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Duru Onyekachi Free Law Lecture Series: No. 28

LEGAL EMPERORS Onyekachi Duru Esq

Bullet Point Revision Note on Civil Litigation *

1. Any irregularity on the appropriate parties in an action

could lead to the suit being struck out.
2. Where a State High Court in Abuja does not have
jurisdiction, it can transfer to the Federal High Court; but, in
the case of as similar situation in lagos, the case must be
skruck out.
3. If the capacity of a plaintiff is challenged, the onus lies on
him to prove his competence to be a party in the suit.
4. In the case of a misnomer/mistake, an application can be
made to amend the writ by substituting a juristic (artificial)
person for a non-juristic (natural) person; but the party
seeking amendment has a duty to show that there were
reasonable grounds of excuse in this naming the party
wrongly.
5. A necessary party is a person who is a sina qua non for
a proper determination of the case and on whom a judgment
is binding.
6. Lack of capacity to sue may manifest in the following
ways, (a) By suing the wrong person or (b) By referring to
the right person wrongly or (c) By referring to the right
person with a wrong designation or appellation.
7. Where either of the parties is not a legal person, the
other party may raise a preliminary objection by filing a

*
CONTACT: Email:[email protected]; Tel: +234-8037707496; +234-8022148248.
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notice of preliminary objection or conditional

memorandum of appearance and if this upheld, the matter
will be struck out.
8. Parties must be existing or living and the time of the
institution of the action.
9. For representative actions, there must be; (a)
Common interest, (b) Common grievance and (c) The relief
sought by the claimant/plaintiff must be beneficial to all
concerned. The procedure for filing representative
actions commences with an application by way of motion
exparte for leave to sue in a representative capacity. But,
failure to obtain leave is not fatal to the action. The motion is
accompanied by an affidavit in support deposed to by the
intended representative and an affidavit of authority to
bring a representative suit deposed to by the person(s) to be
represented.
10. Where an infant is a party, the relator (guardian) of the infant
must bring an application exparte for an order for
appointment of a guardian with an affidavit stating that the
guardian is a fit and proper person with no interest adverse
to that of the infant. However, where the relator (guardian)
fills and files Form 14 (Affidavit of or Entry of appearance
as guardian), there is no need for the application.
11. For applications to for Joinder of parties, the other(s)
sought are usually couched as follows (a) An order joining
(name of party to be joined) as (plaintiff/claimant or
defendant) in this suit, (b) An order for leave to amend the
writ and other originating process to reflect the joinder, (c)
AND for such further order(s) as this Honourable court may
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deem fit to make in the circumstance. Take Notice that an

application for Joinder is an application by way of motion on
notice in Lagos; but in Abuja, it could be by way of motion
on notice or by summons. The Application for Joinder must
state that the party to be joined as a plaintiff has a right to
relief arising from the same transaction involving a common
question of law. In all cases of an Application for Joinder, the
affidavit in support must state inter alia that (a) There is no
conflict of interest between the parties (b) The Joinder will
not embarrass the other party (c) The Joinder is necessary
for the just and adequate determination of the case (d) The
Joinder will not delay the action (e) The non-joinder will
defeat the cause of action (f) The applicant is ready to abide
by the consequences of being co-plaintiff or defendant. Note
that the contents of an affidavit in support of an application
to strike out the name of a party to a suit are just the
opposite of the foregoing. It basically alleges that the party
whose name is to be struck out has no interest in the suit
and will not be affected by the decision.
12. For class actions, the parties must; (a) Have a common
interest (b) Be commonly affected and (c) Not be easily
ascertainable or conveniently found. In Lagos, class actions
is available for actions relating to (1) Administration of estate
(2) Property subject to a trust (3) Land held under customary
law as family or communal land (4) Construction of any
written instrument, including statutes. In Abuja, class actions
is available only for actions for damages and injunctions.
The procedure for commencing a class action is by first of
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all bringing an application for leave to initiate a class action

by way of motion exparte.
13. Application for substitution or alteration of parties is by
motion on notice (Abuja) and motion exparte (Lagos).
The necessary order is sought for is “An order of substitution
to replace (name of party to be replaced) with (name of party
replacing)” and “An order for leave to amend the originating
processes to reflect the substitution/alteration”. Note that, in
Abuja, an application exparte is usually brought by the
Personal Representative of the decreased, before the
motion on notice is brought. The affidavit in support of an
Application for substitution or alteration of parties
should state the following (a) The nature of the action and
the stage it has reached (b) The fact that the action or cause
of action survives (c) The death of or the change that has
occurred to the party concerned (d) The interest or liability of
the party against whom it is proposed that the proceedings
shall continue and (e) The order for which the application is
praying.
14. In determining whether an application for substitution or
alteration is appropriate in a given instance, first determine
whether the action/cause of action survives. The type of
actions that do not survive are actions of a strictly personal
nature, example (a) Defamation (b) Enticement and
habouring (c) Assault and battery (d) Breach of promise to
marry and (e) Enforcement of a contract of personal service.
However, (a) Actions arising out of contract (b) Claim for
debt or sums owned, (c) Recovery of property, (d)
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possession of property, and (e) declaration of title to land,

survives.
15. Third party procedure is by an application ex parte stating
the grounds for an order for leave to issue and serve a
third party notice for the joining of the (name the third
party to be joined) as a third party in the suit, provided
that the defendant or a plaintiff to a counter claim is entitled
to a contribution or indemnity or to any relief or remedy
substantially the same as some relief or remedy claimed
by the plaintiff or defendant in a counter claim.
16. Whenever an action is incompetent for failure to comply with
a condition precedent to commencement of action the other
party should raise a preliminary objection by filing a notice
of preliminary objection or by entering a conditional
memorandum of appearance. The conditions precedent to
the commencement of suits are; (a) Jurisdiction (b) Parties
(c) Capacity to issue (d) Immunity (e) Cause of action (f)
Compliance with the procedure for commencement of suits
and the suitable type of originating process. (g) Rules of
court (h) Locus standi (i) Limitation laws (j) Fulfillment of
some conditions precedent, such as giving of pre-action
notice, quit notice and bill of charges, depending on the type
of action (k) Exhaustion of other remedies (l) Venue (m)
ADR and (n) Pre-action counseling.
17. An order to transfer a suit or retain same in relation to n
issue of venue (judicial division) shall not be suspect to
appeal.
18. Take note of the following limitation periods (a) Simple
contract: 6yrs (b) Contract or instrument under seal: 12yrs
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(c) Negligence: 3yrs (d) Slander: 3yrs (e) Action by state

authority to recover land: 20yrs(Lagos) and 12yrs(Abuja)
and (f) Actions against public officers: 3months.
19. Limitation periods continue to run notwithstanding that the
matter is subject to ADR; except the cause of action accrued
by fraud.
20. In Gambari v. Gambari, it was held that service of notice to
quit is a condition precedent for commencement of action for
recovery of premises or possession.
21. A notice of intention to sue or pre-action notice must
contain the name of and address of the plaintiff, the relief
sought and the cause of action.
22. The options available for the resolution of a client’s case are
ADR and litigation.
23. By Section 38(1)(2) of the Magistrate Court Law of Lagos
State 2009, it shall be the duty a legal practitioner acting for
parties in any proceeding to advise them on ADR options
and write a formal letter of demand specifying the claim and
remedy, before commencing the action in a Magistrate
Court. Failure to write the letter of demand will go to the
issue of cost.
24. A defendant to a claim (that is for action commenced at the
Magistrate Court in Lagos) has Five (5) days to respond to it
after service of the claim on him; but by if he requires further
particulars he has 6 days to respond.
25. The life span of an ordinary summons is 3 months, but the
claimant is liberty to file a fresh action: Order 2 Rule 2 of the
Lagos State Magistrate Court Rules 2009.
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26. The method of requesting for further particulars is by filing

a notice specifying what further particulars is required.
27. The claimant has 2 days after the service of notice for
further particulars to file the further particulars.
28. In an action by claim for debt or liquidated money demand,
the claimant may file a claim and request by letter to the
Registrar of the Court for the endorsement of the claim as
summary summons.
29. Summary summons shall not be issued (a) Against an
infant or a person of unsound mind (b) To recover money
lent by a money lender (c) On behalf of an assignee of debt
(d) To recover money secured by a mortgage or charge and
(e) Against a defendant who is to be served outside the
jurisdiction.
30. The Procedure for summary summons is as follows. The
claimant in any action before a Magistrate Court for a debt or
liquidated money demand in Lagos State may file a claim
and request by letter in a letter head paper of his lawyer to
the Registrar for the endorsement of the claim as a summary
summons. The Registrar shall endorse the claim and issue
summary summons. The defendant in the summary action
who disputes his liability for the whole or part of the claim or
is desirous of time for payment or is desirous of seting up a
counter claim shall within 5 days of the service of the
summons on him inclusive of the day of service, deliver to
the Registrar the form appended to the summons completed
according to the circumstances of his case or a defence or
an admission and a request for time for payment. See Order
3 of Magistrate Court Civil Procedure Rules 2009.
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31. Some ethical issues to consider before commencing an

action are in Rules 17, 15 (3), 24, 16, 14 of the Rules of
Professional (the rules relate to fees).
32. A legal practitioner instituting an action in Lagos is to
attempt out of court settlement first before commencing an
action.
33. A pre-action notice is headed in the Law Firm letter headed
paper and commences thus: TAKE NOTICE that our client
(name of client) of (address of client) shall institute legal
action in the court of law against (name of party to be sued)
to seek redress for (state the cause of action). The notice
should also state the grounds for the redress and signed
“For: (The chamber)”.
34. In Lagos, the parties to an originating summons are
designated as Applicant/Respondents, but in Abuja, it is
Plaintiff/Defendant.
35. A Petition should be headed in the matter of the subject
matter of the petition just like Originating Motion.
36. The advantages of frontloading are, (a) It saves time (b) It
aids quick dispensation of justice (c) It ensures that parties
are heard (d) It enables the Defendant/Respondent to
prepare well for the case and (e) It removes surprises from
both court and party.
37. Originating summons is used where it is sought to correct
errors in judgment: Unilag v. Aigoro; and if it is in Lagos, it
must be accompanied with (a) An affidavit setting out the
facts relied upon (b) Pre-action protocol Form 01, (b) All the
exhibits to be relied upon and (d) A written address in
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support of the application: see Order 3 Rule 8(2) of Lagos

HCCPR.
38. Where a process is commenced by originating summons,
pleadings are not filed, but only affidavits, and counter
affidavits, as the case may be.
39. When in doubt as to what mode of commencement of action
to adopt, it is most appropriate to adopt the Writ of
Summons.
40. If a party types his claim on a separate sheet of paper and
attaches it to the Writ of summons, it will amount to an
improper endorsement: Alatede v. Falode.
41. Where a Writ is issued in an action brought by a plaintiff
acting by order or on behalf of a person resident outside the
jurisdiction, it shall be endorsed with a statement of that fact
and with the address of the person so resident outside
jurisdiction.
42. In Lagos, a Writ is issued once it is sealed by the Registrar
but in Abuja, a Writ is issued once it is signed by the
Registrar.
43. A Writ for service outside jurisdiction must be issued with
leave, but will not be served with leave.
44. Service and proof of service is a condition precedent for a
court to assume jurisdiction or else application by way of
motion on notice to set aside the Writ for non-service
shall be brought.
45. In Abuja, those who can serve an originating process are,
(a) Bailiff or other officer of the court (b) A person appointed
and (c) A solicitor who gives undertaking: see Order 11
Abuja Rules.
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46. In Lagos, those who can serve an originating process are,

(a) Sheriff (b) Deputy sheriff (c) Bailiff (d) Special marshal or
other officer of the court (e) Law chambers (f) Commercial
company (g) Process server appointed by the Chief Judge:
see Order 7 Rule 1 of Lagos Rules.
47. The forms of personal service are (a) Service on a party’s
legal practitioner (b) Service on an infant’s father or guardian
(c) Service on a minor over 16 years living independently or
doing business: (see Order 7 Rule 6(1) Lagos Rules) (d)
Service on a senior officer of a court department/agency (e)
Service on either partner or managing partner without leave
to issue when they are out of jurisdiction (f) Service on a
Director/Secretary or Trustee other principal officer of a
Company or Incorporated Trustee, respectively: see Mark v.
Eke, & S. 78 of CAMA (g) Service on the Captain or
Superintendent or prison.
48. According to Mark v. Eke, an artificial person such as a
corporation cannot be served by substituted service since
the rules on substituted service only applied to as natural
persons.
49. The modes of substituted service in Abuja are, (a)
Delivery to adult inmate at the usual or last known address
(b) Delivery to an agent (c) Advertisement (d) Notice put-up
at the court or a place of public resort in the Judicial Division
(e) Email (f) courier service: see Order 11 Rule 5 of Abuja
Rules.
50. Service of processes is between 6am and 6pm excluding
Sunday and public holiday.
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51. Where an originating process is for service on a defendant

outside jurisdiction; it must be endorsed as follows: “This
Writ/Originating Motion/Summons is to be served out of ABC
state of Nigeria and in XYZ State. This is a mandatory
requirement; refusal or failure to comply nullifies the
proceedings.
52. Proof of service is by the process server deposing to an
affidavit setting out the fact, date, time, place, mode of
service, and the process served or by an acknowledgment
of service and the filing of same.
53. There is need for application by motion exparte to renew
a writ upon expiration of a Writ of Summons.
54. When you plead the following in a statement of claim, give
particulars (a) Special damages (b) Fraud (c) Negligence
and (d) Crime or illegality.
55. Documents are not attached in a statement of claim, but
may be attached and marked as exhibits in an affidavit or
witness statement on oath.
56. Commencement of actions takes the following order, *Issue
of a Writ *Service of a Writ and * Entry of appearance.
57. The options open to a defendant served with a defective writ
are as follows, (a) File a conditional appearance and apply
by motion on notice or summons to set aside the writ (b)
Bring an application to set aside the writ without entering any
form of appearance or (c) File a notice of preliminary
objection with written address on grounds of jurisdiction.
58. Failure of the defendant to enter appearance could lead to
default judgment depending on the type of claim. Where a
defendant fails to enter appearance, (a) A default judgment
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may be obtained or (b) An order setting the suit down for trial
will be gotten. In Abuja, default judgment is available only in
respect of (a) Actions for liquidated money demand (except
money lender actions) and (b) Actions for recovering of
land: see Order 13 Rules 1 & 3 of Abuja Rules. In Lagos,
default judgment is available only in respect of (a) Action for
detention of goods, (b) Mesne profits, (b) Recovery of land
and (d) Liquidated money demand: see Order 10, Rule 2, 3,
7, 8 & 9 of Lagos Rules.
59. The procedure for issuance and service of Writ out of
jurisdiction commences with a leave of court obtained
before the Writ is issued. The second step is to endorse on
the Writ, the fact that is to be served out of jurisdiction.
Lastly, the defendant must be given at least 30 days to
enter appearance, meaning that he may be given more than
30 days.
60. Proof of service of a court process may be made by (a)
Certificate of service or acknowledgment of service (b)
Affidavit of service or (c) By the person who served
appearing in court on the return date and testifying to the fact
of service – Muhammad v. Mustapha.
61. A Writ is defective if improperly issued, endorsed or
served. An action commences when the Writ is issued and
served.
62. An Interlocutory Application may be before, during or
after a suit. An Interlocutory Application may be for (a)
Remedying defects in a substantive suit, (b) Temporary
reliefs (c) The termination of a substantive action and (d)
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The satisfaction of a condition precedent to the proper

commencement of the main action.
63. A party cannot make an application for injunction before filing
the originating process in the action although he can file
everything together. Injunction cannot be granted to restrain
completed acts. An injunction may be interlocutory, interim,
mandatory, prohibitory or perpetual.
64. An interim injunction is granted in situations of extreme
urgency and normally on exparte application; pending the
determining of the application on notice and abates after 7
days (though renewable for another 7days) in Lagos and
after 14 days (though renewable for another 14days) in
Abuja. The affidavit in support of an application for an
interim injunction must show urgency and why delay in
granting same will entail irreparable damages to the
applicant. An interim application shall not be entertained
unless a motion on notice for interlocutory application is or
has been filed.
65. An interlocutory injunction by motion on notice lapses
pending the determination of the suit. If the respondent
wishes to oppose, he will file a counter affidavit plus a written
address and the applicant will respond thereon by filing a
reply.
66. According to Kokoye v. CBN, the conditions for the grant of
injunctions are (a) Existence of a legal right recognized by
law (b) Existence of a substantial issue to be tried (c) The
balance of convenience must be in the applicant’s favour (d)
Damages as an inadequate remedy (that is to say that
damages will not be an adequate restitution to the applicant)
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(e) Applicant’s conduct precedent is not reprehensible and (f)

Undertaking to pay damages/costs has been given by the
applicant, should in case it turns out that the application is
malicious.
67. The grounds for setting aside an ex parte order are, (a)
Default in giving security for costs or undertaking as to
damages (b) Suppression or misrepresentation of facts (c)
Order irregularly obtained (d) Order obtained by fraud (e)
Failure to state the above principles outlined in Kotoye v.
CBN (g) Failure to file an affidavit when the application was
moved.
68. The affidavit in support of an application for Mareva
injunction must state, (a) That the applicant has a cause of
action against the defendant which is justiciable within
jurisdiction (b) That there is a real and imminent risk of the
defendant removing his assets from jurisdiction and thereby
rendering nugatory any judgment which the plaintiff may
obtain (c) That the applicant has made full disclose of all
material facts relevant in the application (d) That the
applicant has give full particulars of the respondents’ assets
within the court’s jurisdiction (e) That the balance of
convenience is on the side of the applicant (f) That the
applicant is prepared to give undertaking as to damages if it
turns out that the order was not properly obtained (g) That
the respondent is a foreigner and/or that his place of
business and domicile are in a foreign country (h) That the
respondent’s history shows that he has removed assets from
jurisdiction or that he is a persistent debtor (i) That the
assets could easily be removed and (j) That the respondent
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has not given any indication of willingness to pay: see the

case of Mareva Compania Naviera v. Int. Bulk Carriers
Ltd.
69. Application for an Anton Pillar Order is exparte and the
property in question must be the subject matter of the suit.
See S. 22 Copyright Act, which is a statutory recognition of
Anton Pillar Injunction and Order 31 (Abuja Rules) and
Order 38 (Lagos Rules). According to the case of Federo
Ltd. v. Uniboro Stores; the affidavit in support of an
application exparte for an Anton Pillar Injunction must state
(a) That the applicant has a strong prima facie case (b) That
the property is in possession of the defendant (c) That the
defendant is likely to destroy or dispose of the infringing or
incriminating property before the application on notice can be
made (d) That the applicant’s case would be greatly
frustrated if the order is not made (e) That the applicant is
ready to an undertaking as to damages.
70. Interpleader is by Originating Summons, where there is
pending action and by motion if there is a pending action in
Abuja; but in Lagos, it is by Originating Summons and
Interlocutory Summons, as the case may be. See Order
26 of Abuja Rules and Order 43 of Lagos Rules.
71. The affidavit in support of an interpleader application must
state (a) That the applicant claims no interest in the subject
matter in dispute other than for charges or costs (b) There he
does not collude with any of the claimants and (c) That he is
willing to pay or transfer the subject matter to the court or to
dispose of its as may be directed by the court. There is no
need to enter appearance to an interpleader summon and
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when it is made during the pendency of an action, usually by

motion in Abuja or by interlocutory summons in Lagos, the
judge shall stay further proceedings in the action.