains
same.
g) Claim for possession, arrears of rent and/ or mesne
profit.

N.B. If at the expiration of the notice to quit, the tenant

owes rent, these are called arrears of rent. But from that
date until possession is given up, the rent which would
have accrued are known as mesne profit. Mesne profit is
payable only by a person holding land illegally: Oyeledun
v. Shomoye (1960) WNLR 126. For the meaning of mesne
profit, see Osawaru v. Ezeriruka (1978) 6-7, S.C 135 at
139 – 141; Sobande v. Igboekwe (2018) ALL FWLR (PT.
919) 32 at 65; African Petroleum v. Owodunni (1991) 8
NWLR (PT.210) 391.
When an action is to be filed at the High Court, it will be
by Writ as in Form A or TL1; if the action is to be filed
before the District Court of the FCT, Abuja, it will be by
Plaint as in Form F and a Summons will be issued as in
Form G and in the Magistrates Court of Lagos State, it will
be by Claim as in Form TL6B and a Summon in Form
TL6A will be issued. See the Schedule to Recovery of
Premises Act, Abuja and the Lagos State Tenancy Law,
2011

SERVICE OF NOTICES AND PROCESSES

Service of a notice of determination of tenancy or any
summons or warrant or other process shall be effected in
accordance with the provision of the law for the time being
in force relating to the service of the civil process of
Magistrate Court. i.e. personal service and if the defendant
cannot be found and his place of dwelling shall either not
be known or admission thereto cannot be obtained for
serving any such process personally, a copy of the process
238
shall be pasted on some conspicuous part of the premises
sought to be recovered and such pasting shall be deemed
good service on the defendant. See section 28 of the
Recovery of Premises Act, Abuja. Under section 18 and 19
of the Lagos State Tenancy Law, 2011, personal service of
notices includes service on the tenant in person; delivery of
the notice to any adult person in the residential or business
premises as the case may be; by courier and by affixing the
notice in a conspicuous part of the premises.- Also, see
Chiwete v. Amissah (1957) LLR 104. But as for court
processes, personal service must be effected on the
defendant. O. 5 r. 1 of the Lagos State Magistrates Court
(Civil Procedure) Rules, 2009

TRIAL PROCEDURE
Actions for recovery of premises may be filed at the High
Court, Magistrate Court or District Court depending on the
rental value of the premises. See sections 272 of the 1999
Constitution as amended; 28 of Magistrates Court Law of
Lagos State 2009. It should also be noted that the monetary
jurisdiction of the District Court of the Federal Capital
Territory has been increased to 5Million by the District
Court (Increased in the Jurisdiction of District Court Order
2014). At the trial the plaintiff is obliged to prove all the
steps taken by him as required by law from tendering the
letter of authority (in the case of an agent) to the tendering
of:
(i) Form B,C, or D or TL2 and TL3whichever is applicable
as notice to quit.
(ii) Form E or TL4 Notice to tenant of owner's intention to
apply to recover possession.
The service of the notices, which must be in accordance
with the provision of the law must be proved by the
plaintiff at the trial. The plaintiff must also discharge the
burden of proof that he is the one entitled to possession of
the said premises or that he is the owner. Evidence shall be
239
by written deposition or oral examination of witnesses. See
section 27 of the Lagos State Tenancy Law, 2011. Service
of a Notice of Intention under Sec. 7 of the Recovery of
Premises Law Cap 118 is, as a Notice to quit under Section
9, a precondition to the institution of proceedings between
landlord and tenant for the recovery of premises. The
notice in each case must state the correct date of the
expiration or determination of the tenancy as prescribed in
SS. 8 and 9 of the Law.
If the correct date is not stated in either of the Notices, the
court has no jurisdiction to make an order for possession
under the Law. The whole proceeding is a nullity. The
same result, however, does not follow if the period between
service of Notice of intention and the date of application to
court for a summons is less than seven clear days provided
the proceedings is not determined before the expiration of
the period.

The position in that case is similar to that of defendant who

is served with writ of summons for judgment under Order 5
of the High Court of Lagos (Civil Procedure) Rules 2019
who is entitled to forty two clear days after service of
summons, or a Respondent entitled to two clear days under
Order 39 Rule 2, between service of a motion and its
hearing. In either case the Defendant or Respondent may
waive the irregularity and proceed with the hearing. In the
case of a tenant, if the interval between service of the
Notice and the return date of the plaint or writ is less than
seven days, he may come to court and demand that hearing
of the plaint be postponed until he has seven clear days.
See the case of Etchie v. Raji (1980) FNLR 108.

COUNTER CLAIM
A tenant has a right of action against the landlord in respect
of un-exhausted improvement or for any expenses
authorized in writing by the landlord in respect of the
240
premises, the subject of the action for recovery of
possession. See section 15 of the Recovery of Premises
Act, Abuja.

RECOVERY OF PREMISES FORMS

FORM C
Notice To Quit, Given By An Agent Or Legal
Practitioner of The Landlord
To: C.D.
Sir,
I hereby, as agent (Legal Practitioner) of your landlord, and
on his behalf give you notice to quit and deliver up
possession of the shop and room with the appurtenances
situate at …………… in the town of ……………………
which you hold of him as tenant thereof on the
...................... day of ...................................... 2015.
Dated this ............................ day of.......................... 2015
Signed:
Agent (or Legal Practitioner) For the above named A B.
By the Landlord see Form B. Also see Form TL2 and TL3
in the Schedule to the Lagos State Tenancy Law 2011.

FORM E
Notice To Tenant of Owners Intention to Apply To
Recover Possession
TO:
Sir,
I .......... (Owner, or agent to……………………….., the
owner, as the case may be) do hereby give you notice, that
unless peaceable possession of the premises (shortly
described), situate at………………………, which were
held of me ( or of the said……………………., as the case
may be) under a tenancy from year to year(or as the case
may be) which expired(or was determined by notice to quit
from the said……………….., (or otherwise as the case
241
may be) on the…………. day of ………………….., and
which premises are now held over and detained from the
said……………… be given to……………… (the owner or
the agent) on or before the expiration of seven clear days
from the service of this notice, I…………………… shall
on…………………next, the ………… day of
………………..at …………..O‟clock of the same day, at
………………………….., apply to court to issue a warrant
directing an appropriate person to enter and take possession
of the said premises, and to eject any person therefrom.
Dated this………………………… day of
………………………..19
Signed…………………………………………. (Owner or
Agent)
Also, see Form TL4 in the Schedule to the Lagos State
Tenancy 2011
Also see Form A, F, TL6A and TL6B in the Schedule to
the Recovery of Premises Act, Abuja and the Lagos State
Tenancy Law, 2011.
NOTE: All forms must be confirmed from the statutes

242
CHAPTER FOURTEEN
ELECTION PETITION

INTRODUCTION
Actions instituted for purposes of challenging the validity
of an election or disputing the due return of a candidate or
claiming the return of a candidate are commenced by
petition. Election petition is a special proceeding guided by
a particular electoral law made specifically for the conduct
of an election to a certain office. In Nigeria today, the 1999
Constitution as amended, Electoral Act, 2010 (as amended)
regulate the conduct of elections.
Every petition filed is decided by the tribunal on the basis
of the electoral law under which the election was held, the
electoral law will prescribe the court/tribunal where the
petition shall be filed, the parties, grounds for presentation,
and the conduct of the entire proceedings including the
right to appeal.

JURISDICTION OVER ELECTION PETITIONS

Section 285(1) of 1999 Constitution provides for the
establishment of National and State Houses of Assembly
Election Tribunal. Section 285(2) provides for
Governorship Election Tribunal while Section 285(7) of the
Constitution provides that the Court of Appeal shall have
original jurisdiction over petitions relating to election to the
office of President or Vice President.

NATURE OF ELECTION PETITIONS

Election petitions are sui generis. See Buhari v. INEC
(2008) 4 NWLR (Pt 1078) 546. They are peculiar, distinct,
and of a different character to normal civil proceedings.
See Nwobodo v. C.C. Onoh (1984)1S.C 1. Election
petitions are special proceedings completely divorced and
separate from civil proceedings.

243
PRESENTATION OF PETITION
A petition must be presented in the manner prescribed by
the Electoral law. A petition is presented when it is filed in
the appropriate court or tribunal prescribed by law. That is,
the papers are presented to the Court Registrar or Secretary
of the Tribunal, payment of the prescribed fees made and
receipts issued. See Paragraph 2 and 3 of the First Schedule
to the Electoral Act 2010 (as amended). See Belgore v.
Ahmed (2013) All FWLR (Pt.705) 246 at 286-287 CA;
Idris v ANPP (2008) 8 NWLR (Pt. 1088) 1 Ogbolumani
v. Okobi 1959 WNLR. 11; Ngoh v. Ndoka and Another
(1960) 5 F.S.C. 90 at 92.

Presentation of petition must be done within the time

prescribed by the Electoral law (21 days after the
declaration of the result of the election) Section 285 (5) OF
THE CFRN 1999 (as amended) provides that an election
petition shall be filed within 21 days after the date of the
declaration of result of the election (See also Section 141
Electoral Act). Note that the times prescribed by the
Electoral Act for taking particular steps are generally
sacrosanct. See Oke v Mimiko (2013) All FWLR (Pt 693)
1853
An election petition may be presented by one or more of
the following persons:
(a) A candidate at an election
(b) A political party which participated at the election. (See
Section 137 (1) & (2) of the Electoral Act, 2010).
The person whose election is complained of shall be the
Respondent. If the petitioner complains of the conduct of
an Electoral Officer, a Presiding Officer or Returning
Officer, it shall not be necessary to join such officers or
person notwithstanding the nature of the complaint and the
Commission shall, in this instance, be made a respondent;
and deemed to be defending the petition itself and on

244
behalf of its officers or such other persons. See Section 137
(3) of the Electoral Act 2010 (as amended).
A petition must be filed in the appropriate registry
prescribed by the Electoral law. If a petition is filed in a
wrong registry, it cannot be transferred to another or proper
registry. If the electoral law states that presentation of a
petition shall be made by the petitioner in person, this
means the petitioner must be physically present at the time
of the presentation of the petition. See Paragraphs (2), (3),
and (4) of the First Schedule to the Electoral Act 2010 (as
amended). The petition shall be signed by the Petitioner or
all the Petitioners or by the Solicitor if any, named at the
foot of the election petition. See Paragraph 4 (3) (b) First
Schedule to the Electoral Act 2010 (as amended).

ACTION BY THE SECRETARY TO THE

TRIBUNAL ON THE PRESENTATION
Paragraph 7 of the 1st Schedule to the Electoral Act
provides that upon presentation and payment of necessary
fees, the Secretary shall forthwith-
a) Cause notice of presentation of the petition to be
served on each respondent;
b) Post on the tribunal notice board a certified copy of
the election petition; and
c) Set aside a certified copy for onward transmission to
the person or persons required by law to adjudicate
and determine the petition.
d) Para. 7 (2) in the notice of presentation of the
petition, the secretary shall state a time, not being
less than 5 days but not more than 7 days after the
date of service of the notice, within which each
respondent shall enter appearance.

245
CONTENTS OF A PETITION
The contents of a petition must conform to the electoral law
in force and the Civil Procedure Rules adopted by the
electoral law. The petition must contain the following:

PARTIES
There are two parties to a petition i.e. the Petitioner and the
Respondent. The Petitioner is any person claiming to have
a right to be returned at the election or a candidate at the
election or a Political Party which participated at the
election. The Respondent to such petition shall be: the
successful candidate at the polls, the Independent National
Electoral Commission (INEC) as it will have to carry out
the orders the court may give. If the petitioner complains of
the conduct of an electoral officer, a presiding or Returning
officer, it shall not be necessary to join such officers or
persons notwithstanding the nature of the complaint and the
commission shall in this instance be made respondent and
be deemed to be defending the petition for itself and on
behalf of its officers or such other persons. See Section
137(3) Electoral Act.
Although INEC as a Respondent obviates the need to join
its ad-hoc staff, it can still be argued that with respect to
non-statutory respondents where allegations are made
against them, it is imperative that they be joined as
respondents. This assumes a constitutional dimension
because a person is entitled to be heard in all cases which
affect the determination of his rights. Where for instance
allegations of commission of criminal offences is made
against an individual, it will amount to the breach of the
person‟s fundamental right to fair hearing if determinations
are made without the person‟s participation. See Obasanjo
v. Buhari (2003) 17 NWLR (Part 850) 510 at 576 to 577;
Ayogu v. Nnamani (2006) 8 NWLR (Part 981) 160 at 195;

246
HOLDING AND RESULT OF ELECTION: The
petition shall state the date and result of the election being
challenged, i.e. the votes scored by the candidate and the
name of the candidate returned elected. It shall also state
the place where the election was conducted.

GROUNDS OF THE PETITION: The petition must state

the grounds on which the election is being challenged and
the facts relied on.
The main ground is a complaint of undue election or undue
return. See Section 133 of the Electoral Act 2010. The
specifics of undue election or return are prescribed by
Section 138(1) of the Act which provides that an election
may be questioned on any of the following grounds:

a) That the person whose election is questioned was, at

the time of the election, not qualified to contest the
election. On the issue of qualification see Sections
65, 106, 131, 137(1)(b), 177, 182(1)(b) of the 1999
constitution as amended. Note also the amendment
to the age qualification by Sections 2,3,4,5, and 6 of
the Constitution Alteration Act 2016 commonly
known as the Not Too Young to Run Act ;
b) That the election was invalid by reason of corrupt
practices or non- compliance with the provisions of
this Act;
c) That the respondent was not duly elected by
majority of lawful votes cast at the election, or
d) That the petitioner or its candidate was validly
nominated but was unlawfully excluded from the
election.
e) That the person whose election is questioned had
submitted to the Commission affidavit containing

247
false information of a fundamental in aid of his
qualification for the election. On this ground see
Section 19 of the Electoral (Amendment) Act 2015.

PRAYERS
A petition filed must be accompanied with a prayer or
reliefs sought as for instance, that the Petitioner or one of
the Petitioners be declared validly elected or returned,
having polled the highest number of lawful votes cast at the
election or that the election may be declared null and void,
as the case may be.
Note: By Section 285(13) of the 1999 Constitution
amended by Section 2 of the Constitution of the Federal
Republic of Nigeria (Fourth Alteration No. 21) Act, 2017,
an election tribunal or court shall not declare any person a
winner at an election in which such a person has not fully
participated in all stages of the election

DOCUMENTS THAT SHALL BE FRONTLOADED

WITH THE PETITION
The election petition shall be accompanied by-
a) A list of the witnesses that the petitioner intends to
call in proof of the petition;
b) Written statements on oath of the witnesses; and
c) Copies or list of every document to be relied on at
the hearing of the petition. see Paragraph 4(5) of the
First Schedule to the Electoral Act 2010 (as
amended) See also A.C.N v Lamido & Ors (2012)All
FWLR (Pt 630) 1316 SC

SERVICE: The petition must contain an address for

service within jurisdiction to enable the processes of the
tribunal is served on the parties. The address for service is
usually contained at the foot of the petition.

248
AMENDMENT OF PETITION: The Electoral Act
contains provisions relating to amendment of petition and
replies. A time is usually prescribed within which such an
amendment can be made (21 days from the date of the
declaration of the result of the election. See Oke v Mimiko
(2013) All FWLR (Pt 693) 1853. Note that the provisions
for amendment are not the same with that of High Court
which states that amendment of the pleadings can be made
at any stage before judgment. Usually, the Electoral Act
may not allow amendment in the following areas:
a) To introduce any fresh prayer to the petition.
b) To effect any alteration of substance in the prayer.
c) To effect any substantial or material alteration to the
statement of facts and grounds. See Paragraph 14(2)
of the First Schedule to the Electoral Act 201 (as
amended)

However, if amendment is only to correct typographical

error on the petition, it may be allowed.
See Bola Ige v. Dr Victor Omololu Olunloyo (1984)1
SCNLR, 158 or (1984)1 Sc. 258; Oke v Mimiko

FILING OF REPLY TO THE PETITION

The respondent shall within 14 days of service of the
petition file a reply.
The reply shall specify which facts in the petition he does
not admit and which he denies, and shall set out the facts
on which he relies in opposition to the election petition.
Paragraph 12 (2), where the petition complains of undue
return and claiming the seat or office for the petitioner and
the respondent intends to prove that the claim is incorrect
or false, he shall in his reply SET OUT THE FACTS AND
FIGURES CLEARLY AND DISTINCTLY disproving the
claim of the petitioner.
The reply may be signed by the respondent or solicitor
representing him, if any and shall include the name and
249
address of the solicitor at which subsequent processes shall
be served.

DOCUMENTS THAT SHALL BE FRONTLOADED

WITH THE REPLY TO THE PETITION.
The Reply to the election petition shall be accompanied by-
a) A list of the witnesses
b) Written statements on oath of the witnesses; and
c) Copies of documentary evidence .See Paragraph
12(3) of the First Schedule to the Electoral Act 2010
(as amended)

PETITIONER’S REPLY
If a person in his reply to the petition raises new issues of
facts in defence of his case which the petition has not dealt
with, the petitioner shall be entitled to file in the Registry,
within 5 days from the receipt of the respondent‟s reply, a
petitioner‟s reply in answer to the new issues of fact. See
Paragraph 16 of the First Schedule to the Electoral Act
2010 (as amended)

PRE-HEARING SESSION AND SCHEDULING

A pre-trial session is a condition precedent before a tribunal
or court can proceed to entertain any election petition or
matters relating thereto. See Okereke v. Musa Yaradua SC.
246/2007; See Gebi v. Dahiru (2012) 1 NWLR (1282) 560;
Awojobi v. INEC (2012) 8 NWLR (Pt 1303) 528; Ugba v
PDP (2013) All FWLR (Pt 686) 544
Within 7 days after the filing of the petitioner‟s reply on the
respondent or 7 days after the service of the respondent‟s
reply, the petitioner shall apply for the issuance of a pre-
hearing information sheet as in Form TF 008. The
application can be by a simple letter or by a motion on
notice or motion exparte. See Gebi v Dahiru & Ors (2012)
1 NWLR(Pt 1282) 560.

250
PROCEEDINGS AT THE PRE-HEARING SESSION
At the pre-hearing session, the tribunal or court shall enter
a scheduling order for-
1. Joining other parties to the petition;
2. Amending the petition or reply or any other
processes;
3. Filing and adoption of written addresses on all
interlocutory applications;
4. Additional pre-hearing sessions;
5. Order of witnesses and tendering of documents
that will be necessary for the expeditious disposal of
the petition; and
6. Any other matters that will promote quick
disposal of the petition in the circumstances.
An application for pre-hearing notice may be by simple
application by way of letter. It need not necessarily be by
way of a motion ex parte or on notice.

HEARING OF THE PETITION

The hearing of the petition shall be in open court. Hearing
shall continue from day to day and no formal adjournment
shall be necessary but the hearing shall be deemed
adjourned and may continue from day to day. Hearing may
continue on a Saturday or public holiday as circumstances
dictates.
Each party shall have 14 days to prove their case. A party
that fails to utilize its 14 days well to prove its case cannot
complain of denial of fair hearing. See A.C.N v. Lamido
(2012) 8 NWLR (Pt 1303) 560.

PERIOD OF LIMITATION FOR CONCLUSION OF

HEARING OF PETITON UP TO JUDGMENT
An Election Tribunal shall deliver its judgment in writing
within 180 days from the date of the filing of the petition.
See Section 285 (6) CFRN 1999 (as amended) See.

251
Marwa v. Nyako (2012) 6 NWLR (Pt 1296) 199; ANPP v.
Goni (2012) 7 NWLR ( Pt 1298) 147

PRE-ELECTION MATTERS

WHAT IS A PRE-ELECTION MATTER?

By Section 285 (14) of the 1999 Constitution amended by
the Constitution of the Federal Republic of Nigeria (Fourth
Alteration No. 21) Act, 2017, pre- election matters means
any suit by:
a) An aspirant who complains that any of the
provisions of the Electoral Act or any Act of the
National Assembly regulating the conduct of
primaries of political parties and the provisions of
the guidelines of a political party for the conduct of
party primaries has not been complied with by a
political party in respect of the selection or
nomination of candidates for an election;
b) An aspirant challenging the actions, decisions or
activities of INEC in respect of its participation in
an election or who complains that the provisions of
the Electoral Act or any Act of the National
Assembly regulating elections in Nigeria has not
been complied with by INEC in respect of the
selection or nomination of candidates and
participation in an election; and
c) A political party challenging the actions, decisions
or activities of INEC disqualifying its candidate
from participating in an election or complains that
the provisions of the Electoral Act or any Act of the
National Assembly regulating elections in Nigeria
has not been complied with by INEC in respect of
the nomination of candidates of political parties for
an election, timetable for the election, registration of
voters and other activities of the Commission in
respect of preparation for an election.
252
TIME FOR FILING PRE-ELECTION MATTERS
Every pre-election matter shall be filed not later than 14
days from the date of the occurrence of the event, decision
or action complained of in a suit. See S 285 (9) 1999
Constitution amended by Section 2 of the Constitution of
the Federal Republic of Nigeria (Fourth Alteration No. 21)
Act, 2017.
Where a preliminary objection or any other interlocutory
issue touching on the jurisdiction of the court in any pre-
election matter is heard, the court shall suspend its ruling
and deliver it at the stage of final judgment. Section 285 (8)
of the 1999 Constitution amended by Section 2 of the
Constitution of the Federal Republic of Nigeria (Fourth
Alteration No. 21) Act, 2017.

TIME FOR DETERMINATION OF PRE-ELECTION

MATTERS
A court in every pre-election matter shall deliver its
judgment in writing within 180 days from the date of filing
the suit. See Section 285 (10) of the 1999 Constitution
amended by Section 2 of the Constitution of the Federal
Republic of Nigeria (Fourth Alteration No. 21) Act, 2017.
An appeal from a decision in a pre-election matter shall be
filed within 14 days from the date of delivery of the
judgment appealed against. See Section 285(11) of the
1999 Constitution amended by Section 2 of the
Constitution of the Federal Republic of Nigeria (Fourth
Alteration No. 21) Act, 2017.
An appeal from a decision of a court in a pre-election
matter shall be heard and disposed of within 60 days from
the filing of the appeal. See Section 285(12) of the 1999
Constitution amended by Section 2 of the Constitution of
the Federal Republic of Nigeria (Fourth Alteration No. 21)
Act, 2017.

253
CHAPTER FIFTEEN
MATRIMONIAL CAUSES

In relation to marriage contracted under the Act, the

applicable laws are (i) the Matrimonial Causes Act, 1970
(which is the principal legislation), contained in Chapter
M7, Vol. 8, Laws of the Federation of Nigeria 2004 (ii)
Matrimonial Causes Rules, 1983 (iii) Marriage Act, Cap
115 Laws of the Federation 1958 (now Marriage Act,
Chapter M6, Vol. 8, Laws of the Federation of Nigeria
2004). The provision of Section 8 of the MCD 1970 is
significant in that the jurisdiction conferred on the court for
recognition of foreign rule of private intemationa11aw still
applies.
The MCA, 1970 applies to monogamous marriage (See
Section 48 of the Marriage Act) and not marriage
contracted under native law and customs.

COURTS WITH JURISDICTION:

Jurisdiction under the Act is conferred on the High Court of
a State by Section 2. (Within the context of the Federal
Capital Territory, the term „High Court‟ includes the High
Court of the Federal Capital Territory, Abuja).
Where however maintenance has been ordered in
proceedings in a High Court, a court of summary
jurisdiction can enforce payment in a summary manner.
Actions in relation to matrimonial causes can be
commenced in any High Court of the State of the
Federation so long as the person bringing the action is
domiciled in Nigeria. Such person need not be domiciled in
the State in which the action is brought and the marriage
need not be contracted there. (Section 2 (2). However, the
rule of "forum convenience" is introduced whereby the
court is empowered to transfer matrimonial causes to any
court in any State if it is in interest of justice that such
matrimonial cause be dealt with in that other State. See
254
Section 9; Adegoroye v. Adegoroye (1996) 4 NWLR (Pt.
433) 712.

BASIS OF THE JURISDICTION

Domicile is the basis of jurisdiction in a matrimonial cause.
Once a person is domiciled in any of the State of the
Federation, such person is deemed to be domiciled in
Nigeria.
Section 2 (3) Special provisions however exist which
define a wife's domicile. For instance before a deserted
wife can be said to be domiciled in Nigeria, she must have
been deserted in Nigeria, also a wife who is resident in
Nigeria at the date of instituting proceedings under the Act
and has been so resident for the period of three years
immediately preceding that date shall be deemed to be
domiciled in Nigeria at the date (Section 7).

MATRIMONIAL RELIEF:
A person domiciled in Nigeria can bring an action in the
High Court under the Act in respect of any of the
following: (a) dissolution of marriage (b) nullity of
marriage either on ground that the marriage is void or
voidable (c) judicial separation (d) restitution of conjugal
rights (e) jactitation of marriage. See Section 2 (2)

VOID MARRIAGE:
A marriage is void where any of the following
circumstances exists (i) any of the parties, is at the time of
the marriage, lawfully married to some other person. See
sections 35, 47, and 48 Marriage Act (ii) the parties are
within the prohibited degrees of consanguinity or affinity.
Where however parties who are prohibited by affinity wish
to marry, they may apply, in writing to a judge for
permission, (section 4) (iii) the marriage is not a valid one
under the lex loci celebrations, by reason of a failure to
comply with the requirements of the law of the place with
255
respect to the form of solemnization of marriage (iv) the
consent of one of the parties is not a real consent (a) if it
was obtained by duress or fraud or (b) that there is mistake
as to identity of the other party or as to the nature of the
ceremony performed or (c) that the party is mentally
incapable of understanding the nature of the marriage
contract. (v) Either or both parties are not of a marriageable
age.

VOIDABLE MARRIAGE:
A marriage is voidable, where at the time of the marriage,
either party is (i) incapable of consummating the marriage
(ii) of unsound mind or mentally defective or subject to
recurrent attacks of insanity and epilepsy. (iii) Suffering
from a venereal disease in a communicable form or (iv) the
wife is pregnant by a person other than the husband (per
alios) (See Section 5).

DISSOLUTION OF MARRIAGE:
A party to a marriage can present a petition for the
dissolution of the marriage if the marriage has broken down
irretrievably. Marriage is said to have been broken down
irretrievably where one or more of the following occur:
(a) That the respondent has willfully and persistently
refused to consummate the marriage.
(b) That since the marriage, the respondent has committed
adultery and that the petitioner finds it intolerable to live
with the respondent.
(c) That since marriage, the respondent has behaved in
such a way that the petitioner cannot be expected to live
with him or her.
(d) That the respondent has deserted the petitioner for a
continuous period of at least one year immediately
preceding the presentation of the petition.
(e) That the parties to the marriage have lived apart for a
continuous period of at least two years immediately
256
preceding the presentation of the petition and the
respondent does not object to a decree being granted..
(f) That the parties to the marriage have lived apart for a
continuous period of at leastthree years immediately
preceding the presentation of the petition.
(g) That the other party to the marriage has for a period of
not less than one year, failed to comply with a decree of
restitution of conjugal rights made under the Act.
(h) That the other party to the marriage has been absent
from the petitioner for such time and in such circumstances
as to provide reasonable grounds for presuming that he or
she is dead. S. 164 Evidence Act 2011.
Note that under section 30 (1) a petition for dissolution of
marriage cannot be presented within two years after the
date of the marriage except by leave of court. The leave
shall not ordinarily be granted unless to refuse to grant the
leave would impose exceptional hardship on the respondent
Akere v. Akere (1962) WNLR 328 Majekodunmi
v. Majekodunmi (1966) WNLR 191, see Section 30(3). In
the determination of application to grant leave, the court
shall consider the interest of any children to the marriage
and the probability of the reconciliation between the parties
before the expiration of two years after the date of the
marriage. Note that where (i) the respondent has willfully
and persistently refused to consummate the marriage or (ii)
since the marriage, the respondent has committed adultery
and the petitioner finds it intolerable to live with the
respondent or (iii) since the marriage the respondent has
committed rape, sodomy or bestiality, a petition for
dissolution of marriage can be brought without the need for
leave.

PARTIES TO A PETITION FOR DIVORCE

These are usually the spouses who have contracted the
marriage. Under certain circumstances however, there may
be a third party, who is the co-respondent and the petitioner
257
intends to claim damages against the third party- the co-
respondent.
The damages will not be awarded where the petitioner has
condoned the adultery; where adultery is not a ground for a
decree of dissolution of marriage; where adultery is
committed more than three years before the date of the
petition. (See Section 31).
Note that where it is alleged that a party to a marriage has
committed adultery with a specific person, such person
must be joined as a party. (Section 32).

DISABILITY TO PRESENT A PETITION FOR

NULLITY
Under Section 35, a person who suffers from the disability
or disease listed under S.5 (1) of the Act is incapable of
presenting a petition for nullity of marriage on the ground
that it is voidable by such act.

RECONCILIATION
Under the Act, the court is enjoined to give consideration to
the possibility of reconciliation, where, from the nature of
the case or attitude of the parties this is possible. For this
purpose the court shall adjourn proceedings, and with the
consent of the parties, interview them in chambers and
nominate a suitable person who can possibly effect
reconciliation. If however after fourteen days from the date
of adjournment, either of the parties requests that the
proceeding should continue, the court shall resume hearing.
Note that a judge who has acted as a reconciliator cannot sit
upon the case, where the hearing is to continue, except the
parties request that he does so. Evidence of anything said
on or any admission made in the course of reconciliation is
inadmissible in later proceedings. (See Section 11 - 14 of
the Act).

258
COMMENCEMENT OF PROCEEDINGS
A proceeding for a matrimonial cause is commenced by
petition. (See S.44 MCA 1970). However, we have seen
earlier that before the petition is filed in some cases, the
leave of court must be obtained by means of an application
(See S.30 MCA 1970).
The application for leave may be made ex-parte (See.
Order 4 Rule 1 MC Rules 1983) must be accompanied by
affidavit stating (1) the particulars of hardship that will be
imposed on the applicant if application is refused or the
depravity on the part of the respondent. (2) The grounds
upon which the proposed petition is to be based. (3)
Whether or not previous application, had been made and
whether it was successful or not. (4) Whether there is a
living child of the marriage. If so then the particulars of the
child and of the person with whom he/she resides. (5)
Whether reconciliation has been attempted and particulars
of it. (6) Particulars of any other circumstances that may
assist the court in determining whether reconciliation from
the evidence may succeed before the expiration of two
years after the marriage.

PETITION: This is filed by the petitioner and must be in

compliance with statutory FORM 6 - See sample as to the
form and content.

ANSWER: The respondent or co-respondent (where there

is one) must file an answer. Where an answer contains an
allegation of fact, such fact, may be denied by filing a reply
by the petitioner. The other party may then file a rejoinder.

DISCRETION STATEMENT: This statement is required

to be filed where a party to the proceeding has committed
adultery. It must be in accordance with Form 30. (See form
for the content). The statement must be signed by the party
who has made it, otherwise it will be void. It must then be
259
put in a sealed envelope with the suit No. of the proceeding
boldly written on it. The envelope will be signed by the
Legal Practitioner. (See Order 11 Rules 28 and 29
Matrimonial Causes Rules 1983).

COMPULSORY CONFERENCES: This is required to

be held where a defended suit includes issues relating to the
following: maintenance of a party to the proceedings,
settlement of property jointly owned, custody or
guardianship of an infant child to the marriage,
maintenance, welfare or advancement of such child and the
parties are not in agreement as to the order that should be
made by the court. The conference should also be held
where the proceedings relate to nullity of marriage. (See
Order 11 Rules 33-37).

SETTING DOWN THE SUIT FOR TRIAL

Counsel for the petitioner is required to make a request to
set down the suit for trial. The suit can either be defended
or undefended. If the suit is undefended, the request is
made by using (FORM 31). The counsel states the number
of days he will require for the trial. See Order 11 Rules 39.
Where the suit is defended the request is made by using
FORM 32 the counsel also states the number of days he
will require for trial.

DOCUMENTS TO ACCOMPANY A PETITION

(a) Notice of Petition: It gives instructions to the
respondent as to the steps to be taken by him/her after
service of the petition on him/her.
(b) Marriage certificate. To show the marriage exists.
(c) Acknowledgement of service: It is by this the
respondent or the co-respondent indicates that he is
interested in the suit and that he proposes to defend the
action. Without this a respondent or co-respondent has no

260
locus standing in the action, and the action will be
considered undefended.
(d) Verifying Affidavit: The purpose of this is to
confirm the truthfulness of the matters stated in the
petition.

INTERVENTION BY PERSONS NOT PARTIES TO

THE PROCEEDINGS
Under Section 62 and 65 MCA 1970, other parties can in
appropriate circumstances intervene in the proceedings i.e.
the Attorney-General where he feels that matters which
ought to be brought to the notice of the court have not been
brought. Apart from the Attorney General, other person
who may be able to prove facts relevant to the proceedings
that ought to be made known to the court can also
intervene. (See Form 42 and 43 in the Appendix to the
Matrimonial Causes Rules 1973).

DECREE
After the conclusion of the trial for dissolution of marriage,
the court may grant a decree nisi which will be made
absolute after the expiration of three months. The court
may also make any other order depending on what the
parties to the proceedings sought before the court. Note
however, that in order to enforce a decree against any
person, such person must have been served a copy thereof
personally and the service shall be:-
TAKE NOTICE that if you fail to carry out the act required
of you by the decree or order, within time specified in the
decree or order for carrying out those acts, further legal
proceedings shall be taken against you for the purpose of
carrying out those acts. See Order 17 Rule: 2 Matrimonial
Causes Rules 1983.

261
MODE OF ENFORCEMENT
Where payment of money is involved there are two modes
of enforcement of a decree or order of the court i.e.
1. Attachment.
2. Sequestration.
See Order 17 Rule 4 Matrimonial Causes Rules 1983.
In enforcing by these modes leave of the court that made
the decree must be sought.

262
FORMS AND PRECEDENTS

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. WD. 712/84

BETWEEN
MRS OLAJUMOKE BENDEL. …………PETITIONER
AND
AKINOLA BENDEL …………………RESPONDENT

TO: The above-named High Court

The Petitioner Mrs Olajumoke Bendel whose address is at
137, Awofeso Drive, Shomolu, Lagos Mainland, and
whose occupation is an Account Clerk with Telegram
Department, Yaba Branch petitions the Court for a decree
of dissolution of the marriage against the respondent
Akinola Bendel whose address is at 127, Martins Street,
Lagos and whose occupation is an Account Clerk with
Kilpatrick Limited, Isolo, Lagos Mainland.

MARRIAGE
1. The Petitioner then a spinster was lawfully married to
the respondent then a bachelor at St. Paul's Church,
Shomolu, Lagos Mainland on the 1st day of February,
1976.
2. The surname of the Petitioner immediately before
marriage was Miss Tunde.

BIRTH OF PETITIONER AND RESPONDENT

3. The Petitioner was born in 1952 in Lagos and the
Respondent was born in 1949 in Oyo State, Nigeria.

263
DOMICILE OR RESIDENCE
The Petitioner is within the meaning of the Act, domiciled
in Nigeria, the facts on which the court will be asked to
find that the Petitioner is so domiciled are as follows:
Previous to the marriage the Petitioner was residing with
Petitioner's Parents at 137 Awofeso Drive, Shomolu, Lagos
and has remained within the jurisdiction of Lagos since that
date.

COHABITATION
Particulars of the places at which and periods which the
petitioner and the respondent have cohabitated are as
follows:
Immediately after marriage at 73 Ogunbadejo Way,
Shomolu and finally 45 Wereni Drive Palmgrove, Lagos
Mainland.
The date in which and circumstances in which cohabitation
between the petitioner and the respondent first ceased are
as follows: On 5th December, 1981, the Respondent threw
the petitioner out of the matrimonial home at 75 Wereni
Drive, Palmgrove and cohabitation between the parties
ceased from that date.
Particulars relating to the children to whom order Rule 8
applies are as follows:
(i) Yetunde, female, born on 17th April, 1976.
(ii) Titilayo, female, born on 29th November, 1977.

PREVIOUS PROCEEDINGS:
8. Since the marriage there have not been any proceedings
in a Court between the Petitioner and Respondent.

CONDONATION, CONNIVANCE AND COLLUSION:

9 The Petitioner has not condoned or connived at the
grounds specified above and is not guilty of collusion in
presenting this petition.
264
PROPOSED ARRANGEMENTS FOR CHILDREN

EDUCATION: Yetunde now in Primary iii and Titilayo in

Primary 1, are currently attending Baptist Primary School,
Shomolu and will continue in the School and progress to
higher institution of learning in future to the best of their
ability.

MORAL OBLIGATION: The Petitioner will continue to

bring the two children up in the Christian faith.

MAINTENANCE: The Petitioner has been responsible for

the up-keep, School fees and medical expense of the
children namely: Yetunde and Titilayo and the Respondent
was ordered to bear the responsibility with effect from 1st
January 1984 and pay monthly allowance ofN40.00 Naira
per child subject to review.

CUSTODY: The children have been residing with the

Petitioner and her parents at 137 Awofeso Street, Shomolu
and will continue to live with the Petitioner at the same
address.

ORDER SOUGHT
10. The Petitioner seeks the following orders:
(a) A decree of dissolution of marriage on the ground that
since the marriage the Respondent has behaved in such a
way that Petitioner could not reasonably be expected to live
with the Respondent.
(b) Custody of the two children of the marriage now living
with Petitioner.
(c) The Respondent be ordered to pay the school fees and
maintenance of N40.00 Naira per month subject to review.
(d) Access to the Respondent during school holidays.

265
The Petition was settled by MATO, Legal Practitioner for
the Petitioner. Filed on the 21st day of February, 1984, by
MATO on behalf of the Petitioner, whose address for
service is at Western House, (2nd Floor), 8/1 0 Broad
Street, Lagos.

PETITIONER

IN THE HIGH COURT OF LAGOS

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

SUIT NO. WD/72/84

BETWEEN

MRS. OLAJUMOKE BENDEL………… PETITIONER

AND

AKINOLA BENDEL ………………….RESPONDENT

VERIFYING AFFIDAVIT
I, MRS. ELIZABETH OLAJUMOKE BENDEL Nigeria
citizen, female, Christian, account clerk residing at No.
137, Awofeso Drive, Shomolu, Lagos State, make oath and
state as follows:
1. That I am the Petitioner in this suit.
2. That I verify the facts stated in my petition by virtue of
my personal knowledge of same.
3. That the statements set forth in paragraph I to II of my
petition are true and correct to the best of my
knowledge, information and belief
………………………… Deponent
SWORN at the Lagos State High Court,
Registry, this ............ day of ..... 19 .

266
BEFORE ME
COMMISSIONER FOR OATHS
NOTICE OF PETITION
TO: Akinola Bendel, 127 Martins Street, Lagos.

TAKE NOTICE that a petition has been presented to the

above-named court by Mrs. Olajumoke Bendel of 137
Awofeso Drive, Shomolu, Lagos State instituting
proceedings for a decree of dissolution and also seeking
orders with respect to the children of the marriage.
A sealed copy of the petition is delivered to you with this
notice.
If you intend to consult a solicitor in connection with this
proceedings you should take to the solicitor all the
documents delivered to you.
The form of acknowledgement of service delivered to you
with this notice should be completed and signed by you and
either you or your Legal Practitioner should immediately
return it to the Petitioner's Legal Practitioner, an addressed
envelope is delivered to you for that purpose.
If you desire:
To deny any facts alleged in the petition
To allege any additional facts for the consideration of the
Court
To submit to the court that it should dismiss any of the
proceedings instituted by the petitioner or
To make any other submission to the court, you should file
an answer to the Petition.
If you wish to institute proceedings for dissolution of
marriage, nullity of marriage judicial separation or
restitution of conjugal rights, you may do so in an answer
to the petition filed by you. If you institute proceedings for
dissolution of marriage on the ground that the petitioner has
committed adultery, you may also by the answer, institute
proceedings for damages in respect of the adultery.

267
If you wish to institute proceedings for the purpose of
seeking an order with respect to maintenance for yourself, a
settlement, the custody or guardianship of infant children of
the marriage or the marriage, you should do so by filing an
answer to the petition. If you fail to do so you will have to
obtain the leave of the court to institute the proceedings.
If you do not wish to file an answer but wish to receive a
copy of each document filed in connection with the
proceedings you should file a notice of address for service.
However, unless you file an answer, you will not without
the leave of the court be entitled to furnish evidence to the
court, or address the court at the trial of the proceedings in
your absence.
Any answer or notice of address for service filed by you
must be filed within 14 days after you receive this notice or
within such extended period as the petitioner or the court
allows, and service of a copy of the answer of notice must
be effected in accordance with the Matrimonial Causes
Rules.
Dated this .................... day of ................ 19 ...................

SIGNATURE

268
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
MATRIMONIAL CAUSES (DIVORCE)
SUIT NO. WD.1712/84
BETWEEN
MRS. OLAJUMOKE BENDEL .………..PETITIONER
AND
AKINOLA BENDEL ………………….RESPONDENT

ACKNOWLEDGEMENT OF SERVICE
I. .................. acknowledge that on ............... day of 1984
at..............., I received:
A sealed copy of the Petition in these proceedings
Notice of Petition addressed to me

I also acknowledge that I am the person referred to in the

sealed copy of the Petition as the .................. and that I am
the person to whom the notice of petition is addressed.

Dated this ..................... day of ................. 19 ................

SIGNATURE
Statutory fee for Certificate is N 2.00 Naira

269
Pursuant to The Marriage Act
ST. PAULS (ANG.) CHURCH, SHOMOLU
Statutory fee for Certificate is N 2.00 Naira

Residence
Full Age Father‟s
When Names and Rank or at time of
Feb. 1976 N Condition Name and
Marriage Surnames Professional Marriage
Or Minor Surname
I

OLAJUMOKE 28TH FEB. EZEKIEL 27yrs Accounts 9, Wereni DANIEL

CO
BENDEL 1976 AKINOLA SINGLE Clerk Close BABLA

ELIZABETH 67, AMOSA

24yrs Accounts
4604 SATURDAY OLAJUMOKE Awofeso, OLA
SINGLE Clerk
BENDEL Shomolu ONANUGA

Married at. ............................................. St. Paul's (Ang.)

Church, Shomolu by (or before) me (SGD.) .... .

Marriage was celebrated between us (SGD.) EZEKIEL A

AWONIYI REGISTRAR OF MARRIAGE in the presence
of us
............................... LAGOS - NIGERIA
(SGD.) AA SAM
(SGD.) ........................... .

(SGD.) A T. ONANUGA
Any person who (1) falsifies any of the particulars O. this
certificates or (2)
uses a falsified certificate
as true, knowing it to be false is liable to prosecution. 1. (T.
O. COKER).
Registrar of Marriages in the District of Lagos that this is a
true copy of the entry No. (C) 046004 in the Register Book
of Marriage held in the Registry
3rd FEBRUARY
Witness my hand this ................. day of. ................ 1994
Signature and address for Service.

270
CHAPTER SIXTEEN
FUNDAMENTAL RIGHTS ENFORCEMENT

The new FUNDAMENTAL RIGHTS (ENFORCEMENT

PROCEDURE) RULES 2009 came into force on 1st
December, 2009.
See Federal Republic of Nigeria Official Gazette No 74,
Vol. 96, Lagos, 17th November, 2009

The Rules are part of the Constitution

Since the rules are made pursuant to the Constitution, they
too are part of the Constitution.
The Court of Appeal held in George Adumu v. The
Comptroller of Prisons, Federal Prisons, Aba & Ors (2013)
LPELR-22069 (CA) thus:

"It is also pertinent to state that it is trite that Rules

made pursuant to the Constitutional provisions also
possess Constitutional flavor, that is why they are
special provisions." Per Aji, JCA, (P. 34, paras. F-G)

See also Abia State University, Uturu v. Chima Anyaibe

(1996) 1 NWLR (Pt. 439) 646 at 660-661

The Rules must be complied with

Parties to fundamental rights applications must comply
with the Rules in all the steps they take in commencing and
defending the action.
The Supreme Court held in AGIP NIGERIA LTD V. AGIP
PETRO INTERNATIONAL & ORS (2010) 5 NWLR
(PART 1187) 348 at 419 H to 420 thus:
"More important is that where a statute or rule of Court
provides for a procedure for the commencement of an
action, failure to follow that procedure renders any suit
commenced otherwise incompetent”
Per Adekeye JSC
271
Recently the Court of Appeal reiterated this position in The
Commissioner of Police, Abia State & Ors v. Uzomba
Okara & Ors (2014) LPELR-23532(CA) thus

"The law is settled that where a statute or Rules are

put in place for compliance for institution or
commencement of an action or proceedings, the
method mode or procedure prescribed must be
religiously followed by a claimant/claimants in
approaching the court for redress otherwise the
action will be incompetent and will consequently
robs the court of jurisdiction, the action will be
deemed to have commenced without following the
due process of law”

See also Obasanjo v. Yusuf (2004) 9 NWLR (PT. 877) PG.

144 at PAGE 221
Pending cases filed under the 1979 Rules will continue
under the new rules

It is to be noted that all cases filed under the old rules

continue to be heard and determined as though they have
been brought under the 2009 Rules, they shall not be
defeated in whole or in part, or suffer any judicial censure,
or be struck out or prejudiced, or be adjourned or
dismissed, for failure to comply with these Rules provided
the applications are in substantial compliance with the
Rules.

See Order XV of the Fundamental Rights (Enforcement

Procedure) Rules, 2009,
And in MR. CHARLES OKECHUKWU & ANOR v.
ECONOMIC AND FINANCIAL CRIMES
COMMISSION (EFCC) & ORS (2014) LPELR-
24079(CA) the Court of Appeal held thus:

272
“It is trite and as rightly pointed out by the
Appellant the law guiding procedure for the
determination of rights and causes of action is the
current law and rules of procedure. They operate and
are construed retrospectively. Order XV above made
specific provision clarifying the position of the law
on the issue”
Per IYIZOBA,J.C.A

But where the hearing of the matter is concluded under the

old rules and a date is fixed for judgment, parties cannot
come back to re-litigate the action under the new Rules.
See Charles v EFCC (supra)

THE APPLICABLE LAWS

1. The CFRN 1999, especially Chapter IV
2. The African Charter on Human and People‟s Rights
3. Fundamental Rights (EP) Rules 2009
4. Other instruments in the African human rights
system
5. The UDHR and other instruments in the UN human
rights system
6. Municipal, regional and international bills of rights
See the Preamble, para. 3 FR(EP)R 2009

SOME INNOVATIONS IN 2009 RULES

1. The preamble
2. Court shall seek to give effect to it
3. Places responsibility on parties and counsel to help
court further the over-riding objectives
4. Introduces new over-riding objectives
a. The constitution esp. chapter iv, ACHPR be
expansively, purposely interpreted;
b. Court shall respect municipal, regional and
international bills of rights cited to it

273
Include ACHPR, other instruments in African
human rights system, UDHR, other instruments in
the UN human rights system;
c. Vulnerable persons are specifically provided for;
d. Public interest litigations are welcomed;
e. Standing is not an issue;
f. NGOs HRD can sue on behalf of others;
g. Courts shall pursue speedy and efficient
enforcement of fundamental rights;
h. Human rights cases be given priority; if liberty is
involved be treated as an emergency.

It is to be noted that the preamble to the Rules can always

be resorted as an aid while giving effect to the Rules as
decided by the Court of Appeal in AIGBOJE AIG-
IMOUKHUEDE v. DR PATRICK IFEANYI UBAH &
ORS (2014) LPELR-23965(CA)

“In construing the provisions of an enactment, such

as the 2009 Rules, a subsidiary legislation, the
preamble to the enactment, though not a part of the
enactment, can be resorted to as an aid to the
construction of the enactment where there is some
difficulty in arriving at the meaning of the words
used in the enactment” per JOSEPH SHAGBAOR
IKYEGH, J.C.A

MAJOR DIFFERENCES BETWEEN 1979 AND 2009

RULES
1. Requirement of standing now broadened
2. No limitation period
3. No requirement for leave
4. No one mode of application
5. There is requirement for written address
6. No filing of affidavit of service
7. How service is to be effected – now stated
274
8. Non – compliance is now irregularity (except as to
the mode of commencing the action or as to the
subject matter – Order IX
9. Amicus curiae now allowed to be heard – Order XIII
Rule 2
10. An exparte application can first be made in cases of
urgency relating to threat to life or liberty
11. Preliminary objection is taken together with the
main application for enforcement – Order VIII
12. Substituted service can be applied for without
attempt of service – Order V Rule 7
13. Fundamental rights application to be expeditiously
entertained by court

COMMENCEMENT OF ACTION
See Order II
What is the cause of action here?
The cause of action for the purposes of commencing an
action for enforcement of fundamental rights must be:
1. The breach of rights under Chapter IV of the 1999
Constitution
2. The breach of the rights under African Charter on
Human and Peoples‟ Rights (Ratification and
Enforcement) Act Cap A9, LFN, 2004
Where the breach is not of both or either of the above the
court lacks jurisdiction
See WAEC v Akinkunmi (2008) 9 NWLR pt. 1091, 151;
Sea Trucks Nig Ltd v Anigboro (2001) SC (pt 1) 56. And
therefore a chieftaincy matter cannot be brought under the
Rules. See Governor of Kogi v Col. Hassan Yakubu (Rtd)
(2001) 6 NWLR (pt 710) 521 and Tukur v Government of
Taraba State (1997) 6 NWLR (510) 549
THE MAIN CLAIM AND RELIEF MUST BE A
BREACH OF CHAPTER IV
If the main claim is breach of Chapter IV or ACHPR, can
other reliefs not on fundamental rights be sought under it?
275
The Supreme Court held in Alhaji Tsoho Dan Amale v
Sokoto Local Government & Ors LER (2012) SC 290/300
thus:

"A trial court will only have jurisdiction to proceed

to enforce a fundamental right of an applicant
guaranteed under Chapter IV of the Constitution if
the main relief discloses a breach of the fundamental
right of the applicant."
Per J.A Fabiyi JSC

MODE OF COMMENCING ACTION

See Order II Rule 2
Can be commenced by any mode accepted by the court.
See Ogugua v The State (1998) HRLRA 167 at 187

What the applicant must file

See Order II Rule 3
1. Chosen originating process (Motion on notice)
2. A Statement setting out the name and description of
the applicant, the relief sought and the grounds upon
which the reliefs are sought
3. Affidavit setting out the facts upon which the
application is made
4. Written address
Noted that any application for enforcement of fundamental
rights, which is not supported by a Statement, is materially
defective and should be struck out.
Cunsin Nig. Ltd v Inspector General of Police (2008) 38
WRN 48
RELIEFS SOUGHT
To successfully challenge any breach of fundamental rights
the relief sought also must be formulated from Chapter IV
of the the Constitution and or the African Charter on
Human and Peoples‟ Rights (Ratification and Enforcement)
Act Cap A9, LFN, 2004
276
GROUNDS UPON WHICH THE RELIEFS ARE
SOUGHT
The grounds upon which the reliefs are sought must be
expressly stated to disclose the breach being complained of
by the applicant. See Economic and Financial Crimes
Commission v Ekeocha (2008) 4 NWLR (Pt. 1106) 161

Under Order VI the statements and affidavits can be

amended upon application and further affidavits may as
well be used if they deal with new matters arising from the
counter affidavit of any party to the application

AFFIDAVIT IN SUPPORT
See Order II Rule 4
The application must be supported by affidavit deposed to
by the applicant or any person authorized by him.
It should be noted that where applicant is not in custody or
indisposed he must depose to the affidavit himself. See
Ukegbu v NBC (1997) 14 NWLR (Pt. 1055) 551 at 579

APPLICANT’S WRITTEN ADDRESS

See Order II Rule 5; which must accompany every
application.
A respondent opposing the application must comply with
Order II Rule 6 by filing counter affidavit and written
address within 5 days of being served with applicant‟s
processes. See also Order II Rule 7 on applicant‟s Address
on Point of Law and Further Affidavit, if any.
SERVICE OF THE PROCESSES
See Order V generally.
Service is personal by Sheriff, Deputy Sheriff, Bailiff or
other officer of the court. However, service on respondent‟s
agent amounts to personal service on the respondent. See
also Order V Rule 5 on service on police officer or prison
superintendent.

277
SUBSTITUTED SERVICE
With or without an attempt at personal service, if it appears
to the court that personal service cannot be conveniently
effected, the court may order substituted service. See Order
V Rule 7
Service outside the state in another state must comply with
section 97 of the Sheriffs and Civil Process Act. See Ngige
v Achike

HEARING THE APPLICATION

See Order IV generally.
Note that the application shall be fixed for hearing within 7
days from the day the application was filed.
Adjournment is also allowed where it is extremely
expedient, upon such terms as the court may deem fit to
make, upon being guided always by the urgent nature of the
applications under the rules. See Order IV Rule 2. See also
Fawehinmi v Abacha (1996) 9 NWLR (Pt. 475) 701 at 729
Hearing is based on affidavits and written address of the
parties. Oral argument of not more than twenty minutes
shall be allowed on matters not contained in the parties‟
written address provided such matters came to the party‟s
knowledge after filing his written address. See Order XII
Rule 2.
Note that a party who did not file written address shall not
be allowed to make oral argument.
See Mini Lodge Ltd v Ngei (2007) 4 WRN 54
EXPARTE APPLICATION
Order IV Rule 3 provides for making an application ex
parte for interim injunction or maintaining status quo, if the
court is satisfied that exceptional hardship may be caused
to the applicant before the service of the main application.
This can be done especially in cases involving the
applicant‟s life or liberty. Nevertheless, the ex parte
application must be supported with an affidavit and

278
affidavit of urgency and written address and must be
brought and filed together with the main application.
See Order IV Rule 4(a) and (b) and the Supreme Court‟s
decision in Universal Trust Bank Ltd v Dolmetch
Pharmacy (Nig) Ltd (2007) 42 WRN 1
The court can grant the interim reliefs provided under
Order IV Rule 4(c). See also Order IV Rule 6 on the
discharge of the interim order.

PRELIMINARY OBJECTION
See Order VIII generally.
A person challenging the court‟s jurisdiction must in
addition to filing his notice of preliminary objection file his
counter affidavit and written address to the main
application. On the hearing date, the preliminary objection
and the main application are to be heard at the same time.

APPEALS
No express provisions on appeal under the rules but appeals
generally go to the Court of Appeal. See section 241(1) of
the 1999 Constitution. And appeal from Court of Appeal
lies to the Supreme Court. See section 245 of the 1999
Constitution.

COURTS WITH JURISDICTION

See section 46 of the 1999 Constitution and Order II
generally
Read the following-
1.Tukur v. Government of Gongola State (1989) LPELR –
3272 where the Supreme Court held thus
“The matters listed above and in the Constitution in respect
of which jurisdiction has been expressly conferred on the
Federal High Court lie within the competence of the
Federal High Court with regard to the enforcement of
Fundamental Rights provisions of the Constitution of the
Federal Republic of Nigeria, 1979. Outside those specific
279
matters, the Federal High Court is incompetent to exercise
jurisdiction. …

2. Grace Jack v. University of Agriculture, Makurdi (2004)

LPELR – 1587 (SC) where 15 years after Tukur‟s case the
Supreme Court held that in application for enforcement of
fundamental rights “....both the Federal High Court and the
High Court of a State have concurrent jurisdiction. An
application may therefore be made either to the Judicial
Division of the Federal High Court in the State or the High
Court of the State in which the breach occurred, is
occurring or about to occur.”

3. Gafar v Governor of Kwara State (2007) 20 WRN

170 decided after Grace Jack in which the Supreme
Court reiterated Tukur and held that the Federal
High Court doesn‟t have jurisdiction on application
for enforcement of fundamental rights involving
findings of Commission of Inquiry established by
Kwara State Government

And recently Adetona v. Igele General Enterprises Ltd

(2011) 7 NWLR (Pt 1247) 535 at 564 in his concurring
judgment I.T Muhammad JSC stated thus:

“There are some areas where both the Federal High

Court and the High Court of a state enjoys
concurrent jurisdiction. Example of such is the
enforcement of Fundamental Human Rights
conferred in Chapter IV of the Constitution…
Therefore it is my understanding that where a
person‟s fundamental right is breached, being
breached or about to be breached, that person may
apply under Section 46 (1) to the judicial division of
the Federal High Court in the state or the High Court
of the state or that of the Federal Capital Territory in
280
which the breach occurred or is occurring or about
to occur. This is irrespective of whether the right
involved comes within the legislative competence of
the Federation or the State or the Federal Capital
Territory. See the case of Minister of Internal
Affairs v. Shugaba (1982) 3 NCLR 915

It has to be noted that the exercise of this

jurisdiction by the Federal High Court is where the
fundamental right threatened or breached falls
within the enumerated matters on which the court
has jurisdiction. Thus, fundamental rights arising
from matters outside its jurisdiction cannot be
enforced by the Federal High Court. See Tukur v.
Government of Gongola State (1989) 3 NSCC 225.
Equally, a High Court of a State shall lack
jurisdiction to entertain matters of fundamental
rights, although brought pursuant to section 46(2) of
the Constitution where the alleged breach of such
matters arose from a transaction or subject matter
which fall within the exclusive jurisdiction of the
Federal High Court as provided by Section 251 of
the Constitution.”

Nevertheless, it should be noted that the holding of the

Supreme Court in Grace Jack that in fundamental rights
applications both the Federal High Court and State High
Court have concurrent jurisdiction is obiter. That is why in
DG SSS v. OJUKWU (2006) 13 NWLR (Pt. 998) 575 the
Court of Appeal expressly departed from the Supreme
Court‟s decision in Grace Jack. It held that:

“The pronouncement by the Supreme Court in Grace

Jack v University of Agriculture Makurdi (supra)
that both the Federal High Court and a High Court
of a State have concurrent jurisdiction when a
281
person‟s fundamental human rights is breached
cannot be relied upon because it was an Obiter”

Recently, the Supreme Court decided in FUT, Minna & Ors

v. Olutayo (2018) 7 NWLR (Pt. 1617) 176 on the
concurrent jurisdiction of the High Court of State and
Federal High Court on enforcement of fundamental right
per EKO, JSC at 192, thus:

“In the resolution of this issue, I would like to point

out that Section 42(1) of the Constitution of the
Federal Republic of Nigeria, which I reproduced
above, has provided the Court for the enforcement
of the fundamental rights as enshrined in Chapter
IV. A person whose fundamental right is breached,
being breached or about to be breached may
therefore apply to a High Court in that State for
redress. Order 1 Rule 2 of the Fundamental Rights
(Enforcement Procedure) Rules, 1979 - defines "a
Court" as meaning "the Federal High Court" or the
High Court of a State". What this means is this, both
the Federal High Court and the High Court of a
State have concurrent jurisdiction. An application
may, therefore, be made either to the judicial
division of the Federal High Court in the State or the
High Court of the State in which the breach
occurred, is occurring or about to occur. See also
GAFAR v. GOVERNMENT OF KWARA STATE
(2007) ALL FWLR (Pt.360) 1415. On this issue, I
have no hesitation agreeing with the respondent's
counsel that the settled position of the law that the
jurisdiction to entertain actions for the enforcement
of any of the fundamental rights guaranteed by the
Constitution in Chapter IV thereof is concurrently
vested in the Federal High Court and the State High
Court. This is without with prejudice to whether any
282
of the parties is either the Federal Government or an
agent or agency of the Federal Government. NEPA
v. EDEGBERO (supra) is accordingly inapplicable
as it does not deal with enforcement of fundamental
rights. On the other hand, GARBA v.
UNIVERSITY OF MAIDUGURI (supra); JACK v.
UNIVERSITY OF AGRICULTURE (supra) as well
as GAFAR v. GOVERNMENT OF KWARA
STATE (supra) are very apposite.

Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C put it

more succinctly in her concurrent judgment thus:

“It is quite evident that Section 46(1) above refers to

“a High Court in that State” without any restriction.
The violation of a citizen‟s fundamental rights is
viewed so seriously that the framers of the
Constitution sought to ensure that no fetters are
placed in the path of a citizen seeking to enforce his
rights. In other words, the provision ensures that he
has access to any High Court as long as it is within
the State in which the alleged infraction has
occurred. Indeed, it would negate the principle
behind the guarantee of fundamental rights if a
citizen were to have any obstacle placed in the path
of enforcing those rights. The Fundamental Rights
(Enforcement Procedure) Rules 1979 (applicable at
the time the suit was filed at the trial Court) were
made pursuant to Section 42(3) of the 1979
Constitution (now Section 46(3) of the 1999
Constitution) and therefore have constitutional
flavour. Order 1 Rule 2 of the Fundamental Rights
(Enforcement Procedure) Rules defines “Court” as
the Federal High Court or the State High Court.
There is no ambiguity in the provisions of the
Constitution or of the Fundamental Rights
283
(Enforcement Procedure) Rules referred to above
regarding which Court has jurisdiction to entertain
an application for the enforcement of fundamental
rights. The decision of this Court in the case of Jack
v University of Agriculture, Makurdi (2004) ALL
FWLR (Pt.200) 1506 @ 1518 B-D has put the
matter to rest in the following dictum of Katsina-
Alu, JSC (as he then was) to wit: “In the resolution
of this issue, I would like to point out that Section
42(1) of the Constitution of the Federal Republic of
Nigeria which I have reproduced above has
provided the
Court for the enforcement of the fundamental rights
as enshrined in Chapter IV. A person whose
fundamental right is breached, being breached or
about to be breached may therefore apply to a High
Court in that State for redress. Order 1 Rule 2 of the
Fundamental Rights (Enforcement Procedure)
Rules, 1979 which came into force on 1 January
1980 defines “Court” as meaning “the Federal
High Court or the High Court of a State”. What this
means is this, both the Federal High Court and the
High Court of a State have concurrent jurisdiction.
An application may therefore be made either to the
judicial division of the Federal High Court in the
State or the High Court of the State in which the
breach occurred, is occurring or about to occur.”
(Underlining mine for emphasis)

It is noted that the above decision overruled the Court of

Appeal decision in Jack V. University of Agriculture
Makurdi (2000) 11 NWLR (Pt.679) 658 relied upon by
learned counsel for the appellants where it was held that the
Federal High Court has exclusive jurisdiction to determine
fundamental rights matters. Under the doctrine of stare
decisis the extant position of the law on the issue is as

284
stated in Jack v University of Agriculture Makurdi (supra).
With due respect to learned counsel for the appellants, had
diligent research been done, this issue would not have been
raised at all”

Due to the seemingly contradictory decisions on this vexed

issue, it becomes pertinent to re-examine the two leading
but conflicting decisions. A cursory look at the two
decisions, i.e. Tukur and Grace Jack seems to suggest that
while in Tukur’s case, the court considered both S. 42(1)
and (2) of the 1979 Constitution which is ipssissima verba
with S. 46(1) and (2) of the 1999 Constitution, their
Lordships only laid emphasis on S. 42(1) in Grace Jack
and the host of decisions following it that have been
discussed above hence the seeming confusion. S. 46(2) of
the Constitution provides:

Subject to the provisions of this Constitution, a High Court

shall have original jurisdiction to hear and determine any
application made to it in pursuance of the provisions of this
section and may make such orders, issue such writs and
give such directions as it may consider appropriate for the
purpose of enforcing or securing the enforcement within
that State of any right to which the person who makes the
application may be entitled under this Chapter.

While S. 46(1) vests both courts with concurrent

jurisdiction over fundamental rights matters, S. 46(2)
makes the jurisdiction subject to the provision of the
Constitution. In Tukur’s case, Obaseki, JSC emphasized
that,

“section 42(2) of the Constitution has by the opening

phrase “subject to the provisions of this
Constitution” limited the jurisdiction to enforce the
fundamental rights provision to matters in respect of
285
which the Constitution has granted or invested it
with jurisdiction.”

In view of decisions after Tukur‟s case cited above that

considered both provisions, it is safer to rely on Tukur’s
decision as far as the concurrent jurisdiction of both courts
on issue of fundamental rights is concerned until such a
time when the apex court shall have considered both Ss.
46(1) and (2) of the Constitution and decided otherwise on
same.
Note: Under S. 254(C)(1)(d) of the 1999 Constitution as
amended, the National Industrial Court has exclusive
jurisdiction notwithstanding SS. 251, 257 and 272 and any
other provision in the Constitution, to determine
fundamental rights matters bordering on or arising from
labour and labour-related issues.

OTHER RECOGNISED GLOBAL AND REGIONAL

MECHANISMS FOR ENFORCEMENT OF
FUNDAMENTAL RIGHTS
It is also important to note that, for the significance of
fundamental rights, there are other globally recognized
universal and regional avenues and mechanisms for
enforcement of fundamental rights. For instance, under the
United Nations there is the Office of the United Nations
High Commissioner on Human Rights (OHCHR) and the
Human Rights Council which replaced the Commission on
Human Rights. While the former is a leading human rights
entity within the UN that assists governments to fulfil their
human rights obligations and individuals to claim their
rights, the latter is an intergovernmental organization
consisting of over 40 State Parties responsible for
promotion and protection of human rights all over the
world. The Human Rights Council established Special
Procedures of independent human rights experts that
undertake country-visits, receive and act on individual
286
complaints, conduct thematic studies, convene expert
consultations on human rights and contribute generally to
the development of human rights standards.
Article 1 of the Protocol to the African Charter on Human
and Peoples' Rights also established the African Court on
Human and Peoples‟ Rights. The Court has jurisdiction
over all cases and disputes submitted to it on the
interpretation and application of the African Charter on
Human and Peoples' Rights, the Protocol and any other
relevant human rights instrument ratified by the States. It
receives complaint from NGOs and individuals on human
rights violations against States that declare/accept the
competency of the court. As at 2019, 30 States have ratified
the court‟s Protocol but only 9 made declaration of the
competence of the court to receive complaints against
them.
The ECOWAS Court of Justice (Community Court of
Justice) also receives complaints from NGOs and
individuals relating to any violation of any human rights
treaty ratified by any State member of ECOWAS.

287
CHAPTER SEVENTEEN
COSTS AND SANCTIONS

COSTS
See O. 53 (Lagos, 2019); O. 56 (Abuja, 2018);

The purpose of costs is mainly to compensate one of the

parties, especially the successful party for the expenses he
incurred in the action. The expenses can be that he incurred
as a result of paying his legal practitioner (solicitor‟s and
own client cost) or for filing the action in court, for service,
etc (cost as between parties). Under the Lagos Rules, the
principle to be observed in fixing costs is that the party who
is in the right is to be indemnified for the expenses to
which he has been necessarily put in the proceedings, as
well as compensated for his time and effort in coming to
court. Such expenses shall include:

a. The cost of legal representation and assistance of the

successful party to the extent the judge determines that
the amount of such cost is reasonable

b. the travel and other expense of parties and witnesses to

the extent that the Judge determines that the amount of
such expenses is reasonable and such other expenses
that the judge determines ought to be recovered, having
regard to the circumstances of the case

Note that, when costs are ordered to be paid, the judge

shall, if practicable summarily determine the amount to be
paid at the time of delivering his judgment or making the
order. See O. 53 r. 1(3) (Lagos, 2019)
Where costs are ordered to be paid, they become payable
forthwith and shall be paid within 7 days of the order
otherwise defaulting party or his Legal Practitioner may be

288
denied further audience in the proceedings. See O. 53 r.
10(2) (Lagos, 2019).

DISCRETION OF THE COURT

The exercise of power to award costs is provided by the
rules and is at discretion of the court upon considering the
circumstances of each case.
In the case of N.N.P.C. v. KLIFCO NIGERIA Ltd. (2011)
10 NWLR (PART 1255) 209 the Supreme Court held thus
"The award of costs is entirely at the discretion of
the court, costs follow the event in litigation. It
follows that a successful party is entitled to costs
unless there are special reasons why he should be
deprived of his entitlement. In making an award of
costs, the court must act judiciously and judicially.
That is to say with correct and convincing reasons"
at page 234 H to 235 A-B per Rhodes-Vivour, JSC

It should be noted that the exercise of discretion in the

award of costs must not be affected by questions of
benevolence or sympathy. See Haco Ltd v S.M Daps Brown
(1973) 1 NMLR 158

WHAT TO CONSIDER IN AWARDING COSTS

These were enunciated by the Supreme Court in Adelakun
v. Oruku (2006) 11 NWLR Pt. 992 p. 625 at 650,
They are:
(a) the summons fees paid
(b) the duration of the case
(c) the number of witnesses called by the successful party
(d) the nature of the case of the parties, the plaintiff's case
or the defence of the defendant, whether frivolous or
vexations
(e) cost of legal representation
(f) monetary value at the time of incurring the expenses;
and
289
(g) the value and purchasing power of the currency of
award at the time of the award
On the meaning of costs and the rationale behind order of
costs see University of Uyo & Ors v. Dr. Edet P. Akpan
(2013) LPELR-19995(CA)

TYPES OF ORDERS ON COSTS

1. Order as to cost of action – generally made at the
end of an action against one party to pay the other
costs to indemnify him for his expenses on the basis
of party to party costs
2. No order as to costs – this means none of the parties
should pay the other any costs. Each party is to bear
his own costs
3. Costs in the course – is made in interlocutory
proceedings whereby the party who at the end of the
proceedings is ordered to pay cost shall as well pay
the costs of the interlocutory proceedings to the
other party. See Dike v Union Bank (1987) 4
NMLR 958
4. Cost in any event – is made in interlocutory
proceedings whereby a party as a result of his failure
to comply with the rules brings an application to
regularize his failure. Upon entertaining the
application the court may order such party to pay
cost in any event, whether or not he succeeds at the
end of the of the substantive matter. If he succeeds
at the end of the action, he pays the other party the
cost of the interlocutory application and the other
party pays him the cost of the substantive action.
And if he lost, he pays to the other party both the
cost of the interlocutory application and the cost of
the substantive action.

290
SANCTIONS
Unlike costs, sanctions are penalties prescribed by the rules
of court to be paid by litigants to court for their non-
compliance with the rules. Sanctions are prescribed in a
number of provisions of the rules in both Lagos and Abuja
and rules of courts in many states.

SANCTIONS TABLE
UNDER LAGOS 2019 AND ABUJA 2018 RULES
S/N EXAMPLE OF SANCTION IN SANCTION IN ABUJA
DEFAULT/NON LAGOS
-COMPLIANCE
1 Non-compliance Under O. 7, 2019 Under O. 5, 2018
At the beginning – At the beginning or at any
Nullifies the stage of the proceedings –
proceedings doesn‟t nullify
At any stage - is an proceedings
irregularity Court can set aside the
proceedings wholly or
partly or order for costs
2 Late appearance Under O. 11, 2019 O. 56 r. 1 (2018)
By defendant – ₦200 for each day of
additional ₦1000 default; Also, costs
for each day of ordered by the court re
default payable within 7 days of
the order. But after the 7
days the unpaid costs will
attract additional ₦100 for
each day of default until it
is paid. O. 56 r. 9(2),
(Abuja, 2018)

291
3 Filing of frivolous Not specified, but O. 2 r. 2(2)(e) (Abuja,
suit general provisions 2018) & Form 6
on award of cost (Certificate of Pre-action
against legal Counseling)
practitioner for Counsel shall be
certain defaults. personally liable to pay
NB - Questionable the costs of the
cases and abuse of proceedings where it turns
process sanctioned out to be frivolous.
under the Rules of NB - Questionable
Professional cases and abuse of
Conduct, process sanctioned under
R.24(2)&(3) the rules of professional
conduct, R.24(2)&(3)

NB – check the rules to find out other instances of sanctions

292
ETHICAL ISSUES
1. Duty to appropriately date and sign documents
Aiki v Idowu (2006) All FWLR (Pt. 293) 361 CA -
unsigned statement of claim is no S/C at all. See also
Okafor v Nweke (2007) All FWLR (Pt. 368) 1016 SC.

2. Duty to properly and appropriately draft processes

in a simple, very clear, communicating and error- free
language. See
Umar v Governor of Kano State (2006) All FWLR Pt 322
1516 CA

3. Duty to assist the court to do justice.

In Gbenga Adekoya v. The State (2014) LPELR-
22933(CA) the Court of Appeal held thus:

"It is trite that counsel are ministers in the temple of

justice and as officers of the court, they have a duty
to assist the court in doing justice rather than
misleading it. Counsel also has the bounden duty to
conduct his client's case to the best of his ability, and
where blunder is committed by such counsel, the
client cannot be heard to complain. So long as
counsel acts within the context of his brief or
apparent or even ostensible authority, the client is
bound by the outcome

4. Duty to apply care and diligence and to avoid

preventable pitfalls.

In Alhaji Isiyaku Yakubu v. Federal Mortgage Bank of

Nigeria Limited (2014) LPELR-24188(CA) the Court of
Appeal reiterated this duty thus

''...Counsel must apply due care and diligence, and

exhibit industry in legal practice so as to avoid such
293
preventable pitfalls that have an unfortunate
backlash and repercussion on litigants who, have
fought this case to this level, only to be sent out for
such an issue which though, fundamental, could
have been adequately taken care of much earlier
with more assiduousness and thoroughness”

5. Duty to be good advocate

In Dike Geo Motors Limited & AnO. v. Allied Signal Inc. &
AnO. CITATION: (2006) LPELR-9812(CA) the Court of
Appeal held thus

"It is therefore the duty of every counsel involved in

the case to always act as a good advocate and as a
Minister in the temple of justice to take all necessary
steps to avoid delay of justice which is said to be
tantamount to a denial of justice."

294
CHAPTER EIGHTEEN
CASE STUDIES

CASE STUDY 1
Crown Kitchen Ltd sued K & T Ltd at the Lagos State
High Court sitting at Ikeja, seeking a declaration that the
contract between them and the partnership entered into by
the parties was still valid and subsisting. Crown Kitchen
also sought an order of perpetual injunction restraining K &
T Ltd from converting 20 vehicles to its sole use and
sought an order directing a division of the vehicles among
the parties. Crown Kitchen Ltd also sought for payment of
the sum of N2.17 million being proceeds of a contract
performed by the parties from March 2018 to December
2018. The agreement between the parties had been entered
into in Ikeja, although the actual performance of the
contract was intended to be in Ikoyi, Lagos where K & T
had its offices. A clause in the contract Agreement
stipulated that the parties shall submit to conciliation before
resorting to litigation. Crown Kitchen Ltd heard that cases
are dealt with faster at the Magistrate‟s Court because it is a
court of summary jurisdiction. But Okonkwo & Co., their
counsel, filed an originating summons at the Lagos High
Court, Ikeja. On being served with the originating
summons, K & T entered a conditional appearance and
subsequently filed a preliminary objection contending the
following:
a) that the High Court sitting in Ikeja lacked
jurisdiction because the matter had not first been
submitted to conciliation
b) that the action was commenced in the wrong judicial
division
c) that the matter was commenced with a wrong
originating process.
The court overruled all the grounds of the preliminary
objection.
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Crown Kitchen Ltd then brought an application for
Interlocutory injunction to restrain K & T from converting
the 20 vehicles to their sole use. K & T did not file any
Counter Affidavit and on the day fixed for hearing of the
application, the Counsel to Crown Kitchen contended that
K & T cannot be heard since they did not file a counter
affidavit. In Crown Kitchen‟s statement of claim, they
failed to plead the contract agreement.

After the trial, the judge in his judgment granted the

claimant‟s claim. K & T are aggrieved and have appealed.
They intend also to include their grievance over the
overruling of the preliminary objection in the substantive
appeal. K & T applied for stay of execution to the High
court‟s judgment and while the application was pending,
counsel to Crown kitchen applied for a writ of fifa and
executed the judgment.

Some days before the date fixed for hearing of the appeal,
the counsel to Crown Kitchen filed and served a
preliminary objection on the ground that leave of court was
not sought before the filing of the appeal. The appellant, K
& T in their notice of appeal raised the issue of the
illegality of the contract for the first time. They had 4
grounds of appeal in their notice of appeal. They
formulated 12 issues for determination from these 4
grounds. On the date fixed for hearing of the application,
counsel to the appellant (K&T) was not present in court
although he had filed his appellant‟s brief within time. The
justices of the Court of Appeal, Lagos allowed the appeal
in part.

CASE STUDY 2
In March, 2018, the Plaintiff, Mrs. Kayuba Ada, (now
Respondent) entered into a contract in Lagos with

296
Agricultural Bank PLC to supply five hundred tons of
Cashew nut worth ₦10,000,000:00 (Ten million Naira)
only to the Bank for onward exportation to Malaysia. The
term of the contract is that down payment of
₦3,000,000:00 will be made before the exportation and that
the balance will be paid when the goods reaches its destination.
Subsequent to this, the Plaintiff received the sum
of ₦3,000,000:00 and supplied the goods to its
destination in Malaysia. Since then, Agricultural Bank
has refused to pay the Plaintiff the balance sum despite
letters of repeated demands sent.
However, on 1st June, 2018, Agricultural Bank wrote a
letter to the Plaintiff of its decision not to pay the balance
because the goods supplied were inferior to the standard
requested for. The Plaintiff, on 19th June 2018, instituted
an action at the Lagos State High Court against Agricultural
Bank claiming the balance of ₦7,000,000:00, ₦4,000,000:00
special damages and ₦3,000,000:00 as general damages.
Pleadings were filed and exchanged. Trial commenced,
each party opened and closed its case and the court
adjourned for judgment.

Before the judgment could be delivered, Agricultural Bank

became a no-going concern and was taken over by the
NDIC with a view to winding up the Bank. NDIC brought
an application to be joined as a Defendant and as a
necessary party and the court granted the application.
Thereafter, NDIC brought a preliminary objection for,
among others:
(i) an Order of Court dismissing the action because
it is statute barred,
(ii) an Order of Court dismissing the action because
it is only the Federal High Court that has the
jurisdiction to entertain the matter since

297
Agricultural Bank is in the process of being
wound-up.

The trial court refused and dismissed the application of

NDIC. The Court then delivered its judgment on 10th June
2019 and granted all prayers of the Plaintiff. The Defendant
did not appeal against the judgment and ruling until 18th
September, 2019 when it has approached you to help her
appeal against the ruling and judgment.

CASE STUDY 3-Recovery of Premises

Chief Olowo is the landlord of Koko Lodge, consisting of 6
flats of 4 bedrooms each. Mr. Dauda Kareem is a tenant in
respect of one of the flats. The agreement between the
parties is that the tenancy shall be a yearly tenancy
commencing on 1st January every year at a rent of
₦500,000 per annum. After paying rent for the first 2 years
in 2012 and 2013, Mr. Kareem has refused to pay further
rent but remains in possession till date. Kareem throws noisy
parties in the house every week to the annoyance of
neighbours. Chief Olowo is fed up and intends to recover
possession of the premises from Mr. Kareem.

CASE STUDY 4-Recovery of premises

By an agreement dated the 31st day of December, 2013,
Okon Banga puts John Thunder in possession of his two
bedroom premises at Block 2 Flat 10, Katagun Street,
Wuse – Abuja in consideration of an agreed rent from year
to year with effect from 1st day of January 2014.

John Thunder could only pay for the first year of the
tenancy and thereafter fell into arrears of rent as his
business suffered a financial setback. About the month of
May 2015, Okon Banga orally instructed his solicitors to
take legal steps to recover possession of the premises from

298
John Thunder for non-payment of rent pursuant to which
instructions his solicitors issued a quit notice dated the 1st
day of June 2015 and served the same on John Thunder on
the 30th day of July, 2015 with the 30th day of December
2015 as the expiry date of the quit notice. John Thunder
refused to yield up possession of the premises even after
the expiration of the notice to quit.

During the hearing of the action, Counsel to John Thunder

raised an objection to the competence of the suit on
grounds that a further step ought to have been taken by the
solicitors to Okon Banga upon the expiration of the quit
notice before instituting the action. But the Court overruled
the objection and proceeded with the substantive suit.

While filing his defence to the action, John Thunder had

counterclaimed for improvements made on the premises
with oral consent of Okon Banga.

CASE STUDY 5- Election Petition

Dr. Charles Dodo was the gubernatorial candidate of the
National Nigerian Party during the recent gubernatorial
election in Anambra State. Chief Chris Pius contested the
same election on the platform of Unity Congress Party.

In order to cause confusion among Dr. Dodo‟s supporters,

Chief Pius caused him to be arrested by the police and
detained for 14 days without telling him what offence he
committed. He was not released until the declaration of the
results. The Independent National Electoral Commission
(INEC) declared Chief Pius as the winner of the election
having scored the highest number of votes cast during the
election. Dr. Charles Dodo is aggrieved. He intends to sue
for the enforcement of his fundamental rights and to
challenge the election on the grounds of irregularity,
indictment of Chief Pius by Economic and Financial
299
Crimes Commission and previous conviction of Chief Pius
for the offence of receiving stolen property by a High Court
sitting in Onitsha in 2006.

CASE STUDY 6- Election Petition

Dr Brown was a senatorial candidate of the National
Nigerian Party for Asaba North Federal constituency, Delta
State in 2015 General Elections. Chief Ben Okagbue
contested the same Election for the same senatorial district
on the platform of Unity Congress Party. The Independent
National Electoral Commission Declared Chief Okabue as
the winner of the Election having scored the highest number
of votes cast in the Constituency. Dr. Brown is not satisfied
with the outcome of the Election. He has therefore
brought a petition before the National Assembly and
the Legislative House of Assembly Elections Petitions
Tribunal sitting at Asaba, Delta State, challenging Chief
Okagbue‟s election on the grounds of irregularity,
indictment of Chief Okagbue by the Economic
and Financial Crimes Commission and previous conviction
of Chief Okagbue for the offence of receiving stolen
property by a High court sitting in Asaba in 2004.

CASE STUDY 7-Matrimonial Causes

Shola Fineface got married to Bobo Nice less than 2 years
ago at the Marriage Registry Ikoyi, Lagos. Bobo Nice is
rich and handsome. However, after the marriage, Fineface
discovered that Bobo Nice is impotent. Since the discovery,
Fineface has become disillusioned and frustrated. She
intends to put an end to the marriage.

CASE STUDY 8- Matrimonial Causes

Miss Lynda Roberts had come to Nigeria in 2014 on an
exchange programme from the United States and has since
remained here. On 17th January, 2015 Lynda and Paul

300
Baba contracted a church marriage at the Congress Hall of
the Nicon Hilton, Abuja. The ceremony was performed by
Mr. Ibekwe, a part-time teacher and an aspiring pastor of
the Happy People of God Church. Unknown to Paul and
Lynda, Lynda is the daughter of Paul‟s brother‟s wife who
had naturalized in the United States of America. After the
marriage, Paul and Lynda continued to live in Abuja until
14th September 2015 when one day Lynda came home and
found a note from Paul stating that he had travelled to
Australia on an immigrant visa and was never intending to
return to Nigeria again. Paul also made it clear to Lynda
that he was leaving her because of those occasions she
willfully refused to sleep with him. In any event, Lynda
had before now been thinking of how she will get out of the
marriage, as she had come to find out that the angel she
married saw her as a punching bag to beat up every now
and then. Also, she has since found out that faithfulness did
not particularly feature in Paul‟s daily routine as he was in
the habit of visiting brothels on a daily basis, from where
he had on several occasions contacted STDs. Lynda had
finally filed a petition for dissolution of the marriage. At
the hearing of the petition, Paul Baba raised several
objections to the petition and indeed cross- petitioned. He
was also not happy that one prostitute Miss Ada Ogun was
joined as a co- respondent with him. He felt that such
joinder seriously defamed his character. The court after
final addresses by the parties on the 1st of December 2015
adjourned for judgment to the 22nd of March 2016, on
which date judgment was entered for Lynda, granting her a
decree nisi.

CASE STUDY 9- Fundamental Rights

Mr. R, has just graduated from the Nigerian Law School
and started practice in Kano under Rabo and Rabo
Chambers. With interests in politics, Mr. R. spends most of
his time in PRR headquarters, a political party which
301
believes in the use of force to overthrow the government if
democratic principles
fail. On the 12th of July, 2010 Mr. R was suspected of
planning to overthrow the government and was taken to
Mushroom police headquarters for questioning. Forty days
after his arrests, no clear reasons has formally been given
for his arrest. Several days after his arrest some of his
friends who disappeared after having been picked up by the
police are believed to have been implicated by Mr. R. after
been tortured by the security forces.

On the 13th of August, the President in a news conference

said that he hoped that Mr. R. would be given a long and
harsh sentence so that people like him would learn a lesson.
Mr. S. who is Mr. R‟s childhood friend came to the rescue
of Mr. R‟s family by engaging the services of Ms. Q. a
renowned lawyer and human rights defender to defend Mr.
R. However, she received a letter from the state security
that in her own interest she should withdraw from the case
or else she would
be charged together with Mr. R for terrorism. She
forcefully withdrew from the case the next morning. Mr. R.
was arraigned before Mr. T. whose father is currently the
Minister of Justice and a very close friend of Mr. President.
Mr. R. was charged with terrorism and attempt to
overthrow the government.

Mr. R. was not represented at the trial by any lawyer

throughout the trial and in about five occasions the trial
continued in his absence because the judge ordered him to
be removed from the court for his disruptive behavior. Mr.
R. was found guilty on all the charges, convicted and
sentenced
to 20 years imprisonment with hard labor. He was taken to
one of the most over-crowded prisons and confined to a
cell with a 250 – watt electric bulb left on day and night.
302
CASE STUDY 10-Fundamental Rights
Mr Teddy King was arrested by men of the State Security
Service (SSS) on the 1st day of November, 2010 for
allegedly trafficking in Nigerian Currency notes (Naira)
and has since been locked up in Kuje prisons Abuja. The
Nigerian Government had in reaction to the upsurge in
currency trafficking enacted the fake Currency Act 2009. A
clause in the Act had provided that – The arrest and/or the
detention of
any person(s) pursuant to the provisions of this Act shall
not be the subject of any inquiry and/or called into question
by or before any court of law in Nigeria. Mrs. King whose
husband is now in detention has engaged your services for
the purposes of taking legal steps to enforce her husband‟s
fundamental rights.

CASE STUDIES FOR MOCK TRIALS

CASE STUDY 1
On the 3rd of October, 2015 Mr. Oke Madu entered into
Diamond Super Market at No. 10 Ogui Road, Enugu where
he bought a bag of semovita and paid at the counter. On his
way out, Mr. Okoro a Security man at the entrance gate of
the super market asked him for the receipt of purchase. He
searched the pocket of his trousers without finding the
receipt, forgetting that it was in the breast pocket of his
shirt, where he actually kept it.

While he was still searching for it, fighting started as Okoro

felt that Mr. Madu had no receipt for the purchase because
he was wasting his time and he shouted at Madu “You
thief, you
have stolen the semovita to the hearing of one Chika,
another customer of the super market. Chika is a friend to
Miss Ndidi who is Mr. Madu‟s fiancée. On returning
home, Miss Chika informed Miss Ndidi of the events that

303
transpired at the supermarket. On the basis of this
information, Ndidi said she would
no longer marry Mr. Madu.

However, Mr. Oke Madu saw the receipt on the breast

pocket of his shirt and presented it to Mr. Okoro.
Nonetheless, Mr.Madu had filed a suit for defamation of
character against Mr.
Orji at the High Court of Enugu State.

CASE STUDY 2
City links Transport Company limited is a thriving
transport company with a fleet of buses. Mr. Darlington
Okoye (a.k.a. Osama) is one of the drivers of the company.
On the 14th of
February, 2015, Dr. Henry Obama, a Consultant Physician
at the National Hospital, Abuja, was travelling, form
Lokoja to Abuja in his brand new Mercedes Benz ML 340
jeep car with Registration Number ABJ 999 BWR, which
he bought for Eight Million Naira ( ₦8,000.000. 00) only.

On getting to Giri Junction, near Gwagwalda, in the

Federal Capital Territory, Dr. Henry
Obama who was then driving at a speed of 120 KM per
hour noticed a motor cycle rider attempting to cross the
road and applied his break to avoid hitting him.
Immediately, Dr. Henry Obama was hit from behind by a
bus belonging to City Links Transport Company Limited
and driven by Mr. Darlington Okoye (a.k.a Osama).

Dr. Henry Obama‟s car was badly damaged as a result of

the accident. In fact, it was a write-off. Dr. Henry Obama
also sustained serious injuries and had to be rushed to the
University of Abuja Teaching Hospital, Gwagwalada,
Abuja, where he received treatment and was discharged
after one week. The treatment, in all, cost him one Hundred
304
Thousand Naira (₦100,000.00) only, for which the hospital
issued him a bill and a receipt.

Dr. Henry Obama has now commenced an action for

negligence at the High Court of the Federal Capital
territory; Abuja against Mr. Darlington Okoye (a.k.a
Osama) and City Links Transport Company Limited
claiming general damages to the tune of Five Hundred
Thousand Naira (₦500, 000.00) only, and special damages
of Eight Million and One Hundred Thousand Naira
(₦8,100,000.00) only for his damaged car and treatment.

CASE STUDY 3
Dr. Vincent Brown was a senatorial candidate of the
National Nigerian Party for Asaba North Federal
Constituency, Delta State in the 2015 General Elections.
Chief Ben Okagbue contested the same election for the
same Senatorial district on the platform of Unity Congress
Party. The Independent National Electoral Commission
declared Chief Okagbue as the winner of the election
having scored the highest number of votes cast in the
Constituency.

Dr. Brown is not satisfied with the outcome of the election.

He has therefore brought a petition before the National
Assembly and the Legislative House of Assembly Elections
Tribunal sitting at Asaba, Delta State, challenging Chief
Okagbue‟s Election on the grounds of irregularity,
indictment of Chief Okagbue by the Economic and
Financial Crimes Commission and previous conviction of
Chief Okagbue for the offence of receiving stolen property
by a High Court sitting at Asaba in 2006.
SEE JAMES IBORI V. AGBI
MOTIONS
1. An injunction by the Petitioners seeking to restrain
the Senate President and the Clerk of the National
305
Assembly from swearing in the 1st Respondent as a
Senator of the Federal Republic of Nigeria pending
the determination of the petition.
2. A motion on Notice by the petitioner seeking to join
Unity Congress party as 4th Respondent in the
petition.

CASE STUDY 4
On 1st April, 1992 Mr. Kunle Komolafe was employed as a
medical doctor in the medical department of First Atlantic
Petroleum Company Nigeria Ltd, a subsidiary of the
Nigerian National Petroleum Corporation (NNPC). By the
year 2004 he was elevated to the post of General 130
Manager, Medical Department. Upon his appointment and
as part of his total package he was given a 4 bedroom
Duplex in the official quarters of his employers at first
Atlantic Petroleum Staff quarters, Lekki phase 1, Lagos as
a service tenant. His housing allowance was deducted at the
beginning of each year as rent for his occupation of
property.

On 28th February, 2019 his appointment with First Atlantic

Petroleum Company Nig. Ltd. was terminated with
immediate effect without any good reason or any just
cause. A cheque for the sum of ₦750, 000.00 was enclosed
as payment for 3 months salary in lieu of notice. Also in the
same letter, he was asked to vacate his official quarters
immediately. On that same day, some men acting as agents
of the company entered into the premises of Mr. Kunle
Komolafe threw out some of his properties in an attempt to
forcefully eject him from the property. Fortunately for Mr.
Kunle Komolafe, he was able to resist all attempts made to
unlawfully & forcefully eject him. Presently, he still
remains in occupation of the property. Mr. Kunle Komolafe
has instituted an action at the Lagos State High Court,
Lagos Judicial Division asking for the following reliefs:
306
1. A declaration that the purported termination of his
employment by virtue of the letter dated 28th
February, 2019, is invalid, null and void and of no
effect.
2. A declaration that he is still a staff of First Atlantic
Petroleum Company Nig. Ltd. In the alternative.
3. ₦10 million as his salary till the age of compulsory
retirement at 65 years of age.
4. An order of injunction restraining First Atlantic
Petroleum Company Nig. Ltd, its agents and privies
from forcefully and unlawful ejecting him from his
official quarters.
5. The sum ₦10 million of damages for unlawful
trespass committed when the agents of the
defendants unlawfully invaded his house.
6. The sum of ₦5 million special damages for the
destruction of the plaintiff‟s properties by the agents
of the defendants during their attempt to unlawfully
eject him from his quarters as follows:
i. Damage done to his Kia Rio Car - ₦3.5 million
naira
ii. Damage done to his Plasma Sony T.V Set-
₦750,000.00
iii. Damage done to his Jewelries and wrist watches-
₦750, 000.00

ISSUES FOR INTERLOCUTORY APPLICATIONS

1. Interlocutory injunction by the plaintiff restraining
the defendant and or their agents from forcefully and
unlawfully ejecting him from his official quarter‟s
pending the final determination of the suit.
2. Preliminary objection by the defendant that the
Lagos State High Court has no jurisdiction to hear
the matter.

307
READ:
1. BEN CHUKWUMA V SHELL B. P (1993) 4 NWLR (Pt
289) 512 SC
2. NWANA V. F.C.D (2004) 13 NWLR (Pt 889) 128 SC

308
Index

309
Index Ajegunle, 170, 172, 174
Akinola Bendel, 263, 267
A Allegation, 161, 165, 166, 167,
Abuja and Lagos State 173, 259
Tenancy Law, 234, 236 Allied Matters Act, 58, 63, 135
Abuja High Court Rules, 81, Amendment, 27, 58, 61, 223,
84, 87, 92 248
Abuja Rules, 28, 54, 55, 81, Anambra State, 211, 299
85, 109, 111, 112, 142, Appeal, 4, 8, 59, 61, 214, 218
148, 163, 169, 175, 176, grounds, 8, 12, 40, 41, 56,
177, 178, 179, 180, 181, 57, 58, 59, 61, 75, 184,
182, 183, 184, 185 196, 198, 207, 209, 211,
Abuse of ex-parte injunctions, 212, 215, 216, 217, 218,
22 219, 220, 221, 222, 223,
Action, Commencement of, 4, 227, 228, 243, 271, 272,
5, 16, 19, 95, 97, 106 274, 279, 281, 284, 293,
Admiralty Jurisdiction Act, 58, 294, 296
65 record of, 220
Admissibility, 30, 32 Appearance, 19, 20, 21, 50, 51,
Adultery, 159, 256, 257, 258, 54, 113, 114, 115, 116,
259, 267 117, 118, 120, 121, 122,
Affidavit, 19, 20, 21, 22, 23, 124, 125, 133, 136, 137,
87, 91, 93, 109, 115, 117, 138, 139, 148, 153, 169,
121, 124, 127, 129, 136, 175, 245, 291, 295
143, 144, 145, 148, 149, conditional, 116, 117, 120,
150, 151, 152, 169, 181, 122, 295
202, 203, 210, 247, 259, unconditional, 120, 121
261, 274, 276, 277, 278, Appellant, 184, 223, 227, 229,
279, 296 230, 273
counter, 23, 88, 148, 155, Appellate jurisdiction, 61, 214
167, 168, 176, 277, 279, Application main, 275, 278,
296, 303 279
Affidavit evidence, 21 Asaba, 13, 300, 305
African Charter, 273, 275, Assessment, 3, 13, 21, 23, 25,
276, 287 26, 28, 37, 40, 42, 43, 46,
African human rights system, 47, 52
273, 274
C
Agreement, 65, 76, 77, 100,
155, 162, 234, 235, 260, Cases election Petition
295, 296, 298 plaintiff in, 26, 27
Agreement, collective, 73 Chambers, Judge in, 141, 149

310
Civil Form, 98, 106 Contract, 65, 77, 82, 84, 87,
Civil jurisdiction, 4, 5, 62, 75, 100, 107, 161, 172, 256,
76, 77 295, 296, 297
Civil Procedure, 11, 15, 27, Co-respondent, 257, 259, 260
52, 53, 54, 55, 57, 80, 82, Costs , award of, 100, 289
86, 87, 95, 97, 111, 123, Counterclaim, 131, 165
131, 150, 151, 155, 176, Counter-claim, 168
196, 197, 200, 207, 239, Court
240, 246 appellate, 198, 207, 208,
Civil Procedure in Nigeria, 209, 210
196 appropriate, 5, 11, 233, 244
Civil Process Act, 53, 56, 57, foreign, 8, 203, 204, 205
58, 125, 126, 127, 199, lower, 91, 207, 209, 210,
200, 201, 205, 206, 278 211, 219, 221, 224, 227
Claim, 18, 130, 134, 135, 165, open, 141, 223, 251
173, 237, 238 Court Fees, 131
plaintiff’s, 165, 307 Court of Appeal, 40, 41, 53,
Claim and statement of 55, 57, 58, 59, 61, 71,, 75,
defence, 26, 27 162, 184, 198, 207, 209,
Claimant, 38, 78, 79, 100, 101, 210, 211, 212, 215, 216,
102, 103, 104, 105, 106, 217, 218, 219, 220, 221,
110, 113, 116, 130, 131,
222, 223, 227, 228, 229,
133, 135, 138, 148, 149,
164, 169, 172 230, 243, 271, 272, 274,
Claimant’s claim, 167, 296 279, 281, 284, 293, 294,
Class precedents, 44 296
Co-defendant, 15, 16 Court of Appeal Act, 58, 198,
Commencement of Action, 4, 207, 216
5, 16, 19, 95, 97, 106 Court of Appeal Rules, 41, 53,
Companies and Allied Matters 55, 57, 209, 221, 222, 223
Act, 58, 63, 135 Court rules, 87, 90, 148, 151,
Constitution, 41, 53, 55, 56, 154
59, 61, 62, 64, 66, 67, 68, Customary Court of Appeal,
69, 70, 71, 72, 74, 75, 193, 55, 71, 215
194, 195, 196, 197, 198, Customs, 62, 66
215, 216, 231, 239, 243,
247, 248, 252, 253, 271, D
275, 276, 279, 280, 281, Damages, 104, 130
282, 283, 285, 286 special, 2, 3, 33, 34, 92,
Constitution of Nigeria, 196 104, 112, 135, 137, 160,

311
162, 208, 213, 243, 271, Enforcement of Foreign
289, 297, 305, 307 Judgments, 204
Darlington Okoye, 304, 305 Enforcement of interstate, 39
Decision, final, 195, 216 Enforcement Procedure, 48,
Defence, statement of, 122, 52, 283
155, 163, 165, 167, 168, Estate, 88, 135, 138
169, 174, 175, 177 Ethical issues, 11, 14, 19, 21
Delivery, 2, 196, 197 Events, procedure and
Delta State, 300, 305 sequences of, 9, 10, 44, 45,
Discovery of documents, 29 46, 47
Dissolution of marriage, 255, Evidence
257, 258, 261, 265, 267 documentary 7, 31, 143, 175,
District Court, 55, 77, 99, 215, 185, 186, 250
233, 237, 238, 239 inadmissible, 112, 157,
Draft, 103, 105 181, 187, 218, 258
Draft applications, 8, 10, 39, rules, 7, 30, 31
48, 51 Evidence Act, 31, 44, 157,
158, 183, 187, 188, 191,
E 192, 218, 257
Eastern Nigeria, 120, 122 Examination, cross-, 34, 35
Economic Community of West Examination-in-chief, 34, 35,
African States 36
(ECOWAS), 75 Examination of witnesses, 4
ECOWAS Court, 11, 287 Execution, , 8, 39, 40, 56, 58,
Election, 4, 9, 44, 61, 215, 144, 193, 199, 201, 203,
243, 251, 299, 300, 305 207, 208, 209, 210, 211,
Election petitions, 243 212, 213, 296
Electoral Act, 243, 244, 245, Exercise jurisdiction, 9, 42,
246, 247, 248, 249, 250, 43, 44, 45, 46, 47, 48, 51,
252 62, 64, 66, 75, 280
Electoral law, 244, 245 Ex-parte injunctions, 21, 22,
Electoral Officer, 244 23
Enactment, 63, 64, 72, 142, Ex parte applications, 21,
274 22, 23
Endorsement, 110, 113, 134,
135, 137 F
Enforcement, 4, 8, 10, 39, 48,
FCT Abuja, 27, 82, 85, 86, 154
51, 57, 58, 59, 68, 199,
Federal High Court Act, 69, 70
205, 272, 275, 276, 282,
First Schedule, 244, 245, 248,
283, 284
249, 250
reciprocal, 204, 205

312
Foreign judgments, 39, 58, industrial relations, 72, 73,
204, 205 74
Fundamental rights, 275 Infants, 82
enforcement of, 4, 8, 58, 68, Injunction, 6, 21, 22, 23
75, 89, 97, 108, 142, 200, interim, 22, 23, 145, 146,
204, 207, 262, 274, 275, 212, 214, 278, 279
276, 279, 280, 282, 283, Inspection, 29
284, 286, 299 Intention, 240, 241
Fundamental Rights interest, 84, 85, 86, 88, 89, 91,
Enforcement Procedure 92, 96, 98, 100, 101, 102,
Rules, 10, 48, 51, 108 127, 135, 141, 142, 144,
Fundamental Rights 145, 183, 191, 199, 200,
Enforcement Procedure 214, 216, 254, 257, 274,
Rules and Judicial 302
Review/Writ, 10, 48 Interlocutory applications, 141
FWLR, 12, 13, 112, 155, 191, Interlocutory decisions, 195,
212, 238, 244, 248, 249, 214
250, 282, 284, 293 Interlocutory injunctions, 21,
22, 23, 146
G Interpleader., 21, 144
Gongola State, 12, 13, 68, 69, interpretation, 59, 64, 67, 72,
201, 279, 281 73, 76, 132, 287
Interrogatories, 29, 180, 181
H interstate, 39
intervention, 90, 91
High Court Civil Procedure Irregular proceedings, 50
Rules, 151, 207 ISC, 122, 126, 127
High Court Law, 70, 214 Islamic Personal Law, 61, 71
High Court Rules, 24, 49, 53,
55, 56, 59, 81, 84, 87, 92, J
124, 150, 168
High Court sitting in Onitsha, Jack, Grace, 12, 13, 69, 280,
300 281, 285
High Courts in Nigeria, 54 Joinder, 14, 15
joinder of parties, 80, 81, 88,
I 90, 91, 102
Judgment, 4, 6, 7, 24, 37, 57,
Illegality, 44, 159, 161, 296 58, 59, 81, 102, 131, 148,
Independent National Electoral 149, 151, 153, 193, 196,
Commission (INEC), 246, 197, 198, 200, 201, 205,
299 206

313
summary, 6, 7, 24, 25, 26, 138, 139, 140, 148, 149,
76, 105, 106, 125, 148, 154, 155, 172, 174, 176,
151, 152, 153, 174, 254, 203, 206, 212, 231, 232,
295 234, 235, 236, 237, 238,
Judgments 239, 240, 241, 242, 266,
default, 24, 117, 118, 193 267, 295, 297, 307
enforcement of , 8, 97, 204 Lagos State High Court sitting
Judgment creditor, 201 at Ikeja, 295
judgment debtor, 144, 199, Lagos State Tenancy Law,
201, 202, 203, 207 231, 236, 238
Judicial division, 106, 107, Laws of Nigeria, 199, 200,
113, 203, 280, 282, 284, 205, 232
295 legal practitioner, 50, 51,
Jurisdiction 112, 123, 163, 165, 182,
concurrent, 66, 67, 68, 69, 194, 183, 288, 292
280, 281, 282, 284, 285, LFN, 147, 205, 215, 216, 275,
286 276
exclusive, 65, 66, 72, 281, 284, Litigants, 291, 294
286
Justices, 61, 215, 296 M
Magistrate, 4, 17, 18, 53, 77,
K
95, 98, 99, 214, 215, 233,
Kano High Court, 54 238, 239, 295
Kano Rules, 57, 150 Magistrates Courts, 70, 214,
Kwara State, 280 232
Magistrates’ Court Law, 214,
L 231
Lagos High Court Civil Magistrates Courts Rules, 55
Procedure Rules, 24, 89 Mareva Injunction, 21
Marriage nullity of, 255, 258,
Lagos High Court Rules, 260, 267
81, 84, 87, 92, 124, 151 Marriage Act, 254, 255, 270
Lagos Rules, 54, 55, 57, 59, Material facts, 9, 42, 43, 44,
81, 85, 114, 124, 125, 128, 45, 46, 47, 143, 158, 159,
148, 151, 153, 168, 174, 184, 191
176, 177, 178, 179, 180, Matrimonial, 4, 9, 46, 58, 254,
181, 182, 183, 184, 185, 260, 261, 262, 268, 300
288 Matrimonial petitions, 9, 46
Lagos State, 15, 17, 18, 27, 54, Memorandum, 73, 100
57, 70, 77, 80, 82, 85, 86, Memorandum, 116, 124, 133,
95, 97, 120, 125, 133, 136, 136

314
Mock trials, 1, 2 250, 251, 252, 255, 271,
Mode of enforcement, 200, 272, 275, 277, 278, 280,
262 281, 282, 284, 289, 308
Motion ex parte, 115, 141,
142, 251 O
Obi Okoye, 56, 120, 126, 127
N
Olajumoke Bendel, 263, 267
National Assembly, 56, 61, 62, Oral argument, 278
72, 74, 75, 231, 252, 300, Order II Rule, 276, 277
305, 306 Order IV Rule, 278, 279
National Industrial Court, 53, Original Jurisdiction, , 61, 68,
61, 71, 74, 75, 95, 286 214, 243, 285
NBA, 83 Originating processes, 6, 19,
NDIC, 12, 15, 16, 66, 67, 297, 20, 79, 86, 125
298 Oyo State, 145, 177, 263
NEPA, 11, 13, 66, 283
NLR, 59, 79, 82, 90, 91, 114, P
123, 150, 156, 207, 208, Particulars of claim, 98, 99,
216, 219, 232 100, 102, 106
NMLR, 70, 83, 84, 87, 110, Parties
113, 115, 143, 150, 155, interrogating, 180, 181
157, 161, 200, 216, 218,
political, 244, 246, 252,
289, 290
Notice of appeal, 40, 41, 58, 301
207, 209, 216, 219, 218, Personal service, 124
220, 227, 296 Persons, legal, 14, 79, 83
NSCC, 66, 80, 117, 122, 123,
156, 159, 195, 196, 281 Petition, 9, 44, 108, 260, 266,
Nwabueze, 56, 120, 126, 127, 267, 269, 299, 300
213 Petitioner, 109, 245, 246, 248,
NWL, 120, 126 263, 264, 265, 266, 267
NWLR, 11, 60, 65, 66, 67, 68, Plaintiff, 92, 148, 167, 170,
69, 70, 75, 80, 82, 83, 88, 171, 211, 227, 230, 237,
96, 107, 109, 110, 111, 296, 297, 298
112, 114, 115, 119, 120, Plaintiff/claimant, 36, 79
123, 126, 127, 145, 155, Pleadings, rules of, 166
156, 181, 185, 188, 192, Plenary discuss, 31, 35, 38, 39,
193, 196, 197, 198, 200, 40, 41, 43, 45, 47, 51
201, 203, 205, 207, 208, Possession, 101, 241
209, 213, 217, 218, 222,
232, 238, 243, 244, 246,

315
Premises Act, 231, 232, 234, 229, 230, 240, 244, 246,
235, 236, 237, 238, 239, 263, 264, 265, 296, 306
241, 242 Rules, applicable, 48, 56, 57
Pre-trial Conference, 7, 29, 30,
31, 33, 178, 183, S
Principles, 81, 196 Sanctions and costs, 10, 48,
general, 7, 9, 10, 13, 17, 18, 49, 52
23, 28, 29, 30, 38, 40, 42, SCNJ, 56, 67, 80, 93, 107,
43, 44, 45, 46, 47, 48, 50, 119, 120, 141, 143, 144,
51, 57, 58, 66, 79, 90, 145, 146, 164, 167, 181,
100, 104, 108, 113, 161, 196, 197, 198, 216
165, 166, 170, 172, 186, Sekondy Ukey, 122, 126, 127
216, 218, 222, 292, 297, Sequences, 9, 10, 44, 45, 46,
305 47
Property, 82, 196 Sharia Court of Appeal Rules,
55
R
Sheriffs and Civil Process Act,
Recover possession, 9, 42, 43, 205
233, 236, 237, 239, 298 Shomolu, 263, 264, 265, 266,
Recovery of possession of 267, 270
premises, 9, 42, 43, 231 State High Courts, 55, 58, 66,
Recovery of Premises Act, 67, 68, 214, 215
231, 232, 234, 235, 236, Statement of claim, 111, 173
237, 238, 239, 241, 242 Substituted service, 275
Re-examination, 34, 35, 36, Summary judgment
191 procedures, 24, 25
Registrar, 74, 106, 131, 133, Supreme Court, 53, 55, 57, 59,
136, 140, 149, 151, 219, 61, 65, 66, 67, 69, 70, 90,
220, 221, 222, 244, 270 91, 92, 93, 115, 122, 123,
Registry, 129, 133, 136, 137, 125, 126, 127, 141, 143,
250, 266, 270, 300 156, 188, 194, 201, 212,
Reliefs, 45, 99, 143, 157, 159, 223, 225, 232, 271, 276,
184, 204, 248, 275, 276, 279, 280, 281, 282, 289
277, 279, 307 Supreme Court Rules, 57, 223
Renewal, 19 Supreme Court Rules of
Rent, 231, 232 England, 55
Rent Control and Recovery of
Residential Premises Law, T
231 Tenancy, 231, 232, 234, 235,
Respondent, 41, 108, 109, 142, 236, 237, 238, 239, 240,
143, 145, 147, 184, 221, 241, 242
316
Tenant, 241
Third party, 14, 92
Third party proceedings, 14,
15, 16, 93
Time, extension of, 40, 115,
122, 169, 217, 219
Trade Unions, 72, 74, 84
Trial
conclusion of, 9, 10, 44, 45,
46, 47
issues for, 29, 185
Trial court, 110, 157, 197, 209,
210, 211, 219, 224, 276,
298
Trial judge, 193, 197, 211
Trial plan, 7, 31, 32, 186
Tribunal, 44, 61, 73, 74, 75,
198, 215, 231, 243, 244,
245, 248, 250, 251, 300,
305

U
Undefended list, 24
Uniform Rules, 57, 142, 150

W
Witness box, 189, 190
Witnesses, 7, 32, 34, 102
hostile, 33, 34, 189, 191
Witness statements, 8, 32, 33,
36
WNLR, 238, 244, 257
Writ, 42, 48, 52, 54, 108, 110,
111, 113, 129, 133, 136,
148, 155, 174, 237, 238
writ of summons, 19, 20, 21,
25, 79, 110, 113, 122, 125,
135, 149, 164, 169, 175,
240

317
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