Sep 8, 2017

Just Before Heading To Court | Adejorin d. Abiona

Many cases get dismissed or struck out of Court upon objections and applications which border on technical and preliminary considerations. Such considerations include existence of cause of action, locus standi, jurisdiction, legal personality, properly prepared processes among others. A litigation attorney must have a good knowledge of these considerations and always bear them in mind before heading to court in order not to waste the time and resources of the litigants, the other counsel and the court. A counsel may also incur some liabilities for failure to observe these preliminary or technical matters before instituting an action in court. This article provides a checklist of these technical and preliminary matters a litigation counsel should consider before filing processes in court.

q Cause of Action
There must be a cause of action before an intending litigant can initiate an action in court. A cause of action refers to any fact or series of facts which when proved will entitle one person to damage or relief against another person[i].
A cause of action must clearly appear on the face of the originating processes; otherwise the proceeding will not be sustainable. Hence, counsel must ensure that there is in existence a cause of action known to law before commencing an action in court.
q Locus Standi

A person who intends to institute a suit must possess the ability to so do. Locus standi is the legal capacity to institute proceedings in a court of law[ii].
When a claimant lacks locus in respect of a claim, such claim will be struck out. Therefore, a counsel must make sure his client has the legal capacity to maintain an action before initiating such in court.
q Parties
A counsel must ask himself this very important question while making the decision to institute an action: “Who is the appropriate person to sue and be sued?” He must ensure both the plaintiff and the defendant in a case are legal persons capable of suing and being sued either as the proper party, desirable party, necessary party or nominal party[iii].
In addition, he must ensure the parties are legal persons capable of suing and being sued (natural or artificial persons)[iv]. Also, in deciding who to sue, the counsel must have in mind the possibility of enforcing the judgment if made against the defendant[v]
q Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) mechanisms must be well explored before instituting an action in Court. With ADR, parties may reach an amicable resolution of the dispute without the need to resort to Court or litigation. Moreover, Counsel has a duty to inform his client of the available alternative dispute resolution mechanisms[vi].
q Limitation period
This has to do with whether an action is statute barred or not. Where there is a lapse of time as regards the sustenance of the action, proceedings will be statute barred and the party will be denied the right to proceed to court for redress.[vii]
The time begins to run when the cause of action accrues. The limitation period is determined by comparing the date the writ of summons was filed with the date the alleged wrong was committed as contained in the statement of claim or as adjudged in the eyes of the law. If the date on the writ is beyond the period allowed by limitation law, then the action is statute barred[viii].
Counsel must always note the provisions of limitation laws in order not to initiate a suit that is already statute barred.
q Conditions precedent/Pre-action Notices
All the necessary conditions precedent to the filing of suit in Court must have been complied with before the commencement of an action. Conditions such as pre-action notices, statutory notices, letters of demand, pre action counseling etc. must be fulfilled before instituting an action in court when required by law[ix]. For instance, to institute an action against some government establishments, a counsel must first serve the establishment a written notice of intention to commence the suit. Failure to observe this will be fatal to the competence of the suit.
It is the duty of the counsel to make sure all required conditions precedent to trial are fulfilled before initiating an action in court.
q Jurisdiction
The counsel has to always consider which court has jurisdiction to entertain the client‘s action. Jurisdiction is the legal capacity of a court to hear and determine judicial proceedings. It is fundamental in any proceeding and lack of it is fatal to such proceedings[x].
q Venue
Counsel has to always decide the appropriate Judicial Division or Magisterial District to commence an action. In making such decision, the counsel has to look into the rules of the court guiding commencement of suits.  
An action should be commenced at the right division or district to avoid incurring the unnecessary cost of transferring the case if commenced elsewhere. For instance, an action commenced at the Lagos State High Court will definitely be struck out where the defendant does not reside nor carry on business in Lagos, and the cause of action likewise did not arise in Lagos[xi]. However, in matrimonial causes, all States High Courts are competent to hear matrimonial proceedings even if the marriage was neither celebrated in their jurisdiction nor parties live there. The suit may only be transferred from one jurisdiction to another for the sake of convenience.
q Mode of Commencement
The rules of the court and some other special rules of procedure prescribe the various modes of commencing actions in Court. These modes vary depending on the court and the cause of action. For example, the following are the four (4) different modes for commencing actions in the High Court: writ of summons, originating summons, petition and originating motion/application.[xii]
It is very important for counsel to have good knowledge of these modes of commencement in order not to employ a wrong mode in commencing an action in Court.
q Well drafted, signed and sealed processes
Counsel must make sure all the processes to be filed in court are well drafted, duly signed and sealed. Counsel must be very careful when making use of precedents in drafting the processes so as not to make grievous mistakes. Documents must be signed in the name of the counsel and not that of the firm[xiii]. The NBA seal (or necessary documents in lieu) must also be duly attached to the processes before filing[xiv].

Matters to be considered before proceeding to file an action in Court are always of paramount importance. Failure to consider these matters may lead to premature termination or dismissal at the end of the action. If the above checklist is well utilized, it would be of great assistance to counsel and aggrieved persons intending to institute an action in a court of law.  

[i] Letang v. Cooper (1965) 1 QB 222Mobil v. LASEPA (2003) 104 LRCN 240
[ii] Ag Kaduna v. Hassan (1985) 2 NWLR 453; Adesanya v. President FRN & Anor. (1981) 5 SC      112; Fawehinmi v. President FRN (2007) 14 NWLR (pt.1054) 275. Kayode Bakare & Ors v. Ajose- Adeogun & Ors 2014 Legalpedia SC 33M5
[iii] Green v. Green (1987) 3 NWLR (Pt. 61) p. 480.
[iv] Okechukwu & Sons v. Ndah (1967) NMLR 366; Ataguba and Company v. Gura Nigeria Limited 2005 Legalpedia SC 9AWD
[v] Prince Joel Olowode Amos &Ors v. Oba Israel Adewale Okoya & Ors 2014 legalpedia CA PEUC
[vi] Rule 15(3) (d) Rules of Professional Conduct
[vii] Ajayi v. Military Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237; Dr. Charles Oladeinde Williams v. Madam Olaitan Williams (2008) Legalpedia (SC) TOJB
[viii] Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
[ix] Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572. Ugwuanyi v. NICON Plc (2004) 15 NWLR (Pt. 897) 612
[x] Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587.  Mobil v. LASEPA (2003) 104 LRCN 240; Ndayako v. Dantoro (2004) 13 NWLR (Pt 889) 187
[xi] Order 2 , High Court of Lagos State (Civil Procedure) Rules, 2012
[xii] D.I Efevwerhan (2013): Principles of Civil Procedure in Nigeria (Second Edition) pg 145; Snaap Press Ltd, Enugu, Nigeria.
[xiii] Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521
[xiv] Today’s Cars Ltd v. Lasaco Assurance PLC & Anor (2016) LPELR-41260 (CA)

Adejorin D. Abiona is a young resourceful legal practitioner, writer and public speaker with keen 
interest in dispute resolution and corporate law practice. He has to his credit various law-related 
articles published on different platforms.   

 Adejorin d. Abiona
Associate Attorney | Writer | Public Speaker