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COMMENCEMENT OF
ACTIONS IN THE HIGH
COURT
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PRELIMINARY
CONSIDERATIONS
There are some considerations that a
party/counsel must consider before
commencing an action. They include
the following:

CAUSE OF ACTION
LIMITATON PERIOD




LIMITATION PERIOD
Check each states law to find out limitation period. With respect to contract,
limitation period for most states is 6yrs.
Public servants (e.g. Teachers)protection act- 3months.
Fund HR- 12months
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COST OF LITIGATION- Lawyers shd look at this with regard to the client. If
the deft willing to settle out of court without litigation and settlement substantial
enough, better to settle out of court than go to litigation.
JURISDICTION . Odawise everything done would have been futile.
EXHAUSTION OF AVAILABLE REMEDIES . Ainabebholo V ESUWFMPCS
LTD (2007) 2 NWLR pt 1017,33. odawise the crt may strike out ur action or
stay proceedings pending wen such remedies have been exhausted.
PRE-ACTION NOTICE ( aka PRE-CONDITION)Eti Osa LG V Jegede (2007)
10 NWLR pt 1043, 537. e.g. frmr (still exist?) NNPC Act says notice must be
served on NNPC month b4 going 2 crt.
PRE-ACTION COUNSELLING Condition precedent in abj without which
registrar wont register O4 R 16. it means the counsel had advised th e client
about the weaknesses and strengths of the case. Where case weak, costs awarded
against the deft would be borne by the lawyer instead of the deft.
No known case of such being awarded. Not practicable, cos lawyers esp
upcoming wont want to lose briefs.
CHANCES OF ENFORCING COURTS JUDGMENT: Enforcement
Procedure Rules- imp bcos of Nigan factor. E.g in practice, it is very difficult to
enforce judgement against the police (they go with u to enforce judegement. )
also diff to enforce judgement against govt corps.


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VENUE
Venue has to do with where to bring suit and it depends on the type
of action.
O2L provide for the appropriate venue or judicial division for
institution and trial of suits as follows:
All suits relating to land or any mortgage or charge or interest
relating to land and actions relating to personal property distrained or
seized for any cause, shall be commenced in
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in the judicial division where the land
is situated or where the distrain or
seizure took place.
All suits for recovery of penalties,
forfeiture and all actions against public
officers shall be commenced and tried in
the JD in which the cause of action
arose.
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All suits for the specific performance or upon the breach of any contract may be
commenced in the JD in which such contract ought to be performed or in which
the defendant resides or carries on business. See Kraus Thompson Ltd V Unical
2004 AFWLR pt209 1148 Catch: u can bring an action 4 specific performance of
con of sale of land. Means u can bring it under terms 4 con of sale of land or unda
terms of specific performance.
All other actions may be commenced in the JD in which the defendant lives or
carries on business.

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PLACE OF INSTITUTING TRIAL OF SUITS
NOTE : By O2 R5 L, Were any suit is commenced in a wrong JD, it may be
tried in that JD unless the Chief Judge otherwise directs.
Note the difference between O2 R5 L and O9R5 A ;O10 R5 K. Unless d CRT
directs or the DEFENDANT objects. Note that the deft can object but still for
the crt to rule on the objection. If the crt wants it can still hear the suit. So d
diff is between Chief Judge and Crt.
[Note dat where abuja rules is 9, k will be 10. they tend to follow]
Note also the provisions of O9 R6 A; O10 R6 K. (not in Lagos rules at all.) no
proceedings which may have been taken previously to any plea in objection
will be affected. This means if 4 e.g. an injunction had been given in a land
case b4 plea that crt lacks jurisdiction, that injunction will still stand even
though the case is transferred. see the case of Etoluev okuagu (1999) 7
NWLR pt 609, 83. In this case the crt said where there is an objection to the
jurisdiction, the appropriate thing is for the court to transfer the case. This is
even tho d rules allow d judge to continue. Yet it might make the judge seen
biased against d deft.
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FORMS OF COMMENCEMENT
ORIGINATING MOTION O1R1 A; O1R1
K. See KOSAP V Kofa trading co. 1996
2SCNJ 325 [used where the law so states e.g
writ of habeaus corpus( to compel smo to
come to court.)]
PETITION O1R1 A;O1R1 K. KASOP V
Kofa trading co Supra [dont really boda. To
be treated later cos special trial. [ also used
where the law states that the motion should
be so used e.g matrimonial causes, election
petitions, winding up of a coy.]

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WRIT OF SUMMONS. See
O3R1 L; 01R1 A;O1R1 Doherty
V DOHERTY 1968 NMLR 241,
PDP V Abubakar(2007) 3 NWLR
pt 1022, 515
ORIGINATING SUMMONS See
Director SSS V Agbakoba 1999
3NWLR pt 595, 425 O3R5&6L;
O1R1 A; O1R1 K. see note in word

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WRIT OF SUMMONS
ADVICE TO YOUNG LAWYERS: where confused as to the provs go for
writ of summons. Note that confusion is where the prov is not clear. Where
there is a specific prov, go for that.

Generally, where ur case is likely to be a contensious one, bring a WOS.
Can be used in the ff situations
*relief for any civil wrong
*damages for breach of duty
*damages for personal injuries or death of any person
*claim based on allegation of fraud
*claim for declaration by an interested person. See O3 R1 L, O 1 R2 A,O1
R2(1) K.
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FILING OF WRIT OF SUMMONS
It shall be accompanied with
Statement of claim
List of witnesses
Written statement on oath of witnesses
Copies of every document to be relied
on. See O3 R2 L, O4 R15 A.
N/B The requirement of filing a
certificate of pre-action counseling.-
(only in Abuja)

In Lagos and Abuja
It shall be accompanied with
1.Statement of claim
2.List of witnesses(omitted in Abuja)
3.Written statement on oath of witnesses
4.Copies of every document(exhibit) to be relied on. See O3 R2 L, O4
R15 A.
N/B The requirement of filing a certificate of pre-action counseling.
(Abuja)
In Kano, no such rules as these, they are still using the old system.
In Lagos and Abuja, cross- examination is done right away since the
statement on oath of the witnesses are already on paper (front loading
system) This system saves time, surprises are avoided, allows for
certainty, counsels are better prepared, it reduces cost, it allows
parties know the weakness of their case. A major disadvantage is as
regards advocacy as this system seems to limit advocacy.
ALATADEEV. FALODE(1966)
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ISSUANCE OF WRIT

In Abjua & Kano, this means the
signing of a writ by the registrar.
However in Lagos must be sealed by
the registrar before it can be said to
have been issued See O6 R2(1). In
Abuja & Kano leave is required to
issue a writ to be served outside
jurisdiction. See O4 R14 A,O5 R6K
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WHEN IS A WRIT SAID TO HAVE
COMMENCED
Nicoles v G.M Nig Railway Corp (1937)- N sued d corp. railway corp
rules said any suit must be filed 6mnths. Once a party has done all d law
requires him to do, everything else remains with the crt staff. Once hes
filed the suit has commenced.
See Shuaibu v MUAZU (2007) 7 NWLR ptb1033, 271. It is when the
plaintiff has done all that the law requires him to i.e. applying for the
writ and paying the prescribed fees.
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ENDORSEMENT OF WRIT
HEADING OF THE SUIT
PARTIES
ADDRESS OF DEFENDANT
WITHIN JURISDICTION
THE NATURE OF THE CLAIM
NAME AND ADDRESS OF
PLAINTIFF COUNSELWITHIN J
ADDRESS OF PLAINTIFF WIHIN J


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SERVICE OF WRIT/ ORIGINATING
PROCESS
Failure to serve is a fundamental defect where service
is required. See Otobaimere V Akporehe 2004
1NWLR pt894, 591.
Service of originating process is personal, O7 r2 L,
O11 R2 A- See O7 R9L, O11R8 A, O12 R8 K. for
how personal service on a corporation is effected. See
Bello V NBN 1992 6NWLR PT 246,206; Mark v Eke
2004 5NWLR pt 865,54
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SUBSTITUTED SERVICE
See O7R 5 L- lagos rules relaxed.,O11 R5 A,
inovative, includes e mail. Note dat e mail cld also b
used in lagos if d crt chooses that. O12 R5 K. See the
innovation introduced in the Abuja rules.See Mark
VEke supra. Nwaosu V Nwaosu 2000 4NWLR PT
653,351. a form of ss ordered by crt. In process of
effectin it, d deft was found and plt gave him by hand.
Deft raised objection dat it was supposed to be ss. Coa
held dat there is no rule stopping d plt from servin
prsnlly. The only thing he cant do is to use anor form
of subservice oda dan d one d crt orders.
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WHO MAY SERVE AN
ORIGINATING PROCESS.
Sheriff, Deputy Sheriff, Bailiff, Special Marshall or other officer of the
court, law chambers, courier company or any other person appointed and
registered by the Chief judge of Lagos State. See O7 R1 L. Note the slight
difference in Abuja and Kano. See O11 R1 A,O12 R1 K.
In practice it is the baliff that usuallly serves the writ.

Lagos allow some oda group of pple to serve writs.

Where a party is represented by a counsel and the counsel states that the
party had ghven him authority

To serve a prisoner/lunatic, u serve d prison or d prsn in charge of th
asylum. It is deemed as personal service.

O. 7 r.9 L- prsnl service on the coy./ o 11 r 8 abj
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SERVICE OUTSIDE
JURISDICTION
Service of a writ outside jurisdiction is regulated by
the Sheriff and Civil Process Act CAP407
LFN1990.
The Act require that such a writ should be endorsed
by the registrar with thus:
THIS SUMMONS IS TO BE SERVED OUT OF
THE.. STATE AND IN THE . STATE
Failure to write d above wld be
irregular and such a writ cld be
quashed.
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THE RULE IN S.99 SCPA
See YUSUF V COPERATIVE BANK 1994 9 SCNJ 67; ADEGOKE
MOTORS V ADESANYA 1989 3 NWLR PT 109,205;EZOMO
OYAKHIRE 1985 2SCNJ 260
Note the wordings of s99 Sheriff and Civil Process Act. the HC rules A &
K says fill form 11 within 8 days. But rule 99 says nothing can make him
required to appear in crt in less dan 30 days or nt in less dan a longa
period dan d rules of crt prescribe- Lagos rules 4 e.g prescribe 42days.
All dis is where d deft is out of state.
Enter an appearance= fill form 11(a
lawyer cld fill for u without u being
there.
Appear in crt= come to crt.
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RENEWAL OF WRIT
Lifespan of a writ in Abuja and Kano is 12 months and can be renewed for
a further 12 months. See O5 R16 K,O4 R16(2). See Kolawole V Alberto
1989 1 NWLR pt 98 382- on its au, the prov of the hc civil rule of lagos
that says only b4 d expiration is not the law. The law is dat even afta d
expiration.

Concurrent writ: leave needed to serve writ outside jurisdiction. When not
clear weda u cld get deft within or outside jurisdiction (cld come up in
those times wen coys had to move their head office to fct. So might not be
sure where head office is.). Where not sure, take out a concurrent writ this
writ is to be issued as a concurrent writ. that writ can be served both
within jurisdiction and outside jurisdiction.
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ENTERING APPEARANCE
Appearance is entered by the defendant filing a
memorandum of appearance( in Form 11) in the
registry of the court. See 09 r1 L, O12 R1(2) A, O13
R1(1) K. It may also be in form 12 in Abuja and Kano.
Entering appearance =filling form 11.
Abj also has form 12, lagos doesnt. form 12 says
leave has to be obtained first. But the rules generally
says u can enta appearance anytime b4 judgement. (i.e.
8 days) [O 12 r5(1)] has been said to be superfluous
that leave needed first. But judges sometimes insist on
form 12.
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TYPES OF APPEARANCE
CONDITIONAL APPEARNCE Holman Bros Nig ltd V Kigo (Nig)
ltd (1980)11SC 43 [or appearance on protest. Protesting defect in
service. Before starting case, file protest.
UNCONDITIONAL APPEARNCE
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DEFAULT OF APPEARNCE
Default appearance: where d deft fails to appear in crt.
See the writ of summons. In Abuja and Kano this is only
possible with respect of cases of liquidated money demand
and actions for recovery of lands.[those r d two types of
claim [ in other cases the court will ask the plt to open his
case and may give judgement to the plt] See O13 R1-4 A,
O14 R1-4 K.
In Lagos judgment is obtained by the claimant in respect
of actions for detention of goods, mesne profits, recovery
of land and liquidated money demands. See O10R3,5,7-9
L
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But such judgment obtained are called default
judgment and can be set aside by the same court. See O
13R 6 A,O14 R6 K. In every other case not expressly
mentioned default of appearance will entitle the
plaintiff to set down the matter for hearing and he will
be given judgment as he is entitled to. See O10 R12 A,
O13R 5A, O14R5 K.
Ordinarily wen a crt gives judgement on merit, d court
cant give judgement on it again. But in default
judgement d crt can give judgement on it. Bring an
application by way of motion on notice stating:
-Good reason 4 non appearance
-Good defence to plts claim
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EFFECT OF NON COMPLAINCE
WITH RULES OF COURT
E.g of non compliance
a. Commencing with a wrong form
b. Improper endorsements
c. Failure to obtain leave to issue
when required
d. Failure to comply with S.97 and
99 SCPA
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What is the effect of these defects.
See O 2 of Abuja and Kano rules and O5 of the Lagos rule.
Effect: it shall not nullify d proceedings.
But d crt has the discretion to set aside the defective writ.
Or allow ammendment. In PDP V ABUBAKAAR, the
corut allowed ammendment.
See conflict btw 05r 1(1) and (3) lagos. In practice the
Judges dont nullify d proceedings,they treat it as a mere
irregularity ad have d discrtion to set aside the writ.
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OPTIONS OPEN TO A
DEFENDANT WHEN A WRIT IS
DEFECTIVE
File a conditional appearance and apply by motion to set
aside the writ. See Holman Bros ltd V Kigo supra
He can without entering any form of appearnce bring an
application by summons to set the writ aside.See Sken
consult V Ukey 1981 1 SC 6

O 2 r 2 A, O 5 r 2 L
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He can bring an application
challenging the jurisdiction of the
court See AG Eastern V AG
Federation 1964 1ANLR 224