How to Institute an Action in Court
Originating Processes and Commencement of actions
Court processes are the means used by court to acquire or exercise its jurisdiction over a person or over specific property, these processes are begun using an Originating Process which simply means the process first filed in a Court indicating the commencement of a dispute being presented to Court for determination. It is a process by which a proceeding is commenced, the process can take the form of a Statement of Claim, a Summons or a Cross Claim, and its purpose is to alert the defendant that a case is been brought against him. We would be exploring various types of originating process used in the Magistrate and in the High Court.
Commencement of Action in the Magistrate Court
There are two major ways of commencing a civil action in the magistrate court, either by;
1. Plaint
2. Originating Application
Plaint
An action may be commenced in the magistrate court by Plaint if it meets the following criteria.
In commencing an action by plaint, the claimant shall deliver to the Registrar a plaint and particulars of claim for filing. It is important to know that the plaint is the relief sought and the particulars of claim are the grounds upon which the relief is sought. A plaint basically contains a very brief summary of the facts of the case leading to the claim, whereas the particulars of claim is like a statement of claim, it indicates the cause of action.
A plaint could be filed using the following procedures;
The Plaint and the Particulars of Claim should be taken to the Magistrate Court registry for filing, after which you proceed for assessment of said Plaint and Particulars to determine how much claimant is to pay. Required filing fees should then be paid at the account section of the court. Upon filing the plaint, the registrar shall cause same to be entered in the civil cause book kept for that purpose. The action will be numbered according to how it is filed in the year and the plaint delivered to the office of the designating magistrate. Service should then be effected to the other party to the suit.
Originating Application
This procedure is used where proceedings are authorized by statute to be commenced in the Magistrate Court by originating application or in an action for declaration of rights. It is important to note that the originating application shall be heard in Chambers, by Order 1 Rule 8(5) of the Magistrate Court Rules. It is usually by Motion, whether on notice or exparte, supported by affidavit and written address, and the parties are designated as applicant and respondent.
There are two types of summons that can be issued either by the magistrate or the
registrar on the directive of the magistrate in the alternative, these are:
Ordinary summons
After a claim has been entered, the Magistrate or the Registrar on the directive of the Magistrate shall issue an ordinary summons directed to the defendant unless a summary summons has been applied for. This is usually by letter and is used in contentious actions while the summary summons is used in actions for recovery of debt or liquidated money demands, with or without a claim for interest to which the claimant honestly believes that the defendant has no defence to.
Where an ordinary summons is issued, the Registrar shall fix a date for the defendant to appear in court to answer the claim, provided that such date shall not be less than five (5) days after the service of the claims on the defendant, the life span of an ordinary summons is three (3) months from the date it was issued and if an ordinary summons is not served within three (3) months from the date of its issue, it shall become void, with liberty to file a fresh action subject to any statute of limitation. Options open to the defendant upon being served with the ordinary summons, are that:
The claimant then may do any of the following;
Summary Summons
Summary summons is usually issued for non-contentious matters. It is usually used in actions for recovery of debt or liquidated money demands, this is calculated by having regard to some data, figure, formula, arithmetic code, with or without a claim for interest, to which the claimant believes that the defendant has no defence to. The claimant may file a claim and request by letter to the Registrar for the endorsement of the claim as a summary summons. Thus, a summary summons will not be issued unless it is applied for. However, there is a certain group of persons against whom a summary summons cannot be issued. They are Infants, persons of unsound mind, and infants.
A defendant served with summary summons can take any of the following steps:
If within five (5) days after the service of the summons on him, the defendant fails to do anything, judgment may be given against him, this is known as “default judgment”. If he does any of the things listed above, the matter will go to trial. However, it must be noted that if after the five (5) days, but before the default judgment is entered, the defendant takes steps to defend, then judgment will not be entered until he is heard. Where the defendant admits in part or wholly, such admission notice will be sent to the claimant to either accept or reject. In either case, the judgment thereon is on the merit.
Where a summary summons has been served and three (3) months have expired since it was served, but no defence or admission or counter-claim has been delivered and judgment has not been entered against the defendant; or an admission has been delivered to the claimant but no notice of acceptance or rejection has been received from the claimant, the action shall be struck out and no extension of time shall be granted beyond the three (3) months.
Commencement of Action in the High Court
There are four different ways or methods of commencing actions in the High Court. These are by:
Writ of Summons
A writ of summons is a formal document issued by a court stating concisely the nature of the claim of a plaintiff against a defendant, the relief or remedy claimed and commanding the defendant to “cause an appearance to be entered” for him in an action at the suit of the plaintiff within a specific period of time, usually eight days, after the service of the writ on him, with a warning that, in default of his causing an appearance to be entered as commanded, the plaintiff may proceed therein and judgment may be given in defendant’s absence. They are used for commencing all civil actions in the High Court or Federal High Court except where there is an express constitutional or statutory provision to the contrary. It is the most common method and is used to commence contentious actions where there will be substantial disputes on questions of facts.
A Writ of Summons is usually accompanied by;
a) Statement of claim
b) List of witnesses to be called at the trial.
c) Written statements on oath of the witnesses, except witnesses on subpoena
d) Copies of every document to be relied on at the trial
Originating Summons
Generally, originating summons is used for non-contentious actions, that is, those actions where the facts are not likely to be in dispute, where it is a question of law rather than disputed issues of facts. When the principal question in issue is or is likely to be one of construction of a written law or any instrument or of any deed or will or contract, originating summons may be used for the determination of such questions or construction. It is also used for enforcement of fundamental right, and to correct errors in judgment. Where an action is wrongly commenced by originating summons, the court is not expected to strike it out. In such a circumstance, the trial court shall order pleadings to be filed and exchanged as if it were commenced by writ of summons so that the action may proceed to trial/hearing. However this only to originating summons and not to any other method of commencing actions. Thus, there can only be conversion from originating summons to writ of summons only and not vice versa. Failure to use petition or originating application where expressly required will lead to the action being struck out.
Petition
A petition is a written application in the nature of a pleading setting out a party’s case in detail, it is used only where a statute or Rules of court prescribe it to be used. It is usually used in commencing actions like matrimonial causes, winding up of companies and electoral matters. It contains a concise statement of the nature of the claim of the claimant, relief or remedy sought, date and signature.
Originating Motion or Application
This is the last of the originating processes and may be used where a statute has not provided for it. Originating application is used when facts are not in dispute and it is also
used when the action relates to the interpretation of a document. In an application for prerogative orders of certiorari, prohibition, mandamus, Habeas Corpus or enforcement of Fundamental Human Rights, originating motion may be used. Significantly, where a state has not provided for a method for enforcing a right conferred by that statute, originating motion should be used.
In conclusion, the blog has only attempted to summarize how an action is commenced in a court in Nigeria. Subsequently in our “What To” Series, we would be writing on “What to do when you are served an Originating Process.” Let’s hear your inputs in the comment section, and we would be glad to answer whatever questions you might be having as regards “How to Institute an Action in Court.”
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