Viola CIVIL LITIGATION

OKWOR, KENNETH ONONEZE DOMINIC – NLS LAGOS CAMPUS, 2014/2015
Week 3
ALTERNATIVE DISPUTE RESOLUTION
ADR can Be Taken Up In 2 Ways:
1. Parties Agreement To Resolve their dispute through ADR. Private agreement e.g.
Lagos Court of Arbitration, Mediation centers.
2. Court Referral- Most courts encourage resolution of disputes by ADR. Under the
Rules of Court, the judge has an obligation to encourage parties to refer their
disputes to ADR. In this sense ADR is court-connected eg Lagos Multi-Door
Court House. Order 25 R. 2(1) HCCPR Lagos state
Order 17 Abuja HCR.
ADR relate to the alternative methods of dispute resolution that is aside litigation. In
other words, should a potential litigant not be willing to go to court, which other method
can be used to resolve the dispute. The following are the methods available.
 Negotiation: Parties do not need a third party to settle. They do the offer and
acceptance of terms amongst themselves. Limit: Stronger bargaining power
 Mediation: Parties settle amongst themselves with the help of a neutral third party
known as a mediator who only facilitates the process of settlement. He helps
them maintain communication and help them shift to interest-base to ensure an
amicable resolution. It is a win-win system. ENFORCEMENT: After the parties
agree to the terms, they sign and date the outcome as witnessed by their lawyers.
Thereafter, the parties file it in court and agree that the terms of settlement be
made a consent judgement by the court. Mediation is governed by the rules of the
mediation center.
 Conciliation: Here, conciliation is governed by ACA. The conciliator comes up

with an opinion which is reduced to terms of settlement for parties to sign which
is at the discretion of the parties. The conciliator tries to enforce his opinion on
the parties.
 Arbitration: an arbitrator who sits as an umpire to decide the case is appointed. He
hands down an award which is like a judgement of the court enforceable at the
High Court. The parties may set aside the judgment in the HC on the grounds of
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Sections 29 and 30 of ACA, otherwise the award is binding. Bindingness of the

award.
 Hybrid process e,g Neg-Med, Med-Arb often used in cases of breach of contract.
 Early Neutral Evaluation: Used in International commercial transactions.ample a

dispute between Chevron and Shell, a petrochemical Engineer comes as an early
neutral evaluator to evaluate the strength and weaknesses of the case. The parties
then decide whether to go on with litigation or resolve amicably.
Advantage of ADR over litigation
1. It is cost-effective: In short term, ADR can be more expensive than litigation but
in long term it is cheaper than litigation. In ADR, all the expenses are borne by
the parties while in litigation; some of the expenses are not borne by the parties.
2. Preservation of relationship between the parties: Most ADR has a win-win
situation on both sides, although arbitration is now similar to litigation as it is
governed by stringent rules where there is a winner and loser. Strictly in litigation,
it is a win-lose situation. Preserves the pre-dispute relationship between the
parties.
3. Privacy of the parties: ADR helps preserve the privacy of the parties. In litigation,
the process must be held in public except under certain conditions thus in private.
Again most parties to litigation do not return as friends even in matrimonial
proceedings. And in commercial area of law, ADR is most relevant as there might
still be need to continue business relationship.
4. It is less formal: The court room where litigation is carried out is usually tense.
For the lawyers, it is difficult, there are a lot of rules and procedures which must
be followed and also for the layman, it is extremely difficult. In ADR session, it is
more of business meeting where coffee can even be served. Hence the layman is
likely to prefer such environment.
5. The parties can determine the umpires. They determine the mediator or arbitrator
or conciliator.
6. Involvement of people: ADR processes are parties driven. Parties can determine
the time, venue, language and pace in the ADR process. In litigation, parties are
not involved. It is controlled by the court.
7. Saves time.
8. Encourages compromise
9. Decongest the cases before the courtrooms
10. Encourages the use of experts.
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Disadvantages of ADR
1. ADR hinders the development of case law..

2. Lack of binding force: ADR processes usually lack binding force except
arbitration as the ACA provides for its bindingness. However for the others that
have no binding force, the parties can and usually make an effort to reduce the
decision reached in the ADR process into a binding agreement. In other words, by
their own nature, most are not binding but there are means to making them
binding.
3. Parties can easily re-open the matter EXCEPT in Arbitration.
4. Its application is limited in some cases.
5. The other methods have no legal framework. Only arbitration and conciliation
have binding force under ACA
6. Decisions are usually not appealable.
Limitation of ADR
a. Where the case is purely a criminal matter..

b. Election petitions, being matters of public policy cannot be resolved through
ADR.
c. In matrimonial causes, because parties have to come to court to give evidence in
the case of dissolution of marriage and judicial separation.
d. Certain matters that require evidence to be proved. For instance, a declaratory
relief being sought must be proved by evidence.
e. Injunction restraining an act.
f. Enforceability of judgement
g. Enforcement of FHR.
h. Interpretation of statutes and the Constitution.
SOURCES OF CIVIL LITIGATION
The following are the various sources of civil litigation
1. Rules of courts
In practice, every court has its own rules that guide practice and procedure of such court.
In this like, there is the Supreme Court Rules, Court of Appeal Rules, Federal High Court
Rules, State High Court Rules, down to Sharia and Customary Court Rules.
2. The Constitution
The function of the constitution as it relate to it being a source of civil litigation can be
divided into the following:
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 The constitution creates the court. Section 230(1), 237(1), 249(1), 270(1) of
CFRN 1999 creating the Supreme Court, Court of Appeal, Federal and State High
Court respectively.
 The constitution gives power to the courts.
 The constitution prescribes the authority to make rules. Section 236 CFRN
conferring power on the CJN to make rules regulating the practice and procedure
in the Supreme Court.
 The constitution also has rule on civil litigation. Section 36 CFRN on fair hearing;
section 233 on appeal to the Supreme Court.
3. Statutes creating courts
Rules of court are also made pursuant to statutes creating the courts. Also there are
certain provisions in the statute directly on procedure. For instance, s. 7 & 25 of Supreme
Court and Court of Appeal Act respectively on time within which an appeal can be made.
14 days for interlocutory judgments and 3 months for final judgments.
4. Special statutes on procedure (civil)
Aside from the rules of court, there are statutes which have provisions on civil litigation.
These statutes can cover an aspect of civil litigation. E.g. Admiralty. These special
statutes include the following:
 The Sheriffs and Civil Process Act/Law and The Judgment (Enforcement) Rules.
This is an Act of the National Assembly by virtue of the fact that the subject
matter of the Act is found in item 57 of the exclusive legislative list, thus
applicable in the whole federation. Hence, any law of a state in that respect is only
applicable to Magistrate (South), District (North), Customary and Sharia Courts.
 Foreign Judgments (Reciprocal Enforcement) Act. It gives procedure on how a
foreign judgment is to be enforced.
 Companies and Allied Matters Act. Under CAMA there are the Companies
Winding up Rules 2001 and Companies Proceedings Rules 1992. There are rules
on civil litigation but apply only to companies or entities under CAMA.
 Companies Income Tax Act under it, the Federal High Court (Tax Appeals) Rule
1992 was enacted.
 Admiralty Jurisdiction Act under it the Admiralty Jurisdiction Procedure Rules
was made.
 Matrimonial Causes Act and Matrimonial Causes Rules, all on practice and
procedure for matrimonial causes.
5. Practice direction
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These are rules and guidelines given by the necessary or appropriate authority when a
lacuna exists in procedure. Examples are:
 A multi-door court rules is a practice direction.

 In election petition s, the 1st schedule to the Electoral Act had nothing like front
loading but a practice direction was issued to that effect.
 In the National Industrial Court, the president introduced front loading based on
practice direction.
Whenever the rules may be short or inadequate the appropriate authority can quickly
issue guideline. It is pertinent to note that a practice direction is not expected to depart
from or be inconsistent with the rules of court, because it is not an enactment therefore
has no force of law. As between the statute creating court and rules of court, the statute
creating court is superior and as between the statute and the constitution, the constitution
is superior, as between the rule and practice direction, the rule prevails.UNILAG V
AIGORO.
6 Decisions of courts on procedure
There are some rules of procedure that are derived from decision of courts. For instance,
the rules relating to grant of injunctions were developed by the court through it decision.
Also the rule that require addressing the court before ordering a non-suit. For instance,
where there are two motions before the court of which one will render the suit competent
or preserve the suit and the other would strike it out, the rule is that the court would first
hear the motion that would make the suit competent before the other. NALSA TEAM
AND ASSOCIATES V NNPC.
The question has been asked as to the relevance of English rules in civil litigation.
Section 26 of Lagos High Court Act, the position then was that when there is a lacuna,
the English rules should be referred to. However, the position now is that where there is a
lacuna, the court would take steps to do substantial justice. In this like, the court shall
decide to go to England (English rules) when substantial will be done. SEE ORDER
1(2)HCCPR(ABUJA), ORDER 1 R 1(3)HCCPR(LAGOS)
JURISDICTION OF COURT
It is a function of law. In one word, it is power of the court to decide a dispute between
parties. Every court is established by some laws and it usually the law establishing the
court that also defines the jurisdiction of the court. In Madukolu&Ors v. Nkemdili, the
court stated three conditions that must be in existence before the court can be said to have
jurisdiction. These are:
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 There must be constitution as to qualification and numbers of members of the

bench and no member is disqualified for one reason or another.
 Subject matter of the dispute must be within the jurisdiction of the court and no
feature in the case which prevents the court from exercising its jurisdiction.
 The case must have been brought to court in accordance with due process after
satisfaction of relevant provisions on condition precedents.
There should be a distinction between procedural and substantive jurisdiction.

Substantive jurisdiction is the jurisdiction that relate to the subject matter of the dispute.
This kind of jurisdiction can be raised at anytime even at the Supreme Court for the first
time. It can also be raised suomotu by the court.
Procedural jurisdiction relates to matters of practice such as : preaction notice, matters

statute barred, res judicata, hence not being substantive jurisdiction must be done
timeously. If it is not so done, then such party would be deemed to have waived it. Thus
procedural jurisdiction cannot be raised at anytime but must be raised timeously.
COURTS IN NIGERIA
Supreme Court
The Supreme Court is established by section 230(1) CFRN.
Composition is CJN plus 21 Justices (not more than that). Section 230(2) CFRN.
Constitution - At least 5 Justices, however on the following, it must be 7 justices. Section

234, exercising original jurisdiction, interpretation or application of the constitution,
contravention of chapter IV - fundamental rights.
Appointment - CJN is appointed by the President on recommendation of NJC subject to

confirmation of Senate - section 231(1). Same for other justices - section 231(2) CFRN.
Removal - sections 292(1) (a) provides that the CJN to be removed by the President
acting on address supported by 2/3 majority of the Senate. The question then is, does the
National Judicial Council not have any role to play based on the express provision of
section 292 CFRN.
The Supreme Court in EleluHabeeb v. Attorney-General of Kwarastate, stated that other

statutes and provision of the constitution should be read along section 292 of CFRN. As it
is by reading these other statutes that the function of the NJC which actually recommend
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removal to the president would be found. In effect the proper interpretation of section 292
cannot be done in isolation.
Jurisdiction
The Supreme Court has both original and appellate jurisdiction in civil litigation.
 In disputes between the federal and state government. Section 232(1).

 In dispute between states.
In accordance, section 232(2) which empower the National Assembly to confer additional
original jurisdiction in respect of civil matters on the Supreme Court, the National
Assembly enacted the Supreme Court (Additional Original Jurisdiction) Act 2002. These
additional original jurisdiction are section 1(1) (a)-(c)
 In dispute between the National Assembly and the President.

 In dispute between the National Assembly and state government/state of the
federation.
 In dispute between the National Assembly and State House of Assembly.
Hence the Supreme Court now has original jurisdiction in five aspects. The schedule to
section 2 of the Act states that both the National Assembly (consisting of Senate and
House of Representative) must have passed a resolution supported by a simple majority;
and the State House of Assembly must have passed a resolution supported by a simple
majority. The nominal parties as found in section 3 is National Assembly, State
House of Assembly is speaker of the State House of Assembly.
Generally, nominal parties for the federation and the states are Attorney-General of
the federation and Attorney-General of the state. Section 20 Supreme Court Act.
 Appellate jurisdiction of the Supreme Court as found in section 233 lies from the
court of Appeal as of right or with leave of the Court of Appeal or Supreme Court
CONSTITUTION
Pursuant to section 234 1999 CFRN, the SC shall be duly constituted if it consists of not
less than five justices. Provided that when it assumes its original jurisdiction, and it sits to
hear appeals of application and interpretation of the constitution; and questions on the
provisions of chapter IV , it shall be constituted by seven justices..
Court of Appeal
Section 237(1) CFRN creates the Court of Appeal
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Composition - President of the CA plus not less than 49 is outdated provision, as at the
last time there is a bill before the National Assembly proposing at least 89 justices -
President plus 89 justices with at least 3 learned in Islamic law and 3 in Customary law.
Constitution: At least 3 in exercising an original jurisdiction and in appeal from Sharia

Court of Appeal or Customary Court of Appeal, 3 justices learned in Islamic personal law
or customary law as the case may be. Section 247(1)(a)&(b) CFRN
Qualification: At least 12 years at the bar.
Jurisdiction: The Court of Appeal has both original and appellate jurisdiction. Original
jurisdiction - section 239(1)
 Valid election to the office of the president/vice president.

 The term of office of president/vice president has ceased
 The office of the president/vice president has become vacant.
Appellate jurisdiction - section 240 of CFRN
 State High Court

 Federal High Court
 High Court of FCT
 Customary Court of Appeal of a state
 Court martial
 Sharia Court of Appeal of FCT and a State
 National Industrial Court
 National and State House of Assembly Election Tribunals
 Governorship Election Tribunal
 Code of Conduct Buruea Tribunal.
By virtue of the second alteration to the 1999 constitution, in section 246(3) the decision
of the Court of Appeal in respect of appeals arising from the National and State Houses
of Assembly Election petition Tribunal shall be final. Also, the decisions in respect of
civil appeals from the NIC is final. Section 243(4)
Federal High Court
Section 249 (1) of CFRN, 1999 created the Federal High Court.
Composition – a chief judge and such other number of judges as prescribed by the Act of
National Assembly.. section 249(2) CFRN 1999.
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Constitution – section 253 CFRN at least one judge
Appointment – section 250, same as Court of Appeal
Qualification – at least 10 years at the bar.
Jurisdiction – section 251(1) (a)-(s) CFRN, 1999. In addition to other jurisdiction to be

conferred by an Act of National Assembly, it has exclusive jurisdiction in the following
matters
a. Revenue of the government of the federation whether it or its organ as a plaintiff

or defendant.
b. Taxation of a company, bodies established to carry on business and persons
subject to federal tax. Companies Income tax – Federal High Court; Personal
Income Tax – state of residence; residents of Abuja are subject to federal taxation
but those in other states, Personal Income Tax.
c. Customs, excise duties, export duties, claim against Nigeria Customs Service or
any member or office relating to performance of their duties.
d. Banking, bank, other financial institution. Action between bank and bank. Action
against CBN relating to final measures. However, no exclusive jurisdiction as
between transaction involving a customer and his bank. There is a difference
between banking policy and transaction (concurrent with State High Court),
policy-mergers, revocation of banking license, capital, examination of banks,
fiscal measures are within the exclusive jurisdiction of Federal High Court.
e. Operation of CAMA or any law replacing CAMA. For instance, removal of a
director by Federal High Court
f. Any law on intellectual property, copyright, patents, business name, trade mark,
industrial designs.
g. Admiralty matter, shipping, carriage by sea, River Niger, River Benue, other
inland waterways designated to be international waterways, federal ports.
h. Diplomatic, consular and trade representation
i. Citizenship, deportation, extradition, immigration, emigration, nationalization
j. Bankruptcy and insolvency
k. Aviation and safety of aircraft
l. Arms, ammunition, explosives
m. Drugs and poisons
n. Mines and minerals
o. Weights and measures
p. Interpretation of the constitution that affect federal government or any of its
agencies.
q. Action, declaration, injunction affecting validity of executive or administrative
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r. Such other exclusive civil jurisdiction to be conferred on it by an Act of National

Assembly.
CASES ON THE POINT
(READ YOUR HANDWRITTEN NOTES.)
High Court of a State
Section 270(1) CFRN, 1999 creates a High Court for each state and section 255(1)
CFRN, 1999 create the High Court of the FCT.
Composition – a chief judge and such number of judges as prescribed by law of the
House of Assembly of that state or Act of National Assembly for FCT.
Constitution – at least one judge of the court. If the state high court is more than one
judge then all the judges must be judge of the state high court. This is the decision of
Oloriegbe v. Omotosho.
Appointment – chief judge is appointed by the governor on recommendation of NJC and

confirmation by the House of Assembly of the state. For other judges, no need of
confirmation by House of Assembly – section 271(1)(a) & (b) CFRN 1999.
Qualification – at least 10 years at bar.
Jurisdiction – subject to section 251, 254 of the third alteration of the CFRN, 1999. The
National Industrial Court and Federal High Court are courts of enumerated jurisdiction.
Thus once a matter is not within the jurisdiction of the state high court. Despite the
restriction on the jurisdiction of the state, it is still the court with largest jurisdiction.
Once jurisdiction given to other court is not specify to be exclusive, it share concurrent
jurisdiction with such court. Original jurisdiction relate to wills, title to land inter alia. It
has appellate jurisdiction to hear matter from the Magistrate (south) or District (north)
and supervisory jurisdiction over Customary and Area courts.
Magistrate court (Lagos)
The jurisdiction of the Magistrate court has a flat rate. In Lagos state under the Magistrate
Court Law, the flat rate is N10, 000, 000 (ten million). Their jurisdiction is in the
following areas
 Personal actions arising from tort and contracts

 Action between landlord and tenant for possession
 Action for recovery of any penalty, rates, expenses etc
 Appointment of guardian ad litem
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 Power to grant injunctions
A Magistrate court would have jurisdiction when excess of claim is abandoned. It does
not have jurisdiction in issue of title to land or any interest in land; issue as to the validity
of devise, bequest or limitation under any will or settlement.
District courts have civil jurisdiction in north. The Sharia Court of Appeal must be
established for the FCT but for other states, it is optional. Same for Customary Court of
Appeal.
Customary and Area Courts
In the south, it is the Customary court. In Lagos state, the AG of Lagos state is
empowered under the Customary Court Law to establish a single grade of customary
court. The Customary court has jurisdiction over persons who are subject to customary
law. In the north, appeal lie from upper Area court to Sharia Court of Appeal.. The
jurisdiction of the Area court is subject to that contained in the warrant establishing it.
Election tribunals. SECTION 285 CFRN 1999(as amended)
The Court of Appeal, for election to the office of the president and vice president. This is
an election tribunal for the purpose of elections and appeal from it lies to the Supreme
Court.
The National and State House of Assembly election tribunal as contained in section 1 of
the CFRN (second alteration) Act, sixth schedule.
Composition – is a chairman and two other members. The chairman shall be a judge of a
High Court and other members (two) shall be appointed from judges of a High Court,
kadis of a Sharia Court of Appeal, or judges of a Customary court or other members of
the judiciary not below the rank of a chief magistrate. Section 1(2) CFRN (second
alteration) Act.
Appointment – the chairman and other members are appointed by the president of the
Court of Appeal in consultation with the chief judge of the state, grand kadi of the Sharia
Court of Appeal of the state or the president of the Customary Court of Appeal of the
state. Appeal from the National and State House of Assembly lie to the Court of Appeal
and ends there – section 7(3) CFRN (second alteration).
The governorship election tribunal has the same as the National and State House of
Assembly in section 2 of CFRN (second alteration) Act. Appeal from the governorship
election tribunal lie to the Court of Appeal and then to the Supreme Court. Section 6(2)
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(e)(vi) CFRN (second alteration) Act. It is the only election tribunal that enjoys two
appeals.
National Industrial Court – section 254 (third alteration)
Section 254 A (i) of the CFRN (third alteration) Act established the NIC of Nigeria.
Composition – The president and such other number of judges as may be prescribed by
an Act of the National Assembly
Constitution – one judge or a panel of three judges as may be directed by the president of
the court.
Appointment – appointed by the President on recommendation of NJC and senate

confirmation. Other judges are appointed by President and on recommendation of NJC –
section 254 B (1) & (2).
Qualification – qualified to practice as a legal practitioner and has been so qualified for a
period not less than 10 years and has considerable knowledge and experience in the law
and practice of industrial relations and employment conditions in Nigeria.
Jurisdiction – section 254 C. The jurisdiction of the NIC has to do with employment
conditions and industrial relations, labour. It covers Factories Act, Trade Dispute Act,
Trade Union Act, Labour Act, Employees’ Compensation Act, International Conventions
relating to labour, employment, workplace, industrial relations or matters connected
therewith, chapter IV as it relates to employment, labour, industrial relation, trade
unionism, employer’s association. The jurisdiction of the NIC is extant notwithstanding
the jurisdiction of the Federal High Court, High Court of States and High Court of FCT
. In case of dispute involving federal government and its employees, the cases of NEPA
v. EDEGBERO, KRPC LTD v. ONUORAH should be used in determining which court
between the Federal High Court and NIC has jurisdiction. The question of jurisdiction is
very important as a court without jurisdiction hearing a matter would amount to effort in
nullity. Where a court lacks jurisdiction and party bring a matter before it, it can
lead to abuse of court process, also non-professionalism and show of incompetence
in the legal practitioner. It can lead to delay of justice. It can make the subject
matter of action statute barred. Parties cannot by themselves confer jurisdiction on
a court. If a counsel brings an action to the wrong court and the court denied
jurisdiction and the case becomes statute barred, the legal practitioner has breached
the rules of RPC on competency – Rule 16 RPC
The legal practitioner can be sued for negligence which amounts to professional
misconduct. RULE 14(5) RPC..
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TRANSFER OF CASES
FEDERAL HIGH COURT: Section 22(2) FHC Act, the FHC can transfer cases it does
not have jurisdiction over to the SHC. It should NOT strike out the action. MOKELU V
FEDERAL COMMISSIONER FOR WORKS AND HOUSING
STATE HIGH COURT: Section 22(3) of the FHC Act empowers the SHC to transfer
cases it has no jurisdiction over to the FHC . However this has been held to be contrary to
Section 274 of the 1999 Constitution which empowers the chief judge of a state to make
laws that govern practice and procedure of the SHC, subject to any law made by the State
House of Assembly. FASAKIN FOODS(NIG) LTD V SHOSANYA.
NOTE: ORDER 32 RULE 1 HCCPR ABUJA, empowers a judge of the FCT high Court
to transfer a case pending in his court or lower court of the FCT to the appropriate court
of competent jurisdiction.
NATIONAL INDUSTRIAL COURT: section 24(2) NIC Act empowers the NIC to
transfer causes and matters to the High Court or the Federal High Court as appropriate.
Order 28 R 1 of the NIC Rules also make similar provision.
FHC TO MAGISTRATE COURT: SECTION 26 FHC ACT
TRANSFER OF CASES FROM MAGISTRATE COURT TO FHC: SECTION 27 FHC.

HOWEVER, this section cannot validly preserving yeh practice and procedure to be
followed in the magistrate court. For a court to validly transfer a case to another court, it
must be validly empowered by its won rules to do so. FASAKIN FOODS(NIG.) LTD V
SHOSANYA.
WEEK 4
PARTIES TO A CIVIL ACTION
Why are parties to an action important?
1. Whatever judgement the court gives must be binding on the parties in court.
2. If the proper parties are not before the court, the matter will be struck out.
3. The time of the court and that of the client will be wasted and costs will be borne.
Capacity to sue and be sued
In any cause of action, after determining the nature of action, jurisdiction of court and
proper advice on ADR mechanism, the next thought should be the likely parties to an
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action. Parties to an action is important because a court can only resolve a dispute if the
right parties are before it. Once relevance of parties is not determined, it goes to the root
of the matter. Again, any claim if successful must be against another party and such party
must be the person who claims can be recovered from. There are usually two parties in a
civil action, the party who is claiming and the party who is being claimed against.
A party cannot be both plaintiff and defendant in the same action at the same time. See
UDE v. NWANGWU (1995) 9 SCNJ 41.
Who can sue and be sued
For the action to be competent, both parties must be legal persons (whether natural or
juristic). If the competence of the plaintiff/claimant is challenged, the onus is on him to
establish his competence as lack of competence on the part of the plaintiff/claimant will
lead to the action being struck out. In SHITTA & ORS v. LIGALI & ORS the plaintiffs
described themselves as ‘the executive community of the central mosque, Lagos and the
court held that the committee had no capacity to sue. However in Adegbite & ors v Lawal
& ors, the plaintiffs sued ‘for themselves and on behalf of the Muslim community of
Ijebu-Ode central mosque and the court held that they were natural persons.
 Thus, non-existent persons cannot sue or be sued. If the defendant is not a legal
person, the matter will be struck out for it is incompetent. See AGBOMAGBE
BANK v. GENERAL MANAGER, G.B. Ollivant. .However, by Order 13 r 5
Lagos (no provision in Abuja), where an action has been instituted against a
wrong defendant or where the name of the defendant has been incorrectly stated, a
judge may upon application, order a substitution or addition of any person as
defendant or correction of any such name on such terms as may be just.
 However, in the case of a misnomer, the position of the law is that upon an
application, the writ and other court process will be amended to bear the correct
name. OKECHUKWU & SONS v. NDAH. By Order 10 r 2 Abuja and Order
13 r 2 Lagos, where an action was commenced in the name of a wrong person as
plaintiff/claimant or where it is doubtful whether it was commenced in the name
of the right plaintiff/claimant, a court or judge in chambers (for Abuja) or a Judge
(for Lagos), may order the substitution or addition of any other person as
plaintiff/claimant on such terms as may be just.. In Abuja, before making the
order, the court or judge in chambers must be satisfied that it was as a result of a
bona fide mistake and that the order is necessary for the determination of the real
matter in dispute. See also SO SAFE TABLE WATER TECHNOLOGIES LTD
V AYINOLUWA.
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Effect of failure to include a person who ought to be made a party is that he will not be
bound by the decision in that suit. See OKOMU OIL PALM v. ISERHIENHEN
Types of parties
There are different types of parties to a civil action
PROPER PARTIES: A proper party has no interest in the case, but he is joined because
of the particular role he played which led to the cause of action. The judgement of the
court will not affect him.. See GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480.
NECESSARY PARTIES: These are persons who are interested in subject matter and in
whose absence, the proceeding cannot be fairly dealt with. See GREEN v. GREEN
(1987) 3 NWLR (Pt. 61) 480. Thus, a necessary party is a party whose presence is
necessary for the just, effectual and complete determination of all the issues in the
action. See COL. HASSAN YAKUBU (RTD) v. GOVERNOR, KOGI STATE & ORS
(1995) 9 SCNJ 122; Peenok Investment Ltd v. Hotel Presidential; UNION
BEVERAGES LTD v. PEPSI COLA INTL LTD. When an agent acts on behalf of a
disclosed principal, the PRINCIPAL is a necessary party. In all actions, necessary parties
are used except where the law specifies a nominal party.
DESIRABLE PARTIES: A desirable party is one who is not originally a party to the
action nor whose presence is necessary for the just, effectual and complete determination
of the action, but nevertheless, needs to be a party so that he will be bound by the
decision in the case since the decision may directly affect him. See GREEN v. GREEN
(1987) 3 NWLR (Pt. 61) 480; COL. HASSAN YAKUBU (RTD) v. GOVERNOR,
KOGI STATE & ORS (1995) 9 SCNJ 122. Note that the AGENT of a disclosed
principal is a desirable party.
NOMINAL PARTIES: these are parties who are not really involved in the set of facts
constituting the cause of action, but are made parties to the suit by virtue of the office
they hold or occupy. See PADAWA v. JATAU (2003) 5 NWLR (Pt. 813) 249. For
example, in actions involving the federal government or the government of a state, the
AG of the federation or of the state respectively is the nominal party, see section 20
Supreme Court Act; in actions involving the House of Assembly of a State, the nominal
party is the Speaker of the House, see section 3 of SC (AOJ) Act Cap S16 LFN 2004; in
an action for passing off, the CAC is a nominal party; in Magistrate Courts, the
Commissioner of Police is a nominal party for the state.
Page 15 of 389
However in a case where the principal parties sue or are sued instead of the nominal
parties, it would only amount to an irregularity. See PLATEAU STATE v. AG
FEDERATION (2006) 3 NWLR (Pt. 967) 346
Reconciling locus standi with constitution of parties to an action.
The concept of locus standi is that only a person who has interest in a subject matter is
competent to bring an action. A busy body cannot institute an action. Locus standi is only
relevant to a plaintiff thus a plaintiff – person claiming must have interest in the subject
matter of the suit.
How parties are designated
 Writs of summons – Plaintiff (but called Claimant in Lagos)/Defendant

 Originating summons – Plaintiff (or Claimant)/Respondent
 Petition – Petitioner/Respondent
 Originating motions-Applicant/respondent
The same person can be both a plaintiff and defendant (in case of counter-claim) in the
same matter; also an applicant and respondent. Parties are usually set out after the
heading of the court, suit number.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO:
BETWEEN
KENNETH OKWOR CLAIMANT
AND
JEFF OWHOR-CHUKU DEFENDANT
IN THE FEDERAL HIGH COURT OF NIGERIA
Page 16 of 389
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO:
KENNETH OKWOR PLAINTIFF
AND
JEFF OWHOR-CHUKU DEFENDANT
Classes of parties
INFANTS – Order 10 r 11 Abuja; Order 13 r 9 Lagos.*
In Lagos, infants, lunatics and persons of unsound mind are called persons under legal
disability. See Order 13 r 9 Lagos.
 In Abuja, by Order 10 r 11 Abuja, an infant may sue as plaintiff through his next
friend and defend through his guardian appointed for that purpose. Order 10 r
13(1) Abuja further provides that an infant shall not enter an appearance in the
case of his defense except by his guardian ad litem. An
 While in Lagos, by Order 13 r 9 Lagos, an infant may sue by his guardian and
defend by his guardian appointed for that purpose.
A next friend or guardian of an infant is preferably his parent, relation or a person in loco
parentis to the infant. Mere volunteers will not be allowed. See WOLF v. PEMBERTON.
Condition Precedent:The next friend or guardian must not possess any interest which
is contrary or adverse to that of the infant. In this regard, by Order 10 r 14 Abuja
and Order 13 r 10 Lagos, before the name of any person can be used in any action
as a next friend or guardian of an infant (or a guardian of a person under legal
disability in Lagos generally), such person must sign a written authority for that
purpose, which shall be filed in the Registry. The written authority must state that
the person to be appointed as next friend or guardian has given his consent to be so
appointed and that he does not have any interest which is contrary or adverse to
that of the infant.
Page 17 of 389
In SOFOLAHAN & ANOR v. FOWLER & SONS (2002) 9 NSCQR 596, the supreme
court held that from the way the parties were couched, it suggested that the party acting
as next friend or guardian also sued in his own behalf as an interested party having
described himself as “Dr. O.O. Sofolahan (suing as a parent and the next friend of
OlabosipoSofolahan)”.
Drafting: Where an infant is suing or defending by his next friend or guardian, the
parties’ clause is drafted by stating the name of the infant, indicating that he is such, then
indicate that he is suing by his next friend or guardian, who should then be named.
Example:
ACTION BY AN INFANT

IN THE IKEJA JUDICIAL DIVISION’
HOLDEN AT IKEJA
SUIT NO:
BETWEEN
(Suing through his guardian, THEO MAIMAKO) ------------------CLAIMANT
AND
JEFF OWHOR-CHUKU (iNFANT)
(Defending through his guardian, CHIKA ITODO KINGSLEY)------- DEFENDANT
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA

IN THE MAITAMA JUDICIAL DIVISION’
HOLDEN AT MAITAMA
SUIT NO:
BETWEEN
KENNETH OKWOR (Infant)
(Suing by her next friend, THEO MAIMAKO) ------------------PLAINTIFF
AND
JEFF OWHOR-CHUKU (Infant)
(Defending through his guardian, CHIKA KINGLSLEY ITODO)------ DEFENDANT
LUNATICS OR PERSON OF UNSOUND MIND – Order 13 R 9 Lagos, Order 10 R

12 Abuja.
In Lagos, the lunatics sue and defend through their guardian. In ABUJA,: by Order 11 r
12 Abuja, a lunatic or person of unsound mind may sue as plaintiff by their committee in
Page 18 of 389
lunacy or next friend, and may defend any action by their committee or guardian
appointed for that purpose.
In drafting, do not state the fact they are under legal disability as it is derogatory.
PARTNERS – Order 13 r 24 Lagos; Order 10 r 10 Abuja
Partners can sue or defend in the following three (3) ways:
1) A partnership can sue and defend in the firm’s name. see Order 10 r 10(1) Abuja
and Order 13 r 24 Lagos, which both provide that any two or more persons likely
to benefit or claiming or alleged to be liable as partners may sue or be sued in the
name of the partnership of which they were partners at the time when the cause of
action arose. See IYKE MEDICAL MERCHANDISE v Pfizer Inc (2001) 5
SCNJ 12; MK MARKI v. HASSAN SAYID
2) The partners may be sued jointly in their individual names, expressed to be
“carrying on business under the name and style…”
3) One or more of the partners may sue or be sued in a representative capacity as
representing the partnership.
Drafting for the second method:

IN THE MAITAMA JUDICIAL DIVISION’
HOLDEN AT MAITAMA
SUIT NO:
BETWEEN
MR. KENNETH OKWOR
MR AKINOLA ATKIN
MALLAM WAHAB TEMIDIRE
(carrying on business under the name and style of AAT & CO)--------------PLAINTIFF
AND
JEFF OWHOR-CHUKU
(An infant, defending through his guardian, Mr. THEO MAIMAKO) --------
DEFENDANT
TRUSTEES, EXECUTORS AND ADMINISTRATORS – Order 10 r 15 Abuja; Order

13 r 11 Lagos.
By Order 10 r 15 Abuja and Order 13 r 11 Lagos, trustees, executors and administrators

may sue or be sued on behalf of or as representing the estate or property of which they
Page 19 of 389
are trustees or administrators, without joining any of the persons beneficially interested in
the trust or estate and shall be considered as representing such beneficiary. ESTATE OF
ABACHA V EKE SPIFF.
However, at any stage of the proceeding, a Court or judge in chambers (for Abuja) or
Judge (for Lagos) may order that any such beneficiary be made a party either in addition
to or in lieu of the existing parties.
ACTION BY A LIQUIDATOR
IN THE FEDERAL HIGH COURT OF NIGERA

HOLDEN AT LAGOS
SUIT NO:
BETWEEN
OKWOR NIG LTD
(A company under liquidation suing by MR KENNETH OKWOR,
the liquidator of OKWOR NIG LTD)---------------------------------------- PLAINTIFF
AND
MASCO NIG LTD DEFENDANT
ACTION BY AN ADMINISTRATOR

IN THE BADAGRY JUDICIAL DIVISION
HOLDEN AT BADAGRY
SUIT NO:
BETWEEN
MR OKWOR KENNETH
(Suing as administrator to the estate of BOB RAZ, deceased) ------ CLAIMANT
AND
MR. JEFF OWHOR-CHUKU DEFENDANT
ACTION BY AN EXECUTOR

HOLDEN AT BADAGRY
Page 20 of 389
SUIT NO:
BETWEEN
MR OKWOR KENNETH
(Suing as executor to the estate of BOB RAZ, deceased) ------ CLAIMANT
AND
MR. JEFF OWHOR-CHUKU DEFENDANT
ARTIFICIAL PERSONS
Only artificial person conferred with juristic personality that can sue and be sued.
A company incorporated under part A of CAMA can sue and be sued in its corporate
name. Such action must be brought in its corporate name and not trade or business name.
REGISTERED/INCORPORATED ASSOCIATIONS: An association incorporated under

part C of CAMA can sue and be sued in the name of its registered trustees. They include
churches, associations, clubs etc. See BAMBE v. YUSUFU ADEMOLA
Drafting:

HOLDEN AT BADAGRY
SUIT NO:
BETWEEN
THE REGD TRUSTEES OF CATHOLIC CHURCH
THE INCORPORATED TRUSTEES OF CATHOLIC CHURCH ------ CLAIMANT
AND
INCORPORATED TRUSTEES OF SUNNYVALE SCHOOL--------- DEFENDANT
A statutory corporation can sue and be sued in its statutory name: Bodies created under
statute. Ibrahim v Judicial Service Commission. Example, Council of Legal
Education( party for Nigerian law school)
a. Natural persons that is to say, human beings
b. Companies incorporated under CAMA
c. Corporation aggregate and corporation sole with perpetual succession.

Page 21 of 389
d. Certain incorporated association granted the status of legal personae by law such as
 Registered Trade Unions. See NATIONAL NURSES ASSOCIATION v. AG

FEDERATION
 Partnerships; ORDER 10 R 10 ABUJA, ORDER 13 R 24 LAGOS, IYKE
MEDICAL MERCHANDISE V PFZIER INC.
 Friendly Society or Sole Proprietorship.
 Registered Business Name… Viola Echebima( trading under the name and style
of Viola Echebima Trading stores. SEE OKECHUKWU & SONS V NDAH.
Generally, Unincorporated associations cannot sue or be sued in its name.; SHITTA &
ORS v. LIGALI & ORS. However, the members can sue in a representative capacity on
behalf of the association.
DRAFT
YINKA ODUKOYA CLAIMANT
AND
AMAKA UZUEGBU
UCHENNA OKAFOR DEFENDANTS
CHIOMA IGWE
(Sued as Executive members for themselves and on behalf of Nnewi Social Club).
CHANGE OF PARTIES – see Order 10 r 35 and 36 Abuja, ORDER 13 R 29 and 30

Lagos
In the course of proceedings, events may occur which may necessitate a change in
parties. For instance:
 Death
 Bankruptcy
 Marriage
 Assignment or devolution of interest.
DEATH OF A PARTY
Page 22 of 389
 Where the cause of action is a personal one such as defamation, false

imprisonment, breach of promise to marry, unlawful termination of employment,
the action abates with the person. This is expressed in the latin maxim actio
personalis moritur cum persona.
 However, where the cause of action survives the person eg an action for breach of
contract, recovery of debt, an application can be made to the court for the
substitution of the personal representatives of the deceased party. Order 10 R 36
Abuja; Order 13 r 29 Lagos. Mbadinuju v Ezuka.
MODE OF APPLICATION
The personal representatives will bring an application for substitution by
way of motion on notice supported by an affidavit and a written address
stating the nature and stage of the action; the change that has occurred, the
fact that the action survived the death and an order praying for a
substitution.
NOTE: THE NAME OF THE DECEASED WILL BE SUBSTITUTED WITH

THAT OF THE PR(Suing as personal representative to the estate of Olomouc
Odofin, deceased).
MARRIAGE: No changes to be made( substitution is at the option of the married

woman)
BANKRUPTCY:A bankrupt has legal capacity to sue and be sued in all personal actions.
However, under section 58(1)(b) of the Bankruptcy Act Cap B2 LFN 2004, where the
action relates to the property of the Bankrupt, he lacks capacity to sue and be sued.
Thus, under those provisions, in any action relating to the property or proprietary interest
of the bankrupt, his trustee in bankruptcy can sue and defend on behalf of the bankrupt.
TYPES OF ACTIONS
REPRESENTATIVE ACTIONS – Order 10 r 8 Abuja; Order 13 r 12 Lagos
ESSENCE:
 Curtail multiplicity of suits

 Saves cost and time.
ADELEKE V ANIKE
A representative action is an action brought by two or more persons as representatives of

a group of persons having a common grievance and the same interests in an action. The
Page 23 of 389
reason or purpose of representative capacity is for the convenience of both the parties and
the court.
Order 10 r 8 Abuja and Order 13 r 12(1) Lagos both provide that where more persons
than one (Lagos says “numerous persons”) have the same interests in one suit, one or
more of them may, “with the leave and approval of the court be authorized by the
other interested persons” (Lagos omits this clause) to sue and defend an action on
behalf of and for the benefit of all the persons so interested. See
Factors to be considered:
 Common interest and a common grievance.

 The relief sought must be beneficial to all.
 Same cause of action –
Alfred Nwanguma & ors v Ikyaande & ors.
CONDITION PRECEDENT TO BRING A REP. ACTION
 The parties to be represented must give express permission or authority to those

who are to represent them.
 Leave of court must be sought to sue in representative capacity. (Abuja provides
this condition expressly, Lagos is silent but in practice leave is sought).
 The representative capacity must be reflected on all originating processes.
Although the Lagos 2012 Rules is silent on this point, leave of court must be sought to
commence an action in a representative capacity. See Order 10 r 8 Abuja. Application for
leave is by Motion Ex parte accompanied with:
 Affidavit disclosing the facts surrounding the representation, common interest and
grievance, exhibiting the Memorandum of appointment.
 Memorandum signed by a majority of the interested parties authorizing the
representation
 Written address
However, in ANABARAONYE v. NWAKAIHE, it was held that although it is

desirable to seek leave of court to sue in a representative capacity, failure to obtain
the leave is not fatal and will not vitiate the action.
Any challenge to suing or being sued in a representative capacity must be brought

timeously by way of a preliminary objection and not a statement of defence. Wali v
Amaefule(2014)
Page 24 of 389
Effect of Representative Action: It is essential that the persons representing and those
represented should have the same interests in the suit because the decision in a
representative action binds all named and unnamed parties to the action. See, Agwu
&ors v Julius Berger Nigeria Plc.
Drafting:

IN THE IKORODU JUDICIAL DIVISION
HOLDEN AT IKORODU
SUIT NO:
BETWEEN
1. ALHAJI ASAMU OLA
2. CHIEF DEDE SANYAOLU CLAIMANT/APPLICANTS
(suing for themselves and on behalf of the Odofin family)
AND
CHIEF MOGAJI OKECHUKWU DEFENDANT/RESPONDENT
MOTION EX PARTE
BROUGHT PURSUANT TO ORDER 13 RULE 12(1) AND ORDER 39 OF THE HIGH
COURT (CIVIL PROCEDURE) RULES, LAGOS STATE AND UNDER THE
INHERENT JURISDICTION OF THE COURT.
TAKE NOTICE that this Honourable Court shall be moved on the _____ day of
____________, __________ in the hour of 9 o’clock in the forenoon or soon thereafter as
Counsel to the claimant/applicants shall be heard praying this Honourable Court for the
following orders:
1) AN ORDER granting leave to the claimant/applicants to institute this action in a

representative capacity for themselves and on behalf of the Odofin Family
2) AND FOR SUCH OTHER ORDERS as this Honourable Court may deem fit to
make in the circumstances of the case.
Dated this _______ day of _____________________, ______________
__________________
K.O. OkworEsq
Claimant/Applicant’s Counsel
Star Chambers
No 5 Law school drive
Lagos.
Page 25 of 389
NOTE THAT IN A MOTION EX PARTE, YOU DO NOT PUT ADDRESS FOR

SERVICE.

IN THE MAITAMA JUDICIAL DIVISION
HOLDEN AT MAITAMA
SUIT NO:
BETWEEN
1. ALHAJI ASAMU OLA
2. CHIEF DEDE SANYAOLU PLAINTIFF/APPLICANTS
(suing for themselves and on behalf of the Odofin
Community of Ikoro Local Government Area Abuja)
AND
CHIEF MOGAJI OKECHUKWU DEFENDANT/RESPONDENT
MOTION EX PARTE
BROUGHT PURSUANT TO ORDER 10 RULE 8 AND ORDER 7 OF THE HIGH
COURT (CIVIL PROCEDURE) RULES, ABUJA AND UNDER THE INHERENT
JURISDICTION OF THE COURT.
TAKE NOTICE that this Honourable Court shall be moved on the _____ day of
____________, __________ in the hour of 9 o’clock in the forenoon or soon thereafter as
Counsel to the applicant shall be heard praying this Honourable Court for the following
orders:
1) AN ORDER granting leave to the plaintiff/applicants to institute this action in a

representative capacity for themselves and on behalf of the Odofin Community of
Ikoro Local Government Area Abuja
2) AND FOR SUCH FURTHER ORDERS OR ORDERS as this Honourable Court
may deem fit to make in the circumstances of the case.
Dated this _______ day of _____________________, ______________
__________________
K.O. OkworEsq
Applicant’s Counsel
Star Chambers
No 5 Law school
drive
Lagos.
NOTE THAT IN A MOTION EX PARTE, YOU DO NOT PUT ADDRESS FOR
SERVICE.
Page 26 of 389
Note: if a POA is executed by a principal and the agent is authorized to sue in a Rep.
capacity on behalf of the principal, such an action must be brought in the name of the
principal, that is the donor of the POA, indicating that the donor is suing through the
named agent.
Draft
BETWEEN
MABEL DUMEBI
(SUING THROUGH HER LAWFUL ATTORNEY,
MR HARRYMAN) CLAIMANT
CLASS ACTION – Order 10 r 9 Abuja; Order 13 r 13 Lagos
It is usually used where a wrong affect wide spectrum of persons. The difference between
class action and representative action is that in the latter, persons involved are identifiable
unlike class action where the persons involved are not determinable.
By Order 10 r 9 ABJ and Order 13 r 13 Lagos where in any proceedings, the person or
class of persons or members of that class interested in the subject matter cannot be
ascertained; or if ascertained, cannot be found, or if ascertained and found, it is expedient
that one or more of them be appointed for the purpose of representing the class, the judge
may make the appointment of such persons for the purpose of proceedings and the
decision of the court shall bind all the persons so represented.
Under Order 10 r 9 Abuja, an action under class action is restricted to actions for
declaration or injunctions only.
Under Order 13 r 13(1) LAG, bringing of action under class action is restricted to
proceedings concerning:
 Administration of an estate;
 property subject to a trust;
 land held under customary law as family or community property or
 Construction of any written instrument including a statute.
The fundamental ideal of this procedure is to remedy wrongs that may have been done to
a large group of people not necessarily known to each other, which will make it
impossible or impracticable for the court to entertain each individual’s claims.
Class actions make it possible for all unascertained persons to subsequently take benefit
of the suit when they become ascertained.
Procedure: Motion Ex Parte

Page 27 of 389
Differences between Rep Action and CLASS ACTION
 The number of persons involved in a Representative action are identifiable

whereas in a class action such persons cannot be easily ascertained.
 In a REP Action there is need for authority from the persons to be represented,
whereas in a class action no need for authority
 In a Rep action leave of the court is sought, whereas in a class action no need for
leave.
JOINDER OF PARTIES( Example, in cases of unlawful termination of

employment, land issues concerning family members)
Joinder of parties usually occurs when at the time of instituting an action, there is failure
to join a party who ought to have been joined in the action. The persons who can apply
for joinder are:
 Upon application by either party

 The person himself on application/intervener (party by intervention)
 A judge acting suo motu
The reasons or purposes of joinder include:
 To avoid multiplicity or duplicity of actions and avoid undue delay that may be
occasioned by overloading the justice system with multiple suits.
 To ensure that all the necessary parties that ought to be part of the action are made
parties to the action.
 Save time and avoid abuse of court process.
OGBOLO V FUBARA; AGAH & ORS V ONAH & ORS(2012).
With regards to joinder of claimants/plaintiffs: Here, two or more persons having the
same cause of action, common interest in the same subject matter and the reliefs sought
are the same can come together to maintain an action. Common interest, same evidence
are the underlying factors. Order 10 r 1(1) Abuja and Order 13 r 1 Lagos.
It must be noted that for the application for joinder of plaintiffs to succeed, their rights to
relief must arise from the same transaction or series of transaction. If their rights to relief
arise from similar or different transactions, joinder will not be allowed. See
AMACHREE & ORS v. NEWINGTON (1952)..
Page 28 of 389
Joinder of plaintiffs or as co-plaintiffs implies that the co-plaintiffs do not have

conflicting interests and so, it is advisable that they be represented by the same counsel.
See IGE v. FARINDE
Grounds upon which joinder of claimants/plaintiffs would be refused:
Note that Lagos Rules are silent on the grounds on which joinder will be refused. It
seems that the provisions in Abuja apply here by practice.
By Order 10 r 1(2) Abuja, where upon an application by the defendant it appears to the
court or a judge in chambers that the joinder under Order 10 r 1(1) Abuja may embarrass
any of the parties or delay the proceedings, then the court or judge in chambers may order
separate trials or make such order as may be expedient in the circumstances. From the
above, the grounds upon which an application for joinder of plaintiffs/claimants would be
refused include:
 Where the joinder would embarrass any of the parties. See Order 10 r 1(2) Abuja.
 Where the joinder would delay the proceedings. See Order 10 r 1(2) Abuja.
 Where a counter claim is likely to be brought against any of the co-claimants/co-
plaintiffs and embarrass the other co-claimants/co-plaintiffs or delay the
proceedings.
 Where any of the co-claimants/co-plaintiffs is impecunious. This is because
impecuniosity of any of the co-claimants/co-plaintiffs may discourage joinder as
the liability for costs is also joint.
 Where the right to relief of the party seeking to be joined as co-claimant/co-
plaintiff arose out of a different transaction or series of transactions. See
AMACHREE & ORS v. NEWINGTON (1952) 14 WACA 97
With regards to joinder of defendants, Order 10 r 3 Abuja and Order 13 r 4 Lagos both
provide that any person or persons may be joined as defendants against whom the right to
any relief is alleged to exist whether jointly, severally or in the alternative (Abuja omits
“alternative”) such that 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.
NOTE: a situation may arise where the plaintiff/claimant is in doubt as to whom he is

entitled to relief from; that is, who the appropriate defendant is. For instance, where a
collision between two cars resulted in injury to the plaintiff/claimant, but the
plaintiff/claimant is not sure of which of the drivers is at fault and therefore liable to him.
In such situations, Order 13 r 8 Lagos provides that where the claimant is in doubt as to
whom he is entitled to redress from, the claimant may sue both or all of the possible
Page 29 of 389
defendants, leaving the court to determine the liability or otherwise of each defendant and
the extent of such liability. Where the claimant adopts this procedure, the court may
issue a BULLOCK ORDER, as established in the case of BULLOCK v. LONDON
GENERAL OMNIBUS CO (1907) 1 KB 264, which compels the claimant to pay the
costs of the innocent defendant and order the liable defendant to reimburse the claimant
in addition to paying the claimants own costs and damages. This principle was applied in
the Nigerian case of EKUN & ORS V. YOUNAN & SONS & ANOR (1959) WRLR
190.
Thus the authorities for bullock order are: Order 13 r 8 Lagos, Bullock v. London
General Omnibus Co (1907) 1 KB 264, and Ekun&ors v. Younan& sons &anor (1959)
WRLR 190.
In considering whether a person should be joined as co-defendant, it must be noted that a

person against whom no right to relief exists and against whom the plaintiff/claimant has
no cause of action should not be joined as a co-defendant. See ADEFARASIN v.
DAYEKH (2006) LPELR – 7678 (CA); AROMIRE v. AWOYEMI (1972) 2 SC 1.
Therefore, in deciding whether to join a person as co-defendant or not, the questions
which should agitate the mind of the court where stated in GREEN v GREEN (1989)
NWLR (Pt. 61) 480 at 483, and they are as follows:
a. Is the cause or matter liable to be defeated if the person is not joined?
b. Is it possible for the court to adjudicate on the cause of action, set-off, without
the person being joined either as plaintiff or defendant?
c. Is the party or person a person who ought to have been joined ab initio?
d. Can the person partake sufficiently in the matter as a mere witness?.
PROCEDURE FOR APPLICATION: Application for joinder whether as plaintiff or as

co-defendant is by MOTION ON NOTICE, SUPPORTED BY AFFIDAVIT AND
WRITTEN ADDRESS.
NON-JOINDER
What is non-joinder: where a necessary party to the case has not been joined as a
party and the court cannot determine the case effectively.
Effect of non-joinder: ORDER 13 R 16(1) LAGOS, Or 10 R 5(1) Abuja: the case will not
be struck out.- Osondu v Solel Boneh(Nig) Ltd. It is a procedural irregularity. .
However, in the case of non-joinder, the party not joined will not be bound by the
decision of the court.
Page 30 of 389
HOW TO RECTIFY NON-JOINDER OF PARTIES: The court can in Abuja, adjourn

the matter and serve an order on that necessary party to be joined, or based on the
application of the parties to the action. Order 13 r 16(3) Lagos; Or 10 R 5(1) Abuja.
However, by virtue of Order 10 r 5 (3) Abuja, where the person to be joined has
been served with a notice of the joinder, he shall be bound by the decision in the
proceedings, whether or not he appears.
PROCEDURE FOR ADDING PARTIES IN CASES OF NON-JOINDER:
LAGOS: OR 39 R 3 AND OR 13 R 17(1): Motion on Notice supported by:

 Affidavit,
 written Address,
 statement of claim or defense,
 deposition of witnesses on oath
 Exhibits to be relied upon. (Order 13 R 17(2) Lagos
ABUJA: ORDER 10 R 17 Abuja, an application for joinder, striking out or
substitution of party may be made to a court or judge in chambers by
 MOTION ON NOTICE,………TAKE NOTICE that all parties
 SUMMONS……….Let all parties appear before Honourable Justice XYZ
 IN A SUMMARY MANNER AT THE HEARING OF THE
ACTION……..My Lord, I wish to make an oral application that XYZ was
inadvertently left out as party and that he be made a party to this case.
PLEASE NOTE: ABUJA ONLY REQUIRES AFFIDAVIT AND WRITTEN

ADDRESS FOR MOTION ON NOTICE
PLEASE NOTE: FOR MCQ THE PROCEDURE FOR BOTH ABUJA AND
LAGOS IS MOTION ON NOTICE.
STEPS TO TAKE WHEN PARTIES ARE JOINED:
By Order 10 r 16 Abuja and Order 13 r 18 Lagos,
o All parties have to rectify/ amend their originating processes to reflect the joinder.
o File an amended originating process
o Cause the new defendant to be served with the processes as if he were an original
defendant.
(Abuja uses writ in place of originating processes).
Page 31 of 389
Please Note: An oder made by the court is a consequential order and it is

binding on all parties..
Stage or time at which joinder may be ordered
Lagos rules is silent. Order 10 r 5(1) Abuja provides that joinder may be ordered at or
before the hearing of the case. Thus, joinder may be ordered:
a) Preferably before hearing, that is,

b) During hearing…
c) It can be ordered even on appeal.
SeeEZENWA v. MAZELI &Ors; ODAHE v. OKUJENI.
MIS-JOINDER OF PARTIES
What is mis-joinder: when a party has been improperly joined to a suit.
Rectification: When it is clear that a mis-joinder has occurred, the court may either suo
motu or upon application by a party make an order striking out the name of the party so
wrongly joined. Order 13 R 16(2) Lagos, Order 10 R 5(5) Abuja.
Effect of Non-Joinder: Order 13 R 16(1) Lagos, Order 10 Rule 5(5) Abuja. It is not
fatal to the action: Osondu v Solel Boneh(Nig) Ltd.
Note also that the defects of non-joinder and misjoinder may occasion delay and costs
against the erring party.
Procedure: Motion on Notice. Lagos, by Order 13 r 17 Lagos
LAGOS: ORDER 39 R 3; ORDER 13 R 17(1)
ABUJA: ORDER 10 R 17
DRAFTING:
APPLICATION FOR JOINDER AS CO-CLAIMANT/CO-PLAINTIFF IN LAGOS

AND ABUJA
IN THE HIGH COURT OF LAGOS/FCT ABUJA
Page 32 of 389
IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEJA
SUIT NO:
LD/1288/15
BETWEEN:
KENNETH ONONEZE ----------------------------------------------------- CLAIMANT
or
PLAINTIFF/APPLIC
ANT
AND
KAYUBA ADA -----------------------------------------------

DEFENDANT/RESPONDENT
AND
DOMINIC KENNETH ------------------------------------- PARTY SOUGHT

TO BE JOINED
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 13 RULE 1, ORDER 13 RULE 17(1), AND

ORDER 39 RULE 3 OF THE HIGH COURT OF LAGOS (CIVIL PROCEDURE)
RULES 2012 (OR, for Abuja, ORDER 10 RULE 1(1) AND ORDER 10 RULE 17
AND ORDER 7 OF THE HIGH COURT OF FCT ABUJA (CIVIL PROCEDURE)
RULES, 2004) AND UNDER THE INHERENT JURISDICTION OF THIS
HONOURABLE COURT
TAKE NOTICE that this Honourable Court shall be moved on the ____________ day of
______________, _______________ in the hour of 9 o’clock in the forenoon or soon
thereafter as Counsel to the Claimant/Applicant shall be heard praying the court for the
following order(s):
1) AN ORDER joining Dominic Kenneth as a co-claimant OR co-plaintiff in this

suit; and
2) AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court
may deem fit to make in the circumstances of this case.
Dated this ________ day of ____________, _________________
Page 33 of 389
__________________
_
K.O. D. Okwor Esq.
Applicant’s Solicitor
Star Chambers
NO 5 Lekki Drive
Victoria Island
Lagos.
FOR SERVICE ON:

1) THE RESPONDENT, KAYUBA ADA
C/O HER COUNSEL
S.E. EKONE Esq.
JURIS CONSULT CHAMBERS
NO 3 AJAH STREET
VICTORIA ISLAND
LAGOS
2) KENNETH Dominic
Flat 3, Ajamgbadi Estate,
Ikoyi,
Lagos.
NOTE: the supporting documents are affidavit and written address. If asked to
draft application, draft everything: motion, affidavit and written address. Note
additional supporting documents in Lagos.
APPLICATION FOR JOINDER AS CO-DEFENDANT IN LAGOS AND ABUJA

IN THE HIGH COURT OF LAGOS/FCT ABUJA
HOLDEN AT IKEJA
SUIT NO:
BETWEEN:
KENNETH ONONEZE ----------------------------------------------------- CLAIMANT
or
PLAINTIFF/APPLIC
ANT
Page 34 of 389
AND
KAYUBA ADA ----------------------------------------------- DEFENDANT/

RESPONDENT
AND
DOMINIC KENNETH ------------------------------------------PARTY SOUGHT TO

BE JOINED
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 13 RULE 4, ORDER 13 RULE 17(1), AND

ORDER 39 RULE 3 OF THE HIGH COURT OF LAGOS STATE (CIVIL
PROCEDURE) RULES 2012 (OR, for Abuja, ORDER 10 RULE 3, ORDER 10
RULE 17 AND ORDER 7 OF THE HIGH COURT OF FCT ABUJA (CIVIL
PROCEDURE) RULES, 2004) AND UNDER THE INHERENT JURISDICTION OF
THIS HONOURABLE COURT
following order(s):
3) AN ORDER joining Kenneth Dominic as a co-defendant in this suit; and

4) SUCH OTHER ORDER OR FURTHER ORDER(s) as this Honourable Court
Dated this ________ day of ____________, _________________
__________________
____
K.O. D.Okwor Esq.
APPLICANT’S
SOLICITOR
STAR CHAMBERS
NO 5 LEKKI DRIVE
VICTORIA ISLAND
LAGOS.
Kennethokwor@gmai
l.com
FOR SERVICE ON:
Page 35 of 389
3) THE RESPONDENT, KAYUBA ADA

C/O HER COUNSEL
S.E. EKONE Esq.
NO 3 AJAH STREET
VICTORIA ISLAND
LAGOS
4) KENNETH RUMOKORO
Ikoyi,
Lagos.
NOTE: the supporting documents are affidavit and written address. If asked to draft
application, draft everything: motion, affidavit and written address. Note additional
supporting documents in Lagos..
DRAFTING: APPLICATION TO STRIKE OUT THE NAME OF A PARTY FOR

MISJOINDER IN LAGOS AND ABUJA
MODIFY THE PRAYER, APPLICANT AND ADDRESS FOR SERVICE IN CASE OF

STRIKING OUT OF CO-PLAINTIFF
IN THE HIGH COURT OF JUSTICE OF LAGOS/FCT ABUJA
HOLDEN AT IKEJA
SUIT NO:
LD/87/12
BETWEEN:
KENNETH ONONEZE ------------------------------------------CLAIMANT or
PLAINTIFF/RESPONDENT
AND
KAYUBA ADA ---------------------------------------------------------------
DEFENDANT/ RESPONDENT
DOMINIC KENNETH ----------------------------------------------------
DEFENDANT/ APPLICANT
MOTION ON NOTICE
Page 36 of 389
BROUGHT PURSUANT TO ORDER 13 RULE 16(2), ORDER 13 RULE 17(1), AND

ORDER 39 RULE 3 OF THE HIGH COURT OF LAGOS (CIVIL PROCEDURE)
RULES 2012 (OR, for Abuja, ORDER 10 RULE 5(5) AND ORDER 10 RULE 17 OF
THE HIGH COURT OF FCT ABUJA (CIVIL PROCEDURE) RULES, 2004) AND
UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
following order(s):
5) AN ORDER striking out Kenneth Rumokoro as a co-defendant in this suit; and

Dated this ________ day of ____________, _________________
__________________
____
K.O.D. Okwor Esq.
APPLICANT’S
SOLICITOR
STAR CHAMBERS
NO 5 LEKKI DRIVE
VICTORIA ISLAND
LAGOS.
Kennethokwor@gmai
l.com
FOR SERVICE ON:
1. 1ST RESPONDENT, KENNETH ONONEZE
C/O HER COUNSEL
S.E. EKONE Esq.
NO 3 AJAH STREET
VICTORIA ISLAND
LAGOS
5) 2ND RESPONDENT,KAYUBA ADA
C/O HIS COUNSEL
V.C Echebima Esq.
VIOLA ECHEBIMA & CO
Ikoyi,
Page 37 of 389
Lagos.
PARTIES BY INTERVENTION – Order 13 r 16(3) Lagos
This is a type of joinder known as “joinder by intervention”. Here, a person who was not
originally made a party to the suit may apply to be joined as party either as
co-plaintiff/co-claimant or as co-defendant. Such a party joined by his own intervention
is called an “intervener”. See ORIARE v. GOVERNMENT OF WESTERN REGION &
ORS.
ESSENCE OF INTERVENTION: To prevent the principle of estoppel from applying.
PROCEDURE: Application for joinder by intervention is by Motion on notice supported

by affidavit and written address. The affidavit must disclose the reasons why he seeks to
be joined and must satisfy the conditions for joinder by intervention; and it must be
served on all existing parties to the suit. It is drafted like the normal application for
joinder with necessary modifications.
CONDITIONS FOR GRANTING APPLICATION: as stated in OYEDEJI AKANBI

(MOGAJI) & ANOR v. ISHOLA FABUNMI & ANOR (1986)2 SC 431 as follows:
1) That the intervener ought to have been joined as a party in the first instance
2) That the joinder of the intervener is necessary to enable the court effectually and
completely adjudicate on and settle all the issues in the case
3) That the intervener is a necessary party
4) No contrary interest. That is, that the interest of the intervener does not conflict
with that of the existing defendants and that the plaintiff has a claim against him
which he desires to pursue.
Instances where joinder by intervention is usually granted include:
 Proceeding for the custody of a child where both parents are of bad character.
Any relation can come and apply for custody as an intervener
 By Order 10 r 28 Abuja, there is probate intervention. Sholanke v OBED.
 By Order 10 r 29 Abuja, there is intervention in actions for recovery of land.
NOTE: ONE CAN BE A PARTY BY INTERVENTION EVEN ON APPEAL provided

leave of the court is sought: Laiburu v building and civil engineering Ltd.z
THIRD PARTY PROCEEDING – Order 10 r 18 Abuja, Order 13 r 19 Lagos
Leave for third party proceeding can only be made before judgment of the court, because
once judgment has been delivered, leave for third party proceeding cannot be granted.
Page 38 of 389
A third party proceeding is a special type of proceeding that favours a defendant

only or a plaintiff who has become a defendant by counterclaim. It is an action in
which a defendant claims to be entitled to relief or indemnity from a third party or that
such third party may bear eventual liability with him either in the form of indemnity or
contribution, to reduce liability to the plaintiff. ORDER 10 R 19 LAGOS, OR 13 R 18
ABUJA.
Conditions And Procedure For Application For Third Party Notice
In Lagos – Order 13 rule 19(1) Lagos
Note that third party can only be issued with leave of court obtained through the proper
procedure.
By Order 13 r 19(1) Lagos, the condition for third party notice is that the third party may
bear eventual liability either wholly or in part. The procedure for application is by way of
MOTION EX PARTE, SUPPORTED BY AFFIDAVIT AND WRITTEN ADDRESS.
The said Order 13 r 19(1) Lagos provides that “where it appears to a judge that any
person not a party in the proceedings may bear eventual liability either in whole or in
part, the judge may upon an application ex parte allow that person to be joined as a third
party by any of the defendants. The application shall state the grounds for the applicant’s
belief that such third party may bear eventual liability.
 OKAFOR v. ACB LTD;

 UBN LTD v. BISI EDIONSERI;
 SUN INSURANCE LTD v. OJEMUYIWA.
In Lagos, therefore, there is only ONE procedure for applying for leave to issue, file and
serve a third party notice and this is by Motion ex parte, supported by affidavit and
written address.
A perfect example of third party is applying to join insurance company to pay indemnity
or bear eventual liability; OR a tort feasor can join other joint tort-feasors by way of third
party proceedings to recover contribution and indemnity from them.
In Abuja – Order 10 r 18(1) Abuja
By Order 10 r 18(1) Abuja, the conditions for third party are:
Page 39 of 389
 The defendant must claim that he is entitled to contribution or indemnity from the
proposed third party. See SUN INSURANCE LTD v OJEMUYIWA;; OKAFOR
v. ACB LTD; UBN LTD v. BISI EDIONSERI; OR
 Where defendant is entitled substantially to the same reliefs claimed by plaintiff
 Entitled to any remedy related or connected to the original subject matter of the
action.
Thus, in Abuja once the defendant claims that he is entitled to any of the above from any
person who is not already a party to the action, the court may grant him leave to issue,
file and serve a third party notice on such person.
The procedure for applying for leave to issue file and serve third party notice is provided
by Order 10 r 18(2) Abuja. There are TWO procedures in Abuja, and they are:
 By Motion Ex parte supported by affidavit and written address; or

 Summons: a court’s direction at the hearing of a summons for issue to a plaintiff.
By Order 10 r 19(1) Abuja, the third party notice shall be as in forms 23 or 24 of the
appendix, with necessary variations and the third party notice shall be sealed. This is
in Abuja only.
General to Abuja and Lagos:
Time for entering of appearance by third party:
By Order 10 r 21(1) Abuja and Order 13 r 20 Lagos, the third party may enter appearance
within eight (8) days or within at least thirty (30) days if he is outside jurisdiction or
within such other time as the court may direct. Note that if he fails to appear within
prescribed time, he can bring application for extension of time to enter appearance. See
Order 44 r 4 Lagos and Order 10 r 21(2) Abuja.
Effect of failure to Appear:
By Order 10 r 22 Abuja and Order 13 r 21 Lagos both provide that where the third party
has been served with the third party notice and he does not enter an appearance or file
pleadings as required, he shall be deemed to have admitted the claims on the Third
Party Notice and shall be bound by all the decisions in the proceedings, whether by
consent or otherwise.
EFFECT OF THIRD PARTY NOTICE
Page 40 of 389
Service of the third party notice makes the third party to become a party to the action
with the same rights in respect of his defence as if he had been sued in the ordinary way
by the defendant. See Order 10 r 20 Abuja.
NOTE: A THIRD PARTY IS TO DESIGNATED AS SUCH ON THE COURT

PROCESSES AND NOT TO BE MADE A CO-DEFENDANT- SOYINKA V. ONI
DRAFTING:
MOTION EX PARTE FOR THIRD PARTY NOTICE IN ABUJA AND LAGOS
IN THE HIGH COURT OF LAGOS STATE/FCT ABUJA

HOLDEN AT IKEJA
SUIT NO:
LD/123/15
BETWEEN:
JEFF OWOR-CHUKU ----------------------------------------------------- CLAIMANT
AND
KAYUBA ADA ----------------------------------------------------------------
AND
KENNETH RUMOKORO ----------------------------------------------------- THIRD
PARTY
MOTION EX PARTE
BROUGHT PURSUANT TO ORDER 13 RULE 19 AND ORDER 39 RULE 1 OF
THE HIGH COURT OF LAGOS (CIVIL PROCEDURE) RULES 2012, (OR, for Abuja,
ORDER 10 RULE 18(2) OF THE HIGH COURT OF FCT (CIVIL PROCEDURE)
RULES 2004) AND UNDER THE INHERENT JURISDICTION OF THIS
HONOURABLE COURT
TAKE NOTICE that this Honourable court shall be moved on the ______ day of
__________, _________ in the hour of 9 o’clock in the forenoon or soon thereafter as
Counsel to the defendant/applicant shall be heard praying this Honourable Court for the
following order(s):
1) AN ORDER joining Mr. Kenneth Rumokoro as a third party to this suit;
Page 41 of 389
2) AN ORDER granting leave to the defendant/applicant to issue and serve a THIRD

PARTY NOTICE on Mr. Kenneth Rumokoro; and
3) FOR SUCH OTHER ORDERS as this Honourable Court may deem fit to make
in the circumstances.
Dated this ______________ day of _________________, __________
________________
K.O. Okwor Esq.
Applicant’s Counsel,
Star Chambers,
No 5 Lekki Drive,
Victoria Island,
Lagos.
NOTE: IT IS A MOTION EX PARTE, SO NO ADDRESS FOR SERVICE.
Differences between joinder of parties and third parties proceeding
 Third party proceeding is only available to a defendant while joinder of parties

can be applied for the person to be joined either by the parties or the court
suomotu, or even by the party seeking to be joined as in the case of joinder by
intervention
 The application for third party proceeding is by MOTION EX PARTE, for
joinder, it is MOTION ON NOTICE.
 Third party proceeding can only be applied for only before judgment while
joinder of parties can be at any time even on appeal.
 The third party proceeding is between the defendant and the third party thus not a
party to the main suit, while in joinder the person joined is a party to the main
suit.
The similarities between them are as follows:
a) They party joined must be served with all existing processes.

b) The existing processes must be consequentially amended to reflect alterations.
INTERPLEADER – Order 26 Abuja and Order 43 Lagos.
Page 42 of 389
Interpleader proceedings is available to a person in possession of or under a liability for

debt, money, goods or chattel (“chattel” is omitted in Abuja Rules), which he does
not himself claim personally but with respect to which there are rival claimants. The
person in possession may be sued by the other rival claimants if he delivers it to any one
of them or he may be liable in tort if he delivers to the wrong person. To avoid this, the
person in possession may apply to the court for relief by way of interpleader summons to
compel the rival claimants to interplead; that is, to take proceedings against
themselves in order to determine who is entitled to the property. There are two
types of interpleader namely:
 Stakeholder interpleader
 Sheriff interpleader
Conditions and procedure for application
To qualify to apply for interpleader summons, by Order 26 r 1(1) Abuja and Order 43
r 1 Lagos, the person seeking relief by way of interpleader must be under liability
for debt, money, goods or chattels and must either have been sued or expects to be
sued by any of the rival claimants. NOTE that in Abuja, “chattels is omitted, so it is
only debt, money or goods in Abuja.
In Abuja, by order 26 r 3(1) Abuja, the method of application will depend on whether
there is a pending action or not. If there is no pending action, then the application shall be
by ORIGINATING SUMMONS, SUPPORTED BY AFFIDAVIT. However, by the
same provisions, if there is a pending action, then the application shall be by MOTION
ON NOTICE SUPPORTED BY AFFIDAVIT. See Order 26 r 3(1) Abuja.
In Lagos, by Order 43 r 2(1) the application is by way of a SUMMONS SUPPORTED

BY AFFIDAVIT. There is no distinction between whether an action has been
commenced or not.
In Lagos and Abuja, by Order 26 r 4 Abuja and Order 43 r 2(2) Lagos, the affidavit in
support of the application must state the following to the satisfaction of the court:
 That the applicant claims no interest in the subject matter in dispute other than
charges for costs;
 That the applicant does not collude with any of the rival claimants; and
 That the applicant is willing to pay or transfer the subject matter into court or to
dispose of it as the court may direct.
See Order 26 r 4 Abuja and Order 43 r 2(2) Lagos
Page 43 of 389
Upon hearing the application, then by Order 26 r 7 Abuja and Order 43 r 6 Lagos, the
possible orders that the court can make include:
 The court may dismiss the application; or

 If there is a pending action, the court may order any of the rival claimants to be
made a defendant either in lieu of or in addition to the applicant; or
 If there is no pending action the court may order that an issue be stated and tried
between the rival claimants, and direct which of the rival claimants would be
plaintiff/claimant and defendant.
See Order 26 r 7 Abuja and Order 43 r 6 Lagos.
By Order 26 r 8 Abuja and Order 43 r 8 Lagos, any rival claimant who is served with
the summons, but fails to appear or neglects to comply with an order made by the court
after his appearance, may, by order of court be barred from proceeding against the
applicant.
ETHICAL ISSUES IN PARTIES TO A CIVIL ACTION.
 a. suing a party without legal capacity:the Courts may consider the action
frivolous and have it struck out. Agbomagbe Bank v. General Manager GB
Ollivant
 b. The time of the court will be wasted as well as that of the client.
 c. it can lead to award of damages to the party wrongly sued.
 d. it may result in a negligence action against the legal practitioner pursuant
to section 9 LPA and Rule 14(5) RPC 2007..
 e. It may lead to the legal practitioner which filed such suit against a wrong
party to be seen as incompetent. Rule 16 RPC
WEEK 5
PRELIMINARY CONSIDERATIONS BEFORE COMMENCING AN ACTION
Before commencing any action in court, there are certain preliminary issues which must
be considered namely: The rules of Professional Conduct for legal practitioner must be
considered.
Page 44 of 389
1. Existence of a reasonable Cause of action: A cause of action is series of facts

that can lead to a party having a claim in a court of law. In AG FEDERATION v.
AG ABIA STATE & ORS, the Supreme Court defined cause of action to mean
the aggregate of fact or facts which put together establishes or gives rise to a right
of action. It is the factual situation which gives plaintiff the right to a judicial
relief. The question has been asked - at what point did the cause of action arise? If
in a contractual or statutory duty, the moment the other party fails to perform his
own obligations, then a cause of action will be said to have arisen. See
OSHOBOJA v. AMUDA
The time when the cause of action arose is important for the purpose of calculating
limitation period. This is because the period of limitation will begin to run from the day
the cause of action arose. See OKENWA v. MILITARY GOVERNOR IMO STATE;
AJAYI v. MILITARY ADMINISTRATOR OF ONDO STATE
To determine whether there is a reasonable cause of action, the court looks ate the
statement of claim or the particulars of claim. See ABUBAKAR v BEBEJI OIL &
ALLIED PRODUCTS LTD.
2. Limitation period:
This is the period of time after the accrual of the cause of action within which legal
proceedings can be brought before a court of law. See OGBORU v. SPDCN LTD (2005)
17 NWLR (Pt. 955) 596
Once the cause of action has been determined, then limitation period should then be
determined because for every cause of action, there is a limitation period. Limitation
period is determined from when the cause of action arose. See OKENWA v. MILITARY
GOVERNOR IMO STATE; AJAYI v. MILITARY ADMINISTRATOR OF ONDO
STATE. There is a limitation period for every cause of action which is determined by the
nature of the transaction. The following are some transactions with their limitation
period.
a. Simple contract - 6 years.

b. Contract under seal – 12 years
c. Tort libel/slander/defamation - 3 years.
Page 45 of 389
d. Land matters for individual in north & east - 12 years, west - 10 years and state
government - 20 years.
e. Public officers - 3 months. SEE SECTION 2(1)(a) POPA
Once the limitation period of a cause of action has expired, the action is statute barred
and dead.
3. Condition precedent: There are conditions precedents which are to be met before the
commencement of an action. Such conditions must be fulfilled by plaintiff and his
counsel before commencing an action. These condition precedents are:
a) Pre-action notice: The statutes establishing statutory corporation (some) do provide for
pre-action notice to be given to such corporation before action is commenced against
them. Example sections 12 of NNPC Act. There are specific information which are to be
contained in the pre-action notice. In AMADI v. NNPC the pre-action to be issued to the
NNPC in section 11(2) of the NNPC Act must be:
 Written notice of commencement of action.

 Notice to be served by intending plaintiff or his agent.
 Notice must clearly state the cause of action.
 Notice must clearly state the particulars of claim.
 Also name, address of plaintiff.
 The relief which he claims.
This notice must be served on NNPC for a period of one month before commencing
action. The Supreme Court in that case stated that while the issuance of the notice by a
prospective plaintiff is mandatory. In Mobil v. LASEPA & 3 ors, the Supreme Court
stated
 Provisions prescribing pre-action notice are mandatory.

 Non-compliance with such mandatory provision can be waived.
 Non-compliance with such provision is an irregularity in the exercise of
jurisdiction which should not be with total lack of jurisdiction.
 Non-compliance with a condition precedent to the commencement of action must
be pleaded and failure to plead it amounts to a waiver.
Page 46 of 389
 Service of a pre-action notice on the party intended to be sued pursuant to a

statute is at best a procedural requirement and not an issue of substantive law on
which the rights of the plaintiff depend. It is not an integral part of the process for
initial proceedings.
In Katsina Local Authority &anor v. Makudawa. The Supreme Court stated that a
condition precedent must be expressly or at least impliedly raised at the trial so that the
other party may have opportunity of meeting the point. Thus cannot be properly raised
on appeal for the first time when it was not raised at the trial either expressly or
implied.
Local governments are also entitled to pre-action notice
Other forms of conditions precedents are the statutory notices required in actions for
recovery of premises.
4. Locus standi: This is to determine whether the plaintiff has enough or sufficient
interest in the matter. In determining whether a person has locus standi, such person must
be directly affected by the facts or series of fact in issue. OLORIODE v. OYEBI. Once a
plaintiff/claimant lacks the locus standi, the court will strike out the action without
considering the merit of the case.
5. Pre-action counseling/pre-action protocol: Pre-action counseling is the advice given

the client by the legal practitioner as to the strength and weakness of the case. Pre-action
protocol Order 3 r 2(1)(e) LAG makes it compulsory in Lagos and it evidences that the
parties have tried to settle out of court. Pre-action counseling is compulsory in Abuja. If
pre-action counseling notice is filed with the necessary documents, Order 4 r 17 of High
Court Rules of Abuja states the following:
 A counsel must advise client appropriately.

 The pre-action counseling certificate must be indicated in the originating
processes.
 Where action is filed by the counsel on behalf of the litigant and the suit turns out
to be frivolous, the counsel shall be personally liable to pay the costs of
proceedings.
Page 47 of 389
The effect of filing a frivolous action is that the counsel will be personally liable. See
Order 4 r 17 Abuja which provides that a certificate of pre-action counseling signed by
counsel and the litigant, shall be filed along with the Writ where proceedings are initiated
by counsel, showing that the parties have been appropriately advised as to the relative
strength and weaknesses of their cases, and the counsel shall be personally liable to pay
the costs of the proceedings where it turns out to be frivolous.
Importantly is that a certificate or pre-action counseling signed by the counsel must be

filed along with originating processes.
6 Cost of litigation: The plaintiff’s counsel is expected to weigh the gain to be

derived from the suit and its cost before proceeding to instituting an action.
7. Exhaustion of available remedies such as arbitration clauses or ADR
8. The relevant law
9. Whether there is immunity of any of the parties
10. Enforcement and realization of judgment: All the issues surrounding enforcement
and realization of judgment should be considered.
11 Parties to action: The parties to the action should also be considered so that wrong
parties are not brought before the court.
12. Appropriate court/ venue
13 Jurisdiction: In Madukolu v. Nkemdili: it is fundamental.
Failure to commence the action at the appropriate judicial division of a court that has
jurisdiction is not usually fatal and may be waived. However, state or territorial
jurisdiction is fundamental and cannot be waived. Where the action is commenced in
another state, it is hopeless. FRN v. IFEGWU. Instituting a matter in wrong court could
lead to the matter being struck out, except there is a provision for transfer.
Jurisdiction can be substantive or procedural. Substantive jurisdiction can be raised at any

time even on appeal, see OZOMO v. OYAKHIRE while procedural jurisdiction has to be
raised timeously as it can be waived.
The court can raise the issue of jurisdiction suomotu, but the parties must address it on
that point before it rules
Where a court finds that it lacks jurisdiction, it should strike out the matter and not
dismiss it. See NDIC V CBN. This is because the order of dismissal connotes that the
Page 48 of 389
case has been heard on the merits before being dismissed, While an order of striking out
has nothing to do with the merits of the case. As such, the prayer on the preliminary
objection should also be for striking out.
How to raise preliminary objection (especially jurisdiction or locus standi)
There are two ways, depending whether it is solely on grounds of law only or on mixed
law and facts:
 By Notice of Preliminary Objection and written address – grounds of law only

 By Motion on Notice with affidavit and written address – mixed law and facts
DRAFTING OF NOTICE OF PRELIMINARY OBJECTION:

HOLDEN AT IKEJA
SUIT NO:
LD/87/12
MOTION NO:
M/02
BETWEEN:
KENNETH ONONEZE -----------------------------------------------------
CLAIMANT/RESPONDENT
AND
DOMINIC KENNETH ----------------------------------------------------
NOTICE OF PRELIMINARY OBJECTION
BROUGHT PURSUANT TO SECTION 2(1)(A) OF THE PUBLIC OFFICERS

PROTECTIONS ACT, AND THE INHERENT JURISDICTION OF THIS
HONOURABLE COURT.
TAKE NOTICE that this Honorable Court shall be moved on the ____________ day of
thereafter as Counsel to the Applicant shall be heard by way of a preliminary objection
challenging the competence of this suit and the jurisdiction of this court and shall also be
heard praying the court for the following order(s):
7) AN ORDER striking out this suit; and

Page 49 of 389
AND TAKE FURTHER NOTICE that the grounds for the objection are as follows:
1) The suit is statute barred having being commenced outside the statutory period of
three months under the Public Officers Protection Act
2) Non service of the requisite pre-action notices on the defendant under the local
government law.
Dated this ________ day of ____________, _________________
___________________
K.O.D. Okwor Esq.
APPLICANT’S SOLICITOR
STAR CHAMBERS
NO 5 LEKKI DRIVE
VICTORIA ISLAND
LAGOS.
Kennethokwor@gmail.com
FOR SERVICE ON:
6) THE CLAIMANT/RESPONDENT:
KAYUBA ADA
C/O HER COUNSEL
S.E. EKONE Esq.
NO 3 AJAH STREET
VICTORIA ISLAND
LAGOS
PROCEEDINGS IN MAGISTRATE COURT
Magistrates in Lagos are appointed by the State Judicial Service Commission pursuant
to Section 4(1) MCL 2009.
ELIGIBILITY: such person must be a legal practiyioner of not less than five years post
call with relevant experience. SECTION 4(2)MCL 2009.
JURISDICTION: SECTION 28(1)(2). PLEASE NOTE THAT A MAGISTRATE

COURT DOES NOT HAVE JURISDICTION TO ENTERTAIN:
 Matters relating to title to land or any interest in land

 Validity of a will or bequest
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 Limitation of a will or settlement.

SECTION 28(7)MCL 2009.
The Magistrate court that is of importance in this regard is the Magistrate court of Lagos
regulated and created by the Magistrate Court Law 2009 and its rules. The Magistrate
court of Lagos as noted in the Magistrate court law has a flat rate of N10, 000, 000,
although excess of N10, 000, 000 can be abandoned by claimant.
Note that abandonment of excess no longer applies in Lagos. IN MAGISTRATE

COURT OF LAGOS
By virtue of Order 1 r 1 & 2 of the Magistrate Court (Civil Procedure) Rules (MCR),
actions are commenced in the Magistrate courts in Lagos by two modes, namely:
 By claim– Order 1 rr 1 & 4 MCR

 Originating application – Order 1 rr 2 & 8 MCR
CLAIM – order 1 rr 1 & 4
By Order 1 r 1(1) MCR, an action may be commenced by claim in the MC in Lagos if:
 The defendant or one of the defendants resides or carries on business in Lagos. O.

1 r. 1(1)(a)
 The cause of action arose wholly or partly in Lagos. O. 1 r. 1(1)(b)
 By Order 1 rule 1(2), where the claimant sues as assignee of a debt or other thing
in action, then the action can be commenced in the Magistrate Courts in Lagos if
the assignor could commence the action in Lagos but for the assignment.
By Order 1 r 4(1) MCR Lagos, in commencing an action by claim, the claimant shall
deliver to the Registrar a claim and particulars of claim for filing. By Order 1 r 4(2)
MCR Lagos, the particulars of claim shall be signed by the claimant or his legal
practitioner and the legal practitioner shall provide an address for service, a
telephone number and an e-mail address to which the court and the other party
may use for direct communication. See generally Order 1 r 4 MCR Lagos
There is a difference between the claim and the particulars of claim. The claim is the
relief sought and the particulars of claim are the grounds upon which the relief is sought.
Particulars of claim basically contains a brief summary of the facts of the case leading to
the claim. The particulars of claim are to be signed by the claimant or his legal
practitioner where he sues on his behalf.
The particulars of claim must indicate the cause of action or else, the Magistrate will
strike it out if it does not disclose such cause of action. See Order 1 r 5(1) MCR.
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ACTION BY THE MAGISTRATE AND REGISTRAR.
 Upon filing the claim, the registrar shall cause same to be entered in the civil
cause book kept for that purpose. ORDER 1 r 6 MC(CP) Rules.
 Give the action a number according to how it is filed in the year
 Direct service to be effected to the other party to the suit
 Deliver the claims to the office of the designating magistrate, the same day it is
filed.
ORDER 6
Upon the entering of a claim by the Registrar in the cause book, then, by Order 2 r 1(1)
MCR 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, they are:
 Ordinary summons; or
 Summary summons
See Order 2 r1(1) MCR Lagos which provides that 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. By Order 2 r 1(2) MCR Lagos, a copy of the particulars of claim shall be
annexed to every summons for service. Note that application for summary summons is
by Letter. Note also that a summons, whether ordinary or summary can only be issued
by:
 The Magistrate; or
 The Registrar on the directive of the Magistrate.
See Order 2 r 1(1) MCR Lagos.
Note that an ordinary summons 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.
ORDINARY SUMMONS – Order 2 r 2 MCR Lagos.
Ordinary summons is used for contentious actions where there is going to be a dispute of
facts. See Order 2 r1(1) MCR Lagos which provides that 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
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applied for. By Order 2 r 1(2) MCR Lagos, a copy of the particulars of claim shall be
annexed to every summons for service.
Note that a summons, whether ordinary or summary can only be issued by:
 The Magistrate; or
 The Registrar on the directive of the Magistrate.
See Order 2 r 1(1) MCR Lagos.
Note that when an ordinary summons is issued, it shall be in CIVIL FORM 1 together
with CIVIL FORM 4A annexed thereto for use by the defendant for admission, defence,
or counter-claim.
RETURN DATE: By Order 2 r 2 MCR Lagos, 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. Thus, the return date is at least five (5) days or not less than
five (5) days from the date of service of the claims on the defendant. See Order 2 r 2
MCR
LIFE SPAN: By Order 2 r 3 MCR Lagos, the life span of an ordinary summons is three
(3) months from the date it was issued. The said Order 2 r 3 MCR Lagos provides that 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.
Upon being served with the ordinary summons, there are different steps which the
defendant can take namely:
 By Order 2 r 4 MCCPR Lagos, he may by himself or through his legal

practitioner demand further particulars within 6 days of service of the summons
on him. See Order 2 r 4(1) MCR. The claimant shall within 2 days of the service
of the notice for further particulars, file the further particulars together with a
copy of it. Order 2 r 4(2) MCCPR.
 He may within 6 days file a counter-claim or defense. Order 2 r 5(1) MCR.
 He may make a counter-claim against some other persons, who are not parties to
the action, and apply to the court that those persons be added as defendant(s) –
Order 2 r 6 MCR.
 He may admit liability as to whole or part of the claim and request for time to
make payment within 6 days of service – Order 2 r 7 MCR.
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 He may tender an amount before action and pay into court the amount tendered –
Order 2 r 8 MCR.
 Approach the defendant for settlement. The court may refer the parties to ADR
centers. Section 35 MAGISTRATES COURT LAW.
With respect to the first option above, upon service of the summons on him, if the
defendant requires further particulars, he or his legal practitioner may within six (6) days
of the service of the summons on him, file a notice in duplicate (that is together with a
copy of it), specifying the precise nature of the further particulars he requires and request
the Magistrate in Chambers to cause such copy to be served on the claimant or his legal
practitioner. The notice must contain the address for service of the defendant or his legal
practitioner in Lagos. See Order 2 r 4(1) MCR.
Upon receipt of the notice requesting further particulars, the claimant or his legal
practitioner shall, within two (2) days of the service of the notice for further
particulars, file the further particulars sought in duplicate (that is together with a copy of
it), and request the Magistrate in chambers to cause the copy to be served on the
defendant or his legal practitioner. See Order 2 r 4(2) MCR.
If the defendant’s notice requesting further particulars is not complied with, then the
court may, before or at the trial, if it is satisfied that the defendant will be prejudiced in
his defence, order that the further particulars be filed and served, and may stay all
proceedings until the order has been complied with. The court may also dismiss the
action if the order is not obeyed within a stipulated time.
SUMMARY SUMMONS – Order 3 r 1 MCR
Summary summons is usually issued for non-contentious matters. It is usually used in

actions for recovery of debt or liquidated money demands, with or without a claim for
interest, to which the claimant believes that the defendant has no defence to. See
Order 3 r 1 MCR Lagos
The said Order 3 r 1 MCR Lagos provides that in any action for a debt or liquidated
money demand, with or without a claim for interest, the claimant may file a claim
and request by letter to the Registrar for the endorsement of the claim as a
summary summons. See Order 3 r 1 MCR.
Thus, a summary summons will not be issued unless it is applied for, see Order 2 r 1 and
Order 3 r 1 MCR. The application for a summary summons is by way of a Letter to the
Registrar for the endorsement of the claim as a summary summons. See Order 3 r 1
MCR.
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However, by the Proviso to the said Order 3 r 1 MCR, there is a certain group of persons
against whom a summary summons cannot be issued. They are:
 An infant or person of unsound mind/lunatic.

 To recover money lent by money lenders within the meaning of Money Lender’s
Law or interest on money so lent or to enforce any agreement or security on
money so lent.
 A claim on behalf of an assignee of a debt or other thing in action.
 To recover money secured under a mortgage or charge.
 Against a defendant who has to be served outside jurisdiction.
In all these instancesmentionedabove, only an ordinary summons can be issued.
A defendant served with summary summons can take the following steps:
 Set up a counter-claim within 5 days of service – Order 3 r 3 MCR.

 He may set up a defense within 5 days – Order 3 r 5 MCR.
 He may deliver an admission within 5 days of the whole or part of the claim –
Order 3 r 6 MCR.
 He may request for more time.
Note that by Order 3 r 4 MC(CP)R, 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
called DEFAULT JUDGMENT; if he does any of the 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.
Life span of summary summons – Order 3 rr 8 & 9 MC(CP)R
By Order 3 r 8 MC (CP)R, 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. However, note that by Order 3 r 9
MC(CP)R, a summary summons which has not been served may, at the request of the
claimant and after the payment of the prescribed fees, be exchanged for an ordinary
summons within three (3) months of the issue of the summons.
Page 55 of 389
Note that order 3 r 8 MCR provides for the power to strike out (life span after service);
while order 3 r 9 MCR provides for the exchange of a summary summons for an ordinary
summons (life span before service)
ORIGINATING APPLICATION – Order 1 r 2 & 8 MC(CP)R
This is the second method of commencing an action in the Magistrate court in Lagos.
Order 1 r 2 provides that it may be used:
 If claimant or one of the claimants resides or carries on business in Lagos; or

 The subject matter of the application is situated in Lagos; or
 If no claimant is named in the application, if the claimant or one of the claimants
resides or carries on business in Lagos.
The MC(CP)R is silent on the kind of actions that can be commenced by this method and
this method is hardly ever used.
This procedure is provided for under Order 1 r 8(1) MC(CP)R, which provides that where
proceedings are authorized to commenced in the MCs and are not required by law or rule
to be commenced otherwise, such proceedings may be commenced by originating
application and shall be referred to as “ACTION”. Thus, actions commenced by way
of originating application are called actions.
Note that by Order 1 r 8(5), the originating application shall be heard in chambers.
The originating application is usually by Motion, whether on notice or exparte, supported

by affidavit and written address.
DESIGNATION OF PARTIES: APPLICANT AND RESPONDENTS.
SERVICE OF PROCESSES IN MAGISTRATE COURT
Personal service – order 5 r 1 MCR

Substituted service – order 5 r 2 MCR
Leave to issue for service on defendant outside Lagos – order 5 r 3 MCR
Service of documents is done by the Bailiff or Police and service is to be done personally.
That is personal service. Order 5 r 1(1) provides how documents are to be served
personally on persons.
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 Individual is personally
 For partnership, either to a partner personally or employee of the principal place
of business. Provided that where the claimant knew that the partnership had been
dissolved before the commencement of the action, he shall apply for substituted
service.
 A company – the secretary or any person with executive authority at the
registered office
 Business name: delivery to him as if he were a partner in a firm.
 A lunatic/infant. Their guardians.
Substituted service can be resorted to when personal service cannot be effected on the
defendant. It can only be resorted to by leave of court. See Order 5 r 2 MCR which
provides that where it appears to the court, either with or without an attempt at
personal service, that for any reason, service of any process cannot conveniently be
effected, the court may, after being satisfied that it is necessary to do so, order that the
processes be served by substituted means. Under Order 5 r 2, substituted service can be
through any of the following methods
 Delivery of the process with order of court to an agent of the defendant.

 Delivery of process through accredited courier service.
 By advertisement in some newspaper circulating within jurisdiction.
 By notice affixing the process on a conspicuous part of the court or other public
place wherein proceedings have been made.
 By affixing the process together with order on a conspicuous position at the door
of the defendant last known residential or business address.
 Such other manner specified by the court.
An order of court upon an affidavit deposed to is needed for a substituted service.
Permission/leave is needed for the issuance of a process for service outside Lagos
state, see Order 5 r 3 MCR which provides that no summons for service on a
defendant outside of Lagos shall issue without the written permission of the court.
Order 5 r 6 provides that Bailiff or any member of the police or any person designated by
Magistrate is the process server. A landlord is to serve the notice for determination of
tenancy and intention to recover possession on the tenant.
For proof of service, an affidavit is to be deposed to of which set out the facts, time,
place, mode and date of service – order 5 Rule 7. Such proof of service is to be filed
within 2 days of service otherwise it will not be accepted by the magistrate.
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Service of ordinary summons must be within 3 months. Summary summons can be

converted to ordinary summons within 3 months of issue of the summons (EXCHANGE)
Note that summons for service outside jurisdiction must be by leave of court.
DRAFTINGS: APPLICATION FOR SUMMARY SUMMONS AND PARTICULARS

OF CLAIM
K. O. OKWOR & ASSOCIATES

LEGAL PRACTITIONERS, SOLICITORS, AND CHARTERED ARBITRATORS
NO 5 LAW SCHOOL DRIVE, VICTORIA ISLAND, LAGOS
EMAIL: KENNETHOKWOR@GMAIL.COM
07064793812
Our Ref: ______________________ Your Ref: _____________
Date: 8th March, 2017
The Registrar,
Magistrate Court of Lagos State,
Ikeja Magisterial District,
Ikeja, Lagos.
ATTENTION: MR. JEFFERY OWHOR-CHUKU (Registrar’s name)
Dear sir,
APPLICATION FOR SUMMARY SUMMONS
PURSUANT TO ORDER 2 RULE 1(1) and ORDER 3 RULE 1 OF THE
MAGISTRATE COURT OF LAGOS (CIVIL PROCEDURE) RULES, 2009
Kindly refer to the above subject matter.
We wish to apply that a summary summons be issued against the defendant as per the
attached claim and particulars of claim. We undertake to pay the necessary fees.
We thank you for your usual co-operation.
Yours faithfully,
___________________
K.O. D. Okworesq
For: K.O. Okwor&Associates.
Enclosed:
1) Claim dated 8th of April, 2014
2) Particulars of claim dated 8th of April, 2014.
Page 58 of 389
IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN AT LAGOS
CLAIM NO:
BETWEEN
MRS KAYUBA ADA CLAIMANT
AND
AGRICULTURAL BANK PLC DEFENDANT
PARTICULARS OF CLAIM
Just draft a statement of claim……..but the title should be particulars of claim
The claimant and defendant entered into an agreement for Cashew nuts worth N10, 000,
000 to be supplied by the claimant in March 2004. The defendant was to pay N3, 000,
000 as deposit and the defendant had paid same. The defendant had since refused to pay
the outstanding balance of N7, 000, 000 and wrote on the 1st June, 2008 of its intention
not to pay.
WHEREOF the claimant claims as follows:
The claimant claims N7, 000, 000 (seven million naira) as the outstanding balance. N2,
000, 000 (two million naira) as special damages and N700, 000 (seven hundred thousand
naira) as general damages.
Dated this____________________day of_______________________20___
_______________
Mrs. Kayuba Ada,
11, Ikeja Road,
Ikeja, Lagos.
FOR SERVICE ON
Agricultural Bank Plc OR
Page 59 of 389
K. O. D. OkworEsq
Respondent’s counsel
7, AdeyemoAlakija
Victoria Island
Lagos
WEEK 6
COMMENCEMENT OF ACTION AT THE HIGH COURT
By virtue of section 272 of the CFRN, 1999, there is only one High Court for state –
every state of the federation. However judicial divisions are created for administrative
convenience. See NIGERITE NIG LTD v. DANLAMI NIG LTD.
Place for institution and trial of suits (VENUE) – Order 2 Lagos; Order 9 Abuja
VENUE – Order 2 Lagos; Order 9 Abuja
By Order 2 Lagos and Order 9 Abuja, the appropriate venue or judicial division for
commencing an action depends on the type of action. Thus:
1) Actions relating to land, mortgages or charges, or other interests in land or

injuries thereto; and all actions relating to personal property distrained or seized
shall be commenced and determined in the judicial division in which the land is
situate or where the seizure or distrain took place. Thus, LEX SITUS applies. See
Order 2 r 1 Lagos and Order 9 r 1 Abuja.
2) Actions against public officers, actions for recovery of penalties and forfeitures
shall be commenced and tried in the judicial division where the cause of action
arose. See Order 2 r 2 Lagos and Order 9 r 2 Abuja
3) Actions for specific performance or for breach of contract may be commenced
and tried in the judicial division in which such contract ought to have been
performed or in which the defendant resides or carries on business. See Order
2 r 3 Lagos and Order 9 r 3 Abuja
4) In Lagos, all other actions may be commenced where the defendant resides or
carries on business, see Order 2 r 4(1) Lagos; while in Abuja, all other actions
may be commenced where the defendant resides or carries on business or where
the cause of action arose, see Order 9 r 4(1) Abuja. Thus, in Abuja, there is an
extra factor which is where the cause of action arose.
Note that by Order 2 r 4(2) Lagos and Order 9 r 4(2) Abuja, where there are two or more
defendants resident in different judicial divisions, the action may be commenced in any
of those judicial divisions subject to any order or direction of the court as to the most
Page 60 of 389
convenient place for holding the proceeding. Note that the order can be made by the court
either suomotu or upon application by either party. See Order 2 r 4(2) Lagos and Order 9
r 4(2) Abuja.
NOTE for the purposes of the above, it has been held that a company resides or carries on
business at the place of its central management and control. See KRAUSS THOMPSON
ORGANISATION LTD v. UNIVERSITY OF CALABAR; UNIT CONSTRUCTION
COMPANY v. BULLOCK.
Actions commenced in wrong judicial divisions – Order 2 r 5 Lagos and Order 9 r 5

Abuja
By Order 2 r 5 Lagos, an action commenced in a wrong judicial division may continue to

be tried there unless the Chief Judge directs otherwise. See Order 2 r 5 Lagos.
In Abuja, by Order 9 r 5 Abuja, an action commenced in a wrong judicial division may

continue to be tried in that wrong division until the final determination, unless the court
directs otherwise or the defendant pleads specially by an objection to the jurisdiction
before or at the time of pleadings. See Order 9 r 5 Abuja.
Note that in Lagos it is unless Chief Judge directs otherwise, while in Abuja, it is unless
the court direct otherwise.
FORMS OF COMMENCEMENT OF ACTION – Order 1 r 1 Abuja; Order 3 rr 1

& 5 Lagos
In Abuja, by Order 1 r 1 Abuja, the methods of commencing civil actions in the High
Court are:
 Writ of summons
 Originating motion (application)
 Originating summons
 Petition
Note that the Lagos rules, vide Order 3 rr 1 & 5 Lagos, only provide for two methods of
commencing actions, namely:
 Writ of Summons; see Order 3 r 1 Lagos and

 Originating Summons. See Order 3 r 5 Lagos.
However, it must be noted that in Lagos, notwithstanding the above provisions, civil
actions can still be commenced by petition or originating motion where a Law or Rule
Page 61 of 389
expressly requires so. This is because Order 3 r 1 Lagos provides that “subject to the
provisions of these Rules or any applicable law requiring any proceedings to be begun
otherwise than by Writ, a writ of summons shall be the mode of commencing all
proceedings.
Note that all the processes used to commence civil proceedings are called originating
processes.
PETITION – Order 1 r 2(3) Abuja
It is an originating process usually used when the law or rules provides that it should be
used. See Order 1 r 2(3) Abuja. It is usually used in commencing the following actions:
1. Matrimonial causes, see section 54 MCA.

2. Winding up of companies, see section 410 CAMA.
3. Electoral matters, section 133(1) ELECTORAL ACT.
ORIGINATING MOTION OR APPLICATION – Order 1 r 2(3) Abuja
This originating process is also used when the statute or law provides that it should be
used. See Order 1 r 2(3) Abuja. It is used in Fundamental Rights Enforcement
proceedings. Also, it is the accepted mode for applying for the prerogative writs or orders
like Certiorari, Mandamus, Quo Warranto, Habeas Corpus, etc. Under CAMA some
applications are made by originating application.
In AKUNNIA v. AG ANAMBRA, it was held that where a statute provides that an

application may be made but does not provide for any special procedure, it should be by
originating motion. The parties to an originating motion are applicant and respondent.
Note that where a written law or rules provides for the use of originating motion or
petition, such must be strictly complied with because there cannot be conversion from
other originating processes to them, such action would be struck out. This applies strictly
to PETITION AND ORIGINATING MOTION (cf: court order to parties to file pleadings
in action wrongly commenced by originating summons)
ORIGINATING SUMMONS – Order 2 r 2(3) Abuja; Order 3 rr 5 & 6 Lagos.
ADELEKE V INAKOJU
DOHERTY V DOHERTY
Page 62 of 389
By Order 1 r 2(2) Abuja and Order 3 rr 5 & 6 Lagos, Originating summons are used to
commence actions in the following instances:
 Originating summons may be used to commence an action where the principal

question in issue is, or is likely to be one of the construction of a Written law or
instruments, Statute, Will, Deed, Contract, document or some other question of
law where there is unlikely to be a substantial dispute of facts; and
 Originating summons may also be used to commence an action where a Law or
Rule expressly provide for their use. For instance, under Order 53 Lagos, an
originating summons is required for the commencement of actions for the
recovery of premises from a squatter; under.
Companies Proceedings Rules of 2012, an originating summons is the prescribed
method of commencing company proceedings; again, under Order 26 r 3 Abuja,
an originating summons is the prescribed method for commencing interpleader
proceedings where no action has been taken against the applicant by any of the
rival claimants. IT MUST BE NOTED THAT where a law or rule expressly
requires the use of originating summons in commencing an action, it does
not matter that there will be substantial disputes of facts.
Note that by Order 3 r 8(1) Lagos, an originating summons shall be deemed to have
been issued when it is sealed and filed at the Registry. In Abuja, by Order 5 r 6
Abuja, an originating summons is deemed to have been issued when it is signed by
the Registrar or any other duly authorized officer of the court.
In Lagos, by Order 3 r 8(2) Lagos, originating summons is to be accompanied by:
 An affidavit setting out the facts relied on

 All the exhibits to be relied on
 A written address in support of the application
 Pre- action Protocol Form 01
In Abuja, the originating summons must be accompanied by an affidavit and a written

address.
Upon receipt of the originating summons, the defendant is required to file a COUNTER
AFFIDAVIT, accompanied by all the exhibits he is relying on and a written address
WITHIN 8days, 21days or 30days (whichever is appropriate) after the service of the
originating summons on him.
RETURN DATES are: Abuja, 8 days or at least 30 days (if for service outside
jurisdiction); Lagos, 21 days or at least 30days (if for service outside jurisdiction).
Page 63 of 389
Thereasonfortherequirementofatleastthirty (30)
daysifthedefendantistobeservedoutsidejurisdictionisSection 99 ofSheriffs and
CivilProcessesActwhichprovidesthat “the period specified by a writ of summons or
other originating process for service outside jurisdiction as the period within which the
defendant is required to enter an appearance shall not be less than thirty (30) days after
the service of the writ or other originating process, or if a longer period is prescribed by
the Rules of the court that issued the originating process, then not less than that longer
period.
Parties in originating summons are plaintiff/claimant and defendant and

plaintiff/CLAIMANT must leave as many copies of the summons and accompanying
documents as there defendants for service. See Order 3 r 8(3) Lagos.
By Order 5 r 1(2) Abuja, an originating summons can either be on notice or an exparte

summons.
The advantage of originating summons is that civil proceedings commenced by way of

originating summons are likely to be FASTER because there are no disputes of facts and
the case is decided wholly on affidavit and documentary evidence, without the need to
file and exchange pleadings or call witnesses.
Pleadings are not filed in actions commenced by originating summons. Pleadings are
only filed in actions commenced by Writ of summons.
Where an action involves contentious issues and hostile proceedings; or where there is, or
is likely to be, a dispute of facts, then originating summons should not be used to
commence the action. See DOHERTY v. DOHERTY (1968) NMLR 241; NBN &Anor
v. ALAKIJA (1978) 9-10 SC 59.
NOTE: where an action is wrongly commenced by originating summons, the court is not
expected to strike it out. This is because the Supreme Court stated in ADEYELU II v.
AJAGUNGBADE III (2007) 14 NWLR (Pt. 1053) 1, that 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. See also Order 5 r 1( 3) Lagos
which provides that an action shall not be struck out on the ground that it ought to have
been commenced by a different originating process.
The above applies only to originating summons and not to any other method of
commencing actions. That is, 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.
Page 64 of 389
LIFE SPAN OF ORIGINATING SUMMONS – Order 6 r 6 & 7 Abuja
Lagos rules seem to be silent on this point. By Order 5 r 7(1) Abuja, at the first
instance, the life span of an originating summons (other than a concurrent
one) is for twelve (12) months beginning on the date of issue and a concurrent originating
summons shall be valid in the first instance only for the remaining period of the validity
of the original summons from the date of issue of the concurrent originating summons.
By Order 5 r 7(2) Abuja, the originating summons can be RENEWED from time to time
for a period, not exceeding twelve (12) months at any one time, beginning with the day
following the anniversary of issue or order, provided that an application for extension of
its validity (life span) is made to the court within a reasonable time before or after that
day. By Order 5 r 7(3) Abuja, an originating summons of extended validity shall be
marked with an official stamp showing the period of extension.
BAR PART II QUESTION 2014 SET.
In Lagos, by order 3 r 9 Lagos, subject to the provision of Sheriff and Civil

Processes Act, a writ of summons or originating summons or other originating
process issued by the court for service IN Nigeria, but OUTSIDE Lagos state shall
be endorsed by the Legal Practitioner of the claimant with the following notice:
“This writ of summons/originating summons/otheroriginating process is to

be served out of Lagos State of Nigeria and in ____________ State”
SECTION 97 SCPA makes similar provision above.
Finally, note that in Lagos, by Order 3 r 11 Lagos, upon acceptance for filing by the
Registry, all originating processes shall be screened for suitability for ADR and referred
to the Lagos Multi-Door Court House or other appropriate ADR institutions or
Practitioners in accordance with the practice directions that shall from to time be issued
by the Chief Judge of Lagos State.
DRAFTING OF ORIGINATING SUMMONS IN HC IN ABUJA

HOLDEN AT MAITAMA
SUIT NO
BETWEEN
KENNETH ONONEZE ------------------------------------------------------------PLAINTIFF
Page 65 of 389
AND
JEFFERY OWHOR-CHUKU ---------------------------------------------

DEFENDANT
ORIGINATING SUMMONS
LET JEFFERY OWHOR-CHUKU of No 123, Area 2, Maitama, Abuja, in the Maitama

Judicial Division within eight (8) days (or 30days if defendant is to be served outside
jurisdiction) after the service of this summons on you, inclusive of the day of such
service, cause an appearance to be entered for you to this summons which is issued on the
application of kENNETH oNONEZE of No 333 Area 3 Maitama, Abuja, for the
determination of the following questions:
QUESTIONS FOR DETERMINATION
1) Whether the plaintiff has a valid contract with the defendant in view of Clause 4
of the agreement between the plaintiff and the defendant dated 13/02/2015; OR
2) Whether the provisions of section 145 of the CFRN 1999 as amended imposes a
duty or a discretion on the President to transmit a written declaration to the
President of the Senate and Speaker of House of Representatives in the event of
the President proceeding on vacation or is otherwise unable to discharge the
functions of his office.
AND after the determination of the issues, the plaintiff prays as follows:
1) A DECLARATION that there is no valid contract between the plaintiff and the
defendant; OR
2) A DECLARATION that section 145 of the 1999 CFRN as amended imposes a
duty on the President to transmit a written declaration to the President of the
Senate and the Speaker of the House of Representatives whenever he is
proceeding on vacation or is otherwise unable to discharge the functions of his
office.
Dated this ____________ day of ____________________, 2015
THIS SUMMONS was taken out by K. O. D. Okwor Esq with K.O.D &CO, of No 5
Maitama Road Abuja for the above named plaintiff.
---------------------
Registrar/Authorised officer
Page 66 of 389
NOTE:
1) The defendant may appear hereto by entering appearance personally or by legal

practitioner either by handing in the appropriate forms duly completed at the
Registry of the High Court of the Federal Capital Territory, Abuja or by sending
them to that office by Registered Post. (Note, for Bar Part II, put appropriate
name of court.)
2) If the defendant does not enter appearance within the time prescribed and at the
place mentioned above, such order will be made and proceedings may be taken as
the judge may think just and expedient.
FOR SERVICE ON:

The Defendant,
Jeffery Owhor-Chuku
No 123, Area 2, Maitama,
Abuja.
DRAFTING OF ORIGINATING SUMMONS IN HC IN LAGOS
(Order 3 rule 8(1))

GENERAL FORM OF ORIGINATING SUMMONS
(Order 3 rule 8(1))
IN THE HIGH COURT OF LAGOS

HOLDEN AT LAGOS
SUIT NO
BETWEEN
KENNETH ONONEZE ----------------------------------------------------------- CLAIMANT
AND
JEFFERY OWHOR-CHUKU -------------------------------------------- DEFENDANT
ORIGINATING SUMMONS
LET JEFFERY OWHOR-CHUKU of No 123, Ikoyi, in the Lagos Judicial Division,

within twenty-one (21) days (or 30days if outside jurisdiction) after the service of this
summons on you, inclusive of the day of such service, cause an appearance to be entered
Page 67 of 389
for you to this summons which is issued on the application of AKINOLA WAHAB of No
333 Bourdillon, Lagos, and who will seek for the determination of the following
questions:
QUESTIONS FOR DETERMINATION
3) Whether the claimant has a valid contract with the defendant in view of Clause 4
of the agreement between the Claimant and the defendant dated 13/02/2015; OR
4) Whether the provisions of section 145 of the CFRN 1999 as amended imposes a
duty or a discretion on the President to transmit a written declaration to the
President of the Senate and Speaker of House of Representatives in the event of
the President proceeding on vacation or is otherwise unable to discharge the
functions of his office.
RELIEFS SOUGHT BY THE CLAIMANT
AND after the determination of the issues, the Claimant prays as follows:
3) A DECLARATION that there is no valid contract between the claimant and the
defendant; OR
4) A DECLARATION that section 145 of the 1999 CFRN as amended imposes a
duty on the President to transmit a written declaration to the President of the
Senate and the Speaker of the House of Representatives whenever he is
proceeding on vacation or is otherwise unable to discharge the functions of his
office.
Dated this ____________ day of ____________________, 2015
THIS SUMMONS was taken out by K. O. D. OkworEsq of K.O.D & CO of no 5 Festac

Town Lagos., legal practitioner to the above named claimant.
SEALED at the High Court Registry, Lagos.
NOTE:
3) The defendant may appear hereto by entering appearance personally or by legal

practitioner either by handing in the appropriate forms duly completed at the
Registry of the High Court of Lagos State or by sending them to that office by
Registered Post. (Note, for Bar Part II, put appropriate name of court.)
4) If the defendant does not enter appearance within the time prescribed and at the
place mentioned above, such order will be made and proceedings may be taken as
the judge may think just and expedient.
FOR SERVICE ON:

Page 68 of 389
The Defendant,
Jeffery Owhor-Chuku
No 123, Ikoyi,
Lagos.
WRIT OF SUMMONS – Order 2 r 2(5)Abuja; Order 3 r 3 Lagos
This is provided for under Order 1 r 1 Abuja and Order 3 r 1 Lagos, which provide that a
Writ of summons shall be used for commencing all civil actions in the High Court or
FHC except where there is an express constitutional or statutory provision to the contrary.
Note the following:
 It is the most common method and the default mode of commencing civil actions
in the High Court
 It is used to commence contentious actions where there will be substantial
disputes on questions of facts. See DOHERTY v. DOHERTY (1968) NMLR 241;
NBN &Anor v. ALAKIJA
 Where there is doubt as to which method to adopt in commencing the
proceedings, then it should be commenced by way of Writ of Summons. See
DOHERTY v. DOHERTY (1968) NMLR 241
 Actions commenced by writ of summons usually involves and requires the filing
and exchanging of pleadings, calling of witnesses (if any), and a long trial.
ISSUANCE OF THE WRIT O. 6 r. 2(1) Lagos, O. 4 r. 15 Abuja
In Lagos, a writ is issued when it is sealed by the Registrar – Order 6 r 2(1) Lagos. In
Abuja, a writ is issued when it is signed by Registrar or other officer of the court
authorized to sign the Writ – Order 4 r 15 Abuja. In Lagos, the writ is issued only by the
Registrar, while in Abuja, the writ is issued either by the Registrar or other officer of the
court who is duly authorized to sign the writ.
Note that in Abuja, where the writ is to be served on a defendant who stays outside the
jurisdiction, then the leave of the court must be obtained before the writ can be issued.
See ADEGOKE MOTORS LTD v. ADESANYA; NWABUEZE v. OBIOKOYE . Note
that the leave is not for the service of the writ, but for its issuance. Service of processes is
under exclusive legislative list and is uniform throughout Nigeria. No need for leave to
serve within Nigeria. See section 96(1) & (2) of Sheriffs and Civil Processes Act.
However, it must be endorsed on the Writ that it is to be served outside the state in ……..
state. Section 97 SCPA.
NOTE THAT THE WRIT MUST BE SIGNED BY A LEGAL PRACTITIONER,

WHO IS DULY CALLED TO THE NIGERIAN BAR AND DULY ENROLLED.
Page 69 of 389
LAW FIRMS CANNOT SIGN LEGAL PROCESSES. SEE OKAFOR & ORS v.
NWEKE & ORS (2007) 3 SC (PT. II) 55
Endorsement of claim on a writ
There is a distinction between a general endorsement ofclaim and special endorsementof

claim under Abuja rules. In general endorsement which is Form 1, there is no statement
of claim, it contain just the relief sought without factual basis for the relief. The factual
basis is to be set out in the statement of claim. Under the special endorsement in Form 2,
there is statement of claim included in the writ, thus both the relief sought is set out and
the factual basis for the relief is provided. Thus in Abuja, there is the general Form of
writ of summons in Form 1 and specially endorsed writ in Form 2. In Lagos, there is no
specially endorsed Writ. Due to the system of frontloading, a specially endorsed writ
might no longer be relevant. In Lagos, the two forms are Form 1 for service within
Nigeria and Form 2 for service out of Nigeria.
Note that where a writ is specially endorsed, it is unnecessary to file and serve another
statement of claim, unless an amendment is required. ALTHOUGH A WRIT OF
SUMMONS IS AN ORIGINATING PROCESS AND NOT A PLEADING, A
SPECIALLY ENDORSED WRIT OF SUMMONS IS A PLEADING.
The endorsement of claim on a writ of summons must be endorsed at the back or reverse
side of the writ. See ALATEDE v. FALODE & ANOR, where the Supreme Court stated
that a writ of summons must be endorsed at the back or reverse side and it is not within
the contemplation of the law that a piece of paper can be pasted on the reverse side for
the endorsement. Where any paper other than the form is used, the writ is not proper, nor
is any endorsement thereon proper. Summarily, the court stated that a writ without
endorsement at the back or reverse side is not a writ of summons. See also NWOYE v.
NIGERIAN ROAD CONSTRUCTIONS LTD & ANOR; SONUGA v. ANADEIN &
ORS.
LIFE SPAN AND RENEWAL OF A WRIT-OF SUMMONS Order 6 rr 6 Lagos;

Order 4 r 16 Abuja.
The life span of a writ refers to its period of validity within which it is to be served. Thus:
Life span: O 6 r. 6(1) Lagos, O. 6 r 6&7 Abuja

Renewal: O. 6 r. 6(2) Lagos, O. 6 r 6&7 abuja
Only two renewals: O. 6 r. 7 Lagos, no time limit in abuja for renewals.
By Order 6 r. 6(1) of Lagos, the initial life span of a writ in Lagos is 6 months.
Page 70 of 389
By O. 6 r. 6(2) of Lagos, where the Writ, whether original or concurrent, is about to

expire and it has not been served on the defendant, the court can renew it for a further
period of three (3) months from the date of such renewal. It must be noted that by the
said Order 6 r 6(2) Lagos, the application for renewal must be made before the
expiration of the life span of the original writ. See Order 6 r 6(2) Lagos; ALAO v.
OMONIYI. The application is by MOTION EX PARTE.
By O. 6 r. 7 of Lagos, a Writ will only be renewed strictly for good cause and upon
prompt application. By the same O. 6 r. 7, the Writ may be renewed for a period of
three (3) months twice so that it shall not be in force for longer than a total of twelve
(12) months. That is, it can be renewed for 3 months on not more than two
occasions, such that its total life span is not more than 12 months.
In Abuja, by O. 4 r. 16(1) of Abuja, the initial life span of a writ, other than a concurrent
writ, is 12 months; while the initial life span of concurrent writ is that it is valid and
subsisting for the remaining period of the life span and validity of the original writ. The
said order and rule provides that: “for purposes of service; a Writ, other than a concurrent
writ, shall be valid in the first instance for twelve (12) months beginning with the date of
its issue and a concurrent writ shall be valid in the first instance for the remaining period
of validity of the original writ…” (NOTE: this life span of concurrent is the same
nationwide… My opinion though).
By O. 4 r. 16(2) of Abuja, if an application for extension is made to Court before the date
of expiry of the Writ or on such later day as the court may allow, the writ can be
renewed for a further period not exceeding twelve (12) months at any one time. That is, it
can be renewed for another 12 months and in Abuja, there is no limit as to the number of
renewals. Thus, where the writ is about to expire or has expired without being served on
the defendant, the life span can be renewed. Note that in Abuja, the application for
renewal can be either before the expiration of the original writ or after its expiration
on such later day as the court may allow. See Order 4 r 16(2) Abuja; KOLAWOLE
v ALBERTO
By O. 4 r. 16(4) of Abuja, where a Writ is renewed, the renewal shall apply to any other
Writ, whether original or concurrent, issued in the same action which has not been
served.
The question has been asked as to when an application for renewal should be made, is it
before or after expiration of the initial life span of the writ? In Abuja, the application for
renewal can be made before or after the expiration of the Writ and this is clear from the
provisions of O. 4 r. 16(2). Thus, in KOLAWOLE v. ALBERTO, the Supreme Court
stated that the court can grant an application for renewal before or after expiration as it
Page 71 of 389
thinks fit. HOWEVER, in Lagos, the provisions of O. 6 r. 6(2) of Lagos is clear that the
application for renewal must be made before the expiration of the Writ. See also ALAO
v. OMONIYI
Application for renewal is by MOTION EX PARTE supported by affidavit and a written

address.
IT MUST BE NOTED: THE AMENDMENT OF A WRIT BEFORE ITS ISSUANCE

DOES NOT REQUIRE THE LEAVE OF COURT. WHILE THE AMENDMENT OF A
WRIT AFTER ITS ISSUANCE MUST BE BY LEAVE OF COURT.
CONCURRENT WRIT – Order 6 r 9 LAG, order 4 r 13 AbUja
In the words of Order 4 r 13(1) Abuja, one or more concurrent writs may, at the request
of a plaintiff, be issued at the time when the original writ is issued or at any time
thereafter before the original writ ceases to be valid. In the words of Order 6 r 9 Lagos, a
claimant may, at the issuance of an originating process or at any time during its life span,
cause to be issued one or more concurrent originating processes each to bear the same
date as the initial process marked “concurrent”.
A concurrent writ is a duplicate or a true copy of the original writ of summons, running
and subsisting at the same time with the original writ, but is used for service on
defendants who are outside the jurisdiction of the court. That is, where there are two or
more defendants and any of them is outside the jurisdiction of the court, then the
plaintiff/claimant will obtain the leave of court to serve a concurrent writ on the
defendant(s) outside jurisdiction. Application for leave is by a MOTION EX PARTE
supported by affidavit and written address (verify).
The only difference between a concurrent writ and the original writ is that a concurrent
writ is issued along with the original writ to be served outside the jurisdiction of the court
and it is marked CONCURRENT. When all defendants are within jurisdiction, then there
is no need for a concurrent writ as the original writ of summons is issued and served on
all.
Note that a plaintiff/claimant may apply for a concurrent writ to be issued alongside the
original one and the application may be made at any time during the life of the original
writ and such concurrent writ will only be in force during the life of the original writ.
That is, it dies with the original writ.
A concurrent writ bears the same date as the original writ, just that the concurrent writ is
marked “concurrent”.
Page 72 of 389
Note also that a writ issued for service within jurisdiction may be issued as a concurrent
writ with one which is to be served outside jurisdiction; and a writ issued for service
outside jurisdiction may be issued as concurrent with one for service within jurisdiction.
See Order 4 r 13(2) Abuja and Order 6 r 10 Lagos. That is, if you have issued a writ and
served on someone outside jurisdiction, a concurrent copy can be issued for service on
someone within jurisdiction and vice versa
Documents to accompany a writ of summons – Order 3 r 2(1) Lagos; Order 4 r 15

Abuja
Lagos – Order 3 r 2(1) Lagos
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) List and Copies of every document to be relied on at the trial
e) Pre-action Protocol Form 01 (Lagos)
Abuja – Order 4 r 15 Abuja
1. Statement of claim
2. List and Copies of documents mentioned in the statement
of claim to be used in evidence
3. Witness statement on oath; and
4. A certificate of Pre-Action Counseling
Note effect of failure to front load ANY the documents required to be frontloaded in
Lagos. See Order 3 r 2(2) Lagos; Order 5 r 1(1) Lagos; JABITHA v. ONIKOYI (2004)
ALL FWLR (Pt. 233) 1625;
For emphasis, in Lagos, by Order 5 r 1 Lagos, failure to comply with the front
loading requirements under Order 3 r 2 and Order 3 r 8 shall nullify the action. The
said Order 5 r 1 Lagos provides: where in beginning or purporting to begin any
action there has, by reason of anything done or left undone, been a failure to comply
with the front-loading requirements under Order 3 r 2 Lagos or Order 3 r 8 Lagos,
the failure shall nullify the action.
It must be noted that Order 23 r 2(1) Abuja provides for the documents to be front loaded
by the defendant after the service of the writ of summons and statement of claim. It
provides that “except a court grants leave to the contrary, a defendant who enter
appearance in, and intends to defend an action shall WITHIN FOURTEEN (14) DAYS
Page 73 of 389
after the service of the statement of claim and writ of summons on him, serve his
statement of defence on the plaintiff along with,
a) Copies of documents mentioned in the statement of defence to be used in

evidence
b) Witness(es) statements on oath
c) Certificate of pre-action counselling.
See Order 23 r 2(1) Abuja
In Lagos, by Order 15 r 1(2) Lagos, appearance and the statement of defence must be
entered and filed within FORTY-TWO (42) DAYS from the date of service of the writ
and statement of claim. By Order 17 r 1 Lagos, the documents the defendant must front
load along with his statement of defence are:
a) Copies of documentary evidence to be relied on

b) List of witnesses
c) Written statements on oath of the witnesses.
See Order 17 r 1 Lagos
FRONT LOADING Or 3 r 2 Lagos, Or 2 r 2(2) Abuja.
Front loading is a procedure whereby all relevant processes are filed together with the
Writ of Summons. That is, front loading is the requirement of filing upfront, the
statement of
claim and all other processes along with the writ of summons. Both the plaintiff and the
defendant are under an obligation to front load the documents required to be front loaded.
The essence of the frontloading process is to abridge or shorten the time wasted by
parties to file,exchange and settle pleadings, join issues and subsequently give oral
evidence on the matters contained in their pleadings. In OLANIYAN v. OYEWOLE
(2008) 5 NWLR (pt. 1079) 114, the Court of Appeal held that the rationale for the
frontloading system is to quicken the dispensation of justice. The Court further held that
by this system of frontloading, Judges are no longer adjudicators or umpires but have also
become managerial judges who must effectually utilize the technique and tool of case
management and judicial control to achieve and facilitate the just, efficient and speedy
dispensation of justice.
 It guards against springing up of surprises on opposing parties since parties know,
Page 74 of 389
 It provides an opportunity for counsel to assess their cases before going to the
court. By perusing the frontloaded documents, both Court and Counsel are well-
prepared and fully aware of the relative strengths and weaknesses of the case for
both parties.
 It promotes ADR. That is, it serves as a catalyst for resorting to ADR since both
parties know, in advance, the relative strengths and weaknesses of their cases
 It aids the efficient and effective case management by the court as counsel and
parties can no longer ask for frivolous adjournments. See OLANIYAN v.
OYEWOLE (2008) 5 NWLR (pt. 1079) 114
 It discourages the presentation of frivolous cases and defences, especially in
Abuja and Lagos, where there is the mandatory requirement of filing a Certificate
of Pre-action Counselling and Pre-action Protocol Form respectively.
 The system of frontloading saves costs that would otherwise be replicated from
filing processes differently.
 It is faster as it is only final address that is not frontloaded.
Almost every High Court of states uses the frontloading system. Even the National
Industrial Court has directions on front loading. In Lagos, there is a consequence for not
front loading, Order 3 r 2(2) and or 5 R 1(1) provides that the effect of failure to frontload
the required documents would result in the rejection of the Writ for filing at the Registry.
That is, the originating process would not be accepted for filing at the Registry. See
JABITHA v. ONIKOYI (2004) ALL FWLR (pt. 233) 1625.
Under the Abuja Rules, there is no consequence for failure to frontload, but the practice
is that the writ or other originating process will be rejected for filing at the Registry just
as is done in Lagos.
PRE-ACTION COUNSELING CERTIFICATE/ PRE-ACTION PROTOCOL

FORM 01
By Order 4 r 15(d) Abuja, the PRE-ACTION COUNSELING CERTIFICATE is one of

the documents to be filedalongwiththe writ and frontloaded in Abuja;
itisalsorequiredbyOrder 23 r 2(1)(c)
Abujatobefiledalongwiththestatementofdefenceandfrontloaded. In Lagos, by Order 3 r
2(1)(e) Lagos, the one required is the PRE-ACTION PROTOCOL FORM 01 AND IT IS
TO BE FRONT LOADED BY THE CLAIMANT ONLY. It is FORM 01 in the appendix
to the Lagos rules.
With respect to the pre-action counseling certificate in Abuja, Order 4 r 17 Abuja

provides that a certificate of pre-action counseling, signed by counsel and the party shall
Page 75 of 389
be filed along with the writ. The certificate shall show that the parties have been
appropriately advised as to the relative strength and weaknesses of their cases, and the
counsel shall be personally liable to pay the costs of the proceedings where the case turns
out to be frivolous. This is the penalty for filing frivolous action
It must be noted that the provision requires that both legal practitioner and litigant are to
sign. However FORM 2 providesonlyaspacefor the legal practitioner to sign. The
provision of Order 4 r 17 is superior thus both legal practitioner and litigant will sign.
DRAFTING OF PRE-ACTION COUNSELING.

CERTIFICATE

HOLDEN AT MAITAMA
SUIT NO
BETWEEN
KENNETH ONONEZE ------------------------------------------------------------PLAINTIFF
AND
CERTIFICATE OF PRE-ACTION COUNSELLING
I, Kenneth O. D.Okwor of Star Chambers, no 3 Maitama crescent, legal practitioner to

the plaintiff/defendant have gone through the facts of the case of the said
Plaintiff/defendant and on my honour have appropriately counselled him/her on the
relative strengths of his/her case or otherwise and should this turn out to be frivolous, I
am prepared to be liable as per the provisions of the Rules of this Court.
Dated this ___________ day of ____________________, 2015
_______________________ _____________________
K. O. D. Okwor Esq Kenneth Ononeze
Legal practitioner to Plaintiff Plaintiff
________________________________________________________________________
Page 76 of 389
NOTE: In Abuja, both plaintiff and defendant are required to file certificate of pre-action
counselling. So, when drafting, be careful to know the party you are drafting for, whether
plaintiff or defendant, and then draft accordingly.
In Lagos, however, the pre-action protocol form 01 is only filed by the claimant’s
counsel, and not by the defendant.
By Order 4 r 15(d) and 4 r 17 Abuja, a plaintiff is required to file the certificate of pre-
action counselling.
By Order 23 r 2(1)(c) Abuja, the defendant is required to file the certificate of pre-action
counselling. That is the authority.
It must be noted that this same authority, Order 23 r 2(1) Abuja, also provides for the
documents to be front loaded by the defendant after the service of the writ of summons
and statement of claim. It provides that “except a court grants leave to the contrary, a
defendant who enter appearance in, and intends to defend an action shall WITHIN
FOURTEEN (14) DAYS after the service of the statement of claim and writ of
summons on him, serve his statement of defence on the plaintiff along with:
d) Copies of documents mentioned in the statement of defence to be used in

evidence
e) Witness(es) statements on oath
f) Certificate of pre-action counselling.
In Lagos, by Order 15 r 1(2) Lagos, appearance and the statement of defence must be
entered and filed within FORTY-TWO (42) DAYS from the date of service of the writ
and statement of claim. By Order 17 r 1 Lagos, the documents the defendant must
frontload along with his statement of defence are:
d) Statement of defence
e) Copies of documentary evidence to be relied on
f) List of witnesses
g) Witness statements on oath of the witnesses.
DRAFTING OF PRE-ACTION PROTOCOL FORM 01
IN THE HIGH COURT OF LAGOS

HOLDEN AT LAGOS
SUIT NO
Page 77 of 389
BETWEEN
KENNETH OKWOR --------------------------------------------------------------

CLAIMANT
AND
STATEMENT OF COMPLIANCE WITH PRE-ACTION PROTOCOL
I_______ (lawyer’s name) ________,claimant’s (or claimants’) legal practitioner of

(Address), make oath and state as follows:
1) I/We have complied with the directions of the Pre-action Protocol as set out in
Order 3 Rule 2(1)(e) of the High Court Rules
2) The claimant and I have made attempts to have this matter settled out of Court
with the defendant and such attempts were unsuccessful. Such attempts include:
a. Negotiation held on the _______ day of __________, _____________,
which ended in a deadlock
b. Attempts to reconvene another meeting to try to negotiate, which was
never successful
c. Mediation organised and headed by Prof JoashAmupitan SAN, which also
ended in a deadlock.
3) We have by a Written Memorandum to the defendant, set out the claimant’s
claim and options of settlement.
Dated at Lagos this ___________ day of _____________________, 2015
BEFORE ME
____________________________________
COMMISSIONER FOR OATHS
WHEN IS AN ACTION DEEMED TO HAVE COMMENCED?
The time when an action shall be deemed to have commenced is very important because
it is used to calculate the period of limitation for bringing the action. In ALAWODE &
ORS V. SEMOH, the Federal Supreme Court stated that the test for the commencement
Page 78 of 389
of an action is to ask: has the plaintiff done all that is required of him by law to
commence the action?
Therefore, in Nigeria, an action would be deemed to have commenced when the

plaintiff/claimant does all that is required of him, by law, to do in order to commence the
action. This include taking out the appropriate writ or originating process, making an
application to the Registrar for its issuance and paying the prescribed fees. Once this is
done, the action is deemed to have commenced, and what is left to be done is an
administrative or domestic affair of the court and its staff. See ALAWODE & ORS V.
SEMOH;NICHOLLS V. GENERAL MANAGER, NRC; OLUBUSOLA v.
STANDARD BANK OF NIGERIA; UBA v. MODE NIG LTD (2000) 1 NWLR (Pt.
640) 270. Thus, when a litigant has done all that is required of him; he cannot be held
accountable for any default in administration on part of the court or Registrar.
APPEARANCE BY DEFENDANTS – Order 9 r 1 Lagos; Order 9 r 1 Abuja
A defendant upon being served with a writ of summons will file a memorandum of
appearance within the period or return date prescribed in the writ for appearance.
Memorandum of appearance can be:
 Conditional appearance – appearance under protest

 Unconditional appearance.
For a conditional appearance, the word conditional is to be added. The memorandum of

appearance must contain address for service for the defendant. This is the importance of a
memorandum of appearance. If appearance is not entered by the defendant within the
prescribed time limit, a default judgment can be entered against him in default of
appearance. See Order 10 Lagos, Order 10 Abuja. The plaintiff is to apply for default
judgment by MOTION ON NOTICE. The defendant upon service of the application for
default judgment can apply for extension of time for appearance – MOTION ON
NOTICE supported by an affidavit for the court to enter judgment in default of
appearance.
Note that the defendant enters appearance, not by physically appearing in court, but by
completing the prescribed form called Memorandum of appearance and filing it in the
court’s registry.
In Abuja and Lagos, the memo of appearance is as in Form 11 to their respective rules.
However, in Abuja, by Order 12 r 1(2) Abuja, where leave was obtained before the
appearance was entered, then the memorandum of appearance shall be as in Form 12 to
Page 79 of 389
the Abuja rules and shall be headed: “NOTICE OF ENTRY OF APPEARANCE AFTER
LEAVE OBTAINED”
By Order 9 r 2 Lagos and Order 12 r 2 Abuja, the memo must contain the defendant’s
address for service.
Where it does not contain an address for service, the memo shall not be accepted by the
Registrar. Order 9 rule 3 lagos, order 12 rule 3 Abuja.
Where it contains an address, but the address is illusory, fictitious or misleading, the
appearance can be set aside by a judge upon application by the claimant/plaintiff.-order 9
R 3 LAGOS, order 12 r 3 Abuja.
By Order 9 r 4 Abuja and Order 12 r 4 of Lagos, if two or more defendants in the

same action appear by the same legal practitioner and at the same time, the names
of all the defendants so appearing may be inserted in one memorandum and the
memo shall include the names of all the defendants so appearing. Thus, one
memorandum of appearance can enter appearance for several defendants.
In Lagos, by Order 9 r 5 Lagos, failure to enter appearance within prescribed time attracts
a default fee of #200 for each day of the default.
TIME WITHIN WHICH TO APPEAR
Lagos – 42 days for writ of summons, for originating summons 21 days
Abuja- 42days for originating summons and 14 days for writ of summonsj
DEFECTIVE WRITS AND OTHER PROCESSES, OBJECTIONS THERETO
When a writ of summons has been issued, there are possible objections. It could be:
 Objections as to defect in writ; or

 Objections as to defect in service of a writ
THAT IS, THE CATEGORIES OF OBJECTIONS THAT COULD BE MADE TO THE

WRIT ARE: OBJECTIONS AS TO DEFECTS ON THE WRIT, AND OBJECTIONS
AS TO DEFECTS IN THE SERVICE OF THE WRIT
A defective writ could be:
 Improper endorsement as to capacity of the parties

 An Attorney under power of Attorney suing in his own name
Page 80 of 389
 Writ of summons with no relief

 Writ of summons signed in chamber’s name instead of legal practitioner’s name
Where there is no address for service.
Where parties are not properly stated.
The defendant faced with a defective writ can take any of the following steps
1. Enter a conditional appearance or appearance under protest and subsequently file a

motion on notice to have the Writ or service set aside. It must be supported by affidavit
and written address. See HOLMAN BROTHERS(Nig.) LTD V. KIGO NIG LTD
2. He can proceed with the case but while the case is still pending, he can file notice of
preliminary objection listing the ground(s) for the objection with a written address. See
AG EASTERN NIGERIA v. AG FEDERATION
3. Without entering appearance, he can file a motion on notice or summon for the writ to
be set aside on the grounds of defect – list the ground(s), affidavit and written address.
See SKEN CONSULT v. UKEY
The defendant is to act within reasonable time. See Order 5 r 2 Lagos and Order 12 r 7
Abuja.
The plaintiff or claimant can apply for leave of court to amend the writ. Application is
MOTION ON NOTICE. The plaintiff is to act timeously. Since there will be two motion
before the court, the court will entertain that of the plaintiff first because it will preserve
the suit and should the leave sought be granted, that of the defendant would have been
overtaken and compensation can be awarded to the defendant as to cost. NALSA TEAM
AND ASSOCIATES V NNPC.
EFFECT OF NON-COMPLIANCE WITH RULES OF COURT
Under Order 5 r 1(1)& 2 Abuja at any stage of the proceedings, failure to comply with
rules of court in respect of time, place, manner, form, or content may be treated as an
irregularity which shall not nullify the proceedings, document, judgment or order. It
does not matter whether it is at commencement or during proceedings. The judge will
make such orders as to amendments or regularization, on such terms as to costs.
However, in Lagos, by Order 5 r 1 Lagos, failure to comply with the frontloading

requirements under Order 3 r 2 and Order 3 r 8 shall nullify the action. The said Order 5 r
1 Lagos provides: where in beginning or purporting to begin any action there has, by
reason of anything done or left undone, been a failure to comply with the frontloading
Page 81 of 389
requirements under Order 3 r 2 Lagos or Order 3 r 8 Lagos, the failure shall nullify the
action. See also Or 5 r1(2) Lagos. Proceedings for irregularities.
DRAFTING OF MEMORANDUM OF APPEARANCE

HOLDEN AT MAITAMA
SUIT NO
BETWEEN
KENNETH ONONEZE -------------------------------------------------------------------

PLAINTIFF
AND
JEFFERY OWHOR-CHUKU ---------------------------------------------------------

DEFENDANT
MEMORANDUM OF APPEARANCE
OR
MEMORANDUM OF CONDITIONAL APPEARANCE
OR
KINDLY cause an appearance to be entered for Jeffery Owhor-chuku, sued as defendant
in this action
OR
KINDLY cause a conditional appearance to be entered for Jeffery Owhor-Chuku, sued as

defendant in this action
Dated this ------------- day of ---------------, ---------------------
__________________
_
K. O. D. Okwor Esq
Defendant’s Solicitor
K.o.d & Co
No 5 Law School
Drive
Victoria Island
Lagos
FOR SERVICE ON:
Page 82 of 389
The plaintiff
C/o His Counsel
B. O. Olaniyan
Olaniyan& Co
No 3 Adeyomostreet
Victoria Island
Lagos.
DRAFTING OF MEMORANDUM OF APPEARANCE AFTER LEAVE OBTAINED

as in FORM 12. APPLIES ONLY IN ABUJA.

HOLDEN AT MAITAMA
SUIT NO
BETWEEN
KENNETH OKWOR -------------------------------------------------------------------

PLAINTIFF
AND
JEFFERY OWHOR-CHUKU ---------------------------------------------------------

DEFENDANT
NOTICE OF ENTRY OF APPEARANCE AFTER LEAVE OBTAINED

TAKE NOTICE that JefferyOwhor-Chuku has obtained leave to appear to the Writ of
Summons in this action and that I have this day entered an appearance for him at the
High Court of the Federal Capital Territory, Abuja.
Dated this ------------- day of ---------------, ---------------------
__________________
_
K. O. OkworEsq
Defendant’s Solicitor
No 5 Law School
Drive
Victoria Island
Lagos
FOR SERVICE ON:
Page 83 of 389
The plaintiff
C/o His Counsel
B. O. Olaniyan
Olaniyan& Co
No 3 Adeyomo street
Victoria Island
Lagos.
FAST-TRACK PROCEDURE – Order 56 Lagos
Note that by virtue of the Kano State 2008 Practice Directions, fast-track applies in Kano
state.
In Lagos, there are the following tracks: ADR track, litigation track, fast-track and
revenue track.
The procedure for fast-track in Lagos is provided for under Order 56 Lagos.
By Order 56 r 1 Lagos, the main objective of the fast-track court and procedure is to
reduce the time spent on litigation to a period not exceeding nine (9) months from the
commencement of the action till the final judgment.
The conditions for qualification for fast-track in Lagos are provided for under Order 56 r
2 Lagos. Thus, by Order 56 r 2(1) Lagos, a suit shall qualify for fast-track where:
a) The action is commenced by Writ of summons; Order 56 r 2(1)(a) Lagos and

b) An application is made to the Registrar by a claimant or counter claimant; Order
56 r 2(1)(b) Lagos; AND
i) The claim is a liquidated monetary claim or counter-claim in a sum
not less than one hundred million naira (#100, 000, 000. 00); Order
56 r 2(2)(a) OR
ii) The claim involves a mortgage transaction, charge or other
securities; see Order 56 r 2(2)(b) Lagos; OR
iii) The claimant is suing for a liquidated monetary claim and is not
a Nigerian National or resident in Nigeria and such facts are
disclosed in the pleadings. See Order 56 r 2(2)(c) Lagos.
Therefore, to qualify for fast-track, the action must satisfy the two cumulative conditions
in Order 56 r 2(1) Lagos and ANY of the independent conditions in Order 56 r 2(2)
Lagos. It must be noted that to qualify for fast-track, the action must be commenced by
writ of summons.
Page 84 of 389
By Order 56 r 3 Lagos, when the case satisfies the conditions for qualification for fast
track in Order 56 r 2 Lagos, then the DEPUTY CHIEF REGISTRAR OR ANY OTHER
PERSON IN CHARGE OF THE LITIGATION SECTION shall cause the originating
process (writ) to be marked “QUALIFIED FOR FAST-TRACK” and direct the
applicant to pay the appropriate filing fees.
By Order 56 r 4 Lagos, the originating process (writ) and the other frontloaded
documents shall be served within FOURTEEN (14) DAYS from the date of filing.
By Order 56 r 5(1) Lagos, upon service of the originating processes, the defendant shall
file his statement of defence within FORTY-TWO (42) DAYS.
By Order 56 r 5(2) Lagos, the claimant is entitled to file a reply within SEVEN (7)
DAYS of service of the statement of defence. Thus, for filing and exchanging of
pleadings, it is 14-42-7
By Order 56 r 6(1) Lagos, within SEVEN (7) DAYS of the close of pleadings, the
claimant shall apply for CMC Notice as in FORMS 17 and 18
By Order 56 r 6(2) Lagos, if the claimant fails to apply for CMC Notice within prescribed
time, the following options are open to the defendant:
 The defendant may apply for the CMC Notice himself; or

 The defendant may apply for an Order to dismiss the action. It is submitted here
that notwithstanding this provision, the proper order should be one striking out
the suit since it has not been heard on the merits.
See Order 56 r 6(2) Lagos
By Order 56 r 7(1) Lagos, the CMC or series thereof shall be held from day to day and
shall be adjourned only for the purpose of ensuring compliance with the CMC Orders and
the CMC should be completed within a period of THIRTY (30) DAYS.
However, by Order 56 r 7(2) Lagos, if it appears to the CMC judge, acting either
suomotu or upon application by either party, that an extension is necessary, the CMC
may be extended for another FOURTEEN (14) DAYS or for such other period as the
CMC judge may deem fit.
By Order 56 r 8 Lagos, upon completion of the CMC and the issuance of the Case
Management Report, the case file shall be forwarded to the Chief Judge or other
designated judge for assignment to a trial judge. At the first appearance of the parties
before the trial judge, the court shall give trial direction and a trial time table.
Page 85 of 389
NOTE ORDER 56 RULES 9 – 11 are not really important. BUT read them for Bar part
II.
By Order 56 r 12 Lagos, unless the court directs otherwise, the trial will be conducted
from day to day in accordance with any direction previously made.
By Order 56 r 13(1) Lagos, the court shall consider adjournments of the trial as an order
of last resort; and by Order 56 r 13(2) Lagos, where the court has no option but to order
an adjournment of the trial, it will do so for the shortest possible time
By Order 56 r 14 Lagos, the ENTIRE PERIOD OF TRIAL, INCLUDING FINAL

ADDRESSES, shall not be more than NINETY (90) days from the date the trial
directions were made, provided that that when the claimant has concluded his evidence,
the judge shall ask the defendant if he intends to call evidence. Note that if the defendant
calls evidence, then he shall be the party beginning the final written addresses. But if the
defendant does not call evidence, then the claimant shall be the party beginning the final
written addresses.
In either case, by Order 56 r 14 Lagos, the “party beginning” shall file his final written
address within FOURTEEN (14) DAYS after the close of evidence; the “other party”
shall file his own final written address within FOURTEEN (14) DAYS after he receives
service of the party beginning’s final written address. Finally, the party who files the first
address shall have a right of Reply on points of law only. This Reply shall be filed
within SEVEN (7) DAYS after the service on him of the other party’s address. See Order
56 r 14 Lagos. Thus,thetimeforfilingandexchangingfinaladdressesis 14-14-7
By Order 56 r 15 Lagos, in all fast-track cases, the judge shall endeavor to deliver
judgment within SIXTY (60) DAYS of the completion of trial. However, this is not
mandatory and failure to deliver judgment within the sixty days does not affect the
validity of the judgment. This is because of the constitutional provision of NINETY (90)
days from the close of evidence and final addresses from counsel for delivery of
judgment under section 294(1) of the 1999 CFRN as amended.
Summary of procedure for fast-track in Lagos
Once a suit qualifies for fast-track, the chief deputy registrar or any other person in
charge of the litigation section shall cause the originating process to be marked
“QUALIFIED FOR FAST TRACK” and direct the applicant to pay the appropriate filing
fees.
The originating processes shall be served on the defendant within 14days of filing, and
the defendant shall file his statement of defence and other frontloaded documents within
Page 86 of 389
42days of the service of the originating process on him. The claimant shall be entitled to
file a reply within 7days from the date of the service of the statement of defence on him.
Within 7days after the close of pleadings, the claimant shall apply for CMC Notice as in
Forms 17 and 18. If the claimant fails to apply for the CMC Notice, the defendant may do
so or may apply that the case be dismissed. It is submitted that although the Rules say
that the defendant may apply that the matter be dismissed, the appropriate order would be
to strike out the case since it has not been heard on the merits.
Once the CMC starts, the CMC or series of CMCs shall be conducted from day to day
and adjourned only for the purpose of ensuring compliance with the CMC Orders.
However, the CMC or series thereof should be concluded within 30days (as against the
normal period of 3months)
Where it is necessary for the period of the CMC to be extended, then the CMC judge
shall, either suomotu or upon application by either party, extend the period of the CMC
for 14days or for such other period as he may deem fit.
Upon completion of the CMC and the issuance of the Report of the CMC, the case file
shall be assigned by the Chief Judge to a trial judge who will give trial directions and a
trial time-table.
Trial proceedings are also held from day to day with adjournments only had as a last
resort and for the shortest possible time. The entire period of trial, including final
addresses shall be 90 days from the day the trial directions were made. The usual
procedure of who should give final address first, depending on whether the defendant
calls evidence or not also applies to fast-track cases just that the time frame is abridged
from 21-21-7 to 14-14-7. That is, 14 days for party beginning, 14 days for other party and
7 days for reply on points of law for party beginning, where necessary.
In all fast-track cases, the judge shall endeavor to deliver his judgment within 60days of
the completion of trial. However, the failure to deliver judgment under this procedure
within the time stipulated will not affect the validity of the said judgment since there is a
constitutional provision that prescribes 90days from the close of evidence and final
addresses within which to deliver judgment.
SERVICE OF COURT PROCESSES – Order 7 Lagos and Order 11 Abuja
Service of court processes is necessary because of the provision for fair hearing in section
36(1) CFRN, 1999. Service can be within jurisdiction or out of jurisdiction and by
personal service or substituted service.
Page 87 of 389
In Abuja, by Order 11 r 1(1) Abuja, the process servers are: the bailiff or other officers of
court duly authourized, any person appointed by the court or judge in chambers; or a
solicitor who gives an undertaking to the Registrar that he will serve the processes and
file the proof of service.
In Lagos, by Order 7 r 1(1) Lagos, originating process is to be served by the following

process servers: a sheriff, deputy sheriff, bailiff, special marshal, or other officer of the
court. Also, law chambers, Courier Company or any other person appointed and
registered by a judge to serve court process. Such persons are called PROCESS
SERVER.
For an individual, he is to be served personally – Order 7 r 2 Lagos and Order 11 r 2

Abuja. For a company, there are two ways of effecting service – through human being or
leaving it at the registered office. Service to human being includes (Order 7 r 9 LAG,
Order 11 r 8 ABJ) director, secretary, trustee or other senior or principal officer of the
organization. At a place include registered office, principal office, advertised office, place
of business of the organization within jurisdiction. The foregoing provision is subject to
the provision of rules regulating the company. Lagos rule is more detailed.
When personal service cannot be effected, an order for substituted service can be made.
Substituted service is with leave of court, by application by the plaintiff/claimant and the
application is MOTION EX PARTE supported with affidavit and written address. Order
7 r 5 Lagos and Order 11 r 5 Abuja. It includes:
 Delivery to an agent or to an adult at the last known address.

 Advertisement in the national daily newspaper
 Pasting it at the court or last known residential address of the defendant
In MARK v. EKE, the Supreme Court held that there is no room for an order of
substituted service on a company because the procedure for substituted service is
not applicable to a company. In reality, this is so but under the law, it is applicable
to company.
DRAFT
AN ORDER of this Honourable Court seeking leave to effect service of the

originating processes on the defendant/respondent by substituted service by pasting
the processes on the door on the last known address of the address.
Service out of jurisdiction (within Nigeria)
Page 88 of 389
Under the FCT rules, out of jurisdiction means out of the Federal Capital Territory,
Abuja. Thus outside FCT but within Nigeria is out of jurisdiction – Order 11 r 14 ABJ.
Under the Lagos rules, out of jurisdiction means out of Nigeria.Under the Sheriff and
Civil Process Act, out of jurisdiction means out of Nigeria. Based on the definition of out
of jurisdiction under the FCT rules, leave is sought for the issuance of a writ for service
outside FCT. The leave is for issue and not service because service of processes is a
federal matter regulated by the Sheriff and Civil Process Act, while issue of writs is
within jurisdiction of states. Issuing of writ is the process of filing, while service is
bringing the process to the attention of the other party. When any writ is to be served out
of the state of issue (within Nigeria) certain rules under the Sheriff and Civil Process Act
must be complied with. In Abuja:
 Leave to issue the writ out of FCT, Abuja

 The writ of summon must be endorsed on the fact that it is to be served outside
jurisdiction E.g. This summon is issued in FCT to be served in Ogun state.
 The return date endorsed on the Writ must not be less than 30 days.
In Lagos: Only the endorsement as to the issuing and serving state is required as the days
for appearance in Lagos is 42 days. The foregoing is mandatory under the Sheriff and
Civil Process Act, section 97. Return date not less than 30 days.
Failure to serve is very fatal to the action. See NEPA v. ONAH.
SERVICE OUTSIDE NIGERIA (see Order 8 of Lagos; Order 11 r. 13 Abuja)
In service outside Nigeria, the following is necessary.
 Application by MOTION EX PARTE for leave to issue and serve, supported by

affidavit and written address. This is because you need leave for both issuance
and service.
 Return date must not be less than 30 days.
NB: “RETURN DATE” MEANS THE TIME LIMIT WITHIN WHICH THE
DEFENDANT MUST ENTER APPEARANCE.
In Lagos, Form 2 is used. Service is very important as where there is no service, the
court would not have jurisdiction to go ahead with the case. In NEPA V. ONAH,
where the writ of summons was to be served outside Nigeria, no leave of court to
issue and serve was obtained. In application for the writ to be set aside, the Supreme
Court stated that non-compliance with section of the Sheriff and Civil Process Act
renders the service null and void, section 99 SCPA
NOTE THE FOLLOWING:

Page 89 of 389
Where a writ is to be served outside Nigeria, you need leave to issue the writ and leave to
serve the writ.
In Lagos: a writ issued in Lagos but for service outside Lagos but within Nigeria: no
leave to issue, no leave to serve
In Lagos: issued in Lagos for service outside Nigeria, leave to issue, leave to serve
In Abuja, a writ issued in Abuja for service outside Abuja but within Nigeria, leave to
issue, no leave to serve
In Abuja, for service outside Nigeria, leave to issue and leave to serve
From the above, the requirements for the issuance of a writ for service outside Abuja are:
 Leave to issue writ

 Endorsement that it is issued in Abuja for service on __________ state
 Return date must not be less than 30 days
ENDORSEMENT ON THE WRIT WHERE THE PROCESS IS TO BE SERVED

OUTSIDE LAGOS STATE
Note that in Lagos, only the endorsement is required as follows: “this summons is to be
served out of Lagos State of Nigeria and in the _____________ state”. See Order 3 r 9
Lagos, SECTION 97 SCPA.
Proof of service
Proof of service is very important especially when a default judgment is to be applied for.
Order 7 r 13 Lagos and Order 11 r 28 Abuja provide that after service, the process server
shall depose to an affidavit of service which shall be prima facie evidence of service. See
OKESUJI v. LAWAL. The following must be contained in the affidavit of service:
 Date of service
 Time of service
 Place of service
 Mode of service
 Facts of service
 Description of process served
Exhibit acknowledgment of service, if any
Page 90 of 389
Also endorsement at the back of the writ by the person served on is an adequate
proof.
Written Address contains the following:
TIME AND DATE FOR SERVICE
 Every day between the hours of 6:00am and 6:00pm. Public Holliday and
Sunday's are excluded except in exceptional circumstances as may be authorized
by the judges. ORDER 7 R 15 LAGOS, ORDER 11 R 30 ABUJA.
NOTE THE FOLLOWING:
 Legal practitioner signs written address.

 Where there are no valid question and relief in the originating summons, there is
no document before the court.
 All motion starts with TAKE NOTICE.
The following are the means of proving service (Mohammed v. Mustapha):
 Affidavit of service
 Certificate of service
 Appearance in court by the party served on the return date
 Acknowledgement of service
See MOHAMMED v. MUSTAPHA
ETHICAL ISSUES
Rule 14(1), 15, 16(1), 24, 30.
 A legal practitioner is to devote his attention energy and expertise in instituting an

action on behalf of his client. Rule 14(1) RPC.
 The legal practitioner in instituting the action and drafting the necessary processes
is to act within the bounds of law. Rule 15(1) RPC
 A legal practitioner is not to file a suit on behalf of his client when he knows or
ought reasonably to know that such action would serve merely to harass or
maliciously injure another. Rule 15(2)(b) RPC
 A legal practitioner should advice his client of the option of ADR mechanisms
before resorting to or continuing litigation on behalf of his client. Rule 15(3)(d)
RPC
Page 91 of 389
 A legal practitioner is expected to be competent and if he knows he is not

competent, he should seek help from other legal practitioner, thus should know
when to use writ of summons and other originating processes. Rule 16(1) RPC
 A legal practitioner as an officer of court is not to conduct himself in a manner
that may obstruct, delay, or adversely affect the administration of justice. Rule 30
RPC.
Week 7
INTERLOCUTORY APPLICATIONS – Order 7 & 8 ABJ, Order 39 LAG.
 Interlocutory applications are applications made by either party to any action

during the pendency of a court action.
.
 Parties can apply for interlocutory application at any time before delivery of
judgment. In other words, it can be applied for at any stage of the proceedings
before the judgment is given – Order 7(1) HCCPR, FCT Rules.
 Once an action has been commenced, all subsequent applications are referred to
as interlocutory applications. Parties in interlocutory applications are known as
APPLICANT – the party making the application, RESPONDENT - the party
against whom the application is made.
 In some special cases an interlocutory application may be filed along with the
originating process.
 The MAJOR DIFFERENCE between Originating processes and interlocutory
applications is that originating processes are used in instituting the action while an
interlocutory application is used to take further steps in proceedings during the
pendency of the court action.
Types of Interlocutory Applications.
 Application for extension of time.

 Application for joinder of parties, third party proceedings.
 Application to appoint a representative for representative action
 Application for judicial review.
 Application for summary judgement.
 APPLICATION TO APPOINT GUARDIAN AD LITEM
 Substituted service.
 relief pending appeal, example stay of execution
Page 92 of 389
Reasons for interlocutory applications
 In most cases, interlocutory application is applied for in order to maintain the

status quo.
 Speedy determination of action. Example is an application made for default
judgment when the defendant failed to enter an appearance.
 When there is need to plead facts not earlier pleaded but subsequently discovered
after pleadings have been exchanged. The leave of the court is needed for
application for amendment of pleadings.
 Some are condition precedent to the proper commencement of the substantive
action. Example leave to bring an action in a representative capacity.
 For the purpose of obtaining temporary relief in addition to the final claims as
may be contained in judgment.
 For the purpose of nipping the substantive action in the bud and remedy defects in
substantive action. Interlocutory applications before the court as a general rule are
meant to be determined before the substantive action.
FUNCTIONS OF INTERLOCUTORY APPLICATION
 To take requisite procedural steps prescribed in the rules preparatory to trial.

 To compel compliance with the stipulations of the rules,
 To seek leave to comply with the rules/ court order.
GENERAL RULES
 Nomenclature- Applicant/ Respondent.

 The court is under the duty to entertain all interlocutory application no matter
how frivolous the application may be – ABIOLA V 7 UP LTD
 No decision on the substantive matter at the interlocutory stage.
 Relief sought and the provisions of the statute/rule under which it is brought to be
disclosed- falobi v falobi., Order 39(1) LAGOS
 Once a court has jurisdiction to entertain a matter, and an application is brought
before it by virtue of a particular law, the fact that a wrong law is cited is not fatal
to the application as the court is minded to do substantive justice and not
concerned with technicalities- Falobi v Falobi.
OUTCOMES OF AN INTERLOCUTORY APPLICATION
 A ruling is made by the court

 Order sought granted- application succeeds with order granted.
 Order refused- application dismissed.
Page 93 of 389
 Application may be struck out, when the application is not contested and the
merits have not been gone into and the party making such application withdraws
it, the application will be struck out.
 Note the process of drawing up an order.
How are interlocutory applications made?
 As a general rule, interlocutory application(s) are made by MOTION – Order 7 r

2 ABJ, Order 39 r 1 LAG. Applications are required to be in writing and
MOTION (motion refers to an application made to the court asking it to grant a
relief asked for) can be:
 Notice of preliminary projection mostly use in jurisdictional matters. It is an
application based on points of law generally.
MOTION
 A written application made by an applicant to the respondent notifying the

RESPONDENT OF THE PRAYERS SOUGHT BY THE applicant and the date
and time for the hearing thereof.
MOTION CAN BE MADE ORALLY, example: amendment IN YOUR PLEADINGS IN

COURT TO AMEND THE SUM CLAIMED,(100000 to be 1000000).
MCQ- Abuja may bring an application by way of summons in chambers. It is for non-
contentious issues. See FORM 53 OF FCT.
1. MOTION ON NOTICE: Generally all motions should be on notice reason being

that parties should be given fair hearing based on the principles of natural justice
pursuant to section 36 of the 1999 Const.
2. MOTION EX PARTE-
There are certain documents that should accompany a MOTION/APPLICATION – Order

39 r 1(1) & (2) LAG, Order 7 r 3 ABJ.
 An affidavit
 Written address
 Exhibit (when necessary)
MCQ ORDER 7 R 3 ABUJA – REQUIRES ONLY AN AFFIDAVIT SETTING OUT

THE GROUNDS ON WHICH THE PARTY MOVING THE MOTION INTENDS TO
RELY ON. NO WRITTEN ADDRESS.
Page 94 of 389
HOWEVER, FOR THE PURPOSE OF BAR PART II, DRAFT AFFIDAVIT AND
WRITTEN ADDRESS.
Note that Order 39 r 1 Lagos also provides that the application shall state the rule of court
or law by which the application is brought. However, if the application does not state the
Rule or Law under which the application is brought. It does not also matter whether the
application is brought under a wrong law as long as it does not affect the jurisdiction of
the court or the nature of the reliefs sought. See FALOBI v. FALOBI.
Order of hearing motions: where there are two applications before the court, one to
regularize or save the proceedings (constructive) and the other to strike out the case
(destroy), the court will hear that one seeking to regularize the proceedings. See
NALSA & TEAM ASSOCIATES v. NNPC (1991) 11 SCNJ 51; However, where any of
the motions challenges the jurisdiction of the court, that motion must be taken first.
An interlocutory order abates or terminates with the substantive suit or appeal. See
OKAFOR v. AG ANAMBRA. If the applicant intends such order to be effective after the
determination of the substantive suit, he cannot come by way of an interlocutory
application. He must claim such a relief as a perpetual order in his writ of summons or
other originating process.
If a motion is brought in the absence of a pending action or as a means of commencing an

action, then it is no longer an interlocutory application, but an originating application.
MOTION EX PARTE – Order 39 r 3 Lagos; ORDER 7 R 9 ABUJA
Generally, motion ex parte does not require notice to be given to the other party as ex
parte means ONE PARTY OR ON ONE SIDE. In one word, motion ex parte is a motion
filed by one party to the proceeding and to be heard on behalf of that party alone. The
other party cannot participate in the proceedings even when he is present – Order 7 r 9
Abuja. Where the other party is present in court, he may be seen, but cannot be heard.
The instances where motion ex-parte may be used where stated in LEEDO
PRESIDENTIAL MOTEL LTD v. BANK OF THE NORTH (1998) 7 SCNJ 328 as
follows: Where from the nature of the application, the interests of the adverse party will
not be affected( application for substituted service), (application for service out of
jurisdiction).
 In situations of real urgency where time is of the essence of the application; such
as where irreparable loss or serious mischief may be occasioned by following the
due process of putting the other party on notice. For instance, where your house is
about to be demolished.
Page 95 of 389
 Where its use is expressly required by any Law or Rule. For instance, it is a
mandatory originating process in applications for the prerogative writs such as
mandamus, certiorari, habeas corpus ets; it is required by the Rules for third party
proceedings, substituted service, renewal of a writ, application for leave to issue a
process etc.
 As stated earlier, the other party cannot participate in the proceedings even when
he is present, he will be seen, but cannot be heard – Order 7 r 9 Abuja ; SEVEN
UP BOTTLING Co &ors v. ABIOLA & SONS.
 However, in practice, where a party against whom an order is sought ex parte
appears in court and seeks the leave of court to participate or be heard. Where the
judge is satisfied that there is a good ground to do so, the party against whom the
order is sought may be allowed to participate or be heard and such a situation is
called an “OPPOSED EX PARTE MOTION”. This situation is not a motion inter
partes. Another situation, which is a motion inter partes, is where the party against
whom the order is sought files a counter affidavit and is allowed to participate,
then the hearing effectively becomes inter partes.
Note: in either of the cases above, the defendant does not have an automatic right to be
heard or to be put on notice in any of the above circumstances. It is entirely within the
discretion of the court. See SEVEN UP BOTTLING Co &ors v. ABIOLA & SONS
By Order 7 r 7(3) Abuja and Order 39 r 3(2) Lagos, no exparte application for an order
of interim injunction shall be granted unless the applicant files with it, a motion on notice
in respect of the application.
OUTCOMES OF A MOTION EX PARTE
Lagos:
a. It may refuse or grant such ex parte

b. Direct that the motion be made on notice
NOTE LAGOS PROHIBITS THE JUDGE FROM MAKING AN ORDER TO
SHOW CAUSE.- OR 39 R 2 LAGOS.
ABUJA- ORDER 7 R 10 ABUJA
a. It may refuse or grant such ex parte

b. Direct that the motion be made on notice
c. Grant an order to show cause.-
FINALITY OF MOTION EX PARTE
Page 96 of 389
Option that the court should discharge or vary the order made against the respondent.
Thus an order made ex parte is not final. It may be set aside by the court that
granted same, by application of the affected party made to the court by motion on
notice within 7 days after service of the order- ORDER 7 R 11 ABUJA.
LAGOS IS SILENT AS TO VARYING AN ORDER.
MOTION ON NOTICE – Order 39 r 1 Lagos
 When an application is made through motion on notice, the other party is put on
notice of the application.
 This is to prevent surprises from being sprung on the other party.
 Secondly, to give notice of what is to be done in court.
 Section 36(1) 1999 Constitution - principle of fair hearing.
TIME FOR SERVICE OF INTERLOCUTORY APPLICATION.
When application made by motion on notice is served on the other party, there must be at
least two (2) clear days between the service of motion on notice and the day named in the
notice for hearing of the motion. See Order 7 rr 7(1) & ORDER 7 R 18 Abuja and Order
39 r 5 Lagos, which both provide that unless the judge grants special leave to the
contrary, there shall be at least two (2) clear days between the service of all processes in
respect of the motion and the day named in the notice for the hearing of the motion.
FAILURE TO GIVE TWO CLEAR DAYS RENDERS THE MOTION UNRIPE FOR
HEARING. SEE LOXROY NIG LTD v. TRIANA LTD where it was held that a motion
on notice that was filed and moved on the same day was not RIPE for hearing, and the
order made thereon was set aside. (Note that in the FHC, it is seven (7) clear days.)
Note that by Order 39 rule 1(3) Lagos, every motion must be served on the other
party within five (5) days of filing and where the application is not served within the
specified period, the judge may strike out the application. By Order 39 rule 1(4)
Lagos, where the other party intends to oppose to the application, he shall file his
written address and counter affidavit within seven (7) days of the service on him of
the application. A right of reply exist within seven (7) days after service of the
counter affidavit. See Order 39 rule 1(5) Lagos.
Special leave- Order 39 R 5, unless a judge grants special leave to the contrary,
there must be at least two days between the service of all processes in respect of a
motion and the day named for hearing by the court.
However, in Abuja, by Order 7 rule 7(1) and Order 7 R 18 Abuja, a motion shall be
moved with at least two (2) days’ notice to the parties affected.
Page 97 of 389
Upon service of a motion on notice, the respondent is to file his counter affidavit.
However, a counter affidavit will not be necessary in the following instances:
 Where the respondent is not opposing the application, he does not need to file a
counter affidavit
 Where the respondent is opposing on points of law only.
 Where the facts in the affidavit in support of the motion are manifestly self-
contradictory that no reasonable court would rely on it
 Where the facts deposed to in the affidavit are not sufficient to sustain the prayers
sought in the application
The applicant must formally move his application or else the court will not act on it
and it will be struck out. See LOXROY NIG LTD v. TRIANA LTD. However,
where the application is an exparte application, it need not be formally moved
because it is an ex parte application and is not contentious. See INAH v. UKOI
Who serves a motion?
A motion on notice can be served by any person- Or 7 R 19 HCCPR ABUJA
Recipients of motion on notice
1. The respondent or his legal practitioner must be served with the application in order for
him to be aware of the application.
2. Any person who is not a party to the proceeding but will be affected by the result of the
proceeding must be served with the motion on notice. Such party is called a “PARTY ON
NOTICE”. He is not the respondent, he is only a party on notice.
Contents of a motion
1. Heading of the court in which the action is brought

2. The suit number
3. The names of the parties and capacity
4. Types of motion - MOTION ON NOTICE OR EX PARTE
5. Order or rule under which it is made. Note that the Omnibus clause has no effect
as it cannot grant the applicant any order or relief not expressly prayed for.
6. The relief or order that is being sought
7. The date of application
8. Signature, name, address, of the legal practitioner or applicant who prepared the
motion. For signature, note OKAFOR v. NWEKE. FURTHER NOTE: The legal
practitioner must identity himself with a chambers.
9. Address of defendant for service ( MOTION ON NOTICE)
Page 98 of 389
NOTE: an interlocutory application there is no requirement for personal service

unlike an originating process that must be served personally.
Generally, moving a motion is by oral arguments. Order 31 r 4 LAG provide for twenty
minutes for argument. In practice, it is less than that.
DRAFT
ON NOTICE TO:
The defendant/Respondent
C/o solicitors
D.E Echebima& co.
No 1 Adeola Hopewell Street, VI Lagos.
Priority of hearing application
When there are two applications before the court, the court by practice direction is to hear
the one that would preserve the suit before the other that would render the suit
incompetent;
PROVIDED, that the one that seeks to give life is competent.. See NALSA TEAM &
ASSOCIATES V NNPC.
However, where any of the motions challenges the jurisdiction of the court, that motion
must be taken first.
 Note that the successful party bears the cost as the unsuccessful party withdraws
the application and asks for cost.
Note that every motion whether ex parte or on notice must be supported by an affidavit.
However, an application founded on points of law alone need not be supported by an
affidavit.
Also upon service of the motion, the respondent is to file a counter affidavit except if the
facts in the affidavit in support of the motion are self-contradictory, or are insufficient to
sustain the prayers sought, or where he is opposing the application strictly on points of
law or where he is not opposing the application.
Page 99 of 389
An unchallenged affidavit is deemed admitted and the court is to act on it. See
EZEUDU v. JOHN (2012) 7 NWLR (Pt. 1298) 1. It could be that there is no counter
affidavit at all, or some paragraphs are not denied etc
EVIDENCE AT THE HEARING OF A MOTION
General Rule: Affidavit evidence is relied on Or 7(3) FCT.
A motion requires affidavit except the matters are strictly on point of law.
AFFIDAVIT – it is a statement made on oath by the deponent from his personal

knowledge or belief or from information he believes to be true- JOSIEN HOLDINGS V
LORNAMEAD. It shall contain only STATEMENT OF facts----section 115(1)
EVIDENCE ACT
Order 7 R 3 ABUJA, SECTION 115 EA, ORDER 39 RULE (1)(1) AND 1(2) LAGOS.
( WRITTEN ADDRESS)
Sections 115, 119,120,114,109 of Evidence Act
Under the Lagos and Abuja rules, every motion must be accompanied by an affidavit.
Affidavit is the sworn testimony which contains facts and nothing but facts. In one word,
it is testimonies sworn to in the court. Before an affidavit is admitted, it must have been
sworn to before the persons specified in section 109 of Evidence Act, 2011. These
persons are: a judge, officer and other person duly authorized to take affidavit. The
commissioner for oath falls under this category. Even though the commissioner for oath
is not the only person before whom an affidavit can be deposed to, in practice, it is the
commissioner for oath that administer oath. An affidavit as a matter of law must be sworn
to as an unsworn affidavit is an ordinary paper. In Maraya Plastics Industries Ltd &anor
v. Inland Bank of Nigeria Plc, the court of appeal per Omage JCA, an affidavit is
averments contained in a paper which are sworn before commissioner for oaths. It is the
swearing thereto that makes the document an affidavit. Where the document is not sworn
to, it is only a piece of paper, not an affidavit. Without oath, therefore there is no
affidavit. The above is a general rule and there are exceptions provided for in section
120(2) of the Evidence Act. Thus an affidavit may not be sworn to on:
 Religious grounds or want of religious grounds.

 Age of the person – immaturity.
The above must be indicated by the officer taking the oath. The person deposing to an
accused is the deponent.
Page 100 of 389
READ SECTIONS 107 – 120 OF EA 2011 AND READ YOUR EVIDENCE NOTES
Format of an affidavit
 Heading of the court

 Suit number
 Parties and their capacity.
 Title – Affidavit in support of motion
 The particulars of deponent
 The facts stated therein, well numbered in paragraphs
 Signature of the deponent
 Attestation of the fact that it was sworn to, where it was sworn to
 Date
 Signature of commissioner for oath or particulars of person administering the oath
Content of an affidavit – section 115 of Evidence Act
By virtue of section 115 of the Evidence Act, the following are what an affidavit should
contain.- FACTS
 Statements of facts
 The source of statement of facts which could be personal knowledge or otherwise.
Where it does not come from personal knowledge it must be stated to have come
to the knowledge of the deponent from another person.
 An affidavit is not to contain extraneous matter by way of objection, OPINION,
prayer, legal argument or conclusion – section 115(2)
 When fact is from another person, the particulars of the person shall be stated and
the time, place and circumstances of the information shall also be stated – section
115 (3) & (4). HE MUST STATE THAT HE VERILY BELIEVES THE
INFORMANT.
An affidavit should not contain extraneous matter such as
 Objection
 Opinion
 Prayer
 Legal argument
 CONCLUSION
SEE SECTION 115(2) EA, SHIVERO V STATE, BAMAIYI V STATE.
Page 101 of 389

Affidavit is meant to state the material facts and allow the court to draw the conclusion.
Edu v. Commissioner for Agriculture, the Court of Appeal stated that an affidavit is a
statement of fact which the maker or deponent has personal knowledge or which are
based on information which he believes to be true. No legal argument, conclusion or
other extraneous matter must be included. When an illiterate or a blind person depose to
an affidavit, the fact that such person is an illiterate shall be stated there and there must be
a JURAT – section 119(1) Evidence Act. Also, the language in which the affidavit was
deposed should be attached to that translated into the language of the court – English
language.
Section 112 EA, AN AFFIDAVIT SHALL NOT BE ADMITTED WHICH IS PROVED

TO HAVE BEEN SWORN BEFORE A PERSON ON WHOSE BEHALF THE SAME
IS OFFERED, OR BEFORE HIS LEGAL PRACTITIONER, OR BEFORE A
PARTNER OR CLERK OF HIS LEGAL PRACTITIONER.
However, it is pertinent to NOTE that a legal practitioner handling the action on behalf of
the applicant can depose to an affidavit as no law provides otherwise. However where
there are affidavit and counter-affidavit which are held to be contradictory, there would
be need for the court to call oral evidence. When the legal practitioner is then called as a
witness, problem would arise as to who will examine and re-examine. Secondly, it is
unethical for a legal practitioner to be a witness for his client pursuant to Rule 20 RPC.
Thus it is not advisable for lawyers handling the matter to depose to such
affidavit.ELABANJO V TIJANI
DEFECTIVE AFFIDAVIT – section 113 EA, 2011
There are instances where an affidavit would be defective. A defective affidavit is an

affidavit that does not comply as to form of an affidavit. The question is, can a defective
affidavit be used in the court? A defective affidavit can still be admitted by the court
provided that the affidavit was administered by the relevant authority. There is
however a danger in filing a defective affidavit in that section 114 of Evidence Act
provides that a defective or erroneous affidavit may be amended and re-sworn with the
leave of court on such terms as to time, costs, or otherwise as seen reasonable. This was
restated in C & C LTD v. ALTIMATE INV. LTD
Further and better affidavit
This is an addition to the affidavit already filed in court. It is possible that an applicant in
filing an affidavit omitted some important facts or when there are new facts which are to
be brought to the attention of the court. Thus in such cases, there is need to file a further
and better affidavit. It can also be used to introduce new document. There is also further
and further and better affidavit.
Page 102 of 389
Counter-affidavit
Any fact that is not addressed or controverted in a Counter affidavit will be deemed
to have been admitted. And the respondent cannot argue such fact orally,
This is the affidavit deposed to by the respondent challenging or countering the facts
deposed to by the applicant. Counter-affidavit is important when the respondent intends
to contradict the affidavit of the applicant and if it is not filed it would be deemed that the
respondent has admitted the facts in applicant’s affidavit. There are however instances
when there would be no need to file a counter-affidavit namely:
 Where the respondent is not opposing the application, he does not need to file a
counter affidavit
 Where the respondent is opposing on points of law only.
 Where the facts in the affidavit in support of the motion are manifestly self-
contradictory that no reasonable court would rely on it.
 Where the facts deposed to in the affidavit are not sufficient to sustain the prayers
sought in the application.
In the written address of the respondent the respondent can point out to the
judge that certain paragraphs deposed to be expunged or struck out because of
violation of section 115.
 Where a piece of Paper is attached to an affidavit, it is a certificate of exhibit. It is

always at the back page of an AFFIDAVIT. OR 8 R 10 FCT.
 The certificate of exhibit identifies or connects the exhibit with the relevant
paragraph of the affidavit.
 Draft:
THIS IS THE DOCUMENT REFERRED TO AS EXHIBIT A IN PARAGRAPH
F OF THE AFFIDAVIT OF H.B SWORN TO AT THE HIGH COURT
REGISTRY, IKEJA ON ……DAY OF …. 2012
BEFORE ME
…………….
In practice it is important to file counter-affidavit and raise the contradiction. The Court
of Appeal in Forson v. Calabar M.G stated that when a party disbelieves an assertion in a
counter-affidavit, the best way is to file a further and better affidavit to counter rather
than waiting to attack during arguments. This is important as argument cannot
substitute evidence. And in cases fought on affidavits, the evidence is what is averred in
an affidavit.
Page 103 of 389
CONFLICTS IN AFFIDAVITS – section 116 Evidence Act
Where there are conflicts in affidavits, the court may do any or all of the following
 Call for oral evidence to resolve an irreconcilably conflict in affidavits. See

section 116 Evidence Act, 2011;,FALOBI V FALOBI,
 Exception to the rule in FALOBI V FABOLI. In practice, if one of those affidavit
is supported by real and cogent documentary evidence, the court will Resolve the
conflict from the documentary evidence attached to the affidavits where available
and sufficient to do so. NWOSU v. IMO STATE ENVIRONMENTAL
SANITATION AUTHORITY,
Affidavit is needed in the following application
 Originating motion/application, summons, petition excluding election petition.

NOTE THAT IN ELECTION PETITION, NO NEED TO FILE AFFIDAVIT
 In all interlocutory applications whose grounds are on facts
 In the commencement of claim under the undefended list procedure
 Where the court orders it.
Types of affidavit includes
 Affidavit in support of application

 Affidavit of urgency
 Affidavit of service
 Counter-affidavit
 Further and better affidavit
 Further, further and better affidavit
 Affidavit for the record.
Difference between witness and AFFIDAVIT: an affidavit which is a supporting

document is used when an interlocutory application is brought before the court. This
saves the time of the court as witnesses will not be called.
On the other hand, a witness statement of oath is evidence of persons called during the
proper trial of the suit.
 A witness statement on oath becomes evidence when it is adopted as evidence-in-

chief , while an affidavit becomes evidence upon it being sworn on oath at the
Registry and filed.
Page 104 of 389

JURAT IN SPECIAL CASES
 NOTE That jurat in section 119 EA

 FOR ILLITERATE OR BLIND PERSON
 SWORN TO AT THE HIGH COURT REGISTRY, LAGOS THIS….DAY OF
….. 2017 AFTER THE CONTENTS HAD BEEN READ OUT TO THE
DEPONENT(AN ILLITERATE PERSON OR BLIND PERSON) BY ……..
(sworn interpreter) AND the DEPONENT AFFIXED HIS THUMBPRINT OR
MARK AFTER HE HAD APPEARED TO HAVE UNDERSTOOD THE
CONTENTS THEREOF
BEFORE ME
…………….
STEPS IN MOVING A MOTION
 Announce the intention to move the application…my lord, we have an

application for joinder of a party.. We seek the leave of this Honourable
court to move the motion. The judge may ask whether the other party
wants to oppose it.
 After the court ascertains the motion was duly filed and served, he will
ask the respondent whether he is ready for the motion. If the answer is in
the affirmative, counsel will be asked to move his motion.
 Moving a contentious motion;
 Identifying the application
 Identify the orders sought
 The supporting affidavit-place reliance
 Exhibits-place reliance
 The written address- Adoption/Adumbration Generally or
Highlight
 Move and urge court to grant the orders sought.
 LEARN HOW TO MOVE A MOTION. Good advocate will spell out the
contents of the affidavit and a bit of the written address adopted. …..closing
words of moving a motion)……..we thereby move as per the terms of the
motion). READ PAGES 400-405 AGABA,
INJUNCTIONS
Page 105 of 389

Injunction is an equitable remedy which is granted at the discretion of the court. It is an

order of court prohibiting a particular person from doing an act. Injunctions can also be
preservative reliefs meant to maintain the status quo between the parties pending the final
determination of the suit. There are different types of injunction namely:
1) Interim injunction:
An interim injunction is a temporary relief by way of an injunction granted to

preserve the status quo until a named date or until a further order of the court or
until a motion on notice for an interlocutory injunction can be heard. See KOTOYE
v. CBN. It is granted in situations of extreme urgency and upon an ex parte application.
By Order 7 r 8 Abuja, the affidavit in support must disclose the urgency otherwise it will
not be granted.
Interim injunctions are granted pending the determination of the motion on notice for
interlocutory injunction and so, their prayers are always couched: “an order of interim
injunction restraining… pending the determination of the motion on notice”. This is
why Order 7 r 7(3) Abuja and Order 39 r 3(2) Lagos, provide that no exparte
application for an interim order of injunction shall be granted unless the applicant
files with it, a motion on notice FOR INTERLOCUTORY INJUNCTION in respect
of the application. (Note: for exam, the application for interim injunction is always
accompanied by the motion on notice for interlocutory injunction. Thus when listing
the accompanying documents, they are: motion ex parte, affidavit, exhibits (if any)
written address, motion on notice, affidavit, exhibits (if any), and written address.
In Lagos, an interim injunction subsists for seven (7) days, while in Abuja, the life span
of an interim injunction in Abuja is fourteen (14) days. Order 39 r 3(3) lagos and order
7 r 12 Abuja respectively.
An interim injunction may be VARIED upon application by the respondent. Application

for the variation of an interim injunction is way of MOTION ON NOTICE, affidavit and
written address. The prayer is couched: “an order DISCHARGING the interim
injunction granted on ……” The grounds for applying for the variation of an
interim injunction are:
 Failure or default in giving security for costs or undertaken as to damages

 Where there was suppression or misrepresentation of facts. That is, the applicant
did not disclose material facts to the court
 Where it was obtained by fraud
 Where it was irregularly obtained.
Page 106 of 389

Remember that even if an application to vacate the interim order is not made, the
injunction will still terminate after seven (7) days in Lagos or 14 days in Abuja. The
application to vacate it can be brought at any time during the life span of the order.
DRAFTING OF “PURSUANT TO CLUASE” AND PRAYER
MOTION EXPARTE
BROUGHT PURSUANT TO ORDER 39 RULE 3 OF THE LAGOS RULES OR
ORDER 7 RULE 8 ABUJA, AND ORDER 31 RULE 1 OF ABUJA RULES AND
UNDER THE INHERENT JURISDICTION
……
AN ORDER OF INTERIM INJUNCTION RESTRAINING …… PENDING THE

HEARING AND DETERMINATION OF THE MOTION ON NOTICE FOR
INTERLOCUTORY INJUNCTION.
NOTE: A PERPETUAL INJUNCTION IS GRANTED UPON THE DETERMINATION

OF THE SUBSTANTIVE SUIT.; AT THE END OF A TRIAL.
PROCEDURE for filing of interim injunction.:
 File the originating process

 THE PROCESSES FOR FRONT LOADING IN THE RULES
 THE MOTION EX PARTE FOR INTERIM injunction pending the determination
of the motion on notice for interlocutory injunction until a stated time.
o The affidavit in support of the application.
 An affidavit of urgency. Order 7 r 8 Abuja.
 Written address.
 A motion for interlocutory injunction + AFFIDAVIT + WRITTEN
ADDRESS----KOTOYE V CBN.
2) Interlocutory injunction:
An order of interlocutory injunction is usually granted pending the determination of the

substantive suit. This is the main distinctive feature interlocutory injunction and interim
injunction. Interim order of injunction is pending the hearing of an application on notice
while interlocutory injunction is granted after the parties have been heard and subsist
pending the determination of the substantive suit. See KOTOYE v. CBN. Application for
Page 107 of 389

interlocutory injunction is by way of MOTION ON NOTICE, AFFIDAVIT AND

WRITTEN ADDRESS.
Note that an injunction cannot be granted against a completed act because Equity does
not act in vain, except in the cases of mandatory injunctions.
Conditions for the grant of an injunction, whether interim or interlocutory: these

principles were stated in OBEYA MEMORIAL HOSPITAL v. A.G. FEDERATION &
ANOR (1987) 7 SC (PT 1) 52;They are:
 Existence of a Legal right

 Substantial issue to be tried (triable issue)
 Balance of convenience
 Undertaken as to damages
 Irreparable loss or damage
 Conduct of the parties
 Existence of alternative remedies
NOTE: Where it is an interim injunction, then you put URGENCY OR REAL

URGENCY as the first condition.
NOTHING STOPS A DEFENDANT FROM PROCEEDING WITH A WRONGFUL

ACT, DURING AN ACTION, UNLESS WHERE HE IS RESTRAINED.
3)Mareva injunction:
A mareva injunction is sui generis because it is targeted at property, not persons. It is

granted over assets, things or simply, the ‘res’. This is an injunction that is used to
restrain a defendant who is outside jurisdiction or outside the country, but has assets
within the country or within jurisdiction from removing his assets or disposing of them
within the jurisdiction of the court. This injunction originated from and was named after
the case of MAREVA COMPANIA NAVAEIRA S.A. v. INTERNATIONAL BULK
CARRIERS LTD;
The nature and purpose of mareva injunction was stated in R. BENKAY NIG LTD v.
CADBURY NIG PLC (2006) 6 NWLR (Pt. 976) 338 that a mareva injunction or order is
a security for judgment. It preserves the res just as ordinary injunctions do, but in
addition, it secures assets for the execution of the anticipated judgment.
Mareva injunction is not granted as a matter of course. The conditions which must be
fulfilled before a mareva injunction would be granted were outlined in SOTUMINU v.
OCEAN STEAMSHIP (NIG) Ltd (1992) 5 SCNJ 1 as follows:
Page 108 of 389

 That he has a cause of action against the defendant which is justiciable in the
jurisdiction of the state or under common law
 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.
 That the applicant has made a full disclosure of all material facts relevant in the
application.
 That he has given full particulars of the defendant’s assets within the court’s
jurisdiction.
 That the balance of convenience is on the side of the applicant; and
 That he is prepared to make an undertaking as to damages
See also EFE FINANCE HOLDING LTD v. OSAGIE (2000) 5 NWLR (Pt. 658) 952
INTERIM ATTACHMENT OF PROPERTY. ORDER 15 ABUJA
A procedure similar to the mareva injunction can be found under Order 15 Abuja which
provides for the interim attachment of property. It provides for the attachment, in the
interim, of the property of a defendant, whether within or outside jurisdiction, who
intends to dispose of his property within jurisdiction in order to frustrate any order or
judgment that may be made against him. The plaintiff can apply for an order of court
to attach, in the interim, the property pending a further order of the court . In
practice, the defendant may be required to enter into a bond not to dispose of the
property; or to deposit an amount in court as security for any judgment that may be
entered against him. Under the interim attachment of property, the conditions which the
applicants application must satisfy are:
 Specification of the property required to be attached

 The estimated value of the property as far as plaintiff can reasonably ascertain;
and
 A declaration that to the best of his information and belief, the defendant is about
to dispose of or remove his property from jurisdiction.
ANTON PILLER INJUNCTION –
This is an injunction normally made ex parte and in camera, permitting the applicant to
enter into the premises of the respondent to SEARCH AND SEIZE, DETAIN AND
PRESERVE goods, documents or articles in the possession of the Respondent, which are
in violation of a copyright. It was first made in the case of ANTON PILLER KG v.
MANUFACTURING PROCESSES LTD.
Page 109 of 389

It is usually granted in cases of the infringement of copyright, patent or trademark and is

provided for under section 25(1) of the Copyrights Act which provides that in any
action for the infringement of a right under the Act, where an ex parte application,
supported by affidavit is made to the court, that there are reasonable grounds for
suspecting that there is, in any premises or house, an infringing copy or any contrivance
for making infringing copies, or any article or book or document by means of or in
relation to which an infringement under the Act has been committed, the court may issue
an order upon such terms as it deems just authorizing the applicant to enter the house or
premises at any reasonable time by day or night, accompanied by a police officer not
below the rank of Assistant Superintendent of Police, and:
a) Seize, detain ad preserve any such infringing copy or contrivance; and

b) Inspect all or any documents in the custody or under the control of the defendant
relating to the action.
Application for antonpiller injunction is by MOTION EXPARTE, supported by affidavit

and written address. There must be full disclosure by the applicant.
The conditions which must be fulfilled before an antonpiller injunction can be granted
were stated in FERODO LTD v. UNIBRO STORES as follows:
 The applicant must show that the property is in the possession of the defendant
 The defendant is likely to destroy the property before the application on notice
can be made
 The claimant needs the property as evidence and his case will be frustrated
without them.
 Failure to grant the order will be detrimental to his case.
FERODO V UNIBROS STORES- FHC granted the order ex parte for the detention
preservation and inspection of property.
MANDATORY INJUNCTION
It is an injunction which orders the respondent to do an act. It is usually granted in

exceptional circumstances to force public officers to do an act or retrace their steps in
order to forestall or remedy executive lawlessness. See ; OJUKWU v. MILITARY
GOVERNOR OF LAGOS STATE. In fact, in SULU-GAMBARI v. BUKOLA, the CA
held that where a Respondent, having been served with notice of motion seeking to
restrain an act, deliberately proceeds to complete the act sought to be restrained, in total
disrespect to the court of law, a mandatory injunction may be made to compel such
respondent to retrace his steps, and to restore the parties to the status quo ante bellum.
Page 110 of 389

PERPETUAL INJUNCTION
These are injunctions granted to have effect at the conclusion of a case are called
perpetual injunctions and must be claimed in the writ of summons and the statement of
claim.
QUIA TIMET INJUNCTION
This is an injunction that is granted to prevent an action that has been threatened but has
not yet violated the applicants rights.
INTERPLEADER – Order 26 Abuja and Order 43 Lagos.
Interpleader proceedings is available to a person in possession of or under a liability for

debt, money, goods or chattel (“chattel” is omitted in Abuja Rules), which he does
not himself claim personally but with respect to which there are rival claimants. The
person in possession may be sued by the other rival claimants if he delivers it to any one
of them or he may be liable in tort if he delivers to the wrong person. To avoid this, the
person in possession may apply to the court for relief by way of interpleader summons to
compel the rival claimants to interplead; that is, to take proceedings against themselves in
order to determine who is entitled to the property. There are two types of interpleader
namely:
 Stakeholder interpleader
 Sheriff interpleader
Conditions and procedure for application
To qualify to apply for interpleader summons, by Order 26 r 1(1) Abuja and Order 43 r 1
Lagos, the person seeking relief by way of interpleader must be under liability for debt,
money, goods or chattels and must either have been sued or expects to be sued by any of
the rival claimants. NOTE that in Abuja, “chattels is omitted, so it is only debt, money or
goods in Abuja.
In Abuja, by order 26 r 3(1) Abuja, the method of application will depend on whether
there is a pending action or not. If there is no pending action, then the application shall be
by ORIGINATING SUMMONS, SUPPORTED BY AFFIDAVIT. However, by the
same provisions, if there is a pending action, then the application shall be by MOTION
ON NOTICE SUPPORTED BY AFFIDAVIT. See Order 26 r 3(1) Abuja.
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In Lagos, by Order 43 r 2(1) the application is by way of a SUMMONS SUPPORTED

BY AFFIDAVIT. There is no distinction between whether an action has been
commenced or not.
SPECIAL REQUIREMENTS OF THE AFFIDAVIT IN SUPPORT OF INTER

PLEADINGS
In Lagos and Abuja, by Order 26 r 4 Abuja and Order 43 r 2(2) Lagos, the affidavit in
support of the application must state the following to the satisfaction of the court:
 That the applicant claims no interest in the subject matter in dispute other than
charges for costs;
 That the applicant does not collude with any of the rival claimants; and
 That the applicant is willing to pay or transfer the subject matter into court or to
dispose of it as the court may direct.
See Order 26 r 4 Abuja and Order 43 r 2(2) Lagos
MODE OF APPLICATION
 By an inter pleader summons WITH AN AFFIDAVIT AND WRITTEN

ADDRESS- OR 43 R 2, OR 26 R 3(1) abuja
 Where an action has commenced, a motion on notice is brought supported by a
written address and affidavit- OR 26 R 3 FCT
Upon hearing the application, then by Order 26 r 7 Abuja and Order 43 r 6 Lagos, the
possible orders that the court can make include:
 The court may dismiss the application; or

 If there is a pending action, the court may order any of the rival claimants to be
made a defendant either in lieu of or in addition to the applicant; or
 If there is no pending action the court may order that an issue be stated and tried
between the rival claimants, and the direct which of the rival claimants would be
plaintiff/claimant and defendant.
See Order 26 r 7 Abuja and Order 43 r 6 Lagos.
By Order 26 r 8 Abuja and Order 43 r 9 Lagos, any rival claimant who is served with the
summons, but fails to appear or neglects to comply with an order made by the court after
his appearance, may, by order of court be barred from proceeding against the
applicant
Page 112 of 389

Please NOTE: DESIGNATION OF PARTIES, THE PERSON BRINGING THE INTER

PLEADING SUMMONS IS CALLED THE APPLICANT, WHILE THE OTHER 2
PARTIES ARE KNOWN AS CLAIMANTS.
PLEASE NOTE; where an application is brought by way of motion ex parte, there must
be full disclosure.
WEEK 8
DEFAULT AND SUMMARY JUDGMENTS---BAR PART II
DEFAULT JUDGEMENT (Order 13 and 25 Abuja; Order 10 AND 20 Lagos)
 Meaning of Default judgement

 Types of default judgement under the rules.
 Default of appearance----ORDER 10 R 2 LAGOS, ORDER 13 R 1
ABUJA
 Default of defense----ORDER 20(1) LAGOS, ORDER 25(1) ABUJA
A default judgment is one given where there is default of appearance or default of

defence by the defendant. It is given against a defendant for failure to comply with the
rules There are two types of default judgment:
1. Default judgment in default of appearance – Order 10 r 2 LAG, Order 13 r 1ABJ.

When the defendant did not file memorandum of appearance within the time
prescribed which is 42 days before hearing(ORDER 9 R1 LAGOS) in Lagos and
8 days in Abuja,
In Lagos, the claimant may proceed upon default of appearance under the
appropriate provisions of these rules upon proof of service of the originating
process. In abuja the judgement entered is in relation to a liquidated sum.
2. Default judgment in default of defence(pleadings): Order 20 R (1)LAG, Order 25
R 1 ABJ. This is when the defendant though filed memorandum of appearance
fails to file his defence within the time prescribed which is 42days in Lagos and
14 days in Abuja. This is a judgement against the the defendant for failure to file a
defence.
 If a person has been served with originating processes and the person fails to enter
an appearance and file his defence, what will the claimant counsel do?
Answer: Thus the claimants counsel will file an application by way of motion on
notice for judgement in default of appearance and default of defence.
 Are default judgements given on the merits? Because the courts did not hear the
two parties to the case a default judgement is not a judgement on its merits.. For
Page 113 of 389
this reason ,the judgement can be set aside by the same court that gave the
judgement based on the principle of audi älterem Partem
MODE OF APPLICATION
Application for default judgment is motion on notice, supported by affidavit and written
address (in practice).
In Lagos, Order 10 R 2, the defendant must show proof of service.
Setting aside default judgment: BAR EXAMS.
Default judgments are final judgments but they are not judgments on the merit.
Accordingly, they can be set aside by the same court. Or 10 R 11 lag(default of
appearance). In Abuja, by Order 13 r 6 ABJ( default of appearance) and Order 25 r 9
ABJ(default of defence), default judgments whether in default of appearance or in default
of defence respectively can be set aside by the same court on such terms as it thinks
just.
GENERAL CONDITION FOR SETTING ASIDE OF DEFAULT

JUDGEMENT
 Condition to be fulfilled for the court to set aside the default judgement is
that:
 The defendant must state good reasons for the default
 The defendant must show that he has a good defence
 The application must be brought within a reasonable time.
If the defendant is served with a motion for default judgement, the defendant will
file an application for extension of time to file a memorandum of appearance and to
file a defence. The accompanying documents are statement of defence showing that
he has a good defence and an affidavit and written address stating that he has good
reasons for default or in lagos the reasons as stated in Order 20 R 12 Lagos. The
application must be filed timeously.
In Lagos, by Order 20 r 12 Lagos, default judgments are final judgments but can be set
aside by the same court as follows:
 The basic rule is that where the defendant is in default of appearance, then by
order 10 r 11 Lagos, it can be set aside on just terms upon an application by the
defendant. The application shall be made within reasonable time and must show a
good defense to the claim and a just cause for the default.– Order 10 R 11 LAG
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 Whether it was given in default of appearance or in default of pleadings then by

Order 20 r 12 Lagos, it can be set aside on grounds of fraud, Non service; and
Lack of jurisdiction. See Order 20 r 12 LAG.
 In LAGOS: where default judgement is entered either based on default of
appearance or default of defence such judgement is final and remains valid AND
IT CAN ONLY BE SET ASIDE on the grounds of fraud, non-service or lack of
jurisdiction upon such terms as the court may deed fit.
 Suffice it to say that in lagos, both for default of appearance and default to file
defence, the condition to set it aside must be based on FRAUD, NON-SERVICE
OR LACK OF JURISDICTION. Where the conditions are not fulfilled the
default judgement is final and the only remedy to the defendant is to file an
appeal.
MODE OF APPLICATION TO SET ASIDE DEFAULT JUDGEMENT
Application to set aside a default judgment is by motion on notice, supported by

affidavit and written address. He must attach his statement of defense and his
affidavit must show reasons why he defaulted(sick, travelled out of the case). The
application must be timeous.
NB: A default judgment can be set aside by another judge of the same court that gave it,
and not necessarily the judge that gave it. See ECOTRADE LTD V MACFOY; EMODI
v. KWENTOH
The default judgment does not apply to all claims. It does not apply to any claim for
declarations or declaratory actions generally, order 20 r 6 HCCPR LAGOS.. See
OBAWOLE v. WILLIAMS. Specifically, it does not apply to:
 Declaration of right: Example
 Declaration of title to land

 Recovery of premises
 Recovery of land
 Matrimonial causes
 Election petition
In all these cases, the plaintiff or claimant must set down the case for hearing and prove
his case. Then judgment may be given to him as he is entitled. EXAMS. A motion on
notice praying the court for an order to set down the matter for hearing.
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Order of hearing motions:
When there is application for default judgment by the claimant and another to regularize
by the defendant example the defendant is filing an application for leave of court to file
his defence out of time or enter a memorandum of appearance, the court will hear that of
the defendant even where the claimant has filed an application for judgement in default of
appearance of default to file defence. This is because where there are two pending
applications, one is constructive to regularize the proceedings and the other destructive to
enter default judgment, the court will hear the constructive one to regularize and it does
not matter which one was filed and served first. See NALSA & TEAM ASSOCIATES
LTD v. NNPC (1991) 11 SCNJ 5. The court will hear the application that will bring
life to the case in order to enhance fair hearing.
Where the application for extension of time is heard and a ruling is given in favour
of the application, the claimant withdraws the application for default judgement
and he is entitled to costs from the defendant. ….BAR PART II QUESTION.
Relevant case is NALSA’S CASE.
Finally, By Order 10 r 1 Lagos and Order 13 r 8(1) Abuja, where the defendant is a
person under legal disability; that is, an infant, lunatic or person of unsound mind, and
such a defendant defaults in appearance, the plaintiff/claimant shall, before taking any
further step in the action, apply to the court or a judge in chambers(Abuja) or a
Judge(Lagos) for an order that a proper person be appointed as guardian for such a
defendant and so, enter and defend the action. In Lagos, the application shall be
made after the service of the Originating process, see Order 10 r 1 Lagos; while in
Abuja, the application can only be made after the expiration of the time allowed for
entering appearance, which is the return date on the writ, see Order 13 r 8(2). In
either case, it must be served on the person intended to be appointed. Therefore,
where the defendant is a person under legal disability and he defaults in appearance, the
plaintiff/claimant cannot apply for default judgment until he has complied with these
provisions.
SUMMARY JUDGMENT (Order 21 Abuja; Order 11 Lagos)
Summary judgements are given when a matter is heard expeditiously without the
hurdle of calling witnesses and examining such and without objections, subpoena of
witnesses. The only thing the court will determine as to whether to give judgement is
Page 116 of 389

to look at the originating processes, affidavit and counter-affidavit and written

address.
This is provided for under order 11 Lagos and Order 21 Abuja. In Abuja, it is called the
undefended list, while in Lagos, it is called summary judgment under Order 11.
Third judgement on admission of facts----
Judgement on application for accounts—oR 12 R 1 LAG OR 16 R 1 ABUJa
Consent judgement----Ras Pal Gazi Const Co Ltd v FCDA
CONDITION FOR SUMMARY JUDGEMENT::
Summary judgment is usually applied for by the plaintiff or claimant when he believes
that the defendant has no good defense to the claim. See SODIPO v.
LEMMINKAINEN (No 2) (1986) 1 NWLR (Pt. 15) 220, UTC NIG. LTD v. PAMOTEI
(1989) 2 NWLR (Pt. 103) 244. Thus, a summary judgment is one entered in favor of the
plaintiff/claimant summarily, without the indices of a full trial after the plaintiff or
claimant satisfies the court that defendant does not have a good defence to the claim. In
considering whether or not to enter summary judgment, the court considers the writ
of summons, statement of claim and statement of defence, if any. SUMMARY
judgement is given on to merits and thus it cannot be set aside unless in special
circumstances unlike default judgement where the merits of the case is not delved
into and can be set aside by the same court that gave the default judgement.
A summary judgment is a judgment on the merit. It is a final judgment and can

only be set aside on appeal. See IRON PRODUCTS LTD v. SENTINEL
ASSOCIATION CO. LTD ((1992) 4 NWLR (Pt. 238) 734.
Types of summary judgment
 Summary judgment on admission of facts. When the defendant admits some

factsu in his statement of defense, the claimant or plaintiff can apply for summary
judgment of those facts admitted.
 Summary judgment on application for account
 Summary judgment under Order 11 Lagos
 Summary judgment under the undefended list. See order 21 Abuja
 A consent judgment is also a form of summary judgment just that it is one entered
upon agreement by the parties.
 For the purpose of bar part 2, a default judgment is deemed to be a summary
judgment.
Page 117 of 389

NOTE: NEED TO KNOW THIS
 Liquidated money demand: a sum ascertainable through mathematical calculation.

Example money borrowed from the bank, debt, special damages(eg medical bills,
damage of ipad etc)
 Unliquidated money demand; not certain until the court decides as to the
sum..Example general damages for slander(because it has to be proved), interest
on sum borrowed.
SUMMARY JUDGMENT UNDER ORDER 11 LAGOS
 Summary judgment under Order 11 is only applicable in Lagos state.

 The principal condition is that the plaintiff/claimant must establish that the
defendant has no good defence to the claim. See Order 11 r 1 Lagos, SODIPO v.
LEMMINKAINEN (No 2) (1986) 1 NWLR (Pt. 15) 220, UTC NIG.LTD v.
PAMOTEI (1989) 2 NWLR (Pt. 103) 244.
 Subject matter: it applies to all subject matter provided that the claimant believes
that there is no defence to his claim including declaratory rights.
The scope of summary judgment under order 11 is that it is available in all claims and
actions including declaratory actions provided that the plaintiff believes that the
defendant has no defense to his claim. NO RESTRICTION to subject matter.
Steps to be taken by the claimant/Applicant
PROCEDURE FOR APPLYING FOR SUMMARY JUDGMENT.
By order 11 r 1 Lagos, where the claimant feels that the defendant has no good defense,
he is to file the following documents:
 Originating processes (which is the Writ of summons)

 Statement of claim
 List and copies of documents to be relied on.
 Depositions of the witnesses
 An application for summary judgment (which is by motion on notice, supported
by affidavit written brief. Order 39 r 1(1)&(2) and r 3(2)(1) Lagos. Such
Affidavit in support of the application stating the grounds of his belief that the
defendant has no good defense. ( I verily believe that the defendant will not have
a good defence to the action)MUST BE STATED IN THE AFFIDAVIT FOR
BAR PART II.
Page 118 of 389

 Who can depose to the affidavit? Emuwa v Consolidated Discounts Ltd(2001),

Sodipo v Lemminkainen. The claimant or any other person that is seised of the
facts verifying the cause of action and if it is a liquidated sum, the amount
claimed.. However, such other person must state that he has the authority to do
so- SODIPO V LEMINKAENAM
Order 11 R 2 LAGOS:States that the claimant must submit to the registrar enough copies
to be available to serve all the defendants.
Service of the Court processes on Defendant. SEE 11 R 3 & OR 7(1) & (2) LAG
 SHERIFF
 DEPUTY SHERIFF
 BAILIFF
 SPECIAL MARSHALL
 OTHER OFFICER OF THE COURT
 ANY LAW CHAMBERS REGISTERED TO SERVE processes
 COURIER COMPANY registered with the court
 ANY OTHER PERSON TO SERVE COURT PROCESSES AND SUCH
PERSON SHALL BE A PROCESS SERVER.
DEFENDING THE APPLICATION
Steps to be taken by the defendant who intends to defend pursuant to ORDER 11 R4

LAGOS
 His statement of defence

 Depositions of his witnesses
 List and copies of documents to be used in his defence
 A counter affidavit(NOT NECESSARY WHERE THE DEFENDANT IS
OPPOSING THE APPLICATION ON POINTS OF LAW ONLY)
 Written brief in reply to the application for summary judgement
 Memorandum of appearance.
FILING OF THE DEFENCE MUST BE DONE WITHIN 42 DAYS after service on him
of the originating process and accompanying documents….. oR 15 R 1(2) LAG, OR 11 R
4 LAGOS.
 AT THE TIME OF FILING THE DEFENCE with the particulars, the level of
defence to be filed at that stage, must not be a defence that is substantial and must
Page 119 of 389

win the case. At that stage the defendant is required to show prima facie good
defence or a defence that will show triable issues: FEDERAL MILITARY
GOVERNMENT V SANNI.
CONSIDERATION OF THE APPLICATION
The court will give ruling on the application.
NOTE: where the defendant fails to file documents FOR DEFENCE OR FAILS TO
ENTER APPEARANCE the court will give DEFAULT JUDGEMENT BASED ON
AN APPLICATION OF THE CLAIMANT/APPLICANT in favour of the claimant
under ORDER 10 R 2 AND ORDER 20 R 1 OF Lagos. THE JUDGEMENT CAN
HOWEVER BE SET ASIDE BY THE COURT WHO GAVE THE DEFAULT
JUDGEMENT ON THE GROUNDS SET OUT IN order 20 R 12 LAGOS. This is
because a default judgement is not a judgement made on the merits of the case.
However, where the defendant filed the documents and the court finds that the
defendant has a good defence the court grant the defendant leave to defend the
action in which case the court will go to trial. Or 11 r 5(1) lagos
However where the court finds that the defendant does not have a good defence,
summary judgement will be given in favour of the claimant/APPLICANT against the
defendant. OR 11 R 5(2) lagos. Such a judgement is one on its merits and cannot be set
aside by the same court that gave it.
Where the defendant has a good defence to some part of the claims and does not have a
good defence to other parts of the claim what happens? The court will grant leave to the
defendant to defend the action where he has good defence, and summary judgement is
entered against him where he has not showed a good defence to the other claims. Or 11 r
5(3)
WHERE THERE ARE SEVERAL DEFENDANTS: ORDER 11 R 6 LAGOS
Where any of the several defendants have a good defence, the defendant will be granted
leave to defend and the judge shall enter judgement against the other defendants that have
no good defence----OR 11 R 6 LAGOS
WHERE DEFENDANT FILES DEFENCE BUT FAILS TO APPEAR IN COURT
If the defendant files a defence but fails to appear in court on the hearing date, the court is
entitled to look at the documents he has filed and proceed to determine whether or not the
defendant has a good defence. Where he has a good defence, he will be granted leave to
Page 120 of 389

defend but where he does not have a good defence judgement will be entered against him
as a final judgement.
EFFECT OF JUDGEMENT UNDER ORDER 11
 UTC V PAMOTEI
 IRON PRODUCTS V SENTINEL ASS CO LTD
 The courts have held that judgement under this order has two consequence:
 where the defendant has been served and the defendant only enters
appearance and he has not filed any defence to the action or fails to enter
appearance and file his pleadings within the stipulated time, the claimant
will make an application to the court that judgement in default be entered
against the defendant. However, The decision is not on the merits thus the
same court can set aside that judgement as a default judgement pursuant to
ORDER 20 R 12 LAGOS. UTC V Pamotei
 However where he has been served and he has filed his defence which
means he has joined issues, the court having considered the merits will be
a summary judgement which is final on its merits and cannot be set aside
unless on appeal. Iron products ltd v Sentinel Ass. Co.
 However, where the defendant has not filed any defence to an order 11
JUDGEMENT can only be set aside based on the ground in OR 20 R 12. EXAM
PURPOSES .
 WHERE THE COUrt feels he has shown a good defence the court will grant
unconditional leave to defend the matter and the claimant cannot have the right of
appeal. Section 241(2)(a) 1999 Constitution. This is because it is a constitutional
right of parties to be heard.
NBN vs WEIDE & CO, UAC Nigeria ltd v Odeyemi(2011)
 However where the leave to defend is on a condition, then the claimant can appeal
to the court of appeal as of right...LOOK FOR AUTHORITY. UAC Nigeria Ltd v
Odeyemi(2011). Please note that rule 2 provides that where a matter arises in
respect of which there are no adequate provisions under the rules, the court shall
adopt such procedure as will in its view do substantial justice between the parties
concerned. In line with this, the judge may exercise his discretion and grant
conditional leave to the defendant to defend the claim.
KEN’S NOTE
Note that there is a difference between the front loading documents for Order 11 and
those under Order 3 r 2(1). Under Order 11, list of witnesses and pre-action protocol form
01 are omitted. For purpose of Bar Part 2, follow the Rules strictly, then write
Page 121 of 389

“however, in practice, lawyers still comply with both Order 11 and Order 3 r 2(1)
by filing all the documents, including list of witness and pre-action protocol form 01.
The content of affidavit must state the grounds of the claimant's belief. Generally, the
claimant should depose to the affidavit, however any other person who has knowledge of
the facts either from his personal knowledge or from the claimant can depose to the
affidavit with the authority of the claimant and must state that he had the authority to
depose to it and that he reasonably believes that the defendant has no defense. EMUWA
v. CONSOLIDATED DISCOUNTS LTD. The affidavit must comply with the provisions
of section 115 and 117 of the Evidence Act,
QUERRY FOR ALIMI AND ODUKOYA:
1) Order 11 r 1 Lagos lists the documents to be filed, but they do not accord with
Order 3 r 2(1) Lagos. For the purpose of Bar Part 2, which should we follow?
2) Order 11 r 1 Lagos provides that the documents for summary judgment should be
sent together with originating processes..what if the action has already
commenced before the plaintiff/claimant realizes that the defendant has no good
defence, is he still to file writ and other documents along with the application for
summary judgment?
WHERE DEFENDANT INTENDS TO DEFEND – Order 11 r 4 Lagos.
Upon service on the defendant, if he intends to defend the action, then, by Order 11 r 4
Lagos, the defendant is to file the following documents within the time prescribed for
entering defense, which is 42days:
1. Statement of defense
2. Depositions of witnesses
3. List and copies of documents to be used in his defence
4. Counter affidavit
5. Written brief in reply to the application for summary judgment.
The time limit for filing these documents is the time prescribed for filing defence, which
is 42days. See Order 11 r 4 Lagos.
WHAT THE COURT WILL CONSIDER IN DETERMINING WHETHER THE

DEFENDANT HAS A GOOD DEFENCE
The defendant’s statement of defence and counter affidavit must disclose a prima facie
defence or good defence or triable defence. He does NOT need to show a defence on
Page 122 of 389

the merit at this stage and it does not matter if the defence will succeed or not . See
ADEBISI v. MCGREGOR ASSOCIATED LTD v. NMB; FEDERAL MILITARY
GOV’T v. SANNI; NAL MERCHANT BANK v. MACAULAY.
On hearing of the application, then, by Order 11 r 5 & 6 Lagos, the court can make any of
the following four (4) orders:
 Grant leave for defendant to defend the action where it appears to the judge that
the defendant has a good defense - Order 11 r 5(1) Lagos
 Enter judgment for the claimant where it appears that the defendant has no good
defense - Order 11 r 5(2) Lagos
 Where there are different/several claims and it appears to the judge that the
defendant has a good defense to part of the claim, the court is to grant leave to
defend for that part, and enter judgment for the other part where there is no good
defense - Order 11 r 5(3) Lagos
 Where there are several defendants, the defendant who has good defense shall be
granted leave to defend and for the others, judgment would be entered against
them. Order 11 r 6 Lagos
In determining whether the defendant has a good defense, the facts depose to in the
counter-affidavit can be looked at or statement of defense to see if a prima facie defense
exists.
Effect of summary judgment under Order 11
The judgment obtained under Order 11 of Lagos is a final judgment on the merit and can
only be set aside on appeal. See IRON PRODUCTS LTD v. SENTINEL ASSOCIATION
CO. LTD ((1992) 4 NWLR (Pt. 238) 734, ACB LTD v. GWAGWADA (1994) 4 SCNJ
268.
When a defendant is granted an unconditional leave to defend, the claimant does

not have a right to appeal against it - section 241(2)(a) CFRN; NBN v. WEIDE & co;
NISHIZAWA LTD v. JETHWANI; ODU v. AGBOR-HEMESON (2004) ALL
FWLR (Pt. 188) 935. Unconditional leave to defend does not impose any condition on
the defendant and it just guarantee the right to fair hearing to the defendant. It must be
noted that this applies only to decisions of the Federal High Court or High Court granting
unconditional leave to defend. This is because section 241(2)(a) CFRN expressly
provides that nothing in section 241 CFRN shall confer any right of appeal from a
decision of the FHC or any HC granting unconditional leave to defend an action.
Note that by Order 20 r 12 Lagos, in Lagos a default judgement, though final and valid,
can be set aside on grounds of fraud, non-service and lack of jurisdiction.
Page 123 of 389
UNDEFENDED LIST – Order 21 Abuja
ABUJA JURISDICTION
Unlike the summary judgment under Order 11 in Lagos, summary judgment under the
undefended list procedure applies only to actions for recovery of debt or liquidated
money demands. Denton-west v momah
See Order 21 r 1(1) ABJ it is used to recover a debt or liquidated money demand. The
principal requirements are:
 The plaintiff must believe that the defendant has no defense to the claim; and
 The plaintiff is claiming for RECOVERY OF debt or liquidated money demand.
Procedure for bringing the application
 At the time the claimant is filing his writ of summons in respect of a claim for
recovery of debt or liquidated sum demand, supported by an affidavit stating the
grounds on which the claim is based and stating that the deponent believes that
there is no defence to it, the judge in chambers shall enter the suit for hearing in
an undefended list.
Mode of application:
 1. Writ of summons FORM 1

 2. Affidavit in support of the writ of summons stating:
a. In the deponent’s belief, the defendant does not have a good defence.
EDEn V CANNON BELL LTD.
b. The grounds upon which the claim is based. Ahmed v. Trade Bank Nig
Plc,
 NUMBER OF COPIES OF PROCESSES AS THERE ARE MANY
DEFENDANTS… oR 21 R 2 ABUJA
 STEPS TO BE TAKEN BY THE COURT AFTER FILING THE WRIT AND
AFFIDAVIT
 THE judge in chambers will establish whether the Defendant will not
have a good defence to the action
 Where the judge in chambers believes that there is no defence to the suit
the judge in chambers shall enter the suit for hearing under the undefended
list and the writ of summons will be marked undefended list.
Page 124 of 389
 A return date for hearing shall be stated on the writ of summons for
service on defendant together with the affidavit--- or 21 r 1(2) ABUJA
 The writ of summons that has been entered under the undefended list
together with the affidavit will be served on the defendant.
 DEFENDING THE APPLICATION
 If the defendant is served with a writ under the undefended list and he intends to
defend, he should within 5 days to the day of hearing file A NOTICE OF
INTENTION TO DEFEND, together with AN AFFIDAVIT DISCLOSING A
DEFENCE ON THE MERIT----OR 21 R 3(1) ABUJA.
 WHERE THE DEFENDANT FAILS TO FILE A NOTICE OF INTENTION TO
DEFEND, ANY Judgement given to the defendant in default of Defence under
the undefended list will be treated as judgement on the meritS AND IT will not be
set aside by the court unless on appeal…. Ahmed v Trade BANK NIG PLC.,
order 21 r 4 abuja.
 WHERE THE DEFENDANT WANTS TO DEFEND THE ACTION HE WILL
SERVE THE FOLLOWING
 NOTICE OF INTENTION TO DEFEND
 AFFIDAVIT DISCLOSING A DEFENCE ON THE MERIT…oRDER 21
R 3(1) ABUJA. The defence must be positive , frontal and must wholly
opose the plaintiff’s claim-OFFOR V UBA.
 LEARN HOW TO DRAFT A NOTICE OF INTENTION TO DEFEND
AND AFFIDAVIT.
 Heading of the court, suit number, parties and capacity, NOTICE OF
INTENTION TO DEFEND
 TAKE NOTICE that MR XYZ defendant in this suit intends to defend
the action.
 Date
 Defendants lawyer right hand side
 Service to the plaintiffs lawyer on the left hand side.
 Time limit for filing----5 days within the date fixed for hearing… OR 21 R 3(1)
ABUJA, BULLET INT NIG LTD V ADAMU.
 Where defendant is unable to file within 5 days will bring a motion on notice for
application for extension of time supported by an affidavit and written
address.
 What defendants affidavit must state is a prima facie good defence Or triable
issue and not a defence that will succeed at the end of the day----Argo millers v
continental merchant bank, UNN v orazulike trading co.
 Orders that the court can make on the date fixed for hearing:
Page 125 of 389

 Where the court has heard the two sides the court will grant leave to
defend the action where the defendant has disclosed a good defence on the
merits. Thus the matter will be moved from the undefended list to the
ordinary cause list for full trial and parties may be asked to file their
pleadings or proceed to hearing without further pleadings. OR 21 R 3(2)
ABUJA
 However, where the defendant neglects to file a notice of intention to
defend or fails to show a good defence the court will refuse leave to
defend the action and the court will enter summary judgement under the
undefended list. BATURE V SAVANNAH BANK, OR 21 R 4 ABUJA.
 Where a defendant files only a notice of intention to defend without a
supporting affidavit? Upon qn The court will grant an adjournment to file
his affidavit. See JOHN HOLT v FAJEMIROKUN.
EFFECT OF JUDGEMENT
Any judgement given by the court under the undefended list either in default or after
hearing the parties, the matter is final and can only be set aside on appeal. BATURE V
SAVANNAH BANK. ORDER 21 R 4 ABUJA.
No right of appeal against decision of high court granting unconditional leave to defend,
NBN V WEIDE & co, section 241(2)(a) 1999 Constitution.
A DEFENDANT CAN BRING AN APPLICATION FOR DEFAULT JUDGEMENT.

WHERE THE CLAIMANT FAILS TO TAKE FURTHER STEPS, THE DEFENDANT
CAN BRING AN APPLICATION THAT THE MATTER BE STRUCK OUT FOR
WANT OF DILIGENT PROSECUTION, WHERE THE COURT GRANTS SUCH
ORDER, JUDGEMENT IS GIVEN IN FAVOUR OF THE DEFENDANT BUT THE
CLAIMANT CAN RELIST.
KENNETHS NOTE
By Order 21 r 1(1) Abuja the procedure for applying to file an action under the
undefended list are as follows:
 Application in Form 1, which is the writ of summons

 Affidavit in support stating the grounds on which the claim is based and stating
that in the deponent’s belief, there is no defense to it. Ahmed v trade bank Nig
PLC
Page 126 of 389

See Order 21 r 1(1) Abuja;. By Order 21 1(1) Abuja the application is made to a judge
in chambers.
The affidavit should state that the plaintiff believes that the defendant has no defense to
the claim( BAR PART II). Ahmed v trade bank plc
By Order 21 1(1) Abuja the application is made to a judge in chambers. When there
is compliance with the above, the judge in chambers shall enter it in undefended list and
mark the writ and affidavit undefended. See AHMED v. TRADE BANK NIG PLC
By Order 21 r 2 Abuja, the plaintiff is to deliver to the Registrar as many copies of the
writ and supporting affidavit as there are defendants.
DEFENDING UNDER THE UNDEFENDED LIST
Where the defendant receives the processes and he does NOT intend to defend, he can
choose not to do anything, and where he fails to file his notice of intention to defend the
court can enter a summary judgement under undefended list. See AHMED v. TRADE
BANK NIG PLC. Such default judgment is a final judgment and can only be set aside on
appeal. LEVENTIS MOTORS LTD V MBONU
Where the defendant intends to defend – Order 21 r 3
Upon service on the defendant, if he wants to defend the claim, he is to file a notice of
his intention to defend within five (5) days to the day fixed for hearing. The notice is
to be accompanied by an affidavit. See Order 21 r 3(1) Abuja; BULET INT’L NIG
LTD v. ADAMU.The affidavit must disclose a defense on merit – Order 21 r 3(1)
Abuja. The affidavit should contain the grounds for defense. That is:
 Notice of intention to defend. (SEE DRAFT AT THE END OF THIS TOPIC)

 Affidavit disclosing a defence on the merits.
Where the defendant neglects to deliver a notice of intention to defend and an

affidavit within prescribed time as required by the Rules, the defendant can bring an
application for extension of time within which to file his notice of intention to defend
and affidavit, upon good cause shown. MC INVESTMENT LTD v. C.I. & C.M. LTD
(2012) 12 NWLR (Pt. 1313) 1;
When a defendant filed notice of intention to defend but failed to file his affidavit, the
court can grant an adjournment for him to file his affidavit. See JOHN HOLT v.
FAJEMIROKUN
The court on hearing can make the following orders:
Page 127 of 389

By order 21 r 3(1) Abuja, where the defendant files his notice of intention to defend and
affidavit, then if it discloses a defence on the merit, then the court will grant him leave to
defend upon such terms as the court may think just. NOTE that where the court grants the
defendant leave to defend, the plaintiff cannot appeal against the leave to defend. This is
because there is no right of appeal against an unconditional leave to defend. See section
241(2)(a) CFRN;NBN v. WEIDE & CO NIG LTD (1996) 8 NWLR (Pt. 465) 150;
NISHIZAWA LTD v. JETHWANI.
By order 21 r 3(2) Abuja, where leave to defend is given, the action will be removed
from the undefended list and placed on the ordinary cause list. The court will then order
pleadings to be filed or proceed to hearing without further pleadings and consider the
affidavit of the parties. See Order 21 r 3(2); Bullet ain't Ltd v Adamu
Where there is a conflict in the affidavit of both parties, the court must enter the suit on
the general cause list and the case would have to be heard in the ordinary way. See
JIPREZE v. OKONKWO (1987) 3 NWLR (Pt. 62) 737
By Order 21 r 4 Abuja, where the defendant neglects or fails to deliver the notice of
intention to defend and affidavit as prescribed or is not given leave to defend by the
court, the suit shall be heard as an undefended list and judgment given accordingly. See
Order 21 r 4 Abuja
A court may call for hearing or require oral evidence where it feels so compelled at any
stage of the proceedings – order 21 r 5.
Effect of Judgment Given Under the Undefended List
The judgment obtained under the undefended list is a final judgment on merit that can
only be set aside on appeal. See LEVENTIS MOTORS LTD V MBONU.
NOTE that when a suit on the undefended list comes to court for the first time, it is for
hearing and not for mention. BEN THOMAS HOTELS LTD v. SEBI FURNITURE
LTD (1989) 5 NWLR (Pt. 123) 523; OLUBUSOLA STORES LTD v. STANDARD
BANK LTD.
In summary judgment, the plaintiff or claimant who had before instituted the action
decides to seek for summary judgment. In default judgment, it is the act of the defendant
that gives rise to it. In summary judgment, the judgment obtained is on merit while that of
default is not judgment on merit and can be set aside on grounds of fraud, lack of
jurisdiction and proper service or grounds deems just – or just cause. In summary
judgment, the plaintiff or claimant believes that the defendant does not have any
reasonable defense to the action while there is no such in default judgment. The summary
Page 128 of 389

judgment in Lagos applies to all claims while the default judgment does not apply to
claim for declaration of rights.
Difference between summary judgment under Order 11 LAGand Order 21 ABJ
1. In Lagos, the summary judgment under order 11 applies to all claims and is
unlimited in scope. In Abuja, summary judgment under the undefended list
procedure applies to only debt or liquidated money demands.
2. In Lagos, pleadings and all accompanying documents must be filed or
frontloaded. In Abuja, only writ of summons and affidavit can be filed.
3. In Lagos, there is application for summary judgment by motion on notice,
affidavit and written brief. In Abuja, Only the affidavit accompanying the writ of
summons.
4. Time for filing intention to defend under order 21 r 3(1) in aBUJA undefended list
is 5days from the date of hearing, while under order 11, it is 42 days.
5. Order 11 applies in Lagos, Kano and rivers while undefended list applies in
Abuja.
6. Order 11 where the judgement is a default judgement it can be set aside based on
fraud, non-service or lack of jurisdiction whereas in Abuja the judgement is final
and valid and can only be set aside on appeal to the court of appeal..
7. When the judge in chambers comes to hear order 21 ab initio, the parties are not
heard especially the defendant whereas order 11 the application is inter parte
hearing
8. In Lagos, the application is filed at the registry of the court, while in Abuja the
application is made to the judge in chambers.
Similarity between summary judgment under Order 11 LAGand Order 21 ABJ
They both apply to cases where the defendant does not have a good defence
They are both applications where judgement is to be gotten expeditiously.
They are both supported by affidavit evidence
They are both commenced by writ of summons
Both applications are to be brought at the time of commencing the action.
Both applications are judgements on the merits and final.
There is no right of appeal where they defendant is given unconditional leave to

defend.
Page 129 of 389
ETHICAL ISSUES
The counsel must act diligently in his clients case by acting timeously in filing his
documents
He is a minister in the temple of justice and must make good representation to the court
Avoid sharp practices by springing surprises at the counsel on the other side. Rule 26(2)
Not depose to an affidavit. Rule 20.
Rule 24(3),
DRAFTING OF NOTICE OF INTENTION TO DEFEND

IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO
BETWEEN
FEDERAL CAPITAL DEVELOPMENT AUTHORITY ----------------- PLAINTIFF
AND
MALLAM TUKUR BWARI -------------------------------------------- DEFENDANT
NOTICE OF INTENTION TO DEFEND
TAKE NOTICE that Mallam Bature the defendant in this suit intends to defend the suit
at the hearing.
Dated this _______ day of ___________________________, _____________
__________________
K.O OkworEsq
Defendant’s solicitor
Group 8 chambers
Page 130 of 389
No 6 Maitama Abuja
FOR SERVICE ON:

The Plaintiff,
Federal Capital Development Authority
C/o its Counsel
J. Owhor-Chuku
No 3, Maitama
Abuja.
Whether a case will succeed or not is depending on pleadings. No rule provides that
pleadings must be in a particular form. Essentially, the basic rules for drafting pleadings
are the same but pleadings drafted by lawyers A and lawyer B on the same facts will be
different. Always adopt precedents effectively. IN YOUR CHAMBERS
ATTACHMENT, READ THROUGH DIFFERENT PLEADINGS
WEEK 9
PLEADINGS
What are pleadings?
Pleadings are written statements of fact set out in summary form which is filed and
exchanged by the parties in a civil action commenced by writ of summons. Pleadings
usually contain the material facts which the party serving it intends to use in proof of his
case.
Pleadings are not used in the Magistrate courts. They are used ONLY in actions
commenced by writ of summons. However, it must be noted that the court may order
pleadings to be filed and exchanged in an action wrongly commenced by originating
summons where there are disputes of facts. See ADEYELU II v. AJAGUNGBADE III
(2007) 14 NWLR (Pt. 1053) 1.
Page 131 of 389

Examples of pleadings
 Statement of claim
 Statement of defense
 Reply. This is the second pleading filed by plaintiff to defendant to respond to
new matters in SOD.
 Counter-claim
 Defenses to counter-claim
 Further and better particulars
 A writ of summons can qualify as a pleading where it is specially endorsed, in
which case the writ is called a specially endorsed writ of summons. Thus, a
specially endorsed writ of summons is a pleading.
Please Note that affidavits attached to originating summons and originating motions
serve as pleadings.
Originating processes such as writ of summons, originating summons, petition,

originating application (motion) are not the same as pleadings. However, a specially
endorsed writ of summons in Abuja can qualify as pleading. This is because the specially
endorsed writ of summons performs two roles as the statement of claims is endorsed at its
back. It serves as an originating process and as pleadings. A generally endorsed writ
cannot qualify as pleadings.
Functions of pleadings
1. Pleadings define the issues in dispute between the parties and narrows down the issues
by highlighting the facts which are established as between the parties. See HIGHGRADE
MARITIME Ltd v. FBN Ltd (1991) 1 NWLR 167, NIPC v THOMPSON
ORGANISATION
2. Pleadings generally serve as notice. This is because by means of pleadings, each party
gives a fair notice to the other party, of the case he intends to put up in court. This
enables the other party to prepare his own case and prevent trial by ambush or trial or
trial by the springing up of surprises. See GEORGE v. DOMINION FLOUR MILLS
LTD (1963) 1 All NLR 92.
3. Pleadings guides the courts as to the real issues between the parties and the court is
bound and guided by the pleadings in determining whether it has jurisdiction to entertain
the matter. Ifeajuna v ifeajuna, BALOGUN V ADEJOBI
Page 132 of 389

4. Pleadings constitute permanent records of issues raised and determined by the court in
each case and forms the basis on which a plea of estoppel per rem judicatam can be
raised to bar subsequent re-litigation of the case.
5. Pleadings help determine the parties on whom the onus of proof lies. Example: if
claimant alleges a fact and the defendant denies such fact, the burden of proof is on the
plaintiff or claimant. If however defendant admits and raise new facts giving him defense
(confession and avoidance), the burden of proof is on the defendant. See BAKARE v.
ACB LTD; OKOYE v. NWANKWO
6. Pleadings determine steps to be taken by the parties. For instance, claimant claims
against defendant the sum of N10m in one transaction and N45m in another transaction.
The defendant admits the sum N10m in the first transaction, the claimant on that
admission can file an application by motion on notice for summary judgment on
admission of facts. Again where pleadings disclose that the action is statute barred,
application in lieu of demurer under Order 22 LAG and Order 22 ABJ can be
made.
Formal parts of pleadings
 Heading of court together with judicial division. Note the following are the
judicial division in Lagos namely Lagos, Ikeja, Ikorodu, Badagry, Epe, Lagos,
 Suit number
 Parties
 Title E.g. STATEMENT OF CLAIM
 Body of the pleading divided into paragraphs and numbered consecutively.
Numbers and dates are to be written in figures and in bracket amount in words
(for sum) E.g. N5, 000, 000 (five million)
 Date and signature, name, address of person who drafted it.
 Address for service on the parties.
 Dates , sums and Nos in figures but may be expressed in words.
Statement of defense and counter-claim are to be in one document and numbered

consecutively. If statement of defense stops in paragraph (10), counter-claim will start
from paragraph (11), but the heading COUNTER CLAIM will separate paragraphs (10)
and (11). For reply and defense to counter-claim, it must be in the same document and
numbered accordingly as stated above.
Content of pleadings – Order 23 r 4 ABJ, Order 15 r 2 LAG
These are what a pleading should contain
Page 133 of 389

1. Pleadings should contain only concise statement of material facts. See AGU v.
IKEWIBE (1991) 3 NWLR (Pt. 180) 385. In order to determine the material facts, the
substantive law regulating the cause of action should be looked at. In a negligence case,
the facts in statement of claim must disclose the existence of duty, its breach and
consequential damages before they can be regarded as material facts.
2. Pleadings should contain only statements of materials facts, and not statements of law.
See FCDA v. NNAIBI; MARTIN v. FEDERAL ADMINISTRATOR GENERAL.
However, by way of an exception, a party can plead facts from which the court will
make an inference in law. For instance, when the cause of action is already statute
barred (proceedings in lieu of demurrer). The points of law are those that would
affect the merit of the case or dismiss the case. See Order 22 of both Abuja and
Lagos Rules. Other points of law which can be pleaded include customary law,
foreign law, Islamic law etc.
3. Pleadings should contain only statements of material facts and not the evidence by
which such facts are to be proved or established. See Order 23 r 4 Abuja and Order 15 r
2 Lagos. In distinguishing facts from evidence, the Supreme Court in OKAGBUE v.
ROMAINE stated that any fact that is relevant for the purpose of establishing another fact
is evidence.
4. Facts must be consistently pleaded thus if parties are referred to as claimant or

defendant from paragraph one, such must continue till the last paragraph. No metaphor is
allowed. Sentences must be direct and blunt – do not state “Adam knew his wife”.
5. Pleadings must contain the reliefs which a party seeks.
6. Positive facts without ambiguity. Pleadings should be clear and concise.
Matters that must be specifically pleaded
Order 23 r 5 & 6 ABJ, Order 15 r 3 & 7 LAG
1. Defamation – in libel and slander, the plaintiff must specifically plead the
defamatory words. OKPOSO V BENDEL NEWSPAPERS
2. Matters on performance, release, any relevant statute or limitation, fraud or any
fact showing illegality must be specifically pleaded. Matters ex facie illegal need
not be pleaded.
3. Adultery
4. Foreign law and customary law even though laws are regarded as facts that need
to be specifically pleaded.
5. Special and exemplary damages. XTOUDUS SER NIG LTD v TAISEI
Page 134 of 389

6. Bona fide purchaser for value without notice

7. The plea of estoppels, laches and acquiescence or such other equitable remedies
must be pleaded.
8. Any mater likely to take the other party by surprise. Or 15 r7 lag, or 23 r 6 abuja
9. Illegality. ADEOYE V JUNADU
10. Limitation of Action
11. Particulars of fraud must be specifically pleaded.
12. The plea of res ipsa loquitur must be specifically pleaded either by reference to
the maxim or pleading facts justifying the application.
13. Any reliance on family tradition and history relating to chieftaincy or land matters
must be pleaded. In this like, history must be traced even though caught by the
hearsay will amount to an exception.
14. Reliance on negligence, the particulars of negligence must be specifically
pleaded. Management Enterprises v Otusanya. E.g.
 The plaintiff avers that defendant is the manufacturer of pure water with
NAFDAC no: 7771
 The plaintiff states that he drank the pure water made by the defendant company.
 The plaintiff avers that after taking the water, the plaintiff started throwing up and
was rushed to the nearby hospital.
 The plaintiff states that the plaintiff was confirmed to have contacted bacteria
from the water leading to renal failure.
15. Special damages must be specifically pleaded. Special damages are any item of
injury that can be assessed in monetary terms. General damages are subject
to the discretion of the court. Example of specifically pleaded special
damages: the plaintiff claims N5, 000, 000 as special damages:
Particulars of special damages:
 The loss of a brand new Toyota Hilux – N2, 000, 000
 Medical expenses incurred – N500, 000
 …….
16. A purchaser for value without notice must specifically plead the defense.
17. Insanity in probate matters
18. Adultery in matrimonial causes/proceeding. Pleadings are not used in petition.
19. Statutory defenses – immunity
20. Condition precedent
21. Set off
22. Fundamental breach of terms in a contract.
23. Documents that are material facts to the establishment of a fact must be pleaded.
Page 135 of 389

PLEASE NOTE: Statements in a statement of claim are called AVERMENTS while

statements in an affidavits are called DEPOSITIONS. Pleadings are settled.
STATEMENT OF CLAIM:
This is the first pleading in every case and it initiates the machinery of pleadings. It has
three (3) parts namely: the introductory averments (also called “matters of inducement”),
the body and the reliefs. Note that any SOC without a relief is incomplete and
incompetent. Anything not prayed for cannot and will be not be granted because as was
held in AG ABIA & ORS v. AG FEDERATION, the court is not a father Christmas to
dole out gifts not asked for by children. Even father Christmas is generous with his gifts
only on Christmas day. On the lighter mood, today is not 25 th of December. However, the
exception is ancillary or consequential orders and reliefs. See AMAECHI v. INEC
On the relationship between the writ of summons and the SOC:
The writ initiates the proceedings, states the nature of the claim and the reliefs sought
from the court. While the statement of claim elaborates or amplifies the claims earlier set
out in the writ.
The relationship between the statement of claim and the writ of summons is that the
statement of claim supercedes the writ of summons. See ELF NIGERIA LTD v. SILLO
(1994) 7-8 SCNJ 119. There are three (3) implications of this:
1. The statement of claim and the reliefs in it can be altered, modified, or extended
without any need to amend the reliefs contained on the Writ of summons. See
Order 23 r 30 Abuja and Order 16 r 2 Lagos.
2. Any relief in the writ of summons which is omitted in the SOC is deemed
abandoned and any relief which is not in the writ of summons, but is claimed in
the SOC is deemed to have been properly claimed before the court.
3. In the event of any conflict between the reliefs claimed in the writ and the reliefs
claimed in the SOC, the latter shall prevail and supercede.
See ELF NIGERIA LTD v. SILO (1994) 7-8 SCNJ 119;.
HOWEVER, notwithstanding the above, by Order 23 r 30 Abuja and Order 16 r 2 Lagos,

the plaintiff or claimant cannot use the SOC to completely change the cause of action on
the writ without amending the writ. This is because the writ of summons controls the
statement of claim and defines its scope in the sense that it determines the cause of
action. Thus, the SOC cannot include a relief which would have the effect of extending or
Page 136 of 389

altering the cause of action as contained on the writ, without amending the writ.EKPAN
V UYO.
To avoid the above, some lawyers would claim in statement of claim as per the writ of
summons. This has its advantages and disadvantages. Its disadvantages is that the writ of
summons is incorporated into the statement of claim and both will be read together and if
there is conflict, the statement of claim will not supersede. Okomu Palm Oil Co. Ltd v
Iserhienrnhien– no question of general rule of supercession.
Parts of statement of claim
 Heading of court
 Suit number
 Introductory part – description of claimant/plaintiff, description of defendant and
what gave rise to the cause of action.
 Body of claim – this is the fulcrum of the case. All the dos and do nots earlier
stated are to be observed here.
 Relief claim – this is because the court will not grant to parties reliefs not sought.
The court can grant less but not more. Ekpeyong v. Nyong. Ancillary reliefs can
be granted, that is, reliefs consequential or that give effect to the main reliefs –
Amaechi v. INEC. Plaintiff usually insert the word AND such order or orders the
Honorable court may deem fit to make in the circumstances –Adegboyega v.
Igbinosun, Gafari v. UAC, Metal Construction’s case. All reliefs sought should
be stated because once decision has been made on that cause of action, any relief
not sought would be res judicata.
STATEMENT OF DEFENCE:
LAGOS PURSUANT TO ORDER 17 R 1 THE STATEMENT OF DEFENCE IS

ACCOMPANIED BY:
a. COPIES OF DOCUMENTARY EVIDENCE

b. LIST OF WITNESSES
c. WITNESSES WRITTEN STATEMENT ON OATH.
ABUJA ORDER 23 R 2
a. COPIES OF DOCUMENTS MENTIONED IN THE STATEMENT OF

DEFENCE
b. WITNESS STATEMENT ON OATH
c. A CERTIFICATE OF PRE-ACTION COUNSELLING
Page 137 of 389

There are different ways in which a defendant can answer to a statement of claim
namely:
 Admission of allegation of fact in the SOC.

 Denial/traverse
 Confession and avoidance
 Objections on point of law
 Plea of set off; and
 Counter-claim
Admission: this is when the defendant admits what is contained in the statement of
claim. In such a case, the claimant/plaintiff can bring an application for summary
judgment based on admission of facts. This is because facts admitted need not be
proved and are taken as established at the trial. See section 123 of EA 2011 and
EGBUNIKE v. ACB LTD. Order 19 R 1,2(3)LAGOS, 0R 23 R 15. ABUJA.
Pleading, notice of Admission are forms of admissions.
What is the effect of failure to admit when party ought to admit? Party to be penalized in
costs of a sum not less than N 5000. Or 19 R 3(3) LAGOS because the defendant has
delayed expeditious trial of the court., the court in Abuja would award costs. ORDER 23
r 19.
DRAFT
THE DEFENDANT ADMITS THE FACTS AVERRED IN PARAGRAPH I, 2, 3 AND

4 OF THE STATEMENT OF CLAIM
Denial or traverse: this is a categorical and unequivocal of a statement of fact contained

in the statement of claim. When facts are not admitted, they should be expressly denied
either General or specific denial. Specific denial discloses surrounding circumstances that
support the denial. Whatever is not traversed or denied expressly or by necessary
implication is deemed to have been admitted and discharges the plaintiff/claimant from
the burden of proving them by evidence. See PHOEBUS ECONOMIDES v. S.
THOMOPULOUS & CO LTD.
DRAFT
THE DEFENDANT DENIES THE ALLEGATIONS OF FACTS STATED IN

PARAGRAPH 2 AND 3 OF THE STATEMENT OF CLAIM.(used to deny allegations
that the defendant personally knows to be true.
Page 138 of 389

THE DEFENDANT DOES NOT ADMIT THE ALLEGATIONS OF FACT IN

PARAGRAPH 2 OF THE STATEMENT OF CLAIM.(used when the truth or otherwise
of the allegation would not necessarily have been to the defendants personal knowledge
The two basic rules in traverse are:
a) The traverse or denial must be specific and not evasive. By this rule of pleading,
any material fact not specifically denied or denied by necessary implication is
deemed to have been admitted except as against an infant, lunatic or person of
unsound mind (persons under legal disability). See Order 23 r 9,13,14,15 Abuja
and Order 15 r 5(1) Lagos
b) The denial must be of the substance of the allegation, unambiguous and not a
literal denial. See Order 23 r 14(1) Abuja and Order 17 r 2 Lagos. (see example in
your note or efervwehan under negative pregnant traverse). Any traverse that is
not of the substance of the allegation or is literal, must necessarily leave with it a
positive proposition. Any traverse that leaves with it a positive proposition that
the defendant may have done more or less than what was actually alleged is called
a Negative Pregnant Traverse.
To avoid the unintended consequences of such positive propositions left by
negative pregnant traverses, words like “or at all”, “or any” etc are used.
GOOD DRAFT
 The defendant denies that he offered a bribe of N 23,000,000(TWENTY THREE

MILLION NAIRA ONLY) to the plaintiff or any sum at all on 18 th January, 2016
or any date whatsoever
 The defendant denies that he flogged the plaintiff’s right hand or any part of the
plaintiffs body.
Types of traverse/denial:
 General traverse. See Order 23 r 13 Abuja, Order 15 r 5(2). It is used to avoid

inadvertent admissions. See BENSON v. OTUPOR By its contents, it is expressed
to deny every fact except those expressly admitted. However, in truth, it does not
deny every fact because material facts must be specifically denied. See LEWIS &
PEATS v. AKHIMIEN. The general traverse is drafted thus:
“SAVE AND EXCEPT as is herein expressly admitted, the defendant denies each and
every allegation of fact stated in the plaintiffs/claimant’s statement of claim as if each
were herein set out and traversed seriatim”
Page 139 of 389

 Matters that need not be specifically traversed: INTRODUCTORY

AVERMENTS, MATTERS OF LAW, DAMAGES OR QUANTUM
AMOUNT OR RELIEF-or 17 R 5 LAG
 Defendant not in a position to admit or deny. (see your notes). The authorities
on this mode of traverse are as follows:
o This type of traverse has been held not to amount to proper traverse and
that facts so traversed are deemed admitted and established at the trial. See
LEWIS & PEATS (NRI) LTD v. AKHIMIEN; OSENI v. DAWODU.
o In UGOCHUKWU v. CCB (Nig) LTD, the supreme court held that in
order to determine whether such a traverse amounts to an admission or a
proper traverse, the court should consider all the other averments in the
statement of defence; and, where there was a general denial followed by
an averment that the defendant is not in a position to admit or deny a fact
in the SOC, it should constitute a proper traverse.
o Order 23 r 13 Abuja seems to have recognized this method of traverse as a
defendant is permitted to deny the truth or falsity of an allegation which is
within his knowledge, or may state that he does not know whether any
given allegation is true or false.
o Can the defendant plead: the defendant is not in a position to admit or deny
paragraph 10 of the statement of claim. Such an averment is bad because it is
evasive. However, a defendant Can state such ONLY if he states why he is not in
a position from other surrounding circumstances stated in the statement of claim.
DRAFT
The defendant IS NOT IN A POSITION TO ADMIT OR DENY THE
ALLEGATION OF FACT STATED IN PARAGRAPH 10 OF THE
STATEMENT OF CLAIM BECAUSE THE DEFENDANT IS NOT AWARE
OF THE PLAINTIFF’S CHIEFTAINCY CONFERMENT.
 Traverse of Allegations partly true and partly false:
DRAFT
THE DEFENDANT ADMITS PARAGRAPH 10 ONLY TO THE EXTENT
THAT THE DEFENDANTS NAME IS DELE OKORONKWO BUT DENIES
EVERY OTHER ALLEGATION OF FACT CONTAINED IN THE SAID
PARAGRAPH.
EFFECT OF A GENERAL TRAVERSE
 Puts the plaintiff/claimant to the proof of the facts alleged in the Statement of
claim
 Not sufficient enough to deny an averment THAT SHOULD BE
SPECIFICALLY PLEADED.
Page 140 of 389
 Matters not subject of general traverse must be specifically denied. OR 17 R. 3

LAG
 It is a convenient practice to ensure that non-traverse of a material allegation will
not have the effect of an implied admission.
CONFESSION AND AVOIDANCE: this is a type of averment in the SOD where the
defendant admits an allegation in the SOC, but proceeds to avoid the legal
consequences by alleging new facts which give an entirely different consequence to
such admission and the new facts may constitute a defence to a particular allegation or
to the entire action. The burden of proving the new facts rests on the defendant.
 Example slander of calling one a prostitute. The defendant can admit that yes he
called her a prostitute and plead justification to such slanderous words.
 Second example: Detinue which is unlawful withholding the property of another.
Admit such but aver that the defendant has lien over the goods.
 License to trespass because the defendant was put in possession
 Defence of illegality to contract.
DRAFT
1) THE DEFENDANT ADMITS THAT THE PLAINTIFF’S GOODS
WHERE UNLAWFUL WITHHELD BUT THE DEFENDANT AVERS
THAT THE DEFENDANT HAS A LIEN OVER THE GOODS.
2) THE DEFENDANT ADMITS THAT THE PLAINTIFF WAS EVICTED
WITHOUT A LAWFUL COURT ORDER BUT THE DEFENDANT
AVERS THAT THE PLAINTIFF WAS A TRESPASSER.
OBJECTION ON POINTS OF LAW: this could be through preliminary objections or

proceedings in lieu of demurrer – Order 22 ABJ and Order 22 LAG. This is an
application inviting the court to determine a point of law before trial. It could be when the
action is statute barred, jurisdiction, locus standi, etc.
SET-OFF: it is a shield not a sword. FIRST BANK PLC V I.A.S.C.A Ltd.
This applies solely to monetary claims. It is a monetary claim by the defendant against
the plaintiff/claimant which the defendant raises as a defence to an equally monetary
claim by the plaintiff. See Order 23 r 16 & 33 Abuja; Order 17 r 6 Lagos.
The defendant cannot use a set off in an action for a declaratory relief only. It can only
be used where there are monetary claims.
The effect of a set off is that if it succeeds, it mitigates the defendant’s liability to the
amount of the set-off. That is, it reduces the plaintiff’s claim by the amount of the set off.
Page 141 of 389

The parties must be the same and it must be specifically pleaded.ORDER 15 R1(2)
LAGOS
Where the amount of the set off exceeds the amount claimed by the plaintiff, the court
may enter judgment for the balance in favour of the plaintiff. See Order 23 r 34 Abuja
and Order 17 r 12 Lagos.
The set off can only be raised against the plaintiff personally. Thus, if the set off is a debt
or damages accruing to the defendant from the plaintiff in a representative capacity, the
defendant cannot plead it against the plaintiff in a personal capacity. Similarly, where the
debt accrues to the defendant in a representative capacity, he cannot claim it against the
plaintiff in a personal capacity.
A set off is a CROSS CLAIM. Thus, its life is tied to that of the substantive suit. Where
the substantive suit dies, the set off also dies or fails or abates. This must be distinguished
from a counter claim which is a CROSS ACTION.
COUNTER-CLAIM: Order 15 r 1(2) Lagos
Note limited to monetary claims.
Other parties can be added to a counter claim unlike a set- off.
A CC is by nature, a CROSS ACTION raised in the defendant’s SOD against the

plaintiff. That is a counter claim shall have the effect as a cross action so as to enable the
court pronounce a final judgment in the same proceedings. See Order 15 r 1(2) Lagos.
A counter claim is an independent action which for convenience of procedure is

combined in another action. It is not a defence, by an action itself. Accordingly, as an
independent action or a cross action, the fate of a counter claim does not depend on the
substantive suit or claim. The counter claim may still proceed even if the substantive suit
or claim has been withdrawn, dismissed or struck out. See GOWON v. IKE-OKONGWU
(2003) 104 LRCN 10.
The guiding rule of a counter cliam is that it must be an action in which the defendant
himself can sue as plaintiff. The plaintiff in the substantive action must be a defendant to
the counter claim. It is possible to include persons who are not parties to the substantive
suit in the counter-claim.
A counter claim must be in respect of a cause of action accruing to the defendant at the
time of or prior to the issuance of the writ. If it accrues after the issuance of the writ, it
will not be allowed. See GOWON v. IKE-OKONGWU (2003) 104 LRCN 10 where the
Page 142 of 389

Supreme Court held that a counter claim, the cause of action of which did not exist at the
date of issue of the writ cannot be allowed.
A counter claim is available for all actions and for all claims, whether in law or in equity,
whether arising from the same transaction or the same series of transactions or not. See
Order 23 r 16 Abuja and Order 17 r 6, 7 and 8-11 Lagos.
Since a counter claim is a cross-action raised in the statement of defence in the

substantive action, it must be one capable of being tried in the same action and by the
same court. If the matter is being tried by the High Court, the counter claim should not
allege facts that vest jurisdiction on the FHC. In such a case, the court may strike
out the counter claim for lack of jurisdiction or it may order separate actions as the
justice of the case may demand.
Since the counter claim is a cross action, the defendant occupies the same position as the
plaintiff as far as the counter claim is concerned. It must be pleaded separately, and in
separate paragraphs in the statement of defence. It must also contain a prayer or relief;
otherwise it would be deemed to have been abandoned. See ISICHEI v. ALLAGOA.
REPLY: this is the second pleading usually filed by the plaintiff when new issues arises
from the defendant’s statement of defense which new issues were not originally
contained in the claimant in the statement of claim. If the defendant fails to file a reply to
respond to the new issues, he will be deemed to have admitted them and will not be
allowed to lead evidence in rebuttal of them during the trial. See SPASCO v. ALRAINE
A reply is not filed as a matter of course. This is because the rule is that when there is no
new issue in the statement of defense, then there is no need to file a reply. See; MBA v.
AGU; OBOT v. CBN.
Another reason why a reply is not filed as a matter of course is because of the IMPLIED
JOINDER OF ISSUES under Order 23 r 10(1) Abuja.
Of all the types of pleadings, the rules expressly provides that there shall be no express or
implied joinder of issues on a statement of claim or counter claim. See Order 23 r 10(4)
Abuja.
The traverse in a reply is drafted thus:
“The plaintiff joins issues with the defendant upon his defence”
“The plaintiff joins issues with the defendant upon paragraphs …..”
Defense to counter-claim: this is filed by the plaintiff in reply to the defendant’s counter-
claim. Failure to file it means that plaintiff has admitted the facts contained in the
Page 143 of 389
counter-claim. Statement of defense and counter-claim are contained in one document.

Also the reply and defense to counter-claim is contained in one document.
A reply may also contain a defence to a counter claim or set off. In such a situation, it is
headed: “REPLY AND DEFENCE TO COUNTER CLAIM OR SET OFF”. It shall in
separate paragraphed parts of the same document. Numbering continues after appropriate
heading.
The time for filing reply in Abuja is confusing. It could either 7days or 14days after
receiving service of statement of defence and or Counter Claim.. See Order 23 r 3(1) &
(4) Abuja
In Lagos, it is filed within 14days after the service of the statement of defence. See Order
18 r 1 Lagos.
TIME FOR FILING PLEADINGS
ABUJA
The statement of claim filed along with the writ of summons, except a court grant leave
to the contrary. See Order 23 r 1 and Order 4 r 15 Abuja
By Order 23 r 2(1) Abuja, the Statement of Defense and Counter-Claim, if any, is filed
within 14 days after the service of the statement of claim and writ of summons. The
statement of defence must be accompanied by:
 Copies of documents mentioned in the statement of defence to be used in

evidence
 Written statement on oath of the witnesses
 Certificate of pre-action counselling
Reply and defense to counter-claim:
By Order 23 r 3(1) Abuja, a Reply, by itself, must be filed within 7 days after service of
statement of defense.
By Order 23 r 3(4) Abuja, if serving both Reply and Defense to Counter-Claim it is

within 14 days after service of statement of defense and counter-claim on him –
Order 23 r 3(4) Abuja.
LAGOS
Page 144 of 389

Statement of claim is filed by the claimant along with the writ of summons. See Order 3 r
2(1) Lagos.
Statement of defense and counter claim, if any, is filed by the defendant within 42 days
after being served with writ of summons and statement of claim – Order 15 r 1(2) Lagos.
Reply and/or defense to counter-claim is filed within 14 days after service of statement of
defense and counter-claim – Order 15 r 1(3) Lagos and ORDER 18 R 1 LAGOS.
EXTENSION OF TIME
Note that by the provisions of Order 20 r 3 Abuja and Order 44 r 4 Lagos, the court
may in its discretion extend the time for filing pleading if an application for
extension of time by way of motion on notice, affidavit and written address is filed,
disclosing cogent reasons for failure to file and exchange pleadings within time. Note
that in Lagos, by Order 44 r 4 Lagos, the defaulting party shall also pay default fees
of #200 naira for each day of the default.
Note that the time for filing, service and exchange of pleadings does not run during the
periods of vacation of the courts, except if the court orders otherwise. See Order 47
r 6 Abuja, Order 45 r 6 Lagos.
Default of pleadings
Default of statement of claim
In Lagos, where the plaintiff fails to file statement and other accompanying document
with the originating process, then by Order 3 r 2(2) Lagos, the writ of summons will not
be accepted for filing at the Registry. Even if erroneously accepted, court may strike it
out. See JABITHA v. ONIKOYI. Further, by Order 5 r 1 Lagos, the failure to file the
SOC along with the writ may nullify the action.
In Abuja, the rules are silent on the effect of failure to file the SOC within time, but
argued that it will have the same effect as in Lagos.
In both Lagos and Abuja, by Order 25 r 1 Abuja and Order 20 r 1 Lagos, where the
claim is for the recovery of debt or a liquidated money demand and the defendant
fails or defaults to file his statement of defence, then the plaintiff can apply for default
judgment.
However, if the claim is for recovery of money or for an unliquidated money

demand, and the defendant defaults, the plaintiff or claimant cannot apply for default
judgment, but will apply to SET THE MATTER DOWN FOR TRIAL.
Page 145 of 389

Note that the party in default can always bring an application for extension of time within
which to file his pleadings pursuant to Order 20 r 3 Abuja and Order 44 r 4 Lagos
Pleadings filed out of time and/or without the leave of court is only voidable and not
void thus can only be set aside by way of timeous objection by the other party. See
UBA Ltd &ors v. Nwora.
When there is motion for extension of time for filing pleadings and another motion for
default judgment, the court will hear that of extension first. In NALSA & TEAM ASS. V.
NNPCe Indeed, invariably in practice, the motion to summarily dismiss or strike out
the appeal is withdrawn and the applicant compensated with costs. This is in accord
with the rule that the courts are now expected to do substantial and not technical
justice.
AS A LAWYER, WHEN PRACTICING, DO NOT OPPOSE TO A MOTION FOR

EXTENSION OF TIME, rather ask for costs.
CLOSE OF PLEADINGS – Order 23 r 35 Abuja and Order 15 r 19 Lagos.
This is the stage at which pleadings are no longer allowed except with the leave of
court. The close of pleadings is very important because it is at that stage that the issues
would be deemed to have been joined between the parties. That is, at the close of
pleadings, the parties would be said to have joined issues.
Pleadings are deemed to have closed when the time provided for in the rules have lapsed.
In Abuja, by Order 23 r 35(1) Abuja, pleadings are deemed closed
o At the expiration of 14 days after service of the reply and or Defence to counter
claim, after service of the state of defence
o If no reply or defence to counter clam is served, at the expiration of 14 days after
service of the defence.
LAGOS
o In Lagos, by Order 15 r 19(1) Lagos, where the defendant fails to file a statement
of defence within the forty two (42) days prescribed by the Rules, pleadings shall
be deemed closed.
By Order 15 r 19(2) Lagos, pleadings will be deemed to be closed on the expiration of

7days from the service of a Reply or Statement of defence as the case may be.
Page 146 of 389

However, in the case of a counter claim, unless the claimant files a defence to the
Counter Claim, then on the expiration of 14 days after the service of the counter
claim or such other time as the court may allow for filing Reply thereto, the facts
contained in the counter claim shall be deemed to have been admitted.
But, the court may, at any subsequent time, give leave to the claimant to file a Reply.
If a pleading subsequent to a Reply is ordered, then pleadings shall be deemed closed on

the expiration of the time limited by the court for doing so.
Where pleadings have closed, the only way the defendant or claimant can re-open
same is by an application for extension of time.
NOTE THAT IN ABUJA, THERE IS IMPLIED JOINDER OF ISSUES UNDER

ORDER 23 R 10 ABUJA
Under Order 23 r 10 Abuja, the principles under the implied joinder of issues are:
 Where there is no Reply to a defence, there is an implied joinder of issues on that

defence. See Order 23 r 10(1) Abuja.
 At the close of pleadings, there is an implied joinder of issues on the pleading last
served. See Order 23 r 10(2)(a) Abuja
 There shall be no joinder of issues, whether implied or express, on a statement of
claim or counter claim. See Order 23 r 10(3) Abuja
AMENDMENT OF PLEADINGS – Order 24 Abuja and Order 24 Lagos
The amendment of pleadings is more like an exception to the rule that parties are bound
by their pleadings because they can always amend their pleadings.. The issue of
amendment is to allow the court to determine the real issue between the parties in the
interest of justice subject to the rules of the court. , OJA V OGBONI.
PROCEDURE FOR AMENDMENT-ORDER 24 R 2 LAGOS
Motion on notice, supported by a written address, and affidavit and the proposed
amendment attached as an exhibit.ORDER 24 R 2 LAGOS.
Instances where amendment would be allowed
 Where the amendment sought is necessary for the purpose for the purpose of
determining the real questions or issues raised in the proceedings. This is because
the purpose of amendment is to assist the court to determine the real issue
Page 147 of 389
between the parties in the interest of justice subject to the rules of the court.
AKANINWO v. NSIRIM (2008) ALL FWLR (Pt. 410) 610 SC.
 Where the amendment would aid or serve substantial justice. See AJA v
OGBONI; ADEKEYE v. AKIN-OLUGBADE
 It will settle the controversy between the parties and related issues.
 When it will bring pleadings in line with evidence already adduced and on the
record. See SPDC v AMBAH (1999) 2 SCNJ 152; EDOIGIAWERIE v.
AIDEYAN
 To introduce a claim or relief that is covered by evidence and does not go outside
the cause of action. See IBANGA v. USANGA. This is common in reliefs that go
together in a cause of action. In land matters, a claimant is expected to
seek declaration of title to land, damages for trespass and
perpetual injunction against further acts of trespass. If one of the
above claims is missing, the court would readily grant amendment
to pleading in order to avoid/prevent multiplicity of actions.
 To correct a misnomer in the name of parties to the suit. For instance, if PLC is
omitted from a public company’s name, amendment can be sought to reflect this.
Or to reflect the capacity of a party. See OTAPO v. SUNMONU; OKECHUKWU
& ORS v. NDAH
Oninstanceswhereamendmentmaybeallowed, seegenerally BANK OF BARODA v.

CHEC FOR THE OTHER PARTY.
Instances where an amendment may be refused:
 Amendment will be refused where it would present a completely different case or

cause injustice to the other party or where the application is brought mala fide.
See BAMISIEBI v. OTE (1995) 8 NWLR (Pt. 411) 9; IWEKA v. SCOA (2000) 3
SCNJ 71
 When it will necessitate the hearing of fresh or further oral evidence, especially
on appeal.
 Where it will not cure the defects in the pleading or procedure sought to be
amended
 Where it is inconsistent and useless.
 Where it would amount to overreaching the other party or an abuse of court
process.AKININWO V NSIRIM
 Where the amendment is immaterial. See AWACHIE v. CHIME
 Where the amendment seeks to include facts not in existence at the time of
commencement or time of initial filing of pleadings. This is because amendment
Page 148 of 389
is retroactive and relates back to date of commencement of proceedings. See

GOWON v. IKE-OKONGWU
 Statute barred claim. An amendment will not be allowed where it would include a
statute barred claim. Thus, in an action limited by statute, the amendment must be
made within and not outside the limitation period. If the amendment is after the
the limitation period, it will not be allowed. See OSEYOMON v. OJO; ROTIMI
v. MCGREGOR
 An amendment will not be allowed where it will operate to change the cause of
action. OKOLO v. UBN (1999) 6 SCNJ 193
Stages of amendment: when can an amendment be made?ORDER 24 R 1 LAGOS

AND ABUJA
In Lagos, by Order 24 r 1 Lagos, a party may amend his originating process and
pleadings at any time before the close of CMC and not more than twice during the
trial before judgment. Thus, in Lagos, either party can amend any number of times
before close of CMC, but only twice during trial and before judgment
In Abuja, by Order 24 r 1 Abuja, an amendment to the pleadings can be made by

either party at any time during the trial, but before judgment. See OKAFOR v.
IKEANYI. The amendment is on such terms as to cost or as may be just. In Abuja,
even though it is at any time before judgment, late application is one of the grounds
for denial of application.
Note that the judge has the general power to amend any proceedings at any time for
the purpose of determining the real question or issue between the parties.
Mode/procedure for amendment
Note that there are two ways of bringing application to amend:
a) Oral application. See LAWAL v. AREA PLANNING AUTHORITY. Used to

amend minor typographical errors, if the other party does not object
b) By motion on notice… see below. Used for substantial amendments which may
involve objections and consequential amendments.
By Order 24 r 2 Lagos and Order 24 r 3 Abuja, the procedure is by application on notice.

That is, motion on notice supported by affidavit stating the grounds for amendment and
written address. AND THE PROPOSED AMENDMENT ATTACHED AS EXHIBIT.
Page 149 of 389
In Lagos, the application should also have the following attached
 The proposed amendment must be attached as exhibit in the affidavit. See Order
24 r 2 Lagos
 List of additional witnesses, if any
 Written statements on oath of the additional witnesses, if any
 Further written statements on oath of existing witnesses, if necessary
 Copy of any document to be relied on, if any..
See Order 24 r 3 Lagos.
Note that in both Lagos and Abuja, the proposed amendment should be attached to the
affidavit, highlighting or underlining the areas of the amendments made or being sought
to be made. The amended copy is headed as attached to the affidavit is headed:
‘PROPOSED AMENDED STATEMENT OF CLAIM/ DEFENCE
When amendment is minimal, the amendment can be added in the motion paper. There
can be oral application for typographical error (error in sum claim). Lawal v. Area
Planning Authority.
In Lagos and Abuja, by Order 24 r 4 Abuja and Order 24 r 4 Lagos, a party who has
obtained an order for leave to amend his pleading must amend the pleadings within the
time specified for that purpose and if no time limit was prescribed, then within seven (7)
days from the date of the Order. By those same provisions, in Abuja, the effect of
failure to comply is that the order of leave to amend shall become VOID, unless the
time is extended by the court. However in Lagos, the effect of failure to comply is
that the defaulting party shall pay a default fee of #200 for each day of the default.
See Order 24 r 4 Lagos and Order 24 r 4 Abuja.
In Lagos and Abuja, by Order 24 r 5 Abuja and Order 24 r 5 Lagos, upon amendment, a
copy of the amended pleading is to be filed in the Registry and additional copies served
on all the parties to the action. These, including the endorsing of the pleading as
amended, are the post amendment procedures.
In Lagos and Abuja, by Order 24 r 6 Abuja and Order 24 r 6 Lagos, after the amendment,
the amended pleading shall be endorsed as follows:
“AMENDED ________________ DAY OF _________________, ____________

PURSUANT TO THE ORDER OF (name of judge) ____ dated the day
________ day of ___________, ___________”
Page 150 of 389

EFFECT OF AMENDMENT OF PLEADINGS:
An amendment is retrospective and relates back to the date of the original

document amended. So, once amended, it is the amended pleadings that define the
issues between the parties. See KATTO v. CBN (1999) 5 SCNJ 1; AGBAHOMOVO
v. EDUYEGBE (1999) 2 SCNJ 94; OYINLOYE v. ESINKIN (1999) 6 SCNJ 278
It would be wrong for a judge to base his findings on facts contained in a pleading that
has been amended.
A judge may at any time correct clerical mistakes in judgments or orders or errors arising
from any accidental slip or omission upon application. .
An amendment is retrospective in that it refers to the original pleading. Only facts in

existence at the date of original pleading can be contained in the amended one. For
instance, pleadings filed in 1st January 2012, and amended in 31st December 2012 will
be deemed to have been in existence in 1st January 2012. Only facts that were in
existence in 1st January 2012 can be brought in. See Oguma v. Ibera (1988) 73. Gowon
v. Ike Okongwu, the court stated that it is the law that an amendment relates back to the
original pleading and the amendment sought to be filed in this case seeks to incorporate a
cause of action which arose after the statement of defense was filed. Such an amendment
generally should not be allowed.
Under Order 24 r 4 ABJ, amendment is to be done within the time limited for the purpose
if no time limit within 7 days from the date of order for amendment. Under Order 24 r 4
LAG, amendment is within time limited, if none, within 7 days from date of amendment
order. The effect of failure to amend in Lagos is an additional fee of N200 for each day of
default. In Abuja, the amendment order would become void unless the time is
extended further by the court. Every amended pleading must have endorsement of
amendment on it. Order 24 r 6 ABJ and Order 24 r 6 LAG - whenever any pleading is
amended, it shall be marked in the following manner.
"Amended ____________day of_______________ pursuant to order of (name of judge)

dated the day___________of __________"
The amended pleading must be filed in the registry and additional copies filed on all the
parties to the action. Order 24 r 5 LAG and Order 24 r 5 ABJ.
Question: state the procedure after an order for amendment has been given.
Page 151 of 389

Answer: endorse it as amended…., file in the court’s registry and serve on all
parties.
The place of endorsement must be either at the top or foot of the front page of the
amended pleading.
When an order for amendment is made, cost is usually given to the other party.
GENERAL DRAFTING SKILLS
In a statement of defense, do not use THAT. It is for affidavit use - the claimant avers
that, the claimant states or the claimant shall.
For exam purpose, general traverse should be at the beginning and it can be numbered or
not numbered. Every paragraph in statement of claim must be accounted for in statement
of defense. All paragraphs admitted in statement of defense from statement of claim
must be in one paragraph. Note that pleadings are allegation of facts while affidavit is
evidence. The first paragraph of counter-claim is likely to incorporate paragraph in
statement of defense, if this is not done, the facts in statement of defense cannot be relied
upon in counter-claim. There should be consistency in parties’ names. Pleadings are
settled when pleadings are no longer exchanged by the parties. Pleadings are deemed to
have been closed when the time limit for filing and exchanging pleadings have elapse –
14 days (Abuja) and 7 days & 42 days (Lagos)
FINALLY, numbering of counter claim should continue from numbering of SOD and
incorporate the relevant facts in the SOD as follows:
“THE DEFENDANT REPEATS PARAGRAPH ……. OF THE SOD”
WEEK 10
PRE-TRIAL AND TRIAL PROCEEDINGS
 Steps that may be taken after filing of pleadings before trial:

a. Proceedings in lieu of demurrer
b. Striking out of pleadings
c. Consolidation & deconsolidation of action
d. Interrogatories, discovery and inspection of documents
e. Notice to admit
f. Settlement of issues
Page 152 of 389
g. Case management conference

h. Withdrawal or discontinuance of action
Some of these issues in Lagos are taken before trial at the CMC. In Abuja, these
proceedings may be taken at any time before judgement is given.
It is pertinent to mention that some of these applications may terminate the

proceedings before trial. Such include Notice to admit, case management
conference, striking out of pleadings, withdrawal or discontinuance of action.
PROCEEDINGS IN LIEU OF DEMURRER – Order 22 Abuja and Order 22 Lagos
 What is demurrer? A defendant has been served the originating processes

and he is raising a point of law to object the action because the SOC does not
disclose a reasonable cause of action or although the facts are true, no case
can be made against the defendant.
 This could also be an objection as to non compliance with a condition
precedent. Demurrer must be brought before the defendant files his
statement of defence or take any step in the proceedings.
Demurrer means to stay, wait, object or hesitate. By this procedure, a party who has a
point of law would contend that assuming the facts contained in the pleadings of the other
party were true, it does not disclose any cause of action or defence in law. That is, the
defendant would contend that looking only at the SOC and admitting and accepting all
the facts in the SOC as true, but the facts are unsustainable in law or are insufficient to
sustain the plaintiff case and on the basis of it, the defendant applies for the plaintiffs case
to be dismissed. See BOOTHIA v. FAR EAST MERCANTILE CO LTD
Demurrer was for defendants only to attack the SOC only and for the purpose of the
demurrer the defendant was deemed to have admitted the facts in the statement of claim
and no evidence of fact is allowed during the application. For demurrer to be allowed, the
defendant must not have filed a SOD before bringing his application. It is only the facts
in the SOD that are considered. Thus, no affidavit should accompany the application for
demurrer. In other words, if a defendant files a statement of defence, no demurrer would
be allowed and he would asked to proceed to trial, even though he may still raise those
points at trial. Upon hearing the demurrer, the court may dismiss the case or order the
defendant to answer the plaintiff’s case or other order.
DEMURRER HAS BEEN ABOLISHED. See Order 22 r 1 of both Lagos and Abuja
which provide that no demurrer shall be allowed. Instead, what exists now is a
proceeding in lieu of demurrer.
Page 153 of 389

Now, under Order 22 r 2(1) of both Lagos and Abuja, any of the parties, whether plaintiff
or defendant may by his pleadings, raise any point of law which shall be disposed of by
the trial judge before or at the trial.
By Order 22 r 2(2) Lagos and Order 22 r 3 Abuja, where the judge is of the opinion that
the decision on the point of law substantially disposes of the whole action or any part of
it, the court may make such order as may be just or dismiss the action. (The part of
dismissing the action applies only to Abuja.)
Although the rules abolished demurrer, they did not abolish preliminary objections on
points of law. They replaced demurrer with proceedings in lieu of demurrer. Thus, the
defendant may still raise preliminary objections before pleadings are exchanged
especially on grounds of substantive jurisdiction. This is because jurisdiction is not
procedural as it goes to the root of the action. Kotoye v saraki
Under the old rules of court, there was a procedure known as DEMURRER. This is
where the defendant admits all averments in the plaintiff’s statement of claim and without
filing any pleadings, raises a point of law that would settle the issue. For instance, in a
suit for breach of contract, once the defendant successfully prove that 6 years limitation
period has elapse, that would dismiss the plaintiff’s action. However, under the new
rules, demurrer is expressly prohibited and in its place is a proceeding in lieu of demurrer
– Order 22 r 1 LAG and Order 22 r 1 ABJ. Thus a point of law can only be raised
either along with the pleading (statement of defense) of which can be dispose of
either before or at the trial – Order 22 r 2(1) LAG & ABJ. In this like, statement of
defense can just be few paragraphs with points of law raised in it. In practice, there
is only one exception which is, if the substantive jurisdiction of the court is challenge
which is revealed on the face of the pleading (statement of claim). If the point of law
in the opinion of the judge dispose of the whole proceeding, he can make an order
dismissing the suit (Abuja) or any decision as may be just (both) – Order 22 r 3 ABJ
and Order 22 r 2(2) LAG. In Lagos rules – Order 22 r 3 LAG, the fact that the
defendant must file his pleading before raising the point of law is extant in spite of
the provision of the Arbitration Act or Law. Section 5 of the ACA allows a party to
an arbitration agreement to file for stay of proceeding without filing his statement of
defense. Under Order 22 r 3 LAG, a defendant applying for a stay of proceeding
must file his statement of defense or other statement of case on the merits. In
preliminary objection, no need to file pleadings. This is when the objection is on the
processes filed by the claimant.
Page 154 of 389

STRIKING OUT OF PLEADINGS - order 23 r 20 Abuja, Order 15 r 16(1) AND R

18 Lagos
Order 22 r 4 & Order 23 r 20 Abuja and Order 15 r 18(1) Lagos provide that a pleading,
will be struck out in any of the following instances:
 Where a pleading discloses no reasonable cause of action or defense

 Where a pleading is frivolous, scandalous or vexatious; or
 Where a pleading may prejudice, embarrass or delay the fair trial of the action
(Lagos only)
 Where a pleading is otherwise an abuse of the process of the court
Where the pleading discloses no reasonable cause of action or defence
A pleading discloses no reasonable cause of action if it is such that no one can understand
the claim or defence which it seeks to establish or where it is unsustainable, unarguable
and incontestably bad. See TIKATORES PRESS LTD v. UMAR.
However, if the allegations in the pleading show a real controversy that is capable of
leading to the grant of a relief, then the pleading cannot rightly be said to disclose no
reasonable cause of action. The weakness of the case is not a relevant consideration when
the question is whether or not the pleading (SOC or SOD) has disclosed a reasonable
cause of action. Thus, no matter how weak the case of party may appear on the pleading,
so long as it raises some issues capable of being considered by the court, it would be held
to have disclosed a reasonable cause of action or defence. See MOBIL PRODUCING
(NIG) ULTD v LASEPA, SPDC V ONASANYA
Abuse of court process
There is an abuse of court process when a party improperly uses the issue of the judicial
process to the irritation and annoyance of his opponent, such as instituting a multiplicity
of actions on the same subject matter against the same opponent on the same
issues.IKINE V EDJERODE..
Frivolous, scandalous and vexatious
A paragraph in pleading may be scandalous, that is untrue or vexatious – annoying.

Pleadings may prejudice, and delay the fair trial of the action. Also pleadings may be an
abuse of the process of court. This is where the party is using the machinery of justice for
other things (multiplicity of actions). Where the pleadings are found to be either of the
foregoing, the court can dismiss, stay proceedings or enter judgment accordingly – Order
22 r 4 ABJ AND 23 RULE 20 and Order 15 r 18(1)(a)-(d) LAG. Where the claimant’s
statement of claim discloses no reasonable cause of action, the defendant can apply for an
Page 155 of 389
order dismissing the claim. Where the defendant’s statement of defense discloses no
reasonable defense, the plaintiff or claimant can apply for judgment to be entered for him.
Where the statement of claim is an abuse of court process, the defendant can apply for an
order staying proceedings or dismissal. If paragraph instatement of defense or statement
of claim is scandalous, embarrassing, vexatious, application can be for the paragraphs to
be struck out.
Procedure
Under Lagos rules, application may be made under Order 15 r 16 relating to case
management conference stage. Also under Order 15 r 18 relating to trial stage, under the
Order 23 r 20 ABJ. Under the above rules, application is by way of motion on notice
supported by affidavit setting out the grounds upon which the order is asked for. And
written Address.
CONSOLIDATION
ORDER 37 RULE 7(1) AND (2) LAGOS, ORDER 32 R 7(1) ABUJA.
IT IS THE PROCEDURE, WHEREBY TWO OR MORE SUITS ARE TRIED

TOGETHER IN ONE PROCEEDING. Consolidation is the process whereby two or
more actions pending before a court but within the same jurisdiction are by order of
court, joined and tried together at the same time.
Order 37 R7 of LAAGOS PROVIDES THUS;
(1) the judge may on application of either party consolidate several actions pending
before him where it appears that the issues are the same in all the actions, and can
be tried properly and determined at the same time.
(2) Where actions are pending before different judges, a party desiring shall first
apply to the chief judge for transfer of the matter to a judge before whom one of
the matters is pending.
Same provision holds sway in Abuja, save that there is no provision for a party desiring
consolidation to first apply to the chief judge for the matter to be transferred before
making an application to the judge to consolidate the actions.
CONDITIONS TO SATISFY UPON APPLICATION FOR CONSOLIDATION
 That there are two or more actions between the same plaintiff and the same
defendant.
 That the actions are pending before the same high court, but different judges.
Page 156 of 389

 That some of the issues in the action are common and can be properly. Tried and
determined at the same time.
 The reliefs claimed arise out of the same transaction.
ADVANTAGE OF CONSOLIDATION
 It saves time
 It saves cost of litigation.
 Speedy dispensation of trial
DIAB NASR V COMPLETE HOME ENTERPRISES(NIG.)LTD.
EFFECT OF CONSOLIDATION
As soon as a suit is consolidated, apart from the fact that the suits retain their
individualities, in terms of claims, the consolidated suit assumes a new character to the
extent that the judge before who the consolidated suits are tried assumes full control of
the proceedings.
MODE OF APPLICATION FOR CONSOLIDATION
LAGOS
BY Motion on Notice pursuant to Order 39.
ABUJA
It could be either of the following ways PURSUANT TO ORDER 32 R 7(4) ABUJA:
 Summons
 NOTICE FOR DIRECTIONS IN CHAMBERS
 MOTION ON NOTICE.
VERDICT OF THE COURT IN CONSOLIDATED ACTIONS
Where a judge hears consolidated actions, he must deliver judgements in each of the
suits. Where he delivers one judgement in respect of all, he would be wrong as in KALU
V CHIMA.
APPEALS FROM CONSOLIDATED SUITS
 Where judgement is delivered and a party is not satisfied with the judgement, he
may appeal against the judgement as it affects him in one consolidated suits. He
need not appeal against all the cases consolidated unless his complaints cover all
the other cases. KALU V CHIMA.
Page 157 of 389
DECONSOLIDATION
To deconsolidate means to separate suits that have already been consolidated, for the
purposes of having the suits tried differently. This usually happens where the
consolidation was done in error or when it is found out that the consolidation ought not
have been done in the first place,
Any of the parties can apply for deconsolidation, the judge may suo motu order the
deconsolidation of the suits in the interest of justice.
SETTLEMENT OF ISSUES – Order 27 r 1 Lagos, and Order 33 Abuja.
After pleadings have been filed and exchanged, which is settlement of pleadings, parties
can join issues. Parties join issues when there is a positive averment and a positive
contradiction to the averment that is when there are contrary views or dispute as to facts.
WHEN IT IS SAID THAT PARTIES HAVE SETTLED ISSUES, the parties have
agreed on the cardinal issues a for trial before the court.
In Lagos, settlement of issues is one of the cardinal agenda during case management
conference. Order 27 r 1(1) Lagos provides that in all proceedings, issues of facts in
dispute shall be defined by each party and filed within 7 days after close of pleadings. By
Order 27 r 1 (2) Lagos, if parties differ on the issues, the case management judge may
settle the issues.
In Abuja, by Order 33 r 1 Abuja, within 14days after the conclusion of pleadings, parties
are to submit, in writing to the Registrar, the material questions in controversy between
them in the form of issues which shall be noted by the court and set down for trial. Where
it appears necessary, the court can amend or frame additional issues – Order 33 r 5 ABJ.
Note that in Lagos, settlement of issues is restricted to issues of facts only, while there is
no such restriction in Abuja. See Order 27 r 1 Lagos and Order 33 r 1 Abuja.
What will the court do if the parties fail to settle issues? By Order 33 r 2 Abuja, where a
party fail to settle issues, the court may proceed to set the matter down for hearing upon
the issues submitted by the other party. Where both parties fail to settle issues, then by
Order 33 r 3 Abuja, the court shall give notice to the parties to attend the settlement of
issues.
Settlement of issues save time and helps the parties and the court to concentrate.
When are issues said to be settled? Issues are said to have been settled when they have
been clearly defined by the court in line with the points of disputes raised between the
parties.
Page 158 of 389
ADVANTAGES
 IT narrows down the disputes in issue.

 For speedy determination of cases.
DISCOVERY OF FACTS AND DOCUMENTS
Sometimes, certain facts or documents necessary for the proof of the case or defence may
be within the exclusive knowledge or possession of the opponent. To be able to get such
facts or documents to assist a party in preparing his case or defence, and for the purpose
of knowing the extent to which the fact or document support the case of the opponent, a
party is empowered to:
a) Cause his opponent to disclose to him certain facts by answering questions posed
to him in the form of interrogatories.
b) Cause his opponent to disclose to him material documents in the possession of the
opponent before the trial so that he can inspect them and make copies of same, if
necessary for his case. This involves production and inspection of documents.
The foregoing procedures are called discoveries. From the above, there are two types of
discovery:
 Discovery of facts (called interrogatories)

 Discovery of documents, which include the production and inspection of
documents.
1) DISCOVERY OF FACTS (INTERROGATORIES or discovery by

interrogatories) Order 30 r 1 Abuja and Order 26 r 1 Lagos.
Discovery of facts are done by way of interrogatories as facts are extracted through
questions. It is provided for under Order 30 r 1 Abuja and Order 26 r 1 Lagos. Before
going into the detailed procedures, note the following:
 In Abuja, leave of court is required to be delivered interrogatories, see Order 30 r

1 Abuja. While in Lagos, there is no need for leave of court to file and serve
interrogatories. See Order 26 r 1 Lagos.
 In Abuja, the application for leave to deliver interrogatories is by way of
MOTION ON NOTICE or SUMMONS, to which must be attached a copy of the
proposed interrogatory and must be filed and delivered at least two (2) clear days
before the hearing of same unless the court directs otherwise. See Order 30 r 2(1)
Abuja.
Page 159 of 389
 In Abuja, interrogatories is in Form 30 , while in Lagos interrogatories are as in

Form 19
 The stage or time for filing interrogatories or for applying for same. In Abuja, by
Order 30 r 1 Abuja, it is to be served after the close of pleadings. Thus, there is no
time limit in Abuja. In Lagos, by Order 26 r 1 Lagos, interrogatories shall be
delivered within seven (7) days of the close of pleadings and shall form part of the
agenda of the CMC.
 Interrogatories are either to extract facts or to cause the opponent to admit facts.
See FAMUYIDE v. IRVING & CO LTD
 By Order 30 r 1 of Abuja, an interrogatory which does not relate to any question
in the cause or matter shall be deemed irrelevant.
 Interrogatories must be relevant to the case at hand and must be admissible,
otherwise, it will not be allowed. See ABUBAKAR v. YAR’ADUA; ONYUIKE
v. VOICE OF THE PEOLE LTD. Therefore, interrogatories will not be allowed
in the following instances/ the following matters will not be allowed on
interrogatories:
o Interrogatories or matters relating to the credibility of witnesses
o Interrogatories or matters relating to the evidence of the interrogated party
o Interrogatories or matters relating to the contents of documents
o Fishing interrogatories
o Scandalous questions
o Questions that are in form of cross examination
o Oppressive interrogatories. See FAMUYIDE v. IRVING & CO LTD.
In Lagos and Abuja an objection can be taken to answering any such interrogatory on the
ground that they are irrelevant. By Order 26 r 4 Lagos, an objection to answering one or
more interrogatories on the ground that they are irrelevant or scandalous may be taken at
the CMC. In Abuja, by Order 30 r 7 Abuja, an objection to answering one or more
interrogatories on the ground that they are irrelevant or scandalous or not bona fide for
the purpose of the cause or matter or that the matter or that the matters inquired into are
not sufficiently material at that stage of the or on any other ground may be taken in the
affidavit in answer (answer to interrogatories).
 In Abuja and Lagos, interrogatories are answered by way of affidavits. See Order
30 r 5 Abuja and Order 26 r 5 Lagos. These affidavits are called answers to
interrogatories. By the said Order 30 r 5 Abuja and Order 26 r 5 Lagos, the
affidavit in answer to the interrogatories shall be filed within 5days for Abuja and
7days for Lagos or within such other time as the court or judge may allow, and
two (2) copies of the affidavit answer shall be supplied to the Registrar.
Page 160 of 389

 By Order 30 r 6 Abuja and Order 26 r 6 Lagos, the affidavit answer shall be as in

Form 31 for Abuja and Form 20 for Lagos.
 The consequences of failure to answer or answer fully to interrogatories are:
o Where he answers in part or insufficiently, court can order him to answer
fully. Order 30 r 8 Abuja, Order 26 r 7 Lagos.
o Where he fails or refuses to answer at all, in Lagos, he will be liable to
attachment. See Order 26 rr 11 & 12 Lagos. In Abuja, he shall be liable to
committal. That is, the court can order him to be committed to prison. See
Order 30 r 20(1) Abuja
o Further, by Order 30 r 20(2) Abuja, where the party who fails to answer
the interrogatories is the plaintiff, he shall be liable to have his action
dismissed for want of prosecution and if a defendant, he will have his
defence, if any, struck out.
Note that an order to answer or answer further is made where the party interrogated fails
to answer or answers insufficiently.
PROCEDURE FOR INTERROGATORIES IN ABUJA/DRAFTING
By Order 30 r 1 Abuja, after the close of pleadings on a matter a party may by leave of
court or a judge in chambers deliver interrogatories in writing anytime for the
examination of any other party or parties and such interrogatories when delivered shall
state which of such interrogatory each party is to answer. NOTE THAT interrogatories
which do not relate to any question in the cause shall be deemed irrelevant.
By Order 30 r 2 Abuja, application for leave is by motion on notice or summons and a

copy of the interrogatories must be must be attached to the application and shall be filed
and served at least two (2) clear days before the hearing, unless a judge dispenses with
this requirement.
By Order 30 r 3 Abuja, interrogatories shall be as in Form 30
By Order 30 r 5 Abuja, interrogatories shall be answered by affidavit to be filed within

5days of receipt of the interrogatories or within such other time as the court may allow
and two (2) copies of the affidavit shall be supplied to the Registrar. By Order 30 r 6, the
answer shall be as in Form 31.
By Order 30 r 7 Abuja, an objection to answering one or more interrogatories on the

ground that they are irrelevant or scandalous or not bona fide for the purpose of the cause
or matter or that the matter or that the matters inquired into are not sufficiently material at
that stage of the or on any other ground may be taken in the affidavit in answer (answer
to interrogatories).
Page 161 of 389
The consequences of failure to answer or answer fully to interrogatories are:
o Where he answers in part or insufficiently, court can order him to answer

fully. Order 30 r 8 Abuja, Order 26 r 7 Lagos.
o Where he fails or refuses to answer at all, in Lagos, he will be liable to
attachment. See Order 26 rr 11 & 12 Lagos. In Abuja, he shall be liable to
committal. That is, the court can order him to be committed to prison. See
Order 30 r 20(1) Abuja
o Further, by Order 30 r 20(2) Abuja, where the party who fails to answer
the interrogatories is the plaintiff, he shall be liable to have his action
dismissed for want of prosecution and if a defendant, he will have his
defence, if any, struck out.
In the regime of front loading of documents and statement of witnesses on oath, is

discovery still material? Parties only front load documents and facts that would help
his case and not those that will be against it. Thus, the regime of front loading have
not obviated discovery.
DRAFTING OF INTERROGATORY AND ANSWER TO SAME
NOTE THAT THE FORM OF AN INTERROGATORY AND THE ANSWER ARE

THE SAME IN ABUJA AND LAGOS. The draft is as follows:
ORDER 26 RULE 2 LAGOS/ ORDER 30 RULE 3 ABUJA
HOLDEN AT LAGOS.
SUIT NO
BETWEEN
KENNETH OKWOR ------------------------------------------- CLAIMANT
AND
1) JEFFERY OWHOR-CHUKU ------------------ DEFENDANT

2) EJIKE AYOGU ------------------------------------DEFENDANT
Page 162 of 389
INTERROGATORIES
Interrogatories on behalf of the above-named Claimant for the examination of the above
named defendants is hereby stated as follows:
1) Did you….?
2) How did you….?
3) When?
The first defendant is required to answer the interrogatories numbered in paragphs 1 and
3 above
The second defendant is required to answer the interrogatory numbered in paragraph 3

above.
_______________________
K.O.D. Okwor
Counsel to the claimant
Star chambers
No 5 Lekki Lagos
FOR SERVICE ON:
1) Jeffery OwhorChuku
C/o his counsel
2) EjikeAyogu
C/o his counsel.
PUT PROPER ADDRESSES FOR THEM.
ORDER 26 RULE 6/ORDER 30 RULE 6
HOLDEN AT LAGOS.
SUIT NO
BETWEEN
Page 163 of 389
KENNETH OKWOR ------------------------------------------- CLAIMANT/PLAINTIFF
AND
1) JEFFERY OWHOR-CHUKU ------------------ DEFENDANT

2) EJIKE AYOGU ------------------------------------DEFENDANT
ANSWERS TO INTERROGATORIES
The answer of the above named defendant Jeffery OwhorChuku to the interrogatories for
his examinantion by the above named claimant.
In answer to the said interrogatories, I, the above named Jeffery Owhor-chuku make oath
and state as follows:
1)……………
I, the above named defendant Jeffery Owhor-chuku do hereby solemnly swear by

Almighty God that this is my name and handwriting and that the facts deposed by me in
this affidavit are the truth, the whole truth and nothing but the truth.
_______________________
K.O. D. Okwor
Counsel to the claimant
Star chambers
No 5 Lekki Lagos
FOR SERVICE ON:
1) Jeffery OwhorChuku
C/o his counsel
2) EjikeAyogu
C/o his counsel.
PUT PROPER ADDRESSES FOR THEM.
NOTE ONE ANSWER FOR EACH RESPONSE. DO NOT LUMP TWO OR MORE
ANSWERS IN ONE AFFIDAVIT.
Discovery by interrogatories: interrogatories are on facts only and not on law, thus, it is
meant to confirm facts to be use. Interrogatories are in form of questions posed by one
party to the other to clarify some facts. Interrogatories must relate to any question in the
Page 164 of 389

matter. Interrogatories are to be asked on unresolved issues – Yar’dua v. Abubakar. In

ABJ, Order 30 r 1, interrogatories at the close of pleading is by leave of court on
application on motion on notice. Order 30 r 2(1) ABJ provides for the delivery of the
proposed interrogatories along with the summons or notice of application at least two
days before hearing it. Interrogatories are in Form 30 – Order 30 r 3 ABJ. The answer
to interrogatories shall be in form of affidavit which is to be filed within 5 days or such
other time as the court/judge allows – Order 30 r 5 ABJ. An affidavit in answer to
interrogatories shall be in Form 31 r 6 ABJ and within 5 days. Variations as
circumstances permit are allowed for both forms. In Lagos, there is no need of obtaining
leave of court as interrogatories forms part of case management conference – Order 26 r
7 LAG. Interrogatories are to be made within 7 days after close of pleading.
Interrogatories are in Form 19 and affidavit in answer is in Form 20 – Order 26 r 2 & 6
LAG respectively. Variations can be made to the form. Affidavit in answer to
interrogatories shall be filed within 7 days or such other times as the judge may allow –
Order 26 r 5 LAG. Objections to answering any of the interrogatories can be made on
the ground that it is:
 Scandalous; or
 Irrelevant; or
 Not bona fide for the purpose of the matter or cause – Order 30 r 7 ABJ and
Order 26 r 5 LAG
Where a party fails or omits to answer, application can be made to the court/judge of
case management conference and an order requiring him to answer shall be made –
Order 30 r 8 ABJ and Order 26 r 7 LAG.
DISCOVERY OF DOCUMENTS
The discovery of documents could be by any of the following methods:
 Discovery of documents which applies both in Lagos and Abuja. See Order 30 r 9
Abuja and Order 26 rule 8 Lagos.
 Production of documents which applies only in Abuja see Order 30 r 13 Abuja
 Inspection of documents (notice to produce) which applies only in Abuja see
Order 30 r 14 Abuja.
Discovery of documents - Order 30 r 9 Abuja and Order 26 rule 8 Lagos.
Lagos:
In Lagos, by Order 26 r 8(1) Lagos, any party may in writing, request any other party
to make discovery on oath of the documents that are or have been in his possession,
Page 165 of 389
custody, power or control, relating to any matter in question in the case. NOTE that in
Lagos, there is no requirement of application to a Judge.
By the said Order 26 r 8(1) Lagos, the Request for discovery shall be served within
seven (7) days of the close of pleadings and shall form part of the CMC. The party on
whom the Request is served shall answer on oath, completely and truthfully within
seven (7) days of the request or within such other time as the judge may allow and it
shall be dealt with at the CMC
By Order 26 r 8(2) Lagos, the affidavit in answer to the request for discovery of
documents shall be accompanied by office copies of the documents referred to
therein. By Order 26 r 8(3) Lagos, the affidavit should also specify which, if any, of
the documents he objects to producing, stating the grounds for his objection and it
shall be as in Form 21, called the AFFIDAVIT AS TO DOCUMENTS
Abuja:
In Abuja, By Order 30 r 9(1) Abuja, a party may, without filing any affidavit, apply to
the Court or a Judge in chambers, for an Order directing another party to make
discovery on oath of the documents which are or have been in his possession or
power, relating to any matter in issue. NOTE that unlike Lagos, in Abuja there is an
application to the judge.
By Order 30 r 9 (2) Abuja, on the hearing of an application, a Court or Judge in

chambers may make any of the following orders-
 Refuse or adjourn the application, if satisfied that the discovery is not

necessary; or
 Make such Order, either generally or limited to certain classes of documents,
as may seem reasonable; or
 refuse to make the Order, where the Court is of the opinion that it is not
necessary either for disposing fairly of the action or for saving costs.
If the judge makes the order for the discovery of the documents, then the party to whom
the order is directed shall file an affidavit of documents. By Order 30 r 11 Abuja, the
affidavit should specify which of the documents in the list he objects to produce, and it
shall be as in Form 32.
Note that by Order 30 r 12 Abuja, on the hearing the application for discovery of
documents, the court may, in lieu of ordering for the affidavit of documents, order the
party from discovery is sought to deliver to the opposite party a list of the documents
which are or have been in his possession, custody or power relating to the matters in
Page 166 of 389

question. However, this will not prevent the court from subsequently making an order
that the affidavit of documents be filed.
PRODUCTION OF DOCUMENTS – Order 30 r 13 Abuja.
This is applicable only in Abuja. By Order 30 r 13 Abuja, a Court or Judge in chambers

may, at any time during the action, order the production by any party, on oath, of such of
the documents in his possession or power, relating to any matter in question as a Court or
Judge in chambers thinks right, and the Court may deal with such documents, when
produced, in such manner as appear just.
INSPECTION OF DOCUMENTS - Order 30 r 14 Abuja
This is applicable only in Abuja.
In Abuja, where a party needs to inspect documents with the other party, leave of court
will be sought which is by application on motion on notice – Order 30 r 9. The court on
hearing the application may:
 Adjourn the application

 Refuse the application
 Make an order to the documents demanded or limited to certain class of demand.
In Lagos, discovery of documents is by request in writing served by one party on the

other of which must be served within 7 days after close of pleadings (part of case
management conference) – Order 26 r 8(1). The other party is to answer on oath
completely and truthfully within 7 days or such other ..Order 26 r 8(1) LAG. Every
affidavit in answer to a request is to be accompanied by office copies of the documents
referred to – Order 26 r 8(2) LAG. Affidavit in answer is in Form 21 in LAG and Form
32 in ABJ. The other party can object to producing certain documents of which must be
specified – Order 30 r 11 ABJ and Order 26 r 8(3) LAG and the grounds for objection
must be stated. The judge may order for the production of those documents; and when a
party object to bringing a document under the request of the other party, such party
cannot tender such document in evidence. Famuyide v. Irving (1992) 2 SCNJ.
CASE MANAGEMENT CONFERENCE (CMC) - Order 25 LAG
It is a mechanism that enables the case management judge to assume adequate control
over the proceedings preparatory to trial. Counsel in CMC is not to be robed. No
formality. Within 14 days after close of pleading, the claimant is to apply for the
issuance of a CMC notice - Form 17 - Order 25 r 1(1). Form 17 is hearing notice for
CMC. The Judge will then issue Form 17 and Form 18 (Case management information
Page 167 of 389

sheet) Order 25 r 1(2). The application is by a letter to the presiding judge. The questions
contained in Form 18 are to be answered by the claimant. There is a case management
conference judge who is different from a trial judge (if the matter goes to trial). If the
claimant did not apply for issuance of Form 17, the defendant may apply for the CMC
notice or apply for an order of dismissal of the claimant's claim/action - Order 25 r
1(3). Where claimant has filed Form 17 &18, and the letter to the head judge, the
defendant is to file Form 18 only. The CMC is to be completed within 3 months -Order
25 r 3. The time can still be extended on application of either party. The agenda of the
CMC is contained in Order 25 r 2 (a)-(n) includes:
 Formulation and settlement of issues

 Amendment and further and better particulars e.t.c, interrogatories, discovery.
Parties are expected to be present during trial. The case management judge can refer the
matter to the Lagos multi-door court house. After the CMC, the judge is to make a case
management report and the report shall guide the subsequent course of the proceeding
subject to modifications by trial judge - Order 25 r 4. The report is to contain the
following:
 Name of court
 Parties
 Heading of the CMC report
 Nature of the claim (claimant's claim)
 Issues for determination: issues formulated by claimant, issues formulated by
defendant, that adopted by CMC judge.
 Areas covered - Order 25 r 2 (agenda)
 Witnesses to be called by each party
 Accommodation to chief judge/head judge
 Date
 Signature of CMC judge
HOLDEN AT LAGOS
SUIT NO:
BETWEEN
Page 168 of 389
MR. KENNETH OKWOR CLAIMANT
AND
MR. JEFF OWHOR-CHUKU DEDENDANT
CASE MANAGEMENT CONFERENCE REPORT PURSUANT TO ORDER 25 RULE

4 OF THE LAGOS STATE HIGH COURT CIVIL PROCEDURE RULES 2012
Sanctions for failing to participate in CMC
Where a party or his counsel fail to attend CMC or obey a scheduling order or
substantially u prepare to attend or fail to participate, the CMC judge shall:
 If it is the claimant, dismiss the claim - Order 25 r 5(a). However, the appropriate
action to take is to strike out the action, as the merits of the case has not been
considered.
 If the defendant enter a judgment against him where appropriate - Order 25 r 5(b).
Parties can apply within 7 days of making the judgment that it be set aside - Order 25 r 7.
The application is to be accompanied by undertaking to participate effectively in the
CMC.
Alternative Dispute Resolution - Order 25 r 6
Upon filing of originating process, it shall be screened for suitability for ADR and refer
to the Lagos multi-door court house or other appropriate ADR institution - Order 3 r 11.
When a case is so referred, the claimant shall file his statement of claim within 14 days of
the order of judge - Order 25 r 6(a). The defendant shall file his response within 14 days
of the service of the claimant's statement of case. Where parties fail to comply with order
or directives of ADR judge or fail to participate in ADR proceedings, the judge shall
 If it is the claimant, dismiss the claim - Order 25 r 6(a). It should however be

striking out order.
 If it is the defendant enter judgment against him where appropriate - Order 26 r
6(b).
The judgment can be set aside upon application of any of the parties within 7 days or
such period as the ADR judge may allow - Order 25 r 7. The application is to be
accompanied with undertaking to effectively participate in ADR proceeding.
Trial preparation…..WEEK 11
SLIDES.
Page 169 of 389
It involves a lot of issues and those issues usually arise before commencing action after
client interview has taken place and the client decides to institute an action. This is
because of the mandatory front loading of documents (for claimant/institution of action.
The issues are:
 Identification of the issues

 Formulation of a case theory
 Drawing of trial plan
 Identifying the burden of proof and standard of proof
 Identifying and collating the relevant evidence
 Deciding how the evidence is to be brought to court.
Case analysis
Whether consciously or subconsciously, the legal practitioner must analyse the case after
the first client interview.
 Counsel for either side analyses the facts and law relating to his case, for
evaluation of the strength and weaknesses of his case
 It is the thread that runs through the case, which offers explanation of or accounts
for the facts and circumstances of the case.
SAMPLE THEORY: IN THE CAR ACCIDENT CASE THE THEORY OF THE
CASE FOR THE CLAIMANT TO BE:
THAT THE DEFENDANT WAS IN A HURRY TO ATTEND AN URGENT
MEETING SCHEDULED FOR 1PM ON THE 12 TH DAY OF MARCH 2012. AT
THE TIME MATERIAL TO THIS ACTION, HE WAS ABOUT, SOME
FOURTEEN KILOMETERS AWAY FROM THE VENUE OF THE MEETING.
This would involve
a. The cause of action to pursue. The same facts can lead to contract and tort. The
cause of action given and the relevant laws and what would be in the best interest
of the client.?!
b. Limitation of action/parties and other preliminary considerations where relevant.
For instance, in land acquired by the state government and given to a private
individual/person, the government might not be joined because of limitation of
action.
Issues
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The issues to be raised depend on the cause of action (land matters, contract, torts). The
issue(s) raised will determine the evidence that will be led on trial. After identifying the
issues and the issue(s) are not supported by law, then an alternative should be sought.
When identifying issues, research should be conducted.
Theory of case
It is a line of argument which if accepted by the court, will lead to judgment being given
in your favour. Every lawyer whether for the claimant/defendant must have a line of
argument which if accepted by the court, will give him judgment. In every case, there is
usually two sides presenting their different theories of the case as viewed from their
individual perspective and at the end, the court accepts one of the theories. The
acceptance of the theory of the case is determined by evidence in support of the theory.
From commencement of the action to when judgment is given, every step taken is for the
purpose of the theory of the case. Thus everything to be done is limited to the line of
argument. Most time, the theory of the case is not written down but it is advisable to
write the theory of the case down. This is because there are instances where another
lawyer may take over the case and his own theory of the case might not be the same with
the initial one.
Essence of case theory: in case the initial lawyer handling the case withdraws, the
subsequent lawyer can familiarize himself with the facts.
Trial plan
In one word, it is the process of actualizing the theory of the case. This is the graphic
representation of how the theory of the case would be achieved. It would involve putting
into consideration what the other side would say and how to argue against the other side.
It also involves stages - the theory is broken into component parts. The success of a case
is not based on how much you prepare for your case but on how much you have prepared
for the case of the other side. Look for the law in your favour and the law against you.
IT IS PERTINENT TO KNOW THAT A GOOD TRIAL PLAN IS AMENDED AS THE

CASE GOES ON. A GOOD LAWYER STARTS TO WRITE HIS WRITTEN
ADDRESS AT THE TRIAL PLAN STAGE.
Essence of trial plan
 It gives the lawyer a clear view of the strength and weaknesses of the clients case
 It serves as a reminder of outstanding issues such as summoning witnesses.
 It aids adequate preparation for the case.
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When you come across any evidence that will not help your case, disclose it to the court
and distinguish it from your own case (if it is a case, show how the case is not relevant to
the other party's case - Rule 31(2) RPC.
Aside from ethical issues involved, it is also a strategic issue. If for instance, the case law
is from the opposite counsel to be used by the other counsel, the effect will not be as
heavy as when it is coming from the counsel himself. Thus it neutralizes the argument
from the other side. In relating the trial plan with the theory of the case, the theory of the
case is like a destination and the trial plan is how to get to the destination – the steps to
actualizing the theory of the case.
Example of trial plan for NEGLIGENCE
Elements of Negligence
 Existence of a duty
 Breach of Duty
 Consequential Damage
Evidence for claimant
Oral evidence: Claimant
Police
Road Safety
Documentary evidence
Photographs taken
Video
Medical report and medical bills
Burden of proof
Under burden of proof, the following questions arises
 What are the matters of fact/which issues need proving and whose duty is it to
prove?
 The determination of the number of witnesses and documents to tender.
 Burden of proof is a question of who has responsibility to prove.
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 There is the legal/general burden of proof; and the evidential burden of proof.
General/legal burden of proof – section 132 & 133 Evidence Act. The general burden of
proof is determined by the state of pleadings and the applicable presumptions. It rests on
the party that substantially asserts the affirmative in the case. The claimant/plaintiff has
the responsibility of proving the entire case.Section 131(2)EA, when a person is bound to
prove the existence of any fact it is said that the burden of proof lies on that person.
Section 132 Evidence Act provides that the burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all were given on either side. READ
ESEGINE V ONOBRUCHERE(note whenever there is confession and avoidance in the
statement of defence, the general Burden of proof shifts to the defendant)
Evidential burden – this is the duty of proving particular facts as in section 136 EA. The
pleadings should be looked at in determining evidential burden. There are certain
elements/circumstances that shift the burden of proof from one party to the other.
STANDARD OF PROOF: the degree of proof of fact required in specific cases. In civil
cases, the standard proof is discharged on the balance of probabilities.
 Where there are admitted facts, the burden of proof shift.

 Where there is presumption in favour of one of the party.
SECTION 134 EVIDENCE ACT.
Generally, presumption in itself shifts the burden of proof. Presumptions are divided into
three:
i. Presumption of facts – rebuttable

ii. Irrebuttable presumption of law; and
iii. Rebuttable presumption of law
Presumption of facts
The major feature of presumption of facts is that they are nothing but logical inferences.
The court is not under the obligation to draw the inferences. Even when the court draws
the inferences, the other party is at liberty to rebut it. See section 145(1) Evidence Act.
However, for fact as conclusive proof of another, the court shall, on proof of the one fact
regard the other as proved and shall not allow evidence to be given for the purpose of
disproving it – section 145(3) Evidence Act. Section 167(a)-(e) Evidence Act provides
for the classic cases of presumption of facts. They are not exhaustive but instances.
Presumption of facts if inferred by the court is not conclusive unless there is no contrary
evidence. Some are:
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 The court may presume that a man who is in possession of stolen goods soon after
the theft is either the thief or has received the goods knowing them to be stolen,
unless he can account for his possession.
 The court may presume that a thing or state of things which has been shown to be
in existence within a period shorter than that which such things or state of things
usually cease to exist, is still in existence.
 The court may presume that the common course of business has been followed in
particular cases.
 The court may presume that evidence which could be and is not produce would, if
produced, be unfavourable to the person who withholds it; and
 When a document creating an obligation is in the hands of the obligor, the
obligation has been discharged.
Rebuttable presumption of law
In presumption of law generally, the court is under the obligation to draw the inferences
until the contrary is proved – section 145(2) Evidence Act. Official transactions – section
168(1) Evidence Act provides that when any judicial or official act is shown to have been
done in a manner substantially regular, it is presumed that formal requisites for its
validity were complied with and section 168(2) Evidence Act, provides that when it is
shown that a person acted in a public capacity it is presumed that he has been duly
appointed and was entitled so to act.
 Presumption of marriage – section 166 Evidence Act

 Presumption of death – section 164(1) Evidence Act. When a person has not been
seen or heard of for 7 years. However, no presumption as at the age he died. On
the other hand, if two persons died and it is not certain as at the time or date of
death of both of them, the older one would be presumed to have died first, this is
for purpose of determining title to property – section 164(2) EA.
 Presumption of legitimacy – section 165 EA
 Presumption of negligence – res ipsa loquitur
Standard of proof
Under the old Evidence Act, there was nothing on standard of proof in civil cases but
a matter of common law. Section 134 of EA now provides for it, which is balance of
probability or preponderance of evidence.
WRONGFUL ADMISSION AND EXCLUSION OF EVIDENCE-SECTION 251

EA, SHIVERO V STATE.
.
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Competence and Compellability
Competence:
IMPORTANCE OF A COMPETENT WITNESS: A competent witness will be able

to give admissible evidence. Admissibility is the qualification of a piece of evidence
when a judge has adjudged it to be part of evidence he would consider to form his
judgement.
 It refers to the ability of a witness to give evidence

 The general rule pursuant to section 175(1) EA is that every one is a
competent witness except the court considers that they are prevented from
understanding puts to him or from giving rational answers by reason of:
 Tender age
 Extreme old age
 Disease whether of body or mind
 Or any other cause of the same kind
 Section 175(2) EA, provides that a person of unsound mind is competent to
testify unless he is prevented by his mental infirmity from understanding the
questions put to him and giving rational answers to them.
 A dumb person is competent to testify either in writing or by signs but such
writing must be written and the signs made in open court – section 176(1).
Importantly, the evidence so given shall be deemed to be oral evidence –
section 176(2).
 ELABANJO v tijani, it was held that a lawyer is a competent witness in any
case in which he acts professionally, except where he is caught by any of the
disqualifying factors in section 175 EA.
 In all civil proceedings the parties to a suit, and the husband and wife of any of
the party to a suit shall be a competent witness pursuant to Section 178 EA 2011.
 For the evidence of a person of tender age, section 209(1) EA provides that if
a child has not attained the age of 14 years and is tendered as a witness, such
child shall not be sworn and shall give evidence otherwise than on oath or
affirmation if in the opinion of the court if he is possessed of sufficient
intelligence to justify the reception if his evidence; and understands the duty
of speaking the truth. However, a child of 14 years and above can give sworn
evidence in all cases – section 209(2) EA.
 There is no provision for corroboration of unsound evidence of a child. Generally,
there is need for when the Evidence Act provides for it. In civil cases, only in
breach of promise to marry..
Compellability
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The general rule is that every competent witness is a compellable witness except where
there are laws excluding certain competent persons from being compelled. The procedure
to compel the attendance of a competent witness is to apply to the court by way of FORM
OF PRAECIPE, FORM 26 as provided for in ORDER 32 R 20 LAGOS. praying the
court to issue a subpoena ad testificadum OR duces tecum to testify in court or produce a
document.
FORM 27 : SUBPOENA AD TESTIFICANDUM
FORM 28: HABEAS CORPUS AD TESTIFICANDUM
FORM 29: SUBPOENA DUCES TECUM(judge signs the subpoena and seals it).
It is pertinent to note that PERSONAL SERVICE is the means to subpoena a person to

court unless substituted service is ordered-ORDER 32 R 24 LAGOS.
THERE ARE TWO CONDITIONS FOR ISSUANCE OF SUBPOENA. ORDER 32 OR

20 LAGOS.
1 Payment of the requisite court fees including the fee for service
2 Deposit of sufficient conduct money on the prescribed scale for at least the first
day of attendance.
DURATION OF A SUBPOENA
 A subpoena lasts during the pendency of the case and it is valid throughout the
entire period the case lasts. ORDER 32 R 25 LAGOS..
After determining that a witness is both competent and compellable, a witness which had
refused to come can be compelled by:
 Subpoena used in the High Court; or

 Witness summons used in the Magistrate Court
There are two types of subpoena:
 Subpoena ad testificandum – Form 27 LAG

 Subpoena ducestecum – Form 29 LAG
Subpoena ad testificandum is used to compel a witness to attend court and to give oral
evidence in court while subpoena ducestecum is used to compel a witness to attend court
and produce documents.
SECTION 218 EA
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It is pertinent to note that pursuant to SECTION 218 EA a person whether a party or not
in a cause may be summoned to produce a document, without being summoned to give
evidence and if he causes such document to be produced in court the court may dispense
with his PERSONAL ATTENDANCE. Implicit in this, is that the person who was issued
with a subpoena duces tecum need not produce the document personally. It is sufficient if
he produces it through someone.
SECTION 219 EA
A person served with subpoena duces tecum does not ipso facto become a witness. Thus,
he cannot be cross examined unless and until he is called as a witness.
Witness can be lay witness or expert witness. Lay witnesses include witnesses that are
not experts in what they want to testify about. Expert witness is defined in section 68(2)
EA as persons so specially skilled. The EA did not provide for the means of acquiring the
skill, thus what matter is evidence of sufficient experience. An expert must first establish
his qualification and in the absence of this, his evidence will not be admissible – Fasugba
v. I.G.P. evidence must be limited to the area of specialization. If an adverse party want
to challenge his qualification as an expert under cross-examination, the qualification must
be challenged if not, it would be deemed that such adverse party has accepted the witness
as an expert and cannot on appeal challenge the expert’s qualification.
PERSONS THAT CANNOT BE COMPELLED
.
These persons are:
 The President, Vice- president, Governor of a state and Deputy-Governor of

that state. Section 308 CFRN 1999 provides for this immunity. The immunity
protects them in their personal capacity and not in their official capacity. Thus the
office of the President and Governor can be sued. The immunity avails them for
the period they occupy the office. For the commencement of action, time will not
run until the person leaves office.
However, in Global Excellence Comm Ltd v Duke, the court held that the
executives can sue or maintain personal actions.
 Legislative immunity – only the premises of the legislature and not the persons
are protected. The subpoena cannot be served on a senator in the legislative
house.
 Diplomats – diplomats and ambassador have diplomatic immunity under the
Diplomatic Immunity and Privileges Act 1962, section 1.. It is pertinent to note
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that the immunities can be waived.the domestic staff of the as provided for in
section 10 DIPA. Note that their domestic staff members who are Nigerians
do not enjoy the immunity. Thus, such diplomats enjoy immunity from:
 Suit and legal processes including processes to compel attendance in court as a
witness. Section 1 and 10 DIPA.
 Inviolability of their residence
 BANKERS: SECTION 177 EA
A banker or an officer of a bank or other financial instititution shall not, in any
legal proceeding to which the bank is not a party, be compelled to produce any
bankers book or financial book, the contents of which can be proved in the
manner provided in sections 89 and 90 of the Act, or to appear as a witness to
prove the matters and accounts in such book, UNLESS BY ORDER OF THE
COURT MADE FOR SPECIAL CAUSE.
Proof of facts:
EVIDENCE
 All legal materials and means used to establish or disprove the existence of
facts.
 Types of evidence:
 Oral
 Real
 Documentary, including Computer generated evidence.
 See section 121 EA. 2011.
 By virtue of section 121(a) EA facts are said to be proved when after
considering the matters before it, the court either believes it to exist or
considers its existence probable that a prudent man ought reasonably to act
in the supposition that it exists.
 Section 121(b) EA facts are said to be disproved when after considering the
matters before it, the court either believes it does not exist or considers its
non-existence probable that a prudent man ought reasonably not to act on it.
 Facts not proved when it is neither proved or disproved.
FACTS THAT MAY BE PROVED: ADMISSIBILITY OF FACTS
 Pursuant to SECTION 1 OF THE EA 2011, Facts that are admissible that

may be proved are:
 Facts in issue. This is defined in section 258 EA 2011, Thomas v
Olufosoye. Main facts in issue + Collateral Facts in Issue=Facts in
issue.
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 Facts relevant to the facts in issue
RELEVANT FACTS
 Any fact declared to be relevant in the act by necessary implication

 Facts relevant on grounds of credibility. Section 223 EA
 Facts relevant under special circumstances. E.g 35 && 36 EA
 Facts generally relevant. Ss 1-19. See s. 4, 7,8, 9
 Facts which are not to be proved are:
 Too remote to be material(an objection can be raised that evidence is
too remote and will be prejudicial to the case)
 Evidence of a fact which is disentitled to prove by a person by the
provision of any law in force. E.g Hearsay evidence, opinion evidence,
similar fact evidence, character evidence.
FACTS IN ISSUE
The facts that need to be proved by evidence are facts in issue and other facts declared to
be relevant to facts in issue – section 1 EA. Facts in issue can be determined by looking
at pleadings. The proof of facts is by tendering evidence. When a judge has evidence on
the case before him, he should step down as a judge; and then give evidence as an
ordinary witness. However, matters deemed to be within the knowledge of the court can
be judicially noticed. Section 122(1) EA provides that no fact of which the court shall
take judicial notice under this section needs to be proved. These are contained in section
122(2)(a)-(b) of EA. Such include all Acts of the National Assembly, Laws of the State
House of Assembly and all subsidiary legislation. All general customs, rules, and
principles which have been held to have the force of law in any court established by or
under the constitution. Also facts admitted need not be proved – section 123 EA. This
includes facts admitted by pleadings. There are two kinds of admission namely the formal
and informal admission. Formal admission can be found in the pleadings. It arises in the
court of pending civil proceedings and such admission is conclusive evidence. The
formal admission can arise in the following instances:
 Admission in processes like in affidavit, pleadings

 Admission by agreement of the parties while the case is pending before the court.
A proviso to section 123 EA states that the court may in its discretion require the facts
admitted to be proved otherwise than by such admission. Informal admission is usually at
any stage before commencement of the civil proceedings - such admission is only
relevant as evidence and not conclusive, thus can be rebutted.
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By virtue of section 124(1) EA, proof shall not be required of a fact the knowledge of
which is not reasonably open to question and which is:
 Common knowledge in the locality in which the proceeding is being held, or

 Capable of verification by reference to a document the authority of which cannot
reasonably be questioned.
There are certain facts even though relevant, are not admissible in evidence.
Facts not admissible
1. Character evidence – section 78 and 79. Section 78 is to the effect that character of a
person to a civil proceeding is inadmissible. This is the general rule that admits of
exception. Where the character of such person is a fact in issue, for instance in
defamation suit, where the defendant pleads the defense of justification, the character of
the plaintiff becomes a fact in issue. Except in so far as such character appears from facts
otherwise relevant.Where character will affect the amount of damages. Section 79
provides that notwithstanding section 78 in civil cases, the fact that the character of any
person is such as to affect the amount of damages which he ought to receive may be
given in evidence.
2. Similar facts – generally, similar facts are not admissible. However, in land matters
such facts are admissible. For instance, A has plots of land. B & C which are adjoining. If
there is dispute as to the ownership of one of them, the fact that it is adjoining to the other
can be admissible to prior ownership by A to it pursuant to section 35 EA. Also,
negligence relating to procedure and subject matter that share common rule.
3. Opinion evidence – it is not admissible as a general rule except as otherwise provided

by Evidence Act – section 67. The exceptions are contained in section 68, 69, 70, 71, 72,
73, 74 and 75.
4. Hearsay evidence –
 Definition of hearsay is section 37 EA, Shivero v State, Subramaniam v Public

Prosecutor.
 The general rule is that hearsay evidence is not admissible. Section 38 of EA
provides that hearsay evidence is not admissible except as provided in this part or
by or under any other provisions of this or any other Act.
 Where a witness gives hearsay evidence, the opposing party should object
timeously as to the admissibility of the evidence.
 The demerits of hearsay is that it defies the rule that oral evidence must be
direct. Secondly, it is an altered evidence, thirdly it is unreliable as additional
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facts may be made. Fourth, there is depreciation in transmission of the fact,

it allows for fraud or mistake, it is not on oath, it does not accord the court to
watch the demeanor of the witness especially in cross examination.. The
exceptions are(dying declaration, res gestae(section 4), admission, expert opinion)
 Statements relating to cause of death – section 40
 Statements made in the course of business – section 41
 Statements against interest of maker with special knowledge – section 42
 Statements of opinion as to public right or custom and matters of general
interest – section 43
 Statements relating to the existence of a relationship – section 44
 Declaration by testators – section 45
 Evidence of an employee of a company based on information derived
from the record of the company.
FACTORS THAT DETERMINE ADMISSIBILITY IN CIVIL CASES-ACB LTD V

GWAGWADA,
 Is the fact pleaded

 Is it relevant
 Is it in the admissible form
ESTOPPEL
The estoppel relevant in this instance is estoppels by record. This is that arising from the
record of the court. There are two types of estoppels by record:
a. Issue estoppels – on a particular issue

b. Cause of action estoppels – the entire case.
There are four conditions to be fulfilled before estoppels by record can avail a party
1. Parties or their privies are the same in the present suit and previous suit. Parties
can be
 by blood – children; or
 by law – agent
 privies in title or estate – subsequent purchaser
2. Subject matter and issues are the same. Note that action for trespass and
ownership to land are not the same. Also estoppels on part of land does not relate
to the other.
3. The previous action was determined by a court of competent jurisdiction
4. The previous decision was a final decision of that court. Even when a matter is on
appeal, it is still a final decision as long as it is not interlocutory.
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Privilege communication
Certain communications are regarded as privilege in court of which evidence of it is

generally not admissible in court except as otherwise provided by the Evidence Act.
1. Communication between husband and wife during the subsistence of that marriage is
privilege – section 187. The following are the exceptions:
 Where the person that made it or that person’s representative in interest consents.
 Proceedings between the husband and wife
 Proceedings in which one married person is prosecuted for an offence listed in
section 182 EA.
PLEASE NOTE THE DEFINITION OF WIFE AND HUSBAND IN SECTION
258 EA.
2. A Justice, Judge, Grand Kadi or President of Customary Court of Appeal or Magistrate

court before whom proceeding is being held should not be compelled to answer any
questions as to his own conduct in court. However, such can be compelled upon the
special order of the High Court of the state, FCT, Abuja or Federal High Court.
3. Communication as to state affairs and official communication – section 190 and 191.
For evidence as to affairs of states, when such is not published – in custody of state, no
one is permitted to publish such. However, upon an order of the court, such can be given
to the JUDGE ALONE IN CHAMBERS – section 190. Ordinarily, a public officer shall
not be compelled to disclose communications made to them in official capacity when he
considers that the public interest would suffer by the disclosure. However, upon an order
of court, the public officer concerned shall disclose to the judge alone in chambers the
substance of communication in question and if the judge is satisfied that the
communication should be received in evidence, this shall be done in private in
accordance with section 36(4) CFRN. The above lay to rest the controversy as to who has
the final say – THE COURT.
4. Professional communication between client and legal practitioner – section 192. As a

general rule, every person is a competent witness unless the court considers that they are
prevented from understanding the questions put to them and from giving rational answers
b reason of tender age, extreme old age, disease of body or mind and other cause of the
same kind. Where a legal practitioner is not disqualified based on the factors stipulated in
section 175(1), he is a competent witness as held in Elabanjo v Tijani.
However, A legal practitioner is not expected to disclose communication between him

and his client as any communication made to him in the course of his employment as
legal practitioner or the knowledge of the contents of any document, such is privileged
Page 182 of 389
pursuant to Section 192(1). . However, there are circumstances in which such

communication can be revealed pursuant to Section 192(1)(a)(b). EA:
 With the express consent of the client

 Communication made in furtherance of any illegal purpose.
 Communication showing intention to commit a crime.
The exception is that relating to a contemplated crime and not to the crime already
committed (where client confesses to committing a crime).
It is pertinent to note that the privilege continues after the employment has ceased
pursuant to Section 192(3). The provisions of Section 193 shall apply to interpreters and
the clerks of legal practitioners.
Means of proof…..EVIDENCE.
Where the facts had not been admitted, not been judicially noticed and has not been
presumed, there is then need to prove it. The following are the means of proof of facts:
Oral evidence: all facts except the contents of documents may be proved by oral
evidence – section 125 and subject to the exceptions provided in the Act and evidence
shall in all cases be direct – section 126. If it is a fact which could be seen, it must be the
evidence of a witness who says he saw that fact – section 126(1)(a). If it is a fact which
could be heard, it must be the evidence of a witness who says he heard that fact – section
126(1)(b). If it is a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived that fact by that sense
or in that manner – section 126(1)(c). If refers to an opinion or to the grounds on which
that opinion is held, it must be the evidence of the person who holds that opinion on those
ground. Exception on treaties – section 126(1)(d). Hearsay Evidence should be avoided
pursuant to section 37 & 38 EA. Avoid Hearsay Evidence.
Real evidence: section 127, it could be movable or immovable. Movable evidence is

tendered in court through a witness and marked as exhibits. Immovable – the court
adjourned to the place – visit to the locus in quo. The matter deliberated in such place is
part of court’s proceeding and the judge must be there personally to conduct the
proceedings. Parties must also always be there because of fair hearing. Movable – section
127(1)(a) and (b), the court may require the production of such material thing for its
inspection. Immovable – section 127(2)(a)-(b) provides the court with two options:
 Adjourned to the place where the subject matter of the said inspection may be and
the proceeding shall continue at that place until the court further adjourns back to
its original place of sitting or some other place of sitting.
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 Attend and make an inspection of the subject matter only and the evidence of
what transpired there to be given in court afterwards.
 Proceedings at the locus in quo forms part of the proceedings of the case as held
in Chukwuogor v Obiora.
 The judge cannot delegate his duties to go to the locus for inspection as held
in Evoyoma v Daregba
 The judge should not substitute the evidence with his own account. He can
not substitute the ear with the eyes,
In both outside the court (sitting outside) or inspecting, the parties shall be present.
Documentary evidence: section 258(a) defines documents to include books, maps,

plans, graphs, drawings, photographs and also includes any matter expressed or described
upon any substance by means of letter, figures or marks or by more than one of these
means, intended to be used or which may be used for the purpohyse of recording that
matter. From specific items mentioned, it includes anything used to record information of
which will qualify as document. Thus a building can be documentary evidence if
information is inscribed on it. Bill boards on the road will qualify as documentary
evidence. It therefore means that the same object can qualify as a real and documentary
evidence. When using object, as an object, it is real evidence but it if is used as a means
of recording, it will qualify as documentary evidence (no matter how big the object is).
 The primary rule is that the document should speak for itself.
 A proof of a document should be by the production of the document or the
secondary evidence, and no oral evidence of a document is allowed as a general
rule, Section 128 EA, UBN LTD v OZIGI
Any documents not agreed upon in CMC in Lagos must be proved in court.
Documents as public and private
Documents are basically divided into:
 Private documents; and

 Public documents.
Public documents – section 102. The following documents are public documents;
1. Documents forming the official acts or records of the official acts of the sovereign
authority - Section 102(a)i. when the documents is an official act or record of the official
acts of the President of Nigeria, that is a public document. For instance, a letter written by
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President Goodluck Jonathan congratulating the Super Eagles on their victory in the
African Nations Cup is a public document.
2. Documents forming the official acts or records of the official acts of official bodies and
tribunals are public documents – section 102(a)ii. For instance, the letter of admission
given by the Council of Legal Education is a public document because it forms part of the
acts of Council of Legal Education being official bodies.
3. Documents forming the official acts or records of the official acts of public officers,
legislature, judicial and executive whether of Nigeria or elsewhere are public documents
– section 102(a)iii. Examples include:
 Marriage certificate issued by the Registrar of Marriage being a public officer is a

public document.
 Certificate of incorporation issued by the Corporate Affairs Commission
 Records of legislative proceeding
 Statutes
 Judgment of the English court and courts of other countries.
 Land certificate – certificate of titles issued by Registrar of Land Registry.
 Certificate of occupancy issued by Governor.
4. Public records kept in Nigeria of private documents – section 102(b)
 Memorandum and Articles of Association of a company upon incorporation,

particulars of director, annual returns e.t.c
 Deed of assignment, Deed of lease, Deed of Mortgage when registered under the
Land Instrument Registration Law.
 Newspaper – there are two laws on it. The Newspaper Act and National Library
Act. Three copies one is to be kept at the library at University of Ibadan, another
at National Library.
If the laws are complied both those kept at the designated places and those on the streets
are public documents. In practice the certified copies are always obtained at the
National Library. The list of public documents is not exhaustive but once a
document emanate from a public officer just know that it is a public document (in
his official capacity).
How is a public document proved? EXAM QUESTION.
Production of the document itself. In the case of a secondary evidence,
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It is by tendering the Certified True Copy of the Document through anyone in

court. The registrar or public officer that issued it need not be brought to court.
Even the counsel can tender such Certified True Copy:. Ogbuanyinya v Obi-
Okudor
REQUIREMENT for a VALID PROOF OF PUBLIC DOCUMENT---SECTION

104 EA, ARAKA V EGBUE
 Evidence of payment of the requisite legal fees.

 There should be a written certificate at the foot of the Certified True Copy,
CERTIFIED BY THE SAME PUBLIC officer stating that it is a true copy of
such original document in reference.
 The certificate must be dated. Section 104(2) EA
 The certificate must be subscribed to by the issuing public officer and the
officer must state his name and official title and if he is entitled to use a seal,
then he must seal same
SUCH COPIES SO CERTIFIED SHALL BE CALLED CERTIFIED TRUE
COPIES.
 Section 105 EA provides that documents certified in accordance with section
104 may be produced in proof of the contents of a public document or part of
the public document of which they purport to be copies.
Private documents – section 103. All documents other than public documents are
private document. All preliminary agreement between members or investors is private
document as they are excluded from documents to be incorporated.
Proof of contents of documents
The content of documents may be proved either by primary or by secondary

evidence - section 85 & 86. Primary evidence means either of the following:
 Where the document itself is produced for the inspection of the court – section
86(1)
 Where a document has been executed in several parts, each part shall be primary
evidence of the document – section 86(2) Omabolowo v Ajasin
 Where a document is executed in counterpart, each counterpart being executed by
one or some of the parties only, each counterpart shall be primary evidence as
against the parties executing it. To person signing it, it is a primary evidence but
against the other person who did not sign it, it is secondary – section 86(3).
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 Where a number of documents have all been made by one uniform process, as in
the case of printing, lithography, photography, computer or other electronic or
mechanical process, each shall be primary evidence of the contents of the rest but
where they are all copies of a common original, they shall not be primary
evidence of the contents of the original.
Proof of content of public documents: S. 89(e), 90(c) 104; 105 EA
Secondary evidence - section 87
It includes (meaning not exhaustive) the following
 Certified copies given under the provisions contained in the EA.

 Copies made from the original by mechanical or electronic processes which in
themselves ensure the accuracy of the copy and copies compared with such
copies.
 Copies made from or compared with the original.
 Counterparts of documents as against the parties who did not execute them;and
 Oral accounts of the contents of a document given by some person who has
himself seen it.
Proof of documents
Generally documents shall be proved by primary evidence except as provided in the EA -

section 88. Before tendering secondary evidence, foundation must be laid. Proper
foundation is the reason to be given for not producing the primary evidence. Cases in
which secondary evidence are used in proving documents. Secondary evidence may be
given of the existence, condition or contents of a document when
1. The original is shown or appears to be in the possession of the person against whom
the document is sought to be proved - section 89(a)(i); or
2. The original is shown or appears to be in the possession or power of any person legally
bound to produce it.
However with regard to the above situations, notice is required to be given to such person
under section 91 EA requiring him to produce. Section 91 EA provides for situation
where notice will be dispensed with.
a. When the document to be proved is itself a notice (Generally, where a document

is within the custody of the defendant, a notice to produce will be served on the
party to produce such document. However, pursuant to section 91(a) of the EA no
notice need to be issued as the document to be proved is itself a notice. Thus,
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secondary evidence can be given without a notice to produce).example Tenant

Notice to quit.
b. When from the nature of the case, the adverse party must know that he will be
required to produce it.
c. When it appears or is proved that the adverse party has obtained possession of the
original by fraud or force
d. When the adverse party or his agent has the original in court or
e. When the adverse party or his agent has admitted the loss of the document.
By virtue of section 90(1)(a), any secondary evidence of the contents of the document is
admissible upon fulfilling the necessary
3. The existence, condition or content of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in interest –
section 89(5). By virtue of section 90(1)(b)., the written admission is admissible.
4. The original has been destroyed or lost and in the latter case all possible search has
been made for it – section 89(c). By virtue section 90(1)(a), any secondary evidence of
the contents of the documents is admissible.
5. The original is of such a nature as not to be easily movable – section 89(d). By virtue
of section 90(1)(a), any secondary evidence of the contents of the documents is
admissible.
6. The original is a public document within the meaning of section 102, section 89(e). By
virtues of section 90(1)(c), a certified copy of the documents but no other secondary
evidence is admissible. A photocopy of certified public document should be re-certified –
Ogboru v. Uduaghan.
7. The original is a document of which a certified copy is permitted by this Act or by any
other law in force in Nigeria to be given in evidence – section 89(f). By virtue of section
90(1)(c), a certified copy of the document, but no other secondary evidence is admissible.
8. The originals consist of numerical accounts or other documents which cannot

conveniently be examined in court and the fact to be proved is the general result of the
whole collection – section 89(g), section 90(1)(d). Oral accounts.
9. The document is an entry in the banker’s book – section 89(h). By virtue of section
90(1)(e), the copies cannot be received as evidence unless it is first proved that
i. The book in which the entries copied were made was at the time of making one of
the ordinary books of the bank.
ii. The entry was made in the usual and ordinary course of business.
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iii. The book is in the control and custody of the bank which proof may be given
orally or by affidavit by an officer of the bank; and
iv. The copy has been examined with the original entry and is correct which proof
must be given by some person who has examined the copy with the original entry
and may be given orally or by affidavit.
For section 89(9), 90(1)(d) provides that evidence may be given as to the general result of
the documents by any person who has examined them and who is skilled in the
examination of such documents.
Proof of Execution: SECTION 94-100
Custody of documents
When a document is coming from where it should be coming from, it is used to be a

proper copy and in proper custody. This relates only to authenticity and not relevancy as
a document that is not genuine can be admissible. Genuineness only goes to weight to be
attached to it. Admissibility before authenticity – Torti v. Ukpabi. In all civil proceeding,
the parties to the suit and the husband or wife of any party to the suit shall be competent
witness – section 178, Elias v. Disu. The only exception is that husband or wife is not
competent to give evidence that will bastardize a child born within a valid marriage or
within 280 days of dissolution of such marriage – section 165; section 84 Matrimonial
Causes Act. As a general rule, corroboration is not needed in civil cases except in an
action for breach of promise to marry.
Evidence admissible under section 83
By virtue of section 37, hearsay evidence which is generally excluded includes statement
contained or recorded in a book, document. Thus oral testimony of another reduced into
writing is hearsay evidence and not admissible. However, section 83 creates an exception
to documentary hearsay. Before the statement reduced into document can be admitted,
the following must be fulfilled
1. The maker of the statement had personal knowledge of the matters dealt with by the
statement; or
Where the documents forms part of record made in the performance of a duty to record
information supplied to him by a person who have personal knowledge of those matters;
and
2. If the maker of the statement is called as a witness in the proceeding except the maker
is dead, unfit by reason of his bodily or mental condition to attend as a witness or if he is
outside Nigeria and it is not reasonably practicable to secure his attendance – section
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83(1) & (2). Subsection 3 which makes inadmissible statement made by a person
interested at a time when proceedings were pending or anticipated as such statement
could de doctored to align with his own facts of the case. Also subsection 4 which states
that a document can only be said to have been made by a person who wrote it (produced
it with his own hands or signed such document.
In defining documents – section 258 provides that it includes any device by means of
which information is recorded, stored, or retrievable including computer output.
Computer in this like will include desktop, laptop, ipad, GSM phones e.t.c. thus section
84(1) provides that statement contained in a document produced by a computer shall be
admissible as evidence of any fact stated in it which direct oral evidence would be
admissible provided the conditions stated are satisfied.
Conditions for admitting documents produced by computer. KUBOR V DICKSON.
It must be pleaded
It must be relevant
It must be in admissible form
ACB LTD V GWAGWADA.
1. The computer producing the document must be one used regularly to store or
process information for the purpose of any activities regularly carried on over that
period by anybody (corporate or individual) – section 84( properly 2)(a).
2. Also, over that period, the kind of statement sought to be tendered is usually
supplied to the computer – section 84(2)(b)
3. More so, throughout the material part of that period, the computer was operating
properly or if not the fact of its not operating properly was not such as to affect
the production of the document or the accuracy of its content – section 84(2)(c).
4. That the information contained in the statement is derived from information
supplied to the computer in the ordinary course of those activities – section 84(2)
(d).
Subsection 3 further explains that the computer referred to in the subsection need not be a
single computer, it can be:
 Combination of computer operating over the period

 Different computer operating in succession over that period.
 Different combination of computers operating in succession over that period.
Subsection 4 provides that certificate should be produced in court which would:

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 Identify the document containing the statement and describing the manner in
which it was produced – (4)(a).
 Give particulars of the device involved in the production
 The certificate is to be signed by a person occupying a responsible position in
relation to the operation of the relevant device or the management of the relevant
activities.
Subsection 5 provides for supplying of information to the computer whether directly or

with or without human intervention by means of any appropriate equipment – paragraph
(a). Also, document can be produced directly or with or without human intervention by
means of any application equipment – paragraph (c). The computer in the real sense of it
is the evidence to be admitted, but section 84 provides for admissibility of copies
generated from the computer. The adverse party can show that what is produce in court is
not what is produced by the computer.
Exclusion of oral documentary evidence
See Union Bank Plc v. Ozigi. When anything (contract, judgment, disposition of
property, official proceeding) have been reduced into writing or document or series of
document, such must speak for itself. Thus no evidence can be given on such and the
content of the document is not to be contradicted, altered, added to or varied by oral
evidence. Hence, no extraneous evidence to what has already been reduced to writing –
section 128(1). There are exceptions to the general rule:
a. Fraud, intimidation and illegality

 Want of execution: the fact that it is wrongly dated, existence or want or failure of
consideration, mistake in fact or law;
 Want of capacity in any contracting party or the capacity in which a contracting
party acted when it is not inconsistent with the terms of the contract:
 Or any other matter which, if proved would produce any effect upon the validity
of any document or of any part of it, or which would entitle any person to any
judgment, decree or order relating to it – section 128(1)(a).
b. The existence of any separate oral agreement as to any matter on which a
document is silent and which is not inconsistent with its terms, if from the
circumstances of the case, the court infers that the parties did not intend the
document to be a complete and final statement of the whole of the transaction
between them – paragraph (b).
c. The existence of any separate oral agreement constituting a condition precedent to
the attaching of any obligation under any such contract, grant or disposition of
property – paragraph (c)
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d. The existence of any distinct subsequent oral agreement to rescind or modify any
such contract, grant or disposition of property; and – paragraph (d)
e. Any usage or custom by which incidents not expressly mentioned in any contract
are annexed to contracts of that description unless such would be repugnant or
inconsistent with the express terms of the contract – paragraph (e)
Where documentary memorandum was not intended to have legal effect as a contract,
grant or disposition of property (thus oral evidence is allowed) – subsection (2)
Where there is need to prove the existence of a legal relationship itself which has been
reduced to document and not the terms on which it is established or to be carried on.
Laying foundation and objection to evidence
All evidence requires certain conditions before it can be admissible. At what stage can an
adverse party raise objection? In Lagos, it is at the case management stage and in other
jurisdiction, at the stage of the evidence being sought to be tendered. The original copy of
official gazette and certified true copy of public document is admissible from the law.
Ordinarily, documents are tendered through witness but for the above; counsel can tender
it without calling witness. When a document is disputed at the stage of tendering, counsel
seeking to object should object and state the grounds of objection. If the grounds are
proper in the eyes of the counsel seeking it to be tendered, such document should be
withdrawn (apply to withdraw) and then remove the imperfection and re-tender the
document. Thus, do not join issues with adverse party. If counsel joins issues on
tendering of a document, the court is bound to deliver a ruling and if the ruling is not in
favour of the party (counsel tendering it), it will be marked REJECTED and such
document cannot be re-tendered again. Alade v. Olukade (1976) 2 SC. There are
evidence that are inadmissible and there are evidence that are admissible upon
satisfaction of certain conditions. Where evidence is inadmissible and the other side did
not raise objection, the evidence will become valid evidence as he will be deemed to have
waived his right. Section 251 is to the effect that the impact of evidence wrongfully
admitted or excluded will depend on the role such evidence played or will play in the
final decision. Both wrongfully admitted and excluded evidence will not be a ground for
reversal of any decision unless the decision of the court will change – through material.
The court on appeal will order the case to be heard de novo. Where such will not affect
the decision of the court then there will be no need – not material
Note the following:
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 Always identify what each witness would do and the document to be tendered
through especially if he is the maker.
 As a maker of law, corroboration is not needed except when the law state so. In
civil suit, it is in an action for damages for breach of agreement to marry.
 Anybody can be compelled to testify if competent except those expressly
excluded. However, always bear in mind hostile witness.
 Every counsel should avoid the temptation of manufacturing facts and evidence.
 Evidence tendered from the bar is from the lawyer to the judge and it is an
exception to the rule that evidence is to be tendered from witness box to Bench.
Exception:
i. Original copy of official gazette,
ii. Undisputed documents
iii. CTL of public documents (original)
The following could be grounds of objection to documents with regard to its admissibility
 The document or facts relating to the document is not pleaded.

 No foundation is laid when tendering secondary evidence
 Public document sought to be tendered is not certified in accordance with section
104 (not in its prescribed form).
 Document is not relevant to the case.
 Document is on fact that is, that is privileged in any other way statutorily
excluded.
WEEK 12
TRIAL ADVOCACY
 High Court – Lordship/Ladyship, My Lord

 Magistrate Court – Worship/Honour (Lagos)
 Customary Court – Honour/Your Honour
Pre-preparation
Pre-preparation before trial courts are expected to sit at 9:00 AM in the forenoon. As a
legal practitioner, be in court latest by 8:30 AM. A diligent legal practitioner will check
the ‘cause list’ – reasons are:
 To confirm whether your case has been listed (some registrar and clerks do not do
their work as they ought to do them)
 To confirm whether the matter/case will be called. If a matter is meant for
judgment or ruling, there is a high probability that such matter will be called first.
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 Settle down and make sure your witnesses are in court

 Do a final rehearsal with your witnesses
 Tell the witnesses where to sit
 Know where a new wig, SAN, AG, members of Bencher are meant to sit (outer
bar and inner bar).
 Three bangs usually announce the arrival of the judge. The court clerk will shout
Court!
 Everybody rises and takes a bow, and wait for the judge to sit before you sit.
The claimant announces appearance first as a general rule but there are situations where
the defendant will announce his appearance first. Order 30 r 8 LAG and Order 35 r 12
ABJ – the foregoing provides that the party on whom the burden of proof lies by the
nature of the issues or questions between the parties shall begin. Thus where a defendant
brings an application, the burden of proof is on the defendant. In a fresh matter except
where the defendant admits and raises new facts, the burden of proof is on the
plaintiff/claimant. When a case is called in court and either or both of the parties did not
appear, there are effects - Order 30 r 1-5 LAG
 Where neither party appears, the judge shall, unless he sees good reason to the
contrary, strike the case out – Order 30 r 1 LAG.
 If the claimant appears and the defendant did not appear, the claimant may prove
his claim so far as the burden of proof lies on him – Order 30 r 2
 If the defendant appears and the claimant did not, the defendant shall be entitled
to judgment striking out the case except he has a counter-claim, then he may
prove such counter-claim, so far as the burden of proof lies upon him – Order 30 r
3.
 The judge may, if he thinks it expedient in the interest of justice, postpone of
adjourn a trial for such time and upon such terms as he shall deem fit - Order 30 r
5 LAG.
 Where the case is struck out, party can apply within 7 days for it to be relisted on
cause list on such terms as the judge may deem fit – Order 30 r 4(1) & (3).
 A judgment obtained where one of the parties did not appear can be set aside by
the judge upon such terms as the judge may deem fit – Order 30 r 4(2) & (3).
Application is within 7 days.
Examination in chief
General rule is that examination in chief is Now reduced to the adoption of the
witness statement on oath.
However, a witness may not adopt his statement on oath where

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a. He is brought to court by a subpoena

b. The documents are not agreed upon
c. Where real evidence is sought to be tendered in court.
Please note, a party may call any witness he likes as held in the case of Briscoe v
briscoe. Once a counsel has been briefed, it is the duty of the counsel to do justice to
his clients case and he can call any witness to aid the clients case. See Adewunmi v
plastex Nig. Ltd.
There is a difference between a witness tendering a document and a witness

adopting his written witness statement on oath.
EXAMINATION IN CHIEF
COUNSEL: in your witness statement on oath you referred to the letter on 15 th

JANUARY 2007
Witness: yes
Counsel: please, take a look at this document (document is taken from the counsel to
the witness-by the court clerk)
Counsel: is this the letter referred to by you in the statement on oath?
Witness: Yes.
Counsel. How would be able to identify the document\letter
Witness. I can identify the document through my signature appended thereto.
Counsel. What do you want the court to do with the document?
Witness. I would like the court to admit it in evidence
Counsel. My lord, we seek to tender this document/letter of demand dated this 15 th

day of 2007 as evidence before this court.
Process of objection:
It is a procedure known to the adversarial system and it is the procedure where the
objector raises a compliant about steps taken in the course of proceedings which are
not in accordance with the rules or laws. It should be raised immediately at the time
when something objectionable is undertaken or done by the opposing party. There
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must be grounds and reasons for the objection. An example is where a document is
not pleaded. Any document which is at variance with the pleadings in any case, such
evidence goes to no issue as held in Thomson Organization v NIPC.
Once there is an objection, the court must make a ruling in respect of that objection.
PROPER WAY TO OBJECT BY THE OPPOSING COUNSEL
My lord we shall object to the admissibility of this document, it is inadmissible. The

letter purports to have originated from the custody of the state governor acting in
his official capacity. It is a public document. We refer to sections 89(e), 90(1)©, 102
and 104 Evidence Act. We also place reliance on the case of Araka v Egbue.
Judge (to counsel who tendered the document) How do. You respond
Judge: this is my ruling. The document issued by the witness is therefore held
inadmissible and it is hereby rejected.
When a document is tendered and rejected it should be marked: tendered and rejected.
However, the court would retain the document for record purposes in case of appeal or
until the period of appeal expires.
Babatola v aladejana, the court held that once a document is tendered, the party tendering
cannot withdraw same for correction of the defect and it should not be re-tendered.
If before tendering it is withdrawn, it is retained by the party tendering. Order 30 R

12&17 Lagos, Order35 R 21&22 Abuja.
REFRESHING MEMORY
SECTION 239 EVIDENCE ACT
Due to the length of time between the transaction and the testimony in court, a
witness may be allowed to refresh his memory, at any stage of his examination or
testimony. It can take place during the Examination- in chief, or cross- examination
or re-examination.
A witness may be allowed to refresh his memory by reference to any writing made
at the time of the transaction, or so soon after the transaction, when it is still fresh in
the witness memory. Such statement could be the one made by the witness or some
one else. Section 239(1)(2) EA.
Also, importantly, an expert may avail himself of the provisions to refer to

professional treatises while giving oral evidence. Section 249(3) EA.
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The proper foundation is for the counsel to ask questions of the witness to:
I. Show that the transaction was recorded in writing.

II. That the writing was made by the witness
 Simultaneously with the transaction, or
 So soon after the transaction, when the event was still fresh in the memory of
the witness.
The appropriate procedure is that the counsel must obtain leave of court for the
witness to be able to refresh his memory. Before leave is sought, proper foundation
must have been laid..
In Jimi Amoo v R, the Sc overruled the procedure when witness attempted to

refresh memory from a deposition made some five weeks before the transaction.
HOSTILE WITNESS. Section 230 EA.
A hostile witness is that witness that has shown hostile animus and is unwilling to
tell the truth as held in ESAN v state.
The issue of hostile witness can only arise in the course of examination in chief or re-
examination and NOT cross- examination.
For a witness to be declared a hostile witness, there are 2 conditions:
a. The witness must display hostility. ESAN V STATE

b. The witness should be unwilling to tell the truth. ESAN V STATE, IBE V
STATE
LEAVE OF THE COURT MUST BE SOUGHT orally for the court to pronounce
the witness as hostile witness.
There are three legal implications where a witness is declared a hostile witness:
a. The witness can be asked leading questions in examination in chief or re-

examination.
b. The evidence given by the hostile witness will be disregarded.
c. The counsel can cross-examine his own witness.
KENNETHS NOTE. EXAMINATION IN CHIEF.
It is the examination of a witness by a/the party who calls him – section 214 Evidence
Act. The main purpose of examination-in-chief is to elicit or deduce all facts that would
be necessary in proving your case. Before a witness gives testimony, he is to affirm or
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swear on oath. Section 205 Evidence Act provides generally that all oral evidence given
in any proceeding must be given upon oath or affirmation administered in accordance
with the Oaths Act or Law. Also, any witness summoned to give oral evidence in any
proceeding shall before giving such evidence be cautioned by the court in the following
words: “You……………………are hereby cautioned that if you tell a lie in your
testimony in this proceeding or willfully mislead this court, you are liable to be
prosecuted and if found guilty, you will be seriously dealt with according to law” –
section 206 EA.
Affirmation does not involve the use of external material. It is as follows: “I, Kenneth
Okwor do solemnly affirm that the evidence I shall give before this honorable court shall
be the truth, the whole truth and nothing but the truth”. There is no So help me God in
affirmation. Oath involve the use of external material – Bible, Quran or …….. It is as
follows: “I Kenneth Okwor do solemnly swear by this Bible that the evidence I shall give
before this honorable court shall be the truth, the whole truth and nothing but the truth, so
help me God”. Note that the registrar is to ask the witness if he understands the language
of the court. If the witness does not, an interpreter would be provided.
Questions usually asked by registrar:
 Do you understand English language?

 Caution to the witness
 Do you want to affirm or swear on oath?
 Repeat after me
After that, he would tell the court that the witness understands English, he has been
cautioned and he has affirm or sworn to an oath.
Exception to oath taking
Even though the law expects every witness to take an oath, there are categories of persons
who are exempted. They are:
1. Persons who declare that taking of any oath whatsoever is according to his
religious beliefs unlawful, or persons who have no religious belief and the court in
its opinion should not give evidence on oath – section 208 EA.
2. A child or children less than 14 years who is possessed of sufficient intelligence
to justify the reception of his evidence and understands the duty of speaking the
truth.
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The importance of oath taking is to make sure that the witness is saying the truth and it
attributes more weight to the evidence being given. Thus for those not taking oath, their
evidence, even though admissible, much weight might not be attached.
Types/nature of question to be asked in examination-in-chief
1. Open question: this question gives the witness opportunity of telling the whole
story and explaining
2. Incremental question: this is an offshoot of open question as it tends to fill in the
gaps. Thus dotting the ‘I’s and crossing the ‘t’s.
3. Transitional question: going to historical facts. For instance, cast your mind back
to what happen before. Have you ever noticed such behavior before? YES in……
Always start with open, incremental, and then transitional question. In Lagos and Abuja
questions to be asked in examination-in-chief are now limited because of front loading.
The relevant questions are now
Introductory questions: “Can you please tell this honorable court your name, address and
what you do for a living”. This part is usually not contentious thus leading questions are
allowed – section 221(2) EA
Main body: “can you remember making any statement relating to this case”, “if you see
the statement, will you recognize it?
How will you recognize it?
Conclusion: “what do you want to do with the statement”.
After the identification, the counsel ask the court to formally adopt it, since the court has
a copy – I hereby (We humbly) apply that the witness’ statement on oath be adopted as
the witness examination-in-chief. The fact that examination-in-chief is in writing does not
make it documentary evidence, it is oral evidence.
Leading questions
Leading questions are any questions which suggest the answer which the person putting it
wishes or expects to receive – section 221(1) EA. Leading questions are not allowed in
examination-in-chief or re-examination except with the permission of the court – section
221(2) EA. There are cases where leading questions are allowed.
 In introductory or undisputed or sufficiently proved matters – section 221(3) EA

 In cross examination – section 221(4)
 When permitted by the court
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 Where the witness is declared a hostile witness.
When leading questions are asked of which circumstances does not fall under the
exception, it can be objected to and the exception can be sustained by the court. A party
cannot contradict his witness under examination-in-chief, however in circumstances
where a witness is declared a hostile witness - section 230 EA. If a party wants to call a
witness which the other party will call, wait for the other party to call him and then cross
examine him when he has been called.
Cross examination
This is the examination of a witness by a party other than the party who calls him. The
purpose of cross examination pursuant to section 223 EA are:
 To weaken the testimony of the witness and contradict

 To destroy evidence given by the witness
 To test the veracity, accuracy and credibility of the testimony of the witness
 To shake the credibility of the witness by injuring his character.
 To extract facts from the witness which are favorable to the adverse party’s case
 To discredit the testimony of the witness as unreliable..
In testing the veracity or accuracy of the witness' testimony, other witness can be bought
to testify that the witness' evidence should not be believed. Impeaching character of the
witness is not one of the most favorable thing to do as it may incur the wrath of the court.
The courts believe that witnesses come to court to assist the court. However, once the
character of a witness is tainted, it is not relevant whether his testimony is true or not.
Always know the approach to adopt for the purpose of cross examination. Closed
question in cross examination always help counsel to maintain control over the witness as
far as possible as the intention of the witness is not usually known. Always use close
question and not open question. Open questions should only be used when a counsel is
very sure of the answer. The technique of confrontation used in cross examination does
not mean threaten the witness. Always treat all witness in examination with courtesy and
politeness. Confrontation can be used when a witness has made a previous inconsistent
statement. In confronting him with this statement, first allow him to maintain a clear
position in court; then remind him of the previous statement. Before cross examination
always listen, analyze, evaluate and respond but now, it is read, analyze, evaluate, and
respond (because of frontloading). Always ask the following question:
 Has his evidence damaged my case?
Page 200 of 389

 In what way will cross examination help my case?

 Can the witness in cross examination help my case?
 In what way can he do that?
 Then what are the question you put to him to achieve your intention.
The examination-in-chief of the witness must be analyzed along with your theory of case.
If it damage it, then you can cross examine but if no harm is done to your case, , there
will be no need of cross examination. If a counsel can follow the LAER of RAER,(listen,
Analyse, evaluate, respond) then, the counsel will know whether to cross examine or not.
However cross examination to challenge adverse piece of evidence otherwise it will be

deemed to have admitted the evidence.
Techniques for cross examination
USE THE FOLLOWING:
 Confrontation
 Probing
 Insinuation
 Incremental questions, covering/probing details
 Test as appropriate the accuracy/integrity of the story.
Also closed questioning skill is used and the following questions should be avoided.
 Questions permitting the witness to explain

 Questions reminding the witness of facts
 Long and fishing questions
TEST THE CREDIBILITY
 Prejudice/bias/discrimination
 Motive
 Incentive/interest
 Discredit/impeach witness by
 Inconsistent statement made in the past
 Inconsistent/omission in pleadings
 Any prior conviction-to attack the character
 Any statement by other witnesses that is inconsistent

Restrictions to cross examination
Page 201 of 389

There are certain questions which the court forbids – they are:
 Questions which the court regards indecent or scandalous – section 227 EA

 Questions which appears to the court to be intended to insult or annoy – section
228 EA
There are sanctions for asking such questions. Making report to the Attorney-
General of the federation or other authority to which such legal practitioner is
subject in the exercise of his profession. – section 226 EA. Note that cross
examination need not be carried out in all circumstances – section 215(1) EA.
Section 215(2) EA provides that the cross examination need not be confined to
the facts to which the witness testified on his examination-in-chief. As a general
rule, leading question should be used.

RULES FOR CROSS EXAMINATION, section 214 &215(2), 219 EA
a. Prepare and have general knowledge of the case.

b. Prepare your case theory, trial plan.
c. The counsel should not argue with the witnesS.
d. The counsel should not abuse the witness.
e. Never ask why, how, narrate, explain unless where the answer will not be harmful
or where it may even assist.
f. Do not ask too may questions.
g. Don't ask questions suitable for address.
h. Control the witness through cross examination.
QUESTION
IS THE SKY THE LIMIT OF THE CROSS EXAMINER.
As a general rule, it is true that there is a wide latitude in the question that may be asked
in a cross examination. Although the questions put in cross examination should be
relevant, they need not confined be to the facts to which the witness testified on his
examination in chief pursuant to section 215(2) EA. During cross examination, leading
questions may be asked as provided for in section 221(4) EA.
The questions put by the cross examiner are to test the accuracy or credibility of the
witness, discover who he is and what his position in life is or shake the credit of the
witness by injuring his character as provided in Section 223 of EA.
However, whichever form the questions take, the cross examination should not contain
questions such as
Page 202 of 389

a. Questions Asked without reasonable ground pursuant to section 225 EA.

b. Indecent or scandalous pursuant to section 227 EA
c. Insulting or annoying/offensive questions pursuant to section 228 EA
In conclusion, the sky is not the limit of the cross examiner as his questions need to be
asked within the confines of the law albeit the wide latitude the cross examiner has.
Re-examination
Re-examination is where a witness has been cross examined and he is then examined by
the party who called him – section 214(3) EA. Re-examination is not compulsory in all
cases except where ambiguities arise from cross examination; the purpose is to correct
ambiguities that may have arisen during cross examination. Witnesses shall be first
examined-in-chief then if any other party so desires, cross examination, then if the party
who called him so desires, re-examination - section 215 (3)EA. Only leading question
can be objected to and not the answer provided to it. Documents can be tendered during
any stage of examination of witness. Witness box is to the right. Dock is to the left. In
cross examination, it need not be confined to the facts which the witness testified on his
examination in chief - section 215(2). Re-examination shall be directed to the explanation
of matters referred in cross examination and if a new matter is by permission of the court
introduce in re-examination, the adverse party may further cross examine the witness -
section 215(3). Generally witnesses are not allowed to refresh their memory. A witness is
to testify from his head and not have recourse to any writing/documents made by him.
There are exceptions:
 Where he made the document/written facts by himself at the time of the

transaction – section 239
 An expert by reference to professional treaties
 Writing made by any other person, and read by the witness within the time of the
transaction which he is questioned, if when he read it, he knew it to be correct –
section 239(2)
Always identify the point to be re-examined on, and it is not an avenue to go over
examination-in-chief. The rule applying to examination-in-chief applies to re-
examination.
Ethical issues
 Adequate preparation: a lawyer should be adequately prepared for trial.

 Relevant questions are to be asked in examination of witness – Rule 33(1)(b) RPC
 A lawyer should be competent in handling the case of his client and he is at
liberty to consult other lawyer(s) - Rule 16(1) RPC.
Page 203 of 389
 Testimony or evidence of the witness must not be misquoted.

 A lawyer must not ask scandalous questions. Rule 25(4)
 A lawyer must not produce evidence by bribery.
 A lawyer must not have secret witness that is prevent witness from testifying for
adverse party.
 A lawyer should not doctor/tutor his witness as to give contrary/false testimony.
Rule 15(3)(f)
 Rule 35 RPC
 Rule 25(2) RPC
 Rule 30 RPC.
Examination of expert witness
Experts are persons that are specially skilled in the profession professed - section 68(2)
EA. Ordinarily, expert opinion is generally not admissible - section 67. Where the
opinion of the expert is reduced into writing, such is to be given directly by him unless he
is dead - section 83 EA. For examination-in-chief of an expert, at first, always establish
the status of the expert;
 Establish the qualifications of the expert. As the qualification of the expert is sine
qua non to the evidence of such expert witness. The qualifications of an expert is
not limited to his academic qualifications but includes experience and exposure
on the job.
 Establish his experience in the field which must be given in evidence before he
proceeds with the testimony. SECTION 67 EA
 Counsel thereafter asks the witness to narrate his testimony.
 Start by allowing the witness to testify on any experiment or study carried
out on the subject matter.
 Then allow him to narrate the result of the test/experiment/study
Under cross examination, questions should be directed at his competence/qualification.

This should be done in cross examination and not on appeal. Also his opinion can be
tested against the opinion of other more qualified expert in the same field. Test his
opinion against the premise or hypothesis upon which the opinion is based. That is, it is
insufficient as there are other facts the expert might not have taken into account. Always
give respect to expert because by virtue of their position, they are supposed to be neutral
persons (friends of thee court). Before harassing an expert, make sure it is clear that the
expert is not qualified. Note that expert is not brought solely for the purpose of testifying
for the party bringing him. If an expert's qualification is not before the court, then there
Page 204 of 389
would be no need to cross examine the expert. A legal practitioner is an expert on matter
involving law.
Evidence of children
Before a child under the age of 14 years can testify in any proceeding, the following test
must be adopted:
 Whether he understands questions put to him; or he can give rational answers to

them.
 Whether he has sufficient intelligence to justify the reception of his evidence.
 Whether he understands the duty of speaking the truth.
Once the child passes the above test, he can give unsworn evidence/testimony - section
175 and 209(1) EA.
Hostile witness – section 230, 231, 232 and 233 Evidence Act.
There are two conditions which makes a witness hostile: testifying against a party who
called him; and not willing to tell the truth. The party that called him can then apply for
leave to court for the witness to be declared hostile witness. In applying for the leave, it
must be shown to the court that the two conditions exist. The easiest way is by bringing
to court previous inconsistent statements – section 230. Where a witness is declared a
hostile witness, the party calling him can cross examine him. A witness can only be
declared hostile in examination-in-chief and re-examination and not in cross examination
because the party cross examining is not the party that called him. The credit of a witness
may be impeached in the following ways by any party other than the party calling him or
with the consent of the court by the party who calls him
 By evidence of persons who testifies that they, from their knowledge of the
witness, believe him to be unworthy of credit;
 By proof that the witness has been bribed or has accepted the offer of a bribe or
had received any other corrupt inducement to give his evidence; or
 By proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted.
WEEK 14
Page 205 of 389

CLOSING/FINAL ADDRESS – Order 36 Abuja and Order 30 rr 13 -16 and Order

31 Lagos , section 294 1999 CFRN.
Similar to an address in support of an interlocutory application. ORDER 31 R 1

LAGOS, ORDER 36 FCT.
The final stage of a trial, where the party canvasses or argues issues raised based on
the evidence adduced and the applicable law in favour of its theory of the case.
An address is a fundamental right pursuant to Section 36 of the 1999 CFRN,

although a party may waive it.
Failure to hear a party vitiates the trial, although in clear cases, where facts are not
in dispute court may not call for parties address as in NIGER CONSTRUCTION
LTD V OKUGBENI.
Functions of an address
 Address is meant to assist the court.

 Inform the opposite party of the point canvassed and the applicable law.
Written addresses are filed and exchanged between the parties. However, an
address cannot take the place of credible evidence in a trial. A legal practitioner
should not adduce evidence during trial on behalf of his client.
NOTE: THE GENERAL RULE IS THAT THE LAST TO CALL EVIDENCE

COMMENCES THE ADDRESS AND THEREAFTER THE OPPOSITE SIDE
HAS THE RIGHT OF GENERAL REPLY. THE FIRST TO ADDRESS ENJOYS
THE RIGHT OF REPLY, ONLY ON POINTS OF LAW.
WHERE THE DEFENDANT TENDERS A DOCUMENT DURING CROSS

EXAMINATION THROUGH THE CLAIMANTS’ WITNESS, EVEN WHERE HE
DOES NOT CALL A WITNESS, HE SHALL GIVE HIS ADDRESS FIRST. SEE
TELEPHONE &ELECTRIC CO V. REP OF NIGERIA.
A party calls evidence by tendering such evidence through his own witness or by
any other witness. In the instant case, the defendant has called evidence and should
start the procedure of address. The claimant will then have the right of general
reply(right to address the court). Telephone & Electric Co v Rep. of Nigeria, the
court held that call evidence means adducing or introducing evidence in any form
either oral, documentary or real evidence. ORDER 30 R 13 Lagos.
Page 206 of 389

Closing address or final address is the marriage of the facts and law in order to convince
the court to grant or refuse to grant the claims or prayers.
Filing and adopting written address/closing address
Note that the Rules do not make use of the words plaintiff/claimant or defendant. It uses
party beginning and other party. Thus, in the language of the rules:
 If after the party beginning closes his case and the other party did not call
evidence, then the party beginning would within 21 days file a written address –
Order 36 r 1 ABJ and Order 30 r 13 LAG.
 Where the other party call evidence, such party shall within 21 days after the
close of evidence file and serve written address – Order 36 r 2 ABJ and Order
30 r 14 LAG.
 Where the party beginning has been served, he shall within 21 days file his own
written address – Order 36 r 3 ABJ and Order 30 r 15 LAG.
 The party who first filed shall have a right of reply on point of law only and
shall file his reply within 7 days after service of the other party’s address –
Order 36 r 4 and Order 30 r 16 Lagos.
Summarily the time for filing final written addresses is 21-21-7
FILING OF WRITTEN ADDRESS
ORDER 31
 An address is required to be printed, on white opaque A4 paper.

 The heading in the court, with the parties and the capacity indicated.
 The contents are set out in paragraphs numbered serially.
 The heading of the address. THE WRITTEN ADDRESS OF THE 1 ST
DEFENDANT.
Form of a written/closing address
The following are what a written address should contain in order for it to be properly
identified:
1. The heading of the court

2. The suit number
3. The parties
4. The heading of the document (subject matter) - If trial, it is FINAL/CLOSING
WRITTEN ADDRESS and if interlocutory, WRITTEN ADDRESS IN
SUPPORT OF MOTION ON NOTICE.
Page 207 of 389
5. Introduction
6. Summary of facts
7. Issues for determination
8. Legal argument in support of each issue for determination
9. Conclusion, incorporating reliefs sought including omnibus relief and costs.
10. List of authorities
11. Date
12. Name & signature of Counsel that prepared the written address.
13. Address for service of the other party
Note that by Order 36 r 7 Abuja and Order 31 r 5 Lagos, each party shall file two (2)
copies of his written address in court and serve a copy of it on every other party. Thus,
there will be at least three (3) copies.
NOTE: Counsel come to court on the date fixed for adoption of final address and they
adopt the final address as their arguments in the case. After the adoption, by Order 36 r 5
Abuja, oral argument (adumbration of key points) of not more than thirty (30) minutes is
allowed for each party. In Lagos, by Order 31 r 4(1) Lagos, oral argument (adumbration
of key points) of not more than twenty (20) minutes shall be allowed for each party. Note
that in Lagos, by Order 31 r 4(2) Lagos, where a party or his counsel does not
appear to adopt his final address and present oral argument thereon, the court will
treat and deem the final address as having been duly adopted. Thus, in Abuja, it is
30minutes and in Lagos, it is 20minutes.
Note that by Order 31 r 2 Lagos and Order 36 r 6 Abuja, the final written address shall be
printed on Opaque white paper of good quality (Lagos says Opaque A4 size paper) and
set out in paragraphs numbered serially and contain the contents of final addresses.
ETHICAL ISSUES IN FINAL ADDRESS
Rule 30 RPC. A lawyer is an officer of the court and accordingly, he shall not do any act
or conduct himself in any manner that may obstruct, delay or adversely affect the
administration of justice.
Rule 32(3)(g) – in appearing in his professional capacity before a court or tribunal, a

lawyer shall not with knowledge of its invalidity cite an authority, a decision that has
been overruled or a statute that has been repealed with intent to mislead the court or
tribunal.
Page 208 of 389

Also, a lawyer shall not intentionally or habitually violate any established rule of
procedure or of evidence – Rule 32(3)(e) RPC.
Again a lawyer shall not in his argument assert as a fact that which has not been proved,
or in those jurisdiction where a side has the opening and closing argument to mislead his
opponent by concealing or withholding his in his closing argument position which his
side intends to rely – Rule 32(3)(h) RPC.
Rule 15(3)(g) RPC in his representation of his client, a lawyer shall not knowingly make
a false statement of law or fact.
Rule 32 RPC. A lawyer must not misquote authorities. If he finds any authority adverse
to his case, he must disclose it and he is permitted to distinguish.
Rule 15(3)(a) of RPC
DRAFTING: SAMPLE OF WRITTEN ADDRESS. Refer also to drafted written

address tagged: “Kenneth’s final address civil”

HOLDEN AT LAGOS
SUIT NO: ……..

BETWEEN
ROYAL ESTATES LIMITED ---------------------------------------------- CLAIMANT
AND
CHIEF JOSEPH LAMBE --------------------------------------------------- DEFENDANT
DEFENDANT’S FINAL WRITTEN ADDRESS

1.0 INTRODUCTION
1.1 By a Writ of Summons dated 27/01/2015, the claimant commenced this action
against the defendant claiming the following reliefs as contained on the
Claimant’s Statement of Claim dated and filed on the same day:
2.0 BRIEF STATEMENT OF FACTS
2.1 The agreed facts are that:
3.0 ISSUES FOR DETERMINATION
Page 209 of 389

3.1 It is the humble contention of the defendant that the following issues call for
determination in this action:
3.2 Whether the duty of care of owed to the plaintiff has been breached.
4.0 LEGAL ARGUMENTS
4.1 The first issue for determination before this Honourable Court is whether time for
payment of the balance of the purchase price was of the essence of the contract of
sale of land?
4.14 My Lord, the law is settled that as a general rule
4.14 We therefore answer issue one in the affirmative and humbly urge this
Honourable Court to so hold by resolving this issue in favour of the defendant..
5.0 CONCLUSION
5.1 On the whole, in IBAMA v. SHELL PETROLEUM DEVELOPMENT
COMPANY LTD (2005) 17 NWLR (pt. 954) 364 at 389, OguntadeJSC stated
that sympathy is not always the forerunner for justice. In as much as we must
sympathize with the claimants on account of their developments on the land, that
sympathy cannot translate itself into law.
5.2 The justice of every case must be justice done according to law. The position of
the law on the issues raised and argued in this case is very clear. Therefore, we
urge this Honorable Court to resolve all the issues raised and argued in this case
in favour of the defendant, dismiss the case of the claimant and grant the reliefs
counter claimed by the defendant vide the statement of defence and counter claim
to wit
That the defendant be entitled to……………….
6.0 LIST OF AUTHORITIES
STATUTES REFERRED TO:
CASES REFERRED TO:
Dated this 2nd day of March, 2015.
_____________________
K. O. D. Okwor Esq.,
Defendant’s Counsel,
Star Chambers,
No 5 Law School Drive,
Victoria Island Lagos.
Group8@yahoo.com
08038729114
FOR SERVICE ON:
The Claimant,
C/o his Counsel,
Anita Lardner (Miss),
Page 210 of 389

Group 3 & Co.,

No 12 Law School Drive,
Victoria Island,
Lagos.
JUDGMENT.
Week 14
It is the binding decision of a court which finally decides the rights of the parties in
relation to the subject matter of the suit. See OBI v. OBI; SARAKI v. KOTOYE (1992)
11 – 12 SCNJ (Pt. 1) 26.
See section 318 1999 CFRN for definition of decision. It must be binding, authentic and
official judicial determination by the court of the claims in an action.
It is pertinent to note that a judge at the Case Management Conference can deliver
judgement in Open court and shall direct judgement to be entered. ORDER 35 R1
LAGOS.
Characteristics/attributes of a good judgment
Section 294(1) of the 1999 CFRN provides that every court established under the
constitution shall deliver its decision in writing not later than ninety (90) days after the
conclusion of evidence and final addresses and furnish all the parties to the cause or
matter determined with duly authenticated copies of the decision within seven (7) days of
the delivery thereof. For the underlined part, see also section 294(1) CFRN; Rule 2A(7)
fo the Code of Conduct for Judicial Officers.
From the provisions of section 294(1) CFRN and the decision in ORO v. FALADE
(1995) 5 SCNJ 10, the attributes of a valid judgment are:
1) Must be in writing – section 294(1) CFRN; NIIT, ZARIA v. DANGE (2008) 9

NWLR (Pt. 1091) 127. No superior court of record can deliver an oral judgment,
no matter how well considered
2) It must be delivered in open court except where the court directs otherwise for
sufficient cause. Section 36(3) constitution, order 35 r 1 lagos, 39 R 1 FCT.
3) It should be delivered within ninety (90) days after the conclusion of evidence and
final addresses. (FOR COURTS ESTABLISHED UNDER THE 1999
CONSTITUTION, See section 294(1) CFRN and ORO v. FALADE (1995) 5
SCNJ 10.
4) It must demonstrate a dispassionate consideration and resolution of all the issues
raised or as formulated by the court or the parties. OJOGBUE V NNUBIA
Page 211 of 389
5) The court must not grant a judgement in excess of or outside the claim before it.
Ekpeyong v Nyong..
NOTE THE FOLLOWING:
 A Judgment should not grant more than what is sought. Thus, a judgment can
only be for what is claimed for or less, but never for what was not claimed. The
court can award less, but never more. See EKPENYOUNG v. NYONG. This is
because it has consistently been held that “the court is not a Father Christmas to
dole out gifts not asked for by children. Even father Christmas is generous with
his gifts only on Christmas day and today is not Christmas day” (the courts do not
sit on Christmas day). See AG ABIA & 35 Ors v. AG FEDERATION;
EKPENYOUNG v. NYONG; AWONIYI v. AMORC (2000) 6 SCNJ 141.
HOWEVER, the court can grant ancillary or consequential reliefs or orders even
though they are not specifically asked for or claimed. See AG FEDERATION v.
AIC LTD; AMAECHI v. INEC (2008) 5 NWLR (Pt. 1080) 227. Such ancillary or
consequential relief or order must be related to the original judgment and it cannot
be granted where the principal order is refused.
An ancillary or consequential order or relief is one which, though not claimed, is
incidental and necessary to give effect to the judgment of the court. See
OBAYAGBONA v. OBAZEE (1972) 5 SC 247; NNEJI v. CHUKWU (1988) 3
NWLR 184
Similarly, in AMAECHI v. INEC (2008) 5 NWLR (Pt. 1080) 227, a
consequential order must be one giving effect to the judgment which it follows. It
should not be an order made subsequent to a judgment which detracts from the
judgment and contains extraneous matters. It cannot be made when the principal
order is refused, it is only founded on a claim that has been granted.
 TIME FOR DELIVERING JUDGMENT: the time for delivering judgment is

within 90days from the conclusion of evidence and final addresses. See section
294(1) which provides that every court established under the constitution shall
deliver its decision in writing not later than ninety (90) days after the
conclusion of evidence and final addresses and furnish all parties to the cause or
matter determined with duly authenticated copies of the decision within seven (7)
days of the delivery thereof. See section 294(1) CFRN as amended
HOWEVER, by section 294(5) CFRN as amended the effect of non-compliance
with section 294(1) CFRN is that it shall not nullify the decision unless it has
occasioned a miscarriage of justice on the party complaining. See section 294(5)
CFRN as amended; HARUNA v. UNIVERSITY OF AGRICULTURE
MAKURDI (2006) ALL FWLR (Pt. 304) 432;
Page 212 of 389

NOTE that by section 294(6) 1999 CFRN as amended, a judge who delivers a
judgment after 90days or in non-compliance with the 90days and other
requirements of section 294(1) CFRN will be reported to the Chairman of the
NJC. The said section provides that as soon as possible after the hearing of any
case in which it has been established that there was non-compliance with section
294(1) CFRN, the person presiding over that appellate court or other court
exercising jurisdiction by way of judicial review shall send a report on the case to
the Chairman of the NJC, who shall keep the NJC informed of such action as the
NJC may deem fit.
NOTE that the 90days period begins to run from the date of the final address.
Thus, where counsel have adopted their final written address and the court
adjourns for judgment, but before the expiration of the 90days period, the court
recalls counsel to address it on a point of law or fact for the just determination of
the case, then the 90days will start to run again from the date of the addresses so
recalled (last addresses), and a judgment delivered within 90days of the recalled
address shall be valid notwithstanding that it was delivered after 90days from the
date of the adoption of the initial final written addresses. See SODIPO v.
LEMMIKAINEN (1985) 2 NWLR (Pt. 8) 547; AWOYALE v. OGUNBIYI
(1985) 2 NWLR (Pt. 10) 861. This is because, as the SC held in Sodipo’s case,
the discretion of a court to re-open argument by recalling parties to address it on
some point of law or fact for the just determination of the case after it has
reserved judgment is not fettered by section 258(1) of 1979 CFRN which is in
parimateria with 1999 CFRN, so long as the discretion was exercised within the
90days limit. The recalled addresses are deemed to be final addresses and the
90days begins to run thereafter. HOWEVER, in AWOYALE v. OGUNBIYI
(1985) 2 NWLR (Pt. 10) 861, the SC warned that a court should not recall parties
to address it just to achieve a prolongation of time to save a judgment that would
otherwise have violated the 90days time limit. The discretion to recall must be
exercised only for the purpose of achieving a just determination of the case.
 DELIVERY OF JUDGMENT IN OPEN COURT: The judgment of a court must
be delivered in open court. See section 36(3) CFRN as amended; Order 35 r 1
Lagos and Order 39 r 1 Abuja. That is, a place accessible to members of the
public. Accordingly, a judgment delivered in a judge’s chambers is a nullity and
vitiates the entire proceedings. See NIGERIAN-ARAB BANK v. BARRI
ENGINEERING NIGERIA LTD (1995) 7 SCNJ 147. This is because a judge’s
chambers is not an open court and is only accessible to those invited into it.
However, if the venue is accessible to the public; that is, the public is not barred,
Page 213 of 389

it would be deemed to have been read in public or open court and it does not
matter that members of the public were not present.
The CFRN provides certain instances where judgment can be delivered in camera.
They include: instances where holding such proceedings or reading such
judgment in open court would be against public safety, public defence, public
order, public morality, the welfare of children, the protection of private lives and
property etc. see section 36(4)(a) CFRN as amended.
 PRONOUNCING JUDGMENT AND GIVING REASONS LATER: The law is
clear that a valid judgment must contain the reasons for the decision. Thus, the
delivering of judgment and leaving the reasons thereof for a future date is
unconstitutional. However, the Supreme Court is in the practice of delivering its
judgment and adjourning to some future date to give its reasons for the decision as
was done in UNILAG v. AIGORO. It must be noted that there is no legal basis for
this practice.
In UNAKALAMBA v. COP, the trial magistrate adopted this procedure and it
was condemned on appeal. Similarly, in NIIT ZARIA v. DANGE (2008) 9
NWLR (pt. 1091) 127, the procedure was adopted at the FHC and it was
condemned on appeal. The rationale is that once a judge or magistrate delivers his
judgment, he becomes functus officio and any judgment subsequently reduced
into writing or any reasons subsequently given are of no effect whatsoever.
Note however that by the Second Alteration to the 1999 CFRN, section 285(8)
of 1999 CFRN as amended now permits courts in all final appeals arising
from an election tribunal or court to adopt the practice of first delivering its
judgments orally and giving reasons thereof at a later date. This applies only
to final appeals on election matters. The SC has warned or entered a caveat
in ANPP v. GONI (2012) 7 NWLR (Pt. 1298) 147 that this provision applies
only to a final court which decision is final and not appealable; and not to an
appellate court whose decision is subject to further appeal. In this case, the SC
held that the CA acted ultra vires when it adopted this procedure. Thus, the CA
can only adopt this practice or procedure when it is sitting as a court of final resort
in respect of appeals arising from election petitions and no more.
 READING AND PRONOUNCING JUDGMENT OF A JUDGE BY ANOTHER

JUDGE: In this regard, section 294(2) CFRN as amended provides that each
Justice of the Supreme Court or of the Court of Appeal shall express and deliver
his opinion in writing, or may state in writing that he adopts the opinion of any
other Justice who delivers a written opinion: Provided that it shall not be
necessary for the Justices who heard a cause or matter to be present when
judgment is to be delivered and the opinion of a Justice may be pronounced or
read by any other Justice whether or not he was present at the hearing.
Page 214 of 389
This provision relates only to the SC and CA. It is silent on whether it applies to
other courts. However, in AG FEDERATION v. ANPP &Ors (2003) 15 NWLR
(Pt. 844) 600, the CA held that the omission to provide for the delivery fof the
judgment of a judge of a High Court by another judge of the same court is mere
lacuna occasioned during the constitution making process; and that in the interest
of justice, a judgment duly written and signed by a judge of the High Court can
validly be delivered by another Judge of the same court, if the writer, due to
unavoidable circumstances cannot deliver it.
THE JUDGMENT MUST PROPERLY EVALUATE EVIDENCE: MOGAJI v.

ODOFIN (1978) NSCC 275 is the locus classicus case where the guidelines and
principles of evaluating evidence were stated by the Court. The Court stated that
in a civil case, in evaluating evidence before reaching a decision on which set of
facts and evidence is preferable to the other; the judge must put the two sets of
facts and evidence on an imaginary scale. That is, he will put the evidence of the
plaintiff on one side of the imaginary scale and the evidence of the defendant on
the other side of the scale, weigh one against the other, then decide upon the
preponderance of credible evidence which weighs more. The judge will then
accept it in preference to the other and then apply the appropriate law to it. If that
law supports it, bearing in mind the cause of action, he will then find for the party
whose evidence carries more weight than the other.
 RELIEFS AND ANCILLARY/CONSEQUENTIAL ORDERS: A Judgment

should not grant more than what is sought. Thus, a judgment can only be for what
is claimed for or less, but never for what was not claimed. The court can award
less, but never more. See EKPENYOUNG v. NYONG. This is because it has
consistently been held that “the court is not a Father Christmas to dole out gifts
not asked for by children. Even father Christmas is generous with his gifts only on
Christmas day and today is not Christmas day” (the courts do not sit on Christmas
day). See AG ABIA & 35 Ors v. AG FEDERATION; EKPENYOUNG v.
NYONG; AWONIYI v. AMORC (2000) 6 SCNJ 141.
HOWEVER, the court can grant ancillary or consequential reliefs or orders even
though they are not specifically asked for or claimed. See AG FEDERATION v.
AIC LTD; AMAECHI v. INEC (2008) 5 NWLR (Pt. 1080) 227. Such ancillary or
consequential relief or order must be related to the original judgment and it cannot
be granted where the principal order is refused.
An ancillary or consequential order or relief is one which, though not claimed, is
incidental and necessary to give effect to the judgment of the court. See
OBAYAGBONA v. OBAZEE (1972) 5 SC 247; NNEJI v. CHUKWU (1988) 3
NWLR 184
Page 215 of 389
Similarly, in AMAECHI v. INEC (2008) 5 NWLR (Pt. 1080) 227, a

consequential order must be one giving effect to the judgment which it follows. It
should not be an order made subsequent to a judgment which detracts from the
judgment and contains extraneous matters. It cannot be made when the principal
order is refused, it is only founded on a claim that has been granted.
 Judge should consider the evidence adduced by the parties before making its
findings. WOLUCHEM V GUDI.
TYPES OF JUDGMENT
The types of judgment of a court depends on how and when it was given. The following
are the types of judgment:
CONSENT JUDGMENT…..TERMS OF SETTLEMENT.
This judgment involves agreement between the parties. Thus the consent of the parties is
given to the judgment. It occurs where the parties agree on terms and which the judgment
should be given and merely ask the court to pronounce their agreement as the decision of
the court. See DANA IMPEX v. AWUKAM (2006) 3 NWLR (Pt. 968) 544. It takes two
forms
 Where the parties are in court and then they agree on certain issues and the
agreement is filed in court. The court then adopts and delivers it as judgment.
 The other is where parties are outside the court and they agree on certain terms
and conditions which is reduced into writing as Terms of Settlement and
submitted to court..
The terms are adopted by the parties in the open court where it is made the
judgement of court. WOLUCHEM V WOKOMA
Consent judgment is a final judgment of the court and it binds all parties that consent to
it. A non-party to the proceedings cannot be bound by the consent judgment. Non-party
does not include privy and agent.
AS A FINAL JUDGMENT, IT CAN ONLY SET BE ASIDE ON APPEAL. APPEAL

AGAINST A CONSENT JUDGMENT CAN ONLY BE BY THE LEAVE OF THE
HIGH COURT OR COURT OF APPEAL. SEE SECTION 241(2)(C) CFRN AS
AMENDED, AFEGBAI V. AG EDO STATE; AFOLABI V ADEKUNLE (1983) 8 SC
98.
A consent judgment cannot be set aside by the court that delivered unless on
grounds of mistake, fraud, misrepresentation or on any other ground for which the
agreement on which it was made may be set aside.
Page 216 of 389

Where a consent judgment is to be set aside by the same court that delivered it on
grounds of mistake, fraud, misrepresentation or on any other ground for which the
agreement on which it was made may be set aside, the procedure for setting it aside is
NOT by motion on notice. It is by a SUBSTANTIVE ACTION commenced by Writ
of summons in the same court that delivered the consent judgment. See BABAJIDE
v. AISA
For a consent judgment to be validly entered the parties must agree as to the exact
terms of the judgment and their consent to it must be freely and voluntarily given. It
must be a result of free volition. Once the element of compulsion comes in, the
element of volition goes; and the subsequent judgment can never be a consent
judgment.See UBN PLC v. EDAMKUE; AFOLABI v ADEKUNLE (1983) 8 SC 98.
Order 35 r 6 Lagos provides that in any cause or matter where the defendant has
appeared by legal practitioner, no order for entering judgment shall be made by
consent unless the consent of the defendant is given by his legal practitioner.
Order 35 r 7 LAG provides that where the defendant has no legal practitioner, such
order shall not be made unless the defendant gives his consent in person in open court.
DRAFT
TERMS OF SETTLEMENT
The parties in this case have decided to settle the case , upon the following terms:
1.
2.
3.
DEFAULT JUDGMENT
A default judgment is one given in default of appearance or in default of pleadings. It is

provided for under Order 10 and 20 Lagos and Orders 13 R 6 and 25 R 9 Abuja.
Although a default judgment is final judgment, it is not a judgment on the merit since it is
given without considering the merits of the case.
Page 217 of 389

In Abuja, by Order 13 r 6 Abuja and Order 25 r 9 Abuja a default judgment can be set
aside or varied by the same court on such terms as it deems just.
In Lagos, by Order 10 r 11 Lagos, a judgment in default of appearance can be set aside or

varied by same court on just terms upon an application by the defendant. The application
shall be made within reasonable time, showing a good defence to the claim and a just
cause for the default.
However, in Lagos by Order 20 r 12 Lagos, a default judgment, whether in default of

pleadings or in default of appearance is a final judgment and can only be set aside by
same court on grounds of fraud, non-service and lack of jurisdiction.
Application to set aside a default judgment is by motion on notice, supported by affidavit

and written address. (Note: attach exhibits if necessary and available).
NB: A default judgment can be set aside by another judge of the same court that gave it,
and not necessarily the judge that gave it. See EMODI v. KWENTOH (1996) 2 SCNJ
134. The decision is deemed as the decision of the court and be set aside by another judge
of the same court that gave the judgement.
NB: The principles guiding the setting aside of a default judgment were enunciated in
WILLIAMS v. HOPE RISING & VOLUNTARY FUND SOCIETY (1982) 1-2 SC 145
as follows:
 The reason for the default in appearance or pleadings

 Whether there was undue delay in bringing the application to set aside the
judgment
 Whether setting aside the judgment will be prejudicial to the judgment creditor
 The conduct of the applicant throughout the proceedings.
There is a third form of default judgement: Judgement in default of appearance during

trial. READ IT.
 Where both parties are not in court, the court will strike out the case for want of
diligent prosecution.
SUMMARY JUDGEMENT
In the affidavit in support of the application for summary judgement, the claimant
must show that the defendant does not have a good defence to the case.
DECLARATORY JUDGMENT
Page 218 of 389
This is the judgment that declares the rights of parties without ordering anything to be
done or awarding of damages. A declaratory judgment is not given on admission of facts
or in default of appearance. Where a party seeks a declaratory judgment, he must prove
by evidence that he is entitled to the declaration and in such cases, he must succeed on
the strengths of his case and not on the weakness of the defence. See BELLO v.
EWEKA; KANO v. MAIKAJI (2011) 17 NWLR (Pt. 1275) 190; EZEOKONKWO v.
OKEKE (2000) 5 SC (Pt. 1) 44
Note that in a judgment of the court, there could be declaratory judgment combined with
other judgments such as damages and injunction.
Note that a declaratory judgment cannot be entered in default of appearance or pleading.

A party seeking the declaration still needs to prove it.
A declaratory judgment cannot be stayed, enforced or executed because it only

declares the rights of the party seeking it. The only application against declaratory
judgment is injunction pending appeal.
EXECUTORY JUDGMENT
This judgment is the opposite of declaratory judgment in that it imposes certain orders
and obligations on the party against whom it is given, and such party must comply with
the order. Example is payment of damages and vacation of premises against a tenant. See
OKOYA v. SANTILLI (1994) 4 NWLR (Pt. 338) 256.
Such judgement is liable to be executed by any of the known means of execution of

judgement.
It is executory because it can be executed or stayed. If a party did not comply with
judgment, there are certain mechanisms which the court can use to compel compliance.
INTERLOCUTORY JUDGMENT
This is the judgment given during the pendency of the suit, which does not finally
determine the rights of the parties, such as an order of consolidation, order of retrial,
order striking out with leave to relist, order of non-suit, order of interim or interlocutory
injunction, etc. In OMONUWA v. OSHODIN (1985) 2 SC 1 (locus classicus), it was
held that an order or decision of a court is interlocutory if:
 It does not deal with the final rights of the parties

 If it merely directs how the parties are to proceed in order to obtain the final
decision
 If it does not decide the final rights of the parties.
Page 219 of 389
From the above, if the order or judgment is one which finally disposes of the rights of the
parties, then it is final and not interlocutory. However, a decision in an interlocutory
application, in which the court declines jurisdiction to hear the substantive suit and
consequently strikes out the matter will be deemed to be a final decision for the
purposes of appeal as the ruling decides the final rights to sue in the case. See
WESTERN STEEL WORKS LTD v. IRON & STEEL WORKERS UNION (1986) 3
NWLR (Pt. 30) 617. That is, where there is an interlocutory application challenging
jurisdiction, if the judgment given thereon maintains that the court lacks jurisdiction, then
such a judgment is a FINAL JUDGMENT. But, if the judgment holds that the court has
jurisdiction, then it is an INTERLOCUTORY JUDGMENT. Note also that an order
striking out a case with leave to relist is an interlocutory judgment, while an order
striking out without leave to relist is a final judgment.
Where a judgment is interlocutory, leave of court must be sought before appeal can be
made against it on grounds other than grounds of law. That is, an appeal against an
interlocutory decision can only be with leave of the High Court or the Court of Appeal if
it is not on grounds of law. See section 242(1) CFRN as amended.
The time within which to appeal against an interlocutory judgment is within 14days of
the delivery of the judgment. See section 25(2)(a) of Court of Appeal Act
FINAL JUDGMENT
Final judgment is given at the end of the substantive suit and this is the last thing in the
process of civil litigation. A final judgment is a judgment that finally determines the
rights of the parties in relation to the subject matter of the suit and disposes of all the
issues raised in the case. It is the opposite of interlocutory judgment. A final judgment
has the following effect:
 After the judgment the court becomes functus officio and the judgment is binding
on all the parties and the court. See GOMWALK v. OKOSA
 It determines the number of days within which an appeal will be made.
 It is forms the basis of estoppel per rem judicatam under section 169 of EA, 2011
and also creates the irrebuttable presumption of law called estoppel by record
under section 173 of EA, 2011.
Note that rulings are decisions of court made during the pendency of the suit.
DIFFERENCES BETWEEN AN INTERLOCUTORY JUDGMENT AND A FINAL

JUDGMENT.
Page 220 of 389

 An interlocutory judgment does not finally determine the rights of the parties to
the suit; while a final judgment finally determines the rights of the parties in
relation to the subject matter of the suit.
 Appeals against a final judgment are as of right, see section 241(1)(a) CFRN;
while appeals against an interlocutory judgment are usually with leave of the High
Court or the Court of Appeal except the ground of appeal is on question of law
alone,. See section 242(1) CFRN.
 Time within which to appeal against a final decision is three (3) months from the
delivery of the judgment in a civil case and ninety (90) days from the delivery of
judgment in a criminal case; while the time to appeal an interlocutory judgement
b;; is fourteen (14) days from the delivery of the ruling. See section 25(2)(a) of
Court of Appeal Act.
DISMISSAL OF ACTION (order of dismissal)
Where a claimant or counter-claimant fails to prove his case to the satisfaction of the
court, the claim or counter-claim will be dismissed. A dismissal is a final judgment of a
court and can only be challenged on appeal. Dismissal means that the action has been
heard on its merit. The following are the effects of dismissal:
 The matter cannot be re-litigated upon as it activates estoppel per rem judicatam
 IT IS SUBJECT ONLY TO APPEAL.
 The order of dismissal cannot be set aside by the same court.
 This order of dismissal is a final judgment
 The court is functus officio
This is different from striking out is that the matter is not heard on its merit and thus can
be brought again to the court.
NON-SUIT. ORDER 34 R 1 LAGOS, YESUFU V BARCLAYS BANK LTD
An order of non-suit will be made by the court where the claimant has not totally
failed to prove his case but he has however not led sufficient evidence to entitle him
to judgement, likewise the defendant is not entitled to judgement.
It must be noted that even where the Rules provided for the power to order a non-suit,
one condition which must be satisfied is that before the making the order, the court must
invite the parties to address it on the propriety or otherwise of the order in the
circumstances of the case. See CRAIG v. CRAIG; ODI v. IYALA (2004) 4 SC (Pt. 1) 20.
Thus, under ORDER 34 r 1 Lagos, it is provided that counsel be given an opportunity to
be heard addressing the court on the propriety or otherwise of making an order of non-
suit.
Page 221 of 389
Effect of NON SUIT.
The court in such a circumstance orders a non-suit, giving the claimant the opportunity
to go back, prepare and re-list the matter. Thus, where the claimant has not totally failed
to prove his case but, in the same vein, he has not led sufficient evidence to entitle him to
judgment; nor is the defendant entitled to judgment, the court will make an order of non-
suit. SEE KAURA v. UBA PLC (2005) 8 NWLR (Pt. 926) 24.
NO COURT HAS AN INHERENT POWER TO NON-SUIT. That is, a court does not
have an inherent power to non-suit. The court can only make an order of non-suit if it is
empowered to make such order by Statute or by the Rules. See OMOREGBE v.
LAWANI (1980) 3-4 SC 180; IBIYEMI v. FBN PLC; KHALIL v. ODUMADE. Thus,
where there is no provision in the statute or Rules empowering the court to have the
power to make an order of non-suit, the court cannot make an order of non-suit.
In Lagos, the power to order a non-suit is provided for under Order 34 of the Lagos,
Enugu and Rivers Rules. Thus, the High Court in Lagos can make an order of non-suit.
In Abuja, the Rules do not provide for the power to make an order of non-
suit. Thus, the High Courts in Abuja cannot make an order of non-suit. See
FALEYE v OTAPO (1995) 2 SCNJ 195; NWAKASI v. NWACHUKWU (2004) ALL
FWLR (Pt. 210) 1292.
JUDGEMENT IN REM.
 A judgement that is made to bind the whole world, and not only the parties
to the action.
 It deals with the status of the parties.
 Examples are judgement on matrimonial causes, bankruptcy.
JUDGEMENT IN PERSONAM
 A judgement that has binding effect on the parties that are before the court.
 A person that is not made a party to such action is generally not bound by
the judgement obtained there at
 Party includes privies, representatives, agents, legal successors of the parties.
DELIVERY OF JUDGMENT
Judgment generally is to be delivered in open court. The proceedings of a court shall be

held in public – section 36(3) CFRN. Order 39 r 1 ABJ and Order 35 r 1 LAG provides
Page 222 of 389
that the decision or judgment in a suit shall be delivered in open court, unless the court
otherwise directs for sufficient cause. Thus there are exceptions which are found in
section 36(4) CFRN.
1. Public safety
2. Public order
3. Public morality; and
4. In case of minor
In this like, the hearing and delivery of judgment cannot be in the chambers of the judge
– Nigeria Arab Bank Ltd v. BarriEngNig Ltd (1995) 9 SCNJ.
A judgment may be written by one judge and delivered by another provided that the
person who wrote the judgment is the person who heard the case. See AG
FEDERATION v ANPP
Once a judge has left that court, he cannot deliver a judgment in that court –
OGBUANYINYA v. OBI OKUDO.
All the justices who heard an appeal must not all be present at the time of delivery of the
judgment. Where one justice is absent, his opinion can be read by another justice of the
court, whether or not he was present during hearing. See section 294(2) & (4) CFRN. In
OKINO v. OBANEBIRA, the Supreme Court held that under section 11 of the Court of
Appeal Act, it shall not be necessary for all the justices who heard an appeal to be present
together in court on the day appointed for the delivery of the judgment. It is lawful if
another justice of that court reads the written opinion of any one of them who is
unavailable.
Court is to furnish parties with duly authenticated copies of the decision within 7 days
from the date of delivery. See section 294(1) CFRN, Section 36(7) CFRN; Rule 2A(7) of
the Code of Conduct for Judicial Officers.
However, non-compliance with all the above and the other requirements of section
294(1) CFRN will not render the decision a nullity as long as there is no miscarriage of
justice – section 294(5) CRFN. But the judge will be reported to chairman of NJC. See
section 294(6) CFRN.
Where a judge writes his judgment but dies, retires, is elevated or is howsoever not a
member of that court again, his judgment can only be pronounced.
Once a judgment is delivered, it takes immediate effect unless the court order
otherwise. See Order 35 r 2 Lagos and Order 39 r 6 Abuja.
Page 223 of 389

A judgment must be signed by the judge that wrote it. Failure to sign a judgment renders
it void. See TSALIBAWA v. HABIBA (1991) 2 NWLR (Pt. 174) 461
AMENDMENT/CORRECTION OF JUDGMENT
Once a court delivers its judgment, it becomes functus officio and it cannot alter, amend
or vary the judgment. However, Order 24 r 7 of both Lagos and Abuja provides that a
judge may, at any time, correct clerical mistakes in judgments or orders, or errors arising
therein from any accidental slip or omission upon application, without an appeal being
filed. In Lagos, the application is by motion on notice, supported by affidavit and written
address. Also, the record of the court showing the place where error occurred is to be
attached.See OGUNSOLA v. NICON; while in Abuja, the application is by Motion or
Summons, supported by affidavit and written address. See Order 24 r 7 Abuja. Such
clerical or typographical errors are corrected under the SLIP RULE.
Thus, once a judge delivers his judgment, he cannot re-open the matter or vary the
judgment except for ancillary or consequential orders such as order of instalmental
payment. However, instances where a court can re-open its judgment to amend or vary it
include:
 To correct clerical or typographical errors/mistake. See Order 24 r 7 of both

Abuja and Lagos Rules; INTRA MOTORS NIG PLC v. AKINLOYE (2001) 6
NWLR (pt. 708) 61
 To set aside a default judgment obtained in default of appearance or pleadings.
See order 13 r 6 and 25 r 9 Abuja and Order 10 r 11 and 20 r 12 Lagos.
 To set aside a judgment obtained by fraud.
 Where the judgment is a nullity owing to want of jurisdiction. See SKEN-
CONSULT NIG LTD v. UKEY. Any judge can set a judgment that is a nullity
aside. See SKEN-CONSULT NIG LTD v. UKEY
There is no need for an appeal to correct typographical errors. See Order 24 r 7 of both
Abuja and Lagos. There is also no need for appeal to set aside a void or null judgment.
See VULCAN GASES v. GFIG.
ETHICAL ISSUES IN JUDGMENT
The ethical arising from the writing of judgments by judicial officers and the general
conduct of the case are:
1. By Rule one (1) of the Conduct for Judicial Officers, a judicial officer should be
true and faithful to the Constitution and the law, uphold the course of justice by
abiding with the provisions of the Constitution and the law and should acquire
Page 224 of 389

and maintain professional competence. Thus, the judge must comply with all the
constitutional provisions relating to the writing and delivery of judgments
2. By Rule six (6) of the Conduct for Judicial Officers, a judicial officer has a duty
to promptly dispose of the business of the court, especially cases, by devoting
adequate time to his duties, being punctual in attending Court and be expeditious
in bringing matters to a conclusion.
3. By Rule seven (7) of the Conduct for Judicial Officers, a judicial officer shall
strictly comply with the provisions of the Constitution which require that a copy
of the judgement of superior courts of record be given to the parties in the cause
or matter within seven (7) days from the delivery thereof. See sections 294(1) and
36(7) of the 1999 Constitution as amended.
ARREST OF JUDGMENT:
The practice of arresting judgment is usually a delay tactic used by counsel when they
discover that they have a bad case. At common law, this procedure was available in both
civil and criminal cases and was used to stay the delivery of judgment due to some patent
error or defect appearing on the face of the record which could render such judgment
erroneous or a nullity if delivered.
The practice of arresting judgment is alien to the Rules of court in Nigeria as there is no
provision for it and it is therefore not applicable in civil proceedings. See NEWSWATCH
COMMUNICATIONS LTD v.ATTA (2006) 12 NWLR (Pt. 993) 144; SHETTIMA v.
GONI (2011) 18 NWLR (Pt. 1279) 413. However, in SHETTIMA v. GONI (supra), it
was held that although there is no provision for arrest of judgment in our Rules, there is
an exception under which the judgment of a court may be arrested in order to prevent an
abuse of court process, since every court has a duty to prevent the abuse of its process.
See also DINGYADI v. INEC (No 1) (2010) 18 NWLR (Pt. 1224) 1.
Although counsel may not tag his application as one for arresting a judgment, since such
procedure is alien to the Rule of Court, a proper application before the court objecting to
procedure or to a defect In procedure, albeit brought at the point of delivering judgment,
must be considered by the court as the court has a duty to consider all motions filed
before its judgment is delivered, in order to do real justice in the case. If such a motion is
considered, it would have the same effect of arresting the judgment of the court by
staying the delivery of the judgment until the determination of the motion.
Although a judge has a duty to consider every application properly filed before it, no
matter how worthless; where the application is a cynical attempt to taunt the court or to
hamstring the court in the face of losing a bad case, it will be rejected by the courts.
Page 225 of 389

WEEK 15
ENFORCEMENT OF JUDGMENT
 MEANING OF
 The way and manner of executing the order of the court.
 Once a judgement is delivered, it takes immediate effect/ It becomes
operative and it remains in force and valid in so far as it has not been
appealed against or set aside. Or 35 R 2 Lag, Or 39 r 6&9 Abuja
 The parties in favour of whom the court was given is the judgement creditor,
while the adverse party is the judgement debtor. Where a judgment debtor
fails to comply with the order of the court, some coercive methods must be
employed to ensure due compliance with judgement by way of an application
to the court for an order to levy execution.
All superior courts of Record in Nigeria have a uniform procedure for enforcing their
judgments. It is governed by the Sheriff and Civil Process Act (SCPA) applicable in the
whole of Nigeria and JUDGMENT ENFORCEMENT RULES. This is because the
enforcement of judgments, the service and execution of court processes is under item
57 of the exclusive legislative list. Thus in all states in Nigeria, there is a uniform
enforcement law which is the Sheriff and Civil Processes Act.
For the inferior courts, the states have adopted the SCPA as state laws which now apply
to inferior courts. The Judgement Enforcement Rules also apply.
Applicable laws in enforcement of judgment include:
Section 287 of the 1999 Constitution makes general provisions for the enforcement of
decisions of all courts established by the Constitution. The decision of the Superior courts
established by the constitution shall be enforced in any part of the Federation by all
authorities and persons, and by courts with subordinate jurisdiction to the respective
court.
 the Sheriff and Civil Process Act

 Judgment (Enforcement) Rules, made pursuant to section 94 of SCPA.
 Rules of Court
Time for Execution of Judgement
What time should the judgement creditor apply to court to enforce a judgement?
Page 226 of 389

 After expiration of the specified period of time given by court. If judgement is

given in respect of recovery of debt, what time will judgement be executed?
This depends, as the court can give a time within which the judgement should be
complied with. Thus, the judgement creditor cannot bring an application to levy
execution of the judgement before the expiration of the time stated.
 CONSEQUENCE: The implication is that the enforcement is null and void.
Secondly, the judgement debtor can sue the judgement creditor for damages.
 However, where the judgement is to be executed by writ of possession of land,
where the judge does not stipulate a date, the judgement debtor is given 14 DAYS
from the date of judgement to comply before execution. OR 4 R 1(1) JER.
 For other processes of execution it will be 3 DAYS after judgement was given.
OR 4 R 1(2) JER
 In accordance with Order 4 R 8(1) JER, a process for execution of a judgement
against a person of the judgement debtor must be executed within two years
from the day judgement is delivered, whereas a process for execution of a
judgement which is not against the person of the judgement debtor must be
executed within six years from the day judgement is delivered. After the
specified periods of two and six years respectively, no process shall be issued
without leave of court pursuant to ORDER 4 R 8(2)JER.
 The life of a writ of execution is one year. OR 4 R 10 JER. However, the time
for the execution of the writ can be extended by an application in a motion of
notice supported by an affidavit and written address.
 Date of EXECUTION: Execution shall be between 6am and 6pm from Monday to
Saturday. NO EXECUTION SHALL TAKE PLACE ON SUNDAY OR PUBLIC
HOLIDAY, UNLESS THE JUDGE DIRECTS OTHERWISE BY ORDER
ENDORSED ON THE PROCESS TO BE EXECUTED. OR 2 R 4
APPLICATION FOR ISSUANCE OF EXECUTION PROCESSES IS MADE TO THE

REGISTRAR EITHER:
I. By completing and filling praecipe form ,OR 4 r 4.

II. By a mere written application stating suit no, parties, date of judgement, nature of
the process and amount of judgement. OR 4 R 5 JER.
MODES OF ENFORCEMENT OF JUDGMENT:
The mode or method of enforcing a judgment will depend on whether the judgment is a
1. Money judgment – liquidated money

2. Non-money judgment (land judgment)
3. Other judgments
Page 227 of 389

Note that in any of these judgments, the trial court or the appellate court may order a stay
of execution in which case, the enforcement of the judgment is stayed pending a further
direction from the court.
Money judgment
There are five ways of enforcing this kind of judgment namely:
 Writ of Fieri Facias (Fi. Fa.)

 Garnishee proceedings
 Judgment summons
 Writ of sequestration
 Instalmental Payment
 Charging Order
A money judgment is one which awards a sum of money either as damages, debt,
liquidated sum or even costs to the successful party called the judgment creditor. It may
be enforced in any of the methods above.
When a court makes a money judgment, it may make an order of instalmental

payment. See Order 39 rr 7 & 8 Abuja and Order 35 rr 4 & 5 Lagos. The order for
payment in instalments may be made suomotu by the court or upon application by the
judgment debtor. In practice, once the judgment debtor files an application for
instalmental payment, the Registrar suspends all execution procedures pending the
determination of the application. The application is usually by Motion on Notice,
supported by affidavit disclosing cogent reasons why the judgment debt should not be
paid in en-bloc and a written Address. However, in ACB v. EHIEMUA (1978) 2 SC 73,
the SC warned that a court should not frustrate its own judgment by making an order of
payment in instalments over a long period of time. See also ACB v. ADC LTD (1992) 2
NWLR (Pt. 223) 296.
WRIT OF FIERI FACIAS
The writ is issued by the REGISTRAR upon the application of the judgment creditor.
This writ directs the sheriff of deputy sheriff to attach, seize and sell the property
and goods of the judgment debtor within the division or district of the court to
satisfy the judgment debt. It is the Writ of attachment and sale.
The sale is usually by public auction as in ORDER 7 R 7 JER.
APPLICATION OF PROCEEDS UPON SALE. ORDER 7 R 5 JER
 Deduct the expenditure incurred in respect of the sale

Page 228 of 389
 Offset the judgement sum due to the judgement creditor.

 Any outstanding balance is given to the judgement debtor.
PROCEDURE
 Judgement creditor shall fill the form with the Registrar for a writ of
execution in Form 3 of 1st Schedule to SCPA(praecipe Form) OR 4 R 15 JER.
 However, such writ shall not be issued until after the expiration of 3 days
from day of judgement except with leave of court. OR 4 R 1(2) JER.
A writ of Fi Fa, once granted, the Sheriff is to levy execution on the movable
properties(goods and chattels) of the judgement debtor found within jurisdiction.
However, his wearing apparel, beddings owned by him or his family, the tools and
implements of trade(equipment used to work), to the tune of N10 cannot be attached..
SECTION 25(a) SCPA.
Section 25(b) of SCPA, any money, bank notes, bills of exchange, promissory notes,
bonds, specialties or securities for money belonging to that person can be attached. Thus,
shares in a company or corporation to which the judgement debtor is entitled can be
attached.
By section 29(1) SCPA, where goods or other movable property are attached under a
Writ of Fi. Fa, they shall not be sold until after the expiration of at least five (5) days
from the seizure except where:
a) Where the goods are perishable; or

b) Where the judgment debtor requests so in writing.
HOWEVER, if after levying execution against the moveable properties of the judgement
debtor, the judgement debt is still outstanding and no other moveable properties of the
judgement debtor can be found, a writ of execution can be issued against the immovable
property of the judgement debtor pursuant to section 44 SCPA., By section 44 SCPA,
execution would be levied against the immovable properties.Note what the said section
44 of SCPA provides: :
Provided that where the judgment has been obtained in a magistrate court
execution shall not issue out of the magistrate's court against the
immovable property but shall be issued out of the High Court upon an
application that the High Court may grant leave to attach immovable
property.
LEAVE OF THE HIGH COURT IS HOWEVER REQUIRED TO ISSUe A WRIT OF FI

FA AGAINST IMMOVEABLE PROPERTY as provided for in ORDER 4 R 16 JER.
Page 229 of 389
THE APPLICATION FOR LEAVE TO ISSUE A WRIT OF FI FA AGAINST

IMMOVEABLE PROPERTY SHALL BE BY
 Motion on notice
 Supported by an Affidavit
 Written Address,
WHAT THE AFFIDAVIT MUST STATE
1 What steps, if any that has already been taken to enforce the judgement against the
moveable properties, and the effect.
2 state the sum recovered and the sum that remains due under the judgement.
3 that there are no moveable properties of the judgement debtor that can be attached, or
that no sufficient one can reasonably be found to satisfy the judgement debt.
4 Affidavit must contain evidence of proof of ownership of the property sought to be

executed. The description of the property must be clearly stated. Example, the Four-
stores Building situate at No 1 Law School Drive, Victoria Island Lagos. This could be
ascertained by questions asked and searches at the land registry.
Order 4 r 16(2) JER, FORM 38 SCPA.
If LEAVE IS GRANTED BY THE HIGH COURT, the REGISTRAR issues the writ as
in FORM 38 in the 1st schedule to the JER. After issuance, the IMMOVEABLE property
will be attached. The writ is executed by:
a. Delivery of Notice of attachment as in Form 41 to the judgement debtor;or

b. By leaving it at the place where attachment is to be effected;
c. Except the court otherwise orders, pasting FORM 40 in a conspicuous place on
the land prohibiting all persons from receiving the land by purchase or gift;
ORDER 5 R 3 &4 JER
d. The sheriff may retain actual possession by putting some fit and proper person
approved by him in the possession of the land. ORDER 5 R 3 JER.
By Order 7 r 6(1) JER, where the property attached is immovable property, it shall not be
sold until after the expiration of at least fifteen (15) days from the day it was so
attached, EXCEPT THE JUDGEMENT DEBTOR REQUESTS OTHERWISE IN
WRITING..
Page 230 of 389

By section 16(a) SCPA, where goods and other movable properties attached under a
writ of fi. Fa are sold, the purchaser shall acquire a good title to the goods.
In the case of immovable property, by section 47 SCPA, the purchaser’s title is

voidable for a period of twenty-one (21) days from the sale and can only become
absolute after the expiration of 21days from the day of the sale. By section 50 SCPA, if
within the 21days, no one applies to set aside the sale, then the sale becomes absolute and
the court shall prepare and issue, to the purchaser, a Certificate of Title signed by the
Judge to the effect that the purchaser has purchased the right, title and interest of
the judgment debtor in the property sold.
Any execution against an immovable property without an order of the court renders both
the attachment and subsequent sale null and void. See SALEH v. MONGUNO (2006) 15
NWLR (Pt. 1001) 26
THE TIME FOR THE SALE SHALL BE BETWEEN 7AM AND 8PM. ORDER 7
R 6(5) JER.
Sale of an attached property is always by public auction and not by private contract
unless the court otherwise directs. OR 7 R 7 JER.
GARNISHEE PROCEEDINGS:
Here, if a judgement debtor fails to pay a judgement debt to the judgement creditor, and it
is discovered that the judgement debtor has money standing to his credit in his account at
a bank(a third party), the law views the money in the account as a debt owing to him
from the bank and the debt can be attached by way of garnishee proceedings of the court
judgement against him. FILONE V OLADIPO
 In this procedure of enforcing money judgment, three parties are involved; the
judgment creditor, the judgment debtor and a third party called the garnishee. The
third party is a debtor of the judgment debtor and the judgment creditor then puts
himself in the position of the judgment debtor to collect the debt due to the
judgment debtor.
 This applies to money held by banks, co-operative societies or friends.
 The third party is known as the garnishee, while the judgment creditor is known
as the garnishor. Essentially, the arrangement is between the /garnishee and the
judgment creditor/garnishor.
Page 231 of 389

 Garnishee proceedings is regulated by section 83 of Sheriff and Civil Process Act.

For the judgement creditor must establish that the debt is due or accruing to
the judgment debtor. Must be for sums certain. Examples include:
 A due salary for a particular month
 Rent that is due; and
 Present debt.
LIMITATION
 Applicable only if the Garnishee is indebted to the judgement debtor within

jurisdiction of court where judgement was given. SECTION 83 SCPA,
RICHARDSON V RICHARDSON(PROBATE)
 Where the garnishee is a public officer, consent of the A.G required for garnishee
proceedings against money in possession of a public officer. ONJENWU V
K.S.M.C.I, SECTION 84(1)SCPA. HOWEVER, money belonging to a public
corporation in a commercial bank can be garnisheed without the leave of the AG.
Section 83 of Sheriff and Civil Process Act mention the following procedure.
1. Application is by Motion EX PARTE praying for a GARNISHEE ORDER NISI

requiring the garnishee to come to court to show cause why the Order NISI should
not be made absolute.
2. Supported by an affidavit in Form 25 deposed to by the applicant or his legal
practitioner – Order 8 r 3(1) Judgment Enforcement Rules (JER). The
affidavit is to have the following particulars:
o Name, addresses, occupation of parties
o The date the judgement was entered
o That the judgement is still wholly unsatisfied
o That the garnishee is indebted to the judgement debtor and the amount of
indebtedness.
o Garnishee is within the jurisdiction
ATTACH A CTC OF THE JUDGEMENT Of the court
2 On the date fixed for hearing of ex parte application, if court is satisfied it

makes a garnishee oRDER NISI IN form 26.
3 At least 14 days before the day of hearing, a copy of the Order Nisi shall be
personally served on the garnishee and the judgment debtor(he is entitled to
appear in court on the hearing date having been served with the Order Nisi but he
cannot be heard – section 83(2) Sheriff and Civil Process Act.
Page 232 of 389

EFFECT: ONCE ORDER NISI HAS BEEN SERVED ON THE BANK, IT

CANNOT, WITHOUT LEAVE OF THE COURT, PAY ANY MONEY OUT OF
THAT ACCOUNT TO A THIRD PARTY. SKYE BANK PLC V
COLOMBORA., SECTION 85 SCPA
4. Where the garnishee does not deny indebtedness, payment into court within 8
days of service of the order.
5. HOWEVER, Where the garnishee contests the order or has a legal defence, he
files an affidavit to show cause to contest that he does not have any money, or
money to that tune, or the money belongs to a third party who has a lien over it
OR showing why a garnishee order absolute should not be made against him.
SECTION 87 SCPA
6. On the date fixed for hearing, if the court is convinced that garnishee is owing the
judgement debtor it will make an order absolute. Execution will be carried out
against the garnishee if he fails to pay. A writ of FI Fa can be executed against
him as if he is a normal party PURSUANT TO section 86 SCPA.
7. However, where the court is convinced that the garnishee does not owe, the
application may be struck out.
DRAFT FOR PARTIES
XYZ…………….JUDGEMENT CREDITOR/GARNISHOR/APPLICANT
AND
1BOLANLE DABIRI…………JUDGEMENT DEBTOR/RESPONDENT
2 GUARANTEE TRUST BANK PLC………GARNISHEE/RESPONDENT
PRAYER
A GARNISHEE ORDER NISI attaching the sum of N2,000,000 standing to the

credit of the Judgement Debtor/Respondent at the Victoria Island branch of United
Bank of Africa Ltd(Garnishee) in favour of the judgement Creditor as satisfaction
of the judgement sum.
FINALLY on garnishee, note the following:
a) a garnishee order is an order in personam and not an order in rem. It binds

the debt in the hands of the garnishee
b) by section 83 SCPA, the garnishee must be within the State. That is, it must
be within the jurisdiction of the court. A court can only make a garnishee
order if the garnishee is within jurisdiction. Thus, to commence garnishee
proceedings, you must go to a court where the garnishee can be a defendant.
Page 233 of 389
THUS, IT NEED NOT BE THE COURT THAT GAVE JUDGEMENT,

THAT A GARNISHEE PROCEEDINGS CAN BE INSTITUTED.
JUDGMENT DEBTOR SUMMONS
 By section 55 SCPA, where a judgment debtor who can pay defaults in paying the
judgment debt, the judgment creditor shall apply to court by filing the preacipe in
Form 13 in the 1st Schedule of SCPA for the issuance of a judgment summons,
requiring the judgment debtor to appear and be examined on oath as to his
means. The judgment summons can be either in Form 14 or Form 15.
 Judgement summons should be filed in the judicial division in which the
judgement debtor resides or carries on business. Section 55(2).
 A date for hearing is fixed and the judgment debtor is personally served.
ORDER 9 R 5(1) JER.
 Between the date of service and the date fixed for hearing, there must be not less
than 5 clear days, as the registrar may direct, having regard to the distance of the
court and where the defendant resides. ORDER 9 R 5(2) JER.
 If the judgment debtor refuses to attend court, or is about to abscond from the
jurisdiction of the court in order to avoid being examined on oath, the court may
issue a warrant for his arrest and detention so that he may be brought to
court. See Section 58 SCPA.
 On the date fixed for hearing, the judgement debtor will be examined on oath as
to his means
 The following are the orders the court will make
 An order committing the judgement debtor to prison for a term not
exceeding 6 weeks until he pays if the court finds that he intentionally
defaulted in paying. 65 SCPA
 An order that the judgement debtor’s property be attached and sold.
 An order for payment of the money by installments.
 An order discharging of the judgement debtor from prison.
SECTION 63 SCPA.
Note that the misconduct of the judgment debtor may also make him liable to be
committed to prison. Thus, failure or refusal to honestly and sincerely disclose the
matters examined on may amount to misconduct for which the judgment debtor may be
committed to prison under section 66 SCPA.
However, imprisonment of the judgement debtor does not extinguish his liability to pay
the debt pursuant to SECTION 76 SCPA.
Page 234 of 389

Again, where the judgment debtor had the means to pay or comply but refused to pay or
comply, he can be committed to prison for his disobedience under section 72 SCPA.
When the judgment debtor is committed to prison under a judgment summons, the
judgment creditor is to pay for his sustenance to the tune of not more than 45kobo daily.
See section 78 SCPA. If he fails to pay, the judgment debtor shall be released.
PAYMENT BY INSTALMENT
 It is possible for judgement to be given and the judgement debtor is willing to pay
but cannot pay the entire judgement sum as a whole.
 In such situation, he brings an application by motion on notice for the court to
grant an order for him to pay instalmentally. Supported by an affidavit stating
reasonable grounds for the court to grant instalmental payment.
 OR 35 R 4 and 5 LAG, OR 39 R 7 and 8 ABUJA. ACB ltd v DOMINICO
BUILDERS CO.LTD.
 However, upon default of one instalmental payment, all the outstanding sum
become payable and thus the judgement creditor can bring an application to levy
execution.
 The judge however in granting the application, should not grant the instalmental
payment over a long period of time so much that there is a clog in the claimant
reaping the benefits of the judgement. ACB LTD V EHIEMUA.
NON-MONEY (LAND) JUDGMENT
I. Execution of judgement for Recovery of possession of land.

 It is usually enforced by writ of possession after 14 days of judgement.
Judgments for recovery of land or delivery of possession other than an
action between landlord and tenant is enforceable by Writ of Possession –
Order 11 r 5 JER. The application for writ of delivery or possession of
land is made by filling and filing the appropriate form in the 1st schedule to
SCPA. The writ of possession can only be issued after the expiration of 14
days from the day judgment was delivered, except otherwise ordered by
the court. Or 4 r 1(1) JER
NOTE:Where the judgment relates to an action between Landlord and tenant, it will be
enforced by a Warrant of Possession. It must be noted that the Writ of Possession and the
Warrant of Possession are in like form.
PROCEDURE FOR APPLYING
 By filling Praecipe form 3 in the 1st schedule of SCPA.

 Can only be used to recover possession of land and not for sale of land.
Page 235 of 389
It is possible to use writ of possession and writ of Fi Fa to levy execution. Thus, if

judgement was obtained for recovery or possession of land as well as payment of
money, the judgement may be enforced by a writ of possession and a writ of Fi Fa.
II. A JUDGMENT RELATING TO DELIVERY OF GOODS SHALL BE

ENFORCED BY A WRIT OF DELIVERY IN FORM 67.
 It is addressed to the sheriff requiring him to seize the goods wherever
they may be found within the judicial division of the court and deliver
same to the judgement creditor.
 If in addition to delivery of goods, the judgement is also for the
payment of goods, FORM 68 that is writ of delivery with execution
against IMMOVEABLE property will be issued.
III. JUDGMENT FOR THE EXECUTION OF DEEDS AND OTHER
NEGOTIABLE INSTRUMENTS:
 Applies where the court has given judgment in favour of the judgement
creditor that a deed of Assignment must be executed in his favour or a
negotiable instrument be endorsed in his favour and the judgement debtor
defaults. A request is thereafter made to the judgement debtor to comply
with the order of the court and he refuses to comply.
 The judgement creditor will prepare the deed or negotiable instrument for
the registrar to stamp and sign and therefore it becomes valid and binding.
OR 11 R 11 JER
IV. COMMITTAL ORDER
NON- COMPLIANCE WITH THE ORDERS OF THE COURT
 Where a party fails to comply with the order of the court OTHER THAN AN
ORDER FOR PAYMENT OF MONEY, the court may order that he be
committed to prison and detained in custody until he obeys the court order
 The judgement creditor bring an application by motion on notice supported
by affidavit and written address asking that the judgement debtor be cited
for contempt.
 The court upon grant of the order will issue FORM 48 which is NOTICE OF
CONSEQUENCE OF DISOBEDIENCE TO ORDER OF COURT.
 This notice will be served on the judgement debtor and he has 2 days to
comply with the order of the court. Where he fails, the judgement creditor
will apply to the registrar to issue Form 49 which is NOTICE TO SHOW
CAUSE WHY ORDER OF COMMITTAL SHOULD NOT BE MADE. This
is to be issued within 2 days of issue of Form 48.
Page 236 of 389
 If he comes to court and established good reason, the court will discharge
 Or 9 R 13 JER, if he fails to appear,, a warrant of arrest will be issued.
ONAGORUWA V ADE
WRIT OF SEQUESTRATION:
This method of enforcing money judgments is hardly used and it is provided for
under section 82 SCPA. This writ directs two or more commissioners
(sequestrators) appointed by the court to enter upon the immovable property of the
judgment debtor and to collect and keep all rents and profits thereof. The writ also
empowers the sequestrators to seize the movable property and goods of the
judgment debtor and detain them until the judgment debtor purges himself of
contempt and obeys the judgment of the court. The rent and profit collected may be
used to pay the judgement debt and the costs of execution including reasonable
remuneration as the commissioners may think fit.
It must be noted that although the Writ gives the sequestrators the power to take
possession of the judgment debtor’s property, but it does not vest title in them, so they
cannot sell it as is done for goods seized under a Writ of Fi. Fa.
It is directed against the moveable and immoveable properties of a judgement debtor.

(Immoveable, manage the property and collect rents and profits thereof). Once seized, the
properties are frozen and he cannot do anything with them,
When can it be issued?
 Where an order of warrant of arrest or committal to prison has been issued against
a judgement debtor but he cannot be found.
 Where he has been arrested and detained in custody for failing to obey the
judgement of the court but in spite of this he still persists in his disobedience of
the judgement. OR 11 R 9 JER
A writ of sequestration is basically for the detention of the property of the judgment
debtor so as to deny him control and use of his property until he complies with the
judgment.
HOWEVER NOT ALL COURTS CAN ISSUE THIS WRIT: it is the High Courts
that issue this writ and the procedure for application is by motion on notice
supported by an affidavit for the issue of the writ. Or 11 R 8& 9 JER.
The Magistrate cannot issue a writ of sequestration.ORDER 2 R 27(1) JER.
Page 237 of 389

ENFORCEMENT OF JUDGMENT OF ONE STATE IN ANOTHER STATE.

(INTER-STATE EXECUTION)
Generally, enforcement of judgement of a superior court of record in any part of the

federation by all authorities and persons is guaranteed under the Constitution.
SECTION 287 1999 CONSTITUTION
What law governs execution of judgement of superior courts outside the state where
it was given?
o SCPA
o JUDGEMENT ENFORCEMENT RULES
The procedure for enforcement are:
 Judgement creditor applies to the registrar of court where judgement was

given for the issue of a certificate of judgement containing details/particulars
of the judgement. Section 104 SCPA.
 The registrar will issue the certificate of judgement which must be signed
and sealed.
 The judgment creditor or his counsel takes the certificate of judgment to the
registrar of the court outside jurisdiction where the judgement is to be
executed and the court must be a court of co-ordinate jurisdiction.
 The registrar of that court will register the certificate of judgement in the
NIGERIAN REGISTER OF JUDGEMENTS, section 105 SCPA.
 Upon registration, it will be taken as that judgement of the court outside
jurisdiction. Section 105(2) SCPA. That is, from the moment of registration, the
enforcing court can deal with the judgment as if it was given by it. It can therefore
execute it by any of the modes of enforcement.
 The judgement creditor will take further steps by swearing to an affidavit in
support of the registered judgement before he can execute judgement stating
that
 The amount in the process has become due but unpaid.
 An act ordered to be done remains undone.
 The person ordered to forbear from doing an act has disobeyed the
order
 No process will be issued for larger amount. Section 107 SCPA.
 The judgement creditor then applies for the appropriate execution process
and it is executed.
 After execution, the registrar of the court outside jurisdiction where the
judgement was enforced, will send a report of execution under seal to the
Page 238 of 389

registrar of the court where judgement was obtained stating the extent of
execution. ELECTRICAL & MECHANICAL CONSTRUCTION CO V
TOTAL NIG LTD & ANOR.
Intra-state judgment
This involves the execution of a judgment of a court in another judicial division or

district within the same state. The court that gave the judgment is called the “Home
Court” for this purpose, while the court that is to enforce the judgment is called the
“Foreign Court”.
 The registrar of the home court issues the writ of execution and send it to the
registrar of the foreign court.
 A warrant in form 11 in the 1st schedule to SCPA accompanies the process (writ
of execution), requesting and authorizing execution in the foreign court.
 The registrar of the foreign court receives the process and acts on it as if it were
issued in his court.
 After execution, the registrar of the foreign court pays over all monies(if any)
received from the execution and reports back to the registrar of the home court on
what has been taken on the process. The report should be as in Form 12.
See sections 37 & 39 SCPA; Order 2 rr 26(2) & 28 JER.
ENFORCEMENT OF FOREIGN JUDGMENT’S
Foreign judgments can be enforced in Nigeria through any of the following two ways:
 By an action at common law

 By reciprocity or reciprocal enforcement
Enforcement by Action at Common Law
Under this method of enforcing foreign judgments, the element of reciprocity is not
required. Thus, such a foreign judgment may be enforced in Nigeria irrespective of
whether or not the foreign court would reciprocally enforce the judgments of Nigerian
Courts. This distinguishes it from the other method of enforcing foreign judgments in
Nigeria
The foreign judgement creditor will commence an action in a HC in Nigeria, using

the reliefs given in his foreign judgement as the cause of action.
Page 239 of 389

No need for lengthy trial as the foreign judgement creditor can institute an action
under the summary judgement procedure i.e. OR 11 Lag, undefended list in Abuja.
What judgements are enforceable?
In PEENOK LTD v. HOTEL PRESIDENTIAL LTD, it was held that for the enforcement
of a foreign judgment through an action at common law to be successful, the foreign
judgment must satisfy the following requirements:
a) The judgment must be final and conclusive’

b) The judgment must have been delivered by a superior court of competent
jurisdiction
c) The judgment must be for a definite sum of money, provided that it is not money
recoverable as tax, penalty or fine; and
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.
Not all judgments are enforceable by this method. Any foreign judgment to which Part I
of the Foreign Judgment (Reciprocal Enforcement) Act applies cannot be enforced in
Nigeria through an action at common law, but can only be so enforced through
registration under the Act. (Reciprocity). That is, any judgment to which reciprocal
enforcement applies cannot be enforced by action at common law. See section 8 Foreign
Judgment (Reciprocal Enforcement) Act.
Reciprocal Enforcement
This is based on the enforcement of judgements given by foreign courts in Nigeria

which accord reciprocal treatment to judgements given in Nigeria.. Such countries
that are engaged in reciprocal enforcement with Nigeria are those to be listed in an
order made by the Minister of Justice under Part I of the Foreign Judgment
(Reciprocal Enforcement) Act 1961.
For Nigeria, this is applicable to commonwealth countries and nations under the
trusteeship of the League of Nations as accepted by the President.SECION 9 FJ(RE)
ACT..
NOT ALL JUDGEMENTS ARE ENFORCED BY RECIPROCITY.
CONDITIONS TO REGISTER THE FOREIGN JUDGEMENT
 To be enforceable in Nigeria, the foreign judgment must be of a superior court in

that country, that is High Court status or above. See section 3(1) Foreign
Judgment (Reciprocal Enforcement) Act.
Page 240 of 389

 The judgment must be final and conclusive, though there may be a pending
appeal in the country of origin.
 The judgement sum must be fixed and certain and not taxes, fines, penalties or
any other charges. SECTION 3(2) FJ (RE) ACT.
PROCEDURE
 The foreign judgement creditor will apply to a high court in Nigeria within 6
years after the judgement was given to have the judgement enforced of if
there is an appeal within 6 years of the appeal.. Section 4(1) FJ(RE)
Act.Application is by motion on notice supported by affidavit.
 If the High Court is satisfied by the affidavit evidence that the foreign country is
one that has a reciprocal arrangement with Nigeria, it may order that the foreign
judgement be registered or the affidavit may disclose that the foreign country is
one listed under Section 9 of the Act.
 The Minister of Justice may advise against the registration if it is satisfied that the
foreign country will not reciprocate.
 Upon registration, the HC will have power to deal with the judgement as if it were
its own judgement, BUT CANNOT ORDER INSTALMENTAL PAYMENT.
SECTION 4(2)FJ(RE)ACT, GOODCHILD V ONWUKA.
 If the judgement is in foreign currency, it is registered in Nigerian currency at the
prevailing exchange rate at the time the judgement was given in the foreign
country.
 A foreign judgement shall not be registered, if at the time of application it is not
capable of being enforced in the country of origin.
SETTING ASIDE THE REGISTRATION OF A FOREIGN JUDGEMENT,
SECTION 6 FJ(RE)ACT, IFC V DSNL OFFSHORE LTD, RULE 12

RECIPROCAL ENFORCEMENT JUDGEMENT RULES
Where a judgement creditor applies that the judgement be registered in the HC, a
judgement debtor can apply by way of PETITION to have the registration set aside if he
can establish any of the facts grounds:
 No reciprocity arrangement between Nigeria and the country of the court of

origin.
 The judgement debtor did not receive the notice in good time to enable him
defend the action.
Page 241 of 389

 The foreign court that gave judgement in the matter lacked jurisdiction to give the
judgement. PEENOK INVESTMENT V HOTEL PRESIDENTIAL LTD
 Enforcement of the judgement will be contrary to public policy in Nigeria.
 If he Establishes that the judgement was obtained by fraud. Section 6(1)
FJ(RE)Act.
 That the person that applied for registration oF the judgement has no right to the
judgement.
 The judgement was in respect of a matter which was res judicata as at the time the
date it was delivered in the foreign country.
If application to set aside is refused, the judgement creditor may proceed to levy
execution using any of the methods for enforcement. If granted, the registration will be
set aside. SECTION 6 FJ(RE) ACT., IFC v. DSNL OFFSHORE LTD (2008) 9 NWLR
(Pt. 1093)606.
.ENFORCEMENT OF NIGERIAN JUDGMENT ABROAD
 Only the judgement of the HC and other superior courts of record in Nigeria
can be enforced in foreign country.
 There must be reciprocal arrangement on enforcement between the foreign
country and Nigeria
 Judgement must be for payment of a fixed sum of money and not levies,
fines, taxes or penalties.
 Apply by MOTION ON NOTICE TO THE HC for CTC of the Nigerian
Judgement and Certificate of Judgement.
 Look for a Foreign lawyer to enforce the judgement in compliance with the
procedure in the foreign country
OTHER METHODS OF ENFORCING JUDGMENTS
Where movable or immovable properties of the judgment debtor cannot be found or

are insufficient to satisfy the judgment debt, the judgment creditor may commence
an action against the judgment debtor under bankruptcy proceedings in the case of
an individual or winding up proceedings in the case of a company.
Page 242 of 389

WEEK 15
APPLICATIONS PENDING APPEAL
Application pending appeal
These are applications made when judgement is given to prevent the judgement
creditor from levying execution. The power of the court to protect its judgement is
inherent and statutory pursuant to SECTION 6(6)(C) CFRN 1999.
Where an interlocutory judgment or ruling or a final judgment is delivered, the person

against whom such judgment may need to appeal against the judgment or ruling. Since an
appeal does not operate as an automatic stay, he may need to apply for further action to
be stayed pending the determination of the appeal. The three applications pending appeal
which he can use to achieve this purpose are:
1. Stay of execution
2. Stay of proceeding
3. Injunction pending appeal
ESSENCE OF MAKING APPLICATION
Generally, application pending appeal is made for any of the following reasons:
 The preservation of the res (subject matter) pending the determination of appeal.
 Not to irreversibly alter or change the character of the subject matter before
appeal is determined.
 The successful party at the end of the case will not have an empty judgement and
the appeal is not rendered negatory
 Status quo ante will be maintained pending determination of appeal.
In which court can applications pending appeals be made?
 The trial court in the first instance

 IF refused the application will be made to the court of appeal. OR 6 R 4 Court of
Appeal Rules 2016. OJOSIPE V IKALABA.
Where the application is refused at the trial court, an application should be brought within
15 days of refusal of the application at the trial court at the COURT OF APPEAL. The
application to the court of appeal must be accompanied by
 CTC of the notice of appeal against the ruling or judgment,

 CTC of the judgement or the ruling against which the appeal is lodged and
Page 243 of 389

 the ruling of the High Court refusing the application
NOTE:THE APPLICATION CANNOT BE BROUGHT AT FIRST INSTANCE TO

THE COURT OF APPEAL UNLESS THERE ARE SPECIAL CIRCUMSTANCES
EXISTING WHICH MAKE IT IMPRACTICABLE TO APPLY FISRT TO LOWER
COURT. BASHORUN V CHIEF OF ARMY STAFF.
Before an application pending appeal can be brought in court, the condition

precedent is that a valid appeal must be pending as in INTER CONTRACTORS V
UAC.
The High Court’s jurisdiction to entertain the applications pending appeal is limited to
anytime after the notice of appeal is filed before it or leave to appeal has been granted.
However, once an appeal has been entered at the Court of Appeal, the HC does not have
jurisdiction anymore and thus the application pending appeal will be brought at the Court
of Appeal. Thus, when the Court of Appeal has become seised of the matter, that is,
when the appeal has been entered, the application can only be made to the Court of
Appeal as the High Court becomes divested of the matter upon the entry of appeal. See
OGUNREMI V DADA, COKER V ADEYEMO.
STAY OF EXECUTION – Order 45 r 1 Abuja and Order 54 r 1 Lagos
Once judgment of the court has been delivered, a successful party is entitled to the fruit
and benefits of the judgment. However, the other party can apply for stay of execution of
that judgment pending the determination of an appeal against the judgment. An order of
stay of execution pending the determination of an appeal prevents the judgment creditor
from enforcing or executing the judgment pending the determination of the appeal.
An appeal simpliciter does not operate as an automatic stay of execution or proceeding.

See section 17 of Court of Appeal Act;LIJADU V LIJADU.
The only person that can apply for stay of execution is the judgement debtor in
action. This is because stay of execution is applied for judgements that are executory
in nature.
Generally, application for stay of execution is made for any of the following reasons:
 The preservation of the res (subject matter) pending the determination of appeal
 So that the character of subject matter is not changed or altered.
 To maintain the status quo pending the determination of the appeal
 So that the judgment on appeal may not be nugatory and so that a party who
succeeds on appeal do not have an empty judgment.
Page 244 of 389

THE APPLICATION FOR STAY OF EXECUTION IS ONLY APPROPRIATE

WHERE THERE IS AN EXECUTORY JUDGEMENT. THUS WHERE THE COURT
MERELY DECLINES JURISDICTION IN A MATTER OR GIVES A PURELY
DECLARATORYJUDGEMENT,APPLICATION FOR STAY OF EXECUTION IS
INAPPROPRIATE
POWER OF COURT TO GRANT STAY
 The courts have inherent and statutory power to grant stay of execution of its
judgement. OR 54 R 1&3 LAG, OR 45 R 1&2 ABJ, SECTION 15 CA ACT,
KIGO (NG)LTD V HOLMAN BROS (NIG) LTD.
 Application of stay can be granted either conditionally or unconditionally.
VASWANI TRADING CO V SAVALAKH & CO.
 Power of the court to grant stay is discretionary. OKAFOR V NNAIFE. The
discretion must be exercised judicially and judiciously considering the interests of
the parties.
PROCEDURE
Order 45 r 1 Abuja and Order 54 r 1 Lagos, the application for stay of execution made at
the High court is by
 Motion on notice
 Supported with affidavit setting forth the grounds upon which a stay of execution
is sought.
 Written address
DOCUMENTS TO ACCOMPANY THE AFFIDAVIT
 CTC of the judgement or ruling appealed against

 CTC of the notice of valid appeal and grounds of appeal.
 Where the application has been refused by a lower court, a copy of the ruling
refusing the application.
Application is first made to the High Court except special circumstance makes it
impossible, or appeal as been entered at the court of appeal. OR 6 R 4 CAR 2016.
If application is refused at lower court, another can be made to CA within 15 days after
date of refusal. OR 6 R 3 CAR 2016. OJOSIPE V IKALABA.
CONDITIONS FOR GRANT
Page 245 of 389

 Special, exceptional and substantial circumstances to warrant stay. VASWANI

trading Co V SAVALKH
 Grounds of appeal must raise substantial issues of law or recondite point of law.
AKANWA V IKEDIFE
Further conditions were stated in the Supreme Court case of MARTINS V NICANNAR
FOODS CO LTD,
 Chances of applicant succeeding on appeal. Where the appeal is frivolous, the

stay will not be granted.
 Whether the subject matter of the proceedings will be destroyed or altered.
 Whether the applicant will be able to reap the benefits of the judgement if appeal
succeeds.
 If judgement is for money and costs, whether the judgement debtor/respondent
can pay if appeal succeeds.
 Poverty is not a ground for grant of stay except where the applicant will be
deprived of means of prosecuting his appeal.
 Court will consider the balance of convenience and competing rights of the
parties. UNION BANK NIG. V ODUSOTE BOOKSTORE.
An appeal simpliciter does not act as an automatic stay of execution, but for an
application for stay of execution to be successful, there must be a valid appeal against
the judgment sought to be stayed. See MARTINS v. NICANNER FOODS CO LTD
(1988) 2 NWLR (Pt. 74) 75; LIJADU v. LIJADU (1991) 1 NWLR (PT. 169) 627
Note that where an application for an order of stay of execution is made in the trial court
and it was struck out, another order cannot be made again in the same court. Thus
generally, only subsequent applications are made at the appellate court (Court of Appeal).
Order 6 r 3 Court of Appeal Rules 2016 within 15 days of such refusal.
No first application will be made to the Court of Appeal. However, where there are
special circumstances, which make it impossible or impracticable to apply at the lower
court, the first application can be made to the court of Appeal the first application can be
made. BASHORUN v. CHIEF of ARMY STAFF. One of such special circumstances is
when the application has been entered in the Court of Appeal. An appeal is bought
when it is filed and a notice of appeal is filed in the lower court. When the registrar
of the trial court has compiled the record and sends them to the Court of Appeal,
appeal is deemed to have been entered. In this like, the lower court is devoid of
jurisdiction. OGUNREMI V DADA
With respect to how to apply, note the following:
Page 246 of 389

a) The application can be made both to the High Court and to the Court of Appeal,
but it must first be made to the lower court (High Court) unless there are special
circumstances making it impossible to apply to the High Court first. See Order 6 r
4 Court of Appeal Rules, 2016, in which case it case it can then be first made to
the Court of Appeal on grounds of special circumstances.
However, when the Court of Appeal has become seised of the matter, that is,
when the appeal has been entered, the application can only be made to the Court
of Appeal as the High Court becomes divested of the matter upon the entry of
appeal.10 NWLR (Pt. 987) 50, OGUNREMI V DADA
b) The filing of an appeal is different from the entering of an appeal and this
difference has a significant effect on the method of applying for the applications
pending appeal. Thus, before an appeal is entered, the application shall first be
made to the court of first instance. If the application is refused, then it can be
made to the Court of Appeal WITHIN 15 DAYS. However, it can be made to the
Court of Appeal at first instance where special circumstances exist which make it
impossible or impracticable to apply to the lower court see Order 6 r 4 CA Rules
2016. On the other hand, once the appeal has been has been entered, the Court of
Appeal becomes seised of the matter and the application can only go to the court
of appeal
c) If the application is refused by the High Court, the applicant may file a similar
application before the Court of Appeal within fifteen (15) days of the refusal.
See Order 6 r 3 Court of Appeal Rules, 2016. The application to the court of
appeal must be accompanied by
 CTC is f the ruling against which the appeal is lodged and
d) where the application is refused by the Court of Appeal, then the applicant can
appeal against such refusal to the Supreme Court.
Finally, note the following:
 An order for stay of execution can only be granted in respect of executory

judgment. That is, a judgment in which there is an order capable of being
enforced or complied with. It is not granted in respect of purely declaratory
judgments or orders. See YARO v. AREWA CONSTRUCTIONS LTD (1998) 6
SCNJ 1; AKIBU v. ODUNTAN (1991) 2 SCNJ 30. Where it is a purely
declaratory order or judgment, the proper application should be an application for
an order of injunction pending appeal.
Page 247 of 389

 It is also not granted in favour of a person adjudged or declared to be trespasser.

See AJOMALE v. YADUAT (1991) 5 SCNJ 178 or a person who is in contempt
of an order of court in respect of the proceedings.
TERMS UPON WHICH THE APPLICATION MAY BE GRANTED
 It may be granted unconditionally

 It make be granted on the condition that the judgement debtor furnishes a bank
guarantee
 It may be granted on the condition that the judgement debtor deposits his title
documents to any properties.
OPTIONS OPEN TO AN UNSUCCESSFUL APPLICANT
 He may appeal against the order refusing the application.

 He may make same application he made at the trial court to the Court of Appeal
pursuant to ORDER 6 R 3 CAR 2016.
 Where the complaint is that the application granted is too onerous, the applicant
may apply for variation of the terms of the grant made by the trial or lower court.
This application is made to the appellate court other than the court that granted
the stay of execution.
DRAFTING OF MOTION ON NOTICE FOR ORDER OF STAY OF

EXECUTION:

HOLDEN AT LAGOS
SUIT NO:
BETWEEN
JEFFERY OWHOR-CHUKU --------- CLAIMANT/RESPONDENT
AND
AKINOLA WAHAB ---------------------- DEFENDANT/APPLICANT
Page 248 of 389

MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 45 RULE 1 OF THE HIGH COURT OF FCT,

ABUJA (CIVIL PROCEDURE) 2004 AND THE INHERENT JURISDICTION OF
OR
BROUGHT PURSUANT TO ORDER 54 RULE 1 AND ORDER 39 RULE 1 OF THE

HIGH COURT OF LAGOS (CIVIL PROCEDURE) 2012 AND THE INHERENT
JURISDICTION OF THIS HONOURABLE COURT
OR
BROUGHT PURSUANT TO ORDER 6 RULE 4 OF THE COURT OF APPEAL

RULES, 2016 AND UNDER THE INHERENT JURISDICTION OF THIS
HONOURABLE COURT
(NB: where it is made to court of appeal at first instance for special circumstances. But
where it is made to the court of appeal after refusal by High Court, it is order 6 r 3 of CA
Rules 2016)
TAKE NOTICE that this Honorable Court shall be moved on the ….day of ….2017 in
the hour of 9’o clock in the forenoon or so soon thereafter as counsel to the
defendant/applicant shall be heard praying this Honourable court for the following
order(s):
1) AN ORDER FOR STAY OF EXECUTION of the judgment of this Honourable

Court in Suit no LD/0558/13 delivered by Honourable Justice Jones Okwor on the
______ day of _________, 2015 pending the hearing and determination of the
appeal of the Defendant/Applicant filed on the 10th day of March, 2017 at the
Registry of this Honourable court, against it at the Court of Appeal, Lagos
Division.
2) AND FOR SUCH FURTHER ORDERS as this Honourable Court may deem fit
to make in the circumstances.
Dated this _________ day of _______________, ________________
____________________
K. O. D. Okwor esq.
Defendant/ applicant Counsel
K.O.D & CO Chambers
Page 249 of 389

No 5 Law School Drive

Victoria Island
Lagos
08038729114
FOR SERVICE ON:
The Claimant/ Respondent
C/o his Counsel
B. E. AyoguEsq
B.E. Ayogu & Co.
Victoria Island
Lagos
STAY OF PROCEEDINGS – Order 45 r 1 Abuja and Order 54 r 1 Lagos
 It presupposes that an interlocutory order/ruling is made during the

pendency of the action.
 It is applied for to suspend further proceedings in the substantive suit
pending the determination of appeal against an interlocutory order/ruling.
OR 45 ABUJA, OR 54 R 1 LAGOS.
 It is needed to preserve the res in pending suit and not render the appeal
negatory.
 The power of the court to grant stay is inherent and statutory.
Any of the parties that is dissatisfied with the ruling of the court can apply for stay
of proceedings.
The power of the court to stay is discretionary and must be exercisesd judicially and
judiciously.
PROCEDURE
 By motion on notice, supported by an affidavit, written address and notice of

appeal
 Application is made first to the lower court. ORDER 6 R 4 CAR 2016
 Where application is refused by lower court then within 15 days after refusal
apply to the court of appeal. ORDER 6 R 3 CAR 2016
 Where appeal has been entered apply directly to the Court of appeal
CONDITIONS
Page 250 of 389

 Applicant must establish that he has a valid cause of action in the substantive
suit which is the subject matter of the motion for stay.
 There must be a valid pending appeal which is likely to succeed..
OLAWUNMI V MOHAMMED, SGB NIG LTD V I.F.I. LTD
 There must be special and exceptional circumstances. Example challenge the
jurisdiction of the court. EZE V OKOLONJI.
 The competing rights of the parties to justice must be considered.
 Whether the continuation of the action will be oppressive or vexatious to the
applicant or would constitute an abuse of court process.
 The conduct of the parties and circumstances surrounding the case. AKILU
V FAWEHINMI 2.
MUST EVERY INTERLOCUTORY DECISION BE APPEALED AGAISNT?
Where the interlocutory order will not finally dispose of the case or affect the entire
proceedings, no need to appeal or apply for stay of proceedings. NNPC V
ODIDERE ENT.(NIG)LTD, AROJEYE V UBA.
A person who is not a party to a case cannot apply for a stay of proceedings.
LIYANGE V SANI.
Where application for stay of proceedings is made to court of Appeal, some

documents need to be exhibited
 File notice of appeal(CTC)

 Copy of ruling appealed against
 Copy of ruling refusing stay in court below
 Other relevant documents like pleadings, record of proceedings, writ of
summons, documents.
KENNETH’S NOTE
An order of stay of proceeding is always interlocutory as it stays the substantive

proceeding in the lower court pending the determination of an appeal against a ruling of
the court. That is, an order of stay of proceedings is made to suspend further proceedings
in the suit pending the determination of an interlocutory appeal against an interlocutory
ruling.
This is usually where the court grants an interlocutory judgment and the party against
whom the judgment was given appeals on it.
Page 251 of 389

An order for stay of proceeding is during the pendency of the suit while an order for stay
of execution is after the final judgment of the court. Where it is a final judgment, then an
application for stay of execution or injunction pending appeal should be brought
depending on the kind of judgment. An application or order of stay of proceedings is
always interlocutory.
There are conditions which an applicant for stay of proceeding must satisfy.
 Appeal must be made within 14 days of delivery of the ruling.

 There must be notice of appeal filed at the trial court but have the heading of the
appellate court.
 There must be a pending appeal which is valid
 The grounds of appeal must be arguable. S.G.B Nig Ltd v. I.F.I Ltd (2001) 640.
 That the appeal will dispose of the proceedings
 That the res will not be preserved
 That greater hardship will be caused by a refusal
 That the judgment of the appellate court will be nugatory if stay is not granted.
These principles guiding the grant or refusal of stay of proceedings were stated in NNPC
v. ODIDERE ENTERPRISES NIG LTD (2008) 8 NWLR (Pt. 1090) 583.
Note that where an application for an order of stay of proceeding is made in the trial court
and it was struck out, another order cannot be made again in the same court. Thus
generally, only subsequent applications are made at the appellate court (Court of Appeal).
Order 6 r 4 Court of Appeal Rules 2016 provides as follows:
No first application will be made to the Court of Appeal. However, where there are
special circumstances which make it impossible or impracticable to apply at the lower
court, the first application can be made to the court of Appeal. BASHORUN v. CHIEF
Of ARMY STAFF. One of such special circumstances is when the application has been
entered in the Court of Appeal. An appeal is brought when it is filed and a notice of
appeal is filed in the lower court. When the registrar of the trial court has compiled the
record and sends them to the Court of Appeal, appeal is deemed to have been entered. In
this like, the lower court is devoid of jurisdiction.
With respect to how to apply, note the following:
a) The application can be made both to the High Court and to the Court of Appeal,
but it must first be made to the lower court (High Court) unless there are special
circumstances making it impossible to apply to the High Court first. See Order 6 r
4 Court of Appeal Rules, 2016, in which case it can then be first made to the
Court of Appeal on grounds of special circumstances.
Page 252 of 389
However, when the Court of Appeal has become seised of the matter, that is,
when the appeal has been entered, the application can only be made to the Court
of Appeal as the High Court becomes divested of the matter upon the entry of
appeal. See COKER V ADEYEMO, OGUNREMI V DADA.
b) The filing of an appeal is different from the entering of an appeal and this
difference has a significant effect on the method of applying for the applications
pending appeal. Thus, before an appeal is entered, the application shall first be
made to the court of first instance. If the application is refused, then it can be
made to the Court of Appeal. However, it can be made to the Court of Appeal at
first instance where special circumstances exist which make it impossible or
impracticable to apply to the lower court see Order 6 r 4 CA Rules 2016. On the
other hand, once the appeal has been has been entered, the Court of Appeal
becomes seised of the matter and the application can only go to the court of
appeal
c) If the application is refused by the High Court, the applicant may file a similar
application before the Court of Appeal within fifteen (15) days of the refusal. See
Order 6 r 3 Court of Appeal Rules, 2016. The application to the court of appeal
must be accompanied by
 the ruling against which the appeal is lodged and
note that at the court of appeal, you do not file written address
d) where the application is refused by the Court of Appeal, then the applicant can
appeal against such refusal to the Supreme Court.
By Order 45 r 1 Abuja and Order 54 r 1 Lagos, the procedure for applying for an order of
stay of proceedings is by Motion on Notice supported by an Affidavit stating the ground
of the application and a Written Address. A CTC of the ruling and a CTC of the Notice of
Appeal should also be annexed.
In making a first application to Court of Appeal under special circumstances or second

application, the following is the procedural requirement:
 Motion on Notice
 Affidavit stating the grounds (no written address at the Court of Appeal)
 A certified true copy of the notice of appeal.
 A CTC of ruling appealed against
 A CTC of the ruling of the lower court on first application (if a second
application).
 CTC of Application and affidavit filed at lower court which was refused
Page 253 of 389
Special circumstances can include a strike action in the lower court or a statement
by the justice of the lower court stating that the Counsel should not bring any
application for stay of proceeding.
However in the case of an application for stay of proceedings, it was in held in ANAH v.
ANAH (2008) 9 NWLR (Pt. 1091) 75 that an applicant applying for stay of proceeding
must, in addition to the other documents mentioned above, annex the application and
supporting affidavit which he filed at the High Court and which was refused to enable the
court of appeal to know the reasons and facts why the HIGH COURT rejected the
application in the first instance.
By Order 45 r 2(1) Abuja, an order for stay of execution or proceedings is discretionary

as a court may make or refuse the order – Order 45 r 2 ABJ. This discretion must be
exercised judicially and judiciously. Further, by Order 45 r 2(2) Abuja, a stay of
execution or proceedings could be made conditional or unconditional.
In Lagos, there are peculiar provisions in the Lagos rules – Order 54 r 2 & 3 LAG
1. Application for stay of execution or proceedings is regarded as an urgent matter.

See Order 54 r 3(1) Lagos
DRAFTING OF MOTION ON NOTICE FOR ORDER OF STAY OF

PROCEEDINGS:

HOLDEN AT LAGOS
SUIT NO:
BETWEEN
JEFFERY OWHOR-CHUKU --------- CLAIMANT/APPLICANT
AND
AKINOLA WAHAB ---------------------- DEFENDANT/RESPONDENT
MOTION ON NOTICE
Page 254 of 389

BROUGHT PURSUANT TO ORDER 45 RULE 1 OF THE HIGH COURT OF FCT,

ABUJA (CIVIL PROCEDURE) 2004 AND THE INHERENT JURISDICTION OF
OR
BROUGHT PURSUANT TO ORDER 54 RULE 1 AND ORDER 39 RULE 1 OF THE

HIGH COURT OF LAGOS (CIVIL PROCEDURE) 2012 AND THE INHERENT
JURISDICTION OF THIS HONOURABLE COURT
OR

RULES, 2016 AND THE INHERENT JURISDICTION OF THIS HONOURABLE
COURT
(NB: where it is made to court of appeal at first instance for special circumstances. But
where it is made court of appeal after refusal by High Court, it is order 6 r 3 of CA
Rules 2016)
TAKE NOTICE that this Honorable Court shall be moved … praying for the following
order(s):
1) AN ORDER FOR STAY OF PROCEEDINGS in Suit numbered LD/0558/13
pending before Honourable Justice Jones Okwor of the High Court of Lagos
pending the hearing and determination of the appeal numbered CA/0274/0558
already filed by defendant/applicant at the Court of Appeal, Lagos division.
Dated this _________ day of _______________, ________________
____________________
K. O. D Okworesq.
defendant/applicant’s counsel
Star chambers
Victoria Island
Lagos
08038729114.
ON NOTICE TO:
Page 255 of 389
The Claimant/ resopondent

C/o his Counsel
B. E. AyoguEsq
Victoria Island
Lagos
INJUNCTION PENDING APPEAL
An application for an injunction pending appeal can arise in the following circumstances:
 An order of stay of execution can only be made in respect of an executory

judgment or ruling. Thus, where the judgment is purely declaratory and has no
executory orders to be stayed, the unsuccessful party may apply for an order of
injunction pending the determination of the appeal.
 Where a plaintiff’s or claimant’s action was dismissed (that is, he lost at trial
court), he cannot apply for stay of execution or stay of proceedings. He can only
apply for an injunction pending appeal. Thus, where the plaintiff’s case is
dismissed and the defendant has trying to take steps in relation to the subject
matter which may render the judgment of an appeal nugatory, the plaintiff can
apply for an order of injunction pending appeal to preserve the res and maintain
the status quo since there is no executory order that can be stayed. See
SHODEINDE v. REGISTERED TRUSTEES OF AHMADIYA MOVEMENT
OF ISLAM; ODUTOLA &ANOR V FBN.
 Also where an application for interlocutory injunction was refused. An
unsuccessful applicant can apply for injunction pending appeal on the
interlocutory ruling to restraint the respondent from acting on the order of
refusal pending the determination of an appeal against the ruling. See
ODUTOLA v. FBN; OKOYA v. SANTILI.
NOTE:
Unlike application for stay of execution and stay of proceedings, application for
injunction can be made to the court of appeal directly even though such an
application had not been first made to the trial court. OR 4 R 6 CAR 2016, MIL
ADMIN DELTA STATE V OLU OF WARRI.
PROCEDURE:
Application is motion on notice, supported by affidavit, written address and notice of

appeal.
CONDITIONS FOR GRANT AS FOR STAY OF EXECUTION

Page 256 of 389
1 There must be special or exceptional circumstances warranting the grant of injunction

pending appeal
2 A valid notice of appeal must have been filed. INTER CONTRACTORS V UAC
3 Grounds of appeal must raise recondite or novel points of law.
4 The grounds of appeal must raise substantial legal issues to be determined

5 Peculiar circumstances that may make grant of injunction equitable
6 Existence of legal rights that needs to be protected,
7 Balance of convenience in appellants favour.
NOTE: an interlocutory order declining jurisdiction is a final judgement. In an

appeal against such decision the proper application pending appeal is application for
injunction pending appeal.
The power to grant an injunction pending appeal is discretionary and such discretionary
power must be exercised judicially and judiciously.
COMPARE AND CONTRAST STAY OF EXECUTION, STAY OF PROCEEDINGS

AND INJUNCTION PENDING APPEAL
Similarities
1 all processes are used to protect the res, maintain status quo and not render appeal
nugatiry
2 Applications are by motion on notice, affidavit and written address.
3 there must be a valid notice of appeal filed for all processes.
4 Stay of Execution and injunction pending appeal are brought after judgement of the
trial court.
DIFFERENCES
1 Both stay of execution and injunction pending appeal are post judgement, stay of
proceedings is during trial before judgement.
2 Injunction pending appeal is granted on declaratory orders, stay of execution is granted

on executory judgement.
3 Application for injunction pending appeal can be made in the first instance to the court
of appeal, stay of execution and stay of proceedings must first be made to the lower court
before the Court of Appeal.
Page 257 of 389
Specimen of injunction pending appeal before Court of Appeal
IN THE COURT OF APPEAL OF NIGERIA
HOLDEN AT LAGOS
APPEAL NO:
SUIT NO:
BETWEEN
CROWN KITCHEN LTD CLAIMANT//RESPONDENT
AND
K & T LTD DEFENDANT//APPLICANT
MOTION OF NOTICE

RULES 2016 AND UNDER THE INHERENT JURISDICTION OF THIS COURT.
(for first application to court of appeal. For second or subsequent application after refusal
at High Court, use Order 6 rule 3 CA Rules, 2016. Where at High Court of Lagos, use
Order 39 rule 1 Lagos.)
TAKE NOTICE that the Court of Appeal will be moved on the day of______2013, at the
hour of 9’O clock in the fore noon or so soon thereafter as the applicant counsel on behalf
of applicant can be heard praying for the following orders.
1) AN ORDER OF INJUNCTION PENDING APPEAL restraining the respondent

from acting on the judgment of the High Court of Lagos state delivered by
Honorable Justice Ayo Suleiman on 12th September 2012, Lagos pending the
hearing and determination of the appeal numbered CA/0274/0558 already filed by
defendant/applicant at the Court of Appeal, Lagos division
Dated this ______________day of___________2013
Page 258 of 389

____________________
K. O. Okwor Besq.
Defendant/ applicant Counsel
Victoria Island
Lagos
FOR SERVICE ON:
The Claimant/ respondent
C/o his Counsel
B. E. AyoguEsq
Victoria Island
Lagos
ETHICAL ISSUES
Rule 16 RPC
Rule 30 RPC
Rule 15 RP
WEEK 16
CIVIL APPEALS: Decision to question a decision of the court. The right to appeal
against a decision is constitutional and statutory. There is nothing like an inherent
power to appeal.
Is it every judgement or order of court that can be appealed against? It is only the
decision of a court that can be appealed against. Section 318 of the 1999 CFRN
defines decision to mean, any decision of court. The whole decision or the part of the
decision can be appealed against. This decision of the court will include an Order of
the court.
What can be appealed against must be the ratio decidendi of the case
Note: for the purpose of MCQ, time to file appeal in criminal proceedings is ninety
(90) days; while in civil proceedings, it is three (3) months.
Page 259 of 389
Appeals involve proceeding from the judgment of a trial court to an appellate or from one
appellate court to another appellate court. Appeals are important because there is a
realization that judges are human and they can be wrong. Thus opportunity is given for
another set of judges to assess the decision of a lower judge. Also, appeal helps curb the
excessive power of the trial court.
Note that there is no inherent or general right of appeal. The right to appeal is
purely statutory – ADIGUN v. AG OYO State
The applicable laws are:
 The constitution of the federal republic of Nigeria 1999 as amended

 The Court of Appeal Act
 The Court of Appeal Rules
General provisions:
By section 240 CFRN, the Court of Appeal shall have jurisdiction to the exclusion of any
other court of law in Nigeria, to hear and determine appeals from the Federal High Court,
the National Industrial Court, the High Court of the Federation Capital Territory, Abuja,
High Court of a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja,
Sharia Court of Appeal of a state, Customary Court of Appeal of a state and from
decisions of a Court Martial or other tribunals as may be prescribed by an Act of the
National Assembly such as Code of Conduct Tribunal, National and State Houses of
Assembly Election Tribunals, and the Governorship Election Tribunals.
By section 247(1) CFRN, for the purpose of exercising any jurisdiction conferred on it,
the CA shall be duly constituted if it consists of not less than three (3) JCAs and by
Section 247(1) (a) CFRN, if the appeal is from the Sharia Court of Appeal, it must consist
of not less than three (3) JCA learned in Islamic Personal Law. Also by section 247(1)(b)
CFRN, where the appeal is from the Customary Court of Appeal, it must consist of not
less than three (3) JCAs learned in customary law.
Where the CA is not duly constituted as required by the CFRN, it is incompetent to

exercise any jurisdiction conferred on it by law. See MADUKOLI V NKEMDILIM.
However note that a single justice can deliver a judgment of the court. See section 294(4)
CFRN.
Right of appeal
Right of appeal is divided into two categories; namely
 Appeal as of right
Page 260 of 389
 Appeal with the leave of court (that is, leave or consent of either the lower or
appellate court)
Appeal as of right
Knowing the instances of appeal as of right is important because the processes to file
depend on whether the appeal is as of right or with the leave of the court. The following
are the instances of appeal as of right which does not require the leave of court in the case
of a party in the proceedings. The appeal however must be brought within the time
stipulated for filing appeals. In civil cases, they are found in section 241(1)(a)-(f)
excluding (e) CFRN 1999.
Final decisions in any civil or criminal proceedings before the Federal High Court, High
Court (state or FCT), and National Industrial Court sitting at first instance – section
241(1)(a). The decision must be final and the court must have sat as a court of first
instance in the case. Therefore, a double appeal; that is an appeal against the decision of
any of these courts while it sat on appeal from a decision of a lower court cannot be as of
right. Thus,to ignite the double appeal, It must be by leave Pursuant to SECTION
242(2) 1999 CFRN
IT MUST BE NOTED THAT IN THE CASE OF A DOUBLE APPEAL, AN APPEAL

WILL LIE AS OF RIGHT IF THE GROUND OF APPEAL IS A QUESTION OF LAW
ALONE. THAT IS, EVEN IF THE HC OR FHC IS NOT SITTING AT FIRST
INSTANCE, THE APPEAL AGAINST THE JUDGMENT WILL BE AS OF RIGHT IF
THE GROUND OF APPEAL IS A GROUND OF LAW ALONE.
Note that the requirement of final judgement and first instance applies only to section
241(1)(a) CFRN. In all the subsequent paragraphs, there is no requirement of final
judgement or first instance and it does not matter in all the subsequent instances.
2) Where the ground of appeal involves questions of law alone arising from any civil
or criminal proceeding. Section 241(1)(b). Here, there is no requirement of final decision
or sitting at first instance. What is important is the ground of appeal which must be
question of law alone. This may be a final or interlocutory decision. It does not matter
whether the decision was final or not. See ATTAMAH v. ANGLICAN BISHOP OF THE
NIGER (1999) 9 SCNJ 23. NOTE that where the ground of appeal is on facts alone
or on grounds of mixed law and fact, the appeal would be by leave of court. See
HARRIMAN v. HARRIMAN; AKEREDOLU v. AKINREMI. The guide to identifying
whether a ground of appeal is a ground of law alone was stated by the SC in ASHDC v.
EMEKUE as follows:
a) The ground is as to whether a contract exists or has lapsed; OR

Page 261 of 389
b) The ground does not question the evaluation of evidence by the lower court but
only the inference to be drawn from established facts based on admissible
evidence. That is, wherethegroundofappealisonevaluationofevidence, it is a
ground of fact; but where it relates to inference drawn from the facts, it is a
ground of law. OR
c) The ground is complaining that there has been a misconception of the law in its
application to the established facts; OR
d) The ground is complaining that the court below reached its decision where there
is no evidence before it upon which the court below could base its decisions.
e) The ground is on the admissibility of evidence. This is because the admissibility
of evidence is determined by the EA, 2011
A ground of appeal will be said to be a ground of law alone where it relates solely to
any of the above. NB: (b) & (c) are the best…
Note that where the appeal is against a matter which is at the discretion of the
lower court, then, it is a ground of fact or at best mixed law and fact; not law,
such as stay of proceedings etc. See COMEX v. NAB
3) Decisions in any civil or criminal proceeding on the interpretation or application

of the CFRN 1999. Section 241(1)(c)
4) Decisions in any civil or criminal proceeding as to whether any provisions of

chapter Four CFRN 1999 has been, is being or is likely to be contravened in relation to
any person. Section 241(1)(d)
5) Decisions in criminal proceedings where the FHC or HC has imposed the

sentence of death. Section 241(1)(e). This is only applicable to criminal proceedings
6) By Section 241(1)(f), Decisions of the FHC or HC where:
a) Where the liberty of a person or the custody of an infant is concerned –

Section 241(1)(f)(i)
b) Where an injunction or the appointment of a receiver is granted or refused
- Section 241(1)(f)(ii). With regards to grant of an injunction, see also
ATTAMAH v. ANGLICAN BISHOP OF THE NIGER
c) Decision determining the case of a creditor or the liability of a
contributory or other officer under any enactment relating to companies -
Section 241(1)(f)(iii),
d) In the case of a decree nisi in a matrimonial cause or a decision in an
admiralty action determining liability - Section 241(1)(f)(iv). In the case
Page 262 of 389

of a decree nisi granting dissolution or nullity of a Marriage, see

NABHAN v NABHAN
e) In such other cases as may be prescribed by a law in Nigeria.
Note that the requirement of final judgement and first instance applies only to section
241(1)(a) CFRN. In all the subsequent paragraphs, there is no requirement of final
judgement or first instance and it does not matter in all the subsequent instances.
TIME FOR APPEAL
SECTION 25(2) COURT OF APPEAL ACT(AS AMENDED)
NOTE that section 241(2) CFRN provides instances where there is NO right of appeal
whatsoever. In those instances, there an absolute bar on appeals. They include
 where a HC or FHC grants an unconditional leave to a person to defend an

action. See section 241(2)(a); NBN LTD v. WEIDE & co
 a decision making an order absolute of dissolution or nullity of marriage where
the aggrieved party had time and opportunity to appeal against the decree nisi but
did not do so. See section 241(2)(b). NABHAN V NABHAN(the status of the
parties have changed, as the marriage stands dissolved)
 The provisions of section 241(2)(c) do not amount to an absolute bar, but to
an instant where leave of court is required. Thus, by it, leave of court is
required for an appeal against a consent judgment or an order as to costs only.
ABDULKAREEM V INCAR NIG. LTD(Consent Judgement), AYANBOYE V
BALOGUN(costs)
By section 243(2) CFRN, appeal shall lie as of right to CA from decisions of NIC on
questions of fundamental human rights as contained in chapter 4 of the CFRN as it relates
to any matter on which NIC has jurisdiction
Section 243(4) provides that the decision of the court of appeal in respect to any
appeal arising from the civil jurisdiction of the NIC is final.
By section 244(1) CFRN, an appeal shall lie as of right to CA from decisions of Sharia
Court of Appeal relating to questions of Islamic Personal Law
By section 245(1) CFRN, an appeal shall lie as of right to CA from decisions of

Customary Court of Appeal relating to any question of customary law.
By section 246(1), an appeal shall lie as of right to CA from:
a) Decisions of Code of Conduct Tribunal
Page 263 of 389

b) Decisions of National and State Houses of Assembly Election Tribunals on any

question whether any person has been validly elected as a member of National
Assembly or State House of Assembly.
c) Decisions of Governorship Election Tribunals on any question whether any
person has been validly elected into the office of a Governor or Deputy Governor.
Note that decisions of CA on appeals from National and State Houses of
Assembly election tribunal is final. See section 246(3).
Appeal with leave of court – section 242 CFRN
Here, the right of appeal is not as of right, but can only be exercised by leave of court.
The leave required here is the leave of either the trial court or the Court of Appeal. That
is, the leave must be that of the Federal High Court, State High Court, High Court FCT,
National Industrial Court (depending on which one handled the case) or that of the Court
of Appeal. The instances where appeal would be by leave of court are:
 Matters not coming under section 241(1) CFRN, appeal in such cases require
leave of court – section 242 CFRN
 Appeals against a consent judgment must be by leave of court – section 241(2)(c).
 Appeal against the grant or refusal of an order as to cost only – section 241(2)(c).
 A double appeal. That is an appeal against a decision of HC or FHC, not sitting at
first instance, but sitting on appeal from a decision of a lower court where the
ground of appeal is not on law alone.
 Appeals where the ground of appeal is founded on facts alone or on grounds of
mixed law and fact where it is not a final decision of a court of first instance.
 Interlocutory appeals not on point of law alone.
Effect of failure to obtain leave of court
Where leave of court to appeal is required and such is not obtained, such goes to the
jurisdiction of the Court of Appeal. This is because appeal is statutory and not inherent.
Thus it will not be a question of irregularity which can be rectified. ADIGUN V AG
OYO STATE.
An appeal is made against a decision and section 318 CFRN defines a decision as the
determination of a court. See DEDUWA v. OKORODUDU. There are many things that
are done in court that are not decisions and thus cannot be appealed against. They are:
1) Transfer by chief judges and administrative decision to assign cases: the decision
of the chief judge to transfer a case is an administrative decision which is not
subject to any appeal. DIKE v. ADUBA. Upon an application for transfer of a
Page 264 of 389

case from Magistrate to Higher Court, the Supreme Court said the function is
administrative and the decision arrived at is not appealable to the Court of Appeal
2) Minority opinion of a court or a dissenting judgment: a minority opinion of a
court or a dissenting judgment or an obiter dictum cannot be the basis of an
appeal and are not appealable. See IGE v. OLUNLOYO.
3) Obiter dictum: this is a mere statement not based on any issue before the court.
Thus an appeal cannot be made on it. ABACHA v. FAWEHINMI.
NOTE that the Difference between final and interlocutory is important in two
respects namely:
 Time limit for appealing (3 months for final and 14 days for interlocutory)
 Right of appeal; whether appeal is as of right or with leave of court
Interlocutory decision does not determine the rights of the parties finally. Final decision
determines the rights and issues between the parties finally. The test has been laid down
by the Supreme Court in OMONUWA v. OSHODIN. They are:
 The nature of the order that was made; or

 The nature of the proceedings/the application made to the court
If the order finally determines the rights and issues between the parties leaving nothing to
be decided by the court then it is final.
Examples of final judgment are:
 Committal for contempt. Arobokun v. Adeyemi (1968) 2 All NLR.

 Order of non-suit. Omonuwa v. Oshodin
 Issue of jurisdiction: this is where the court declines jurisdiction either at first
instance or on appeal. Western Steel Works Ltd v. Iron and Steel Workers.
Persons who can exercise the right of appeal – section 243 CFRN
Section 243(1)(a) CFRN provides for only two (2) categories of persons who can
exercise the right of appeal in civil cases. They are:
a) Any party to the proceedings. That is, those whose names appear on the processes
in the case. See section 243(1)(a) CFRN. These are parties on record.
b) With leave, any person interested in matter (non-party). The parties need not be
on record. That is, with leave of either HC or FHC or CA, any person interested in
the matter may also appeal. See section 243(1)(a) CFRN; ADEMOLA v.
Page 265 of 389
SODIPO; LSPDC v. DAKOUR. In ADELEKE v. OYO STATE HOUSE OF

ASSEMBLY (In Re: Ladoja), it was held that to qualify for leave to appeal
against the decision as an interested person, such interest must be a genuine and
legally recognizable interest, which has been or is likely to be adversely or
prejudicially affected by the decision. A general interest to see that justice is
done will not suffice for this purpose. See also SOCIETE GENERALE BANK
(NIG) LTD v. AFEKORO
Failure to obtain leave before appealing as a non-party having an interest in the
matter renders the appeal incompetent. See AG FEDERATION v. ANPP.
SUCH PERSON WILL BRING AN APPLICATION FOR LEAVE, BY MOTION ON

NOTICE, SUPPORTED BY AN AFFIDAVIT AND WRITTEN ADDRESS. The party
must show the interest in order to support the application.
By section 243(1)(b) CFRN, the right of appeal can also be exercised in accordance with
Act of National Assembly, Rules of Court of CA.
NB: IT MUST BE NOTED THAT LEAVE TO APPEAL AS A PERSON HAVING AN

INTEREST IN A MATTER IS DISTINCT AND DIFFERENT FROM THE RIGHT TO
APPEAL. IT IS SETTLED THAT THE RIGHT TO APPEAL MAY EITHER BE AS OF
RIGHT OR BY LEAVE TO APPEAL. THE LEAVE TO APPEAL AS AN
INTERESTED PERSON IS MERELY TO ENABLE THE APPLICANT
EXERCISE THE RIGHT OF APPEAL WHICH MAY BE AS OF RIGHT OR
WITH LEAVE. THEREFORE, WHERE THE APPLICANT’S GROUND OF APPEAL
IS NOT ONE WHICH IS AS OF RIGHT BUT ONE THAT REQUIRES LEAVE, THEN
THE APPLICANT MUST STILL APPLY FOR LEAVE TO APPEAL AFTER THE
LEAVE TO APPEAL AS AN INTERESTED PERSON HAS BEEN GRANTED.
THUS, WHERE AN INTERESTED PARTY IS APPEALING WITH RESPECT TO A
MATTER THAT REQUIRES LEAVE OF COURT, HE NEEDS TWO SEPARATE
PRAYERS, ONE FOR LEAVE TO APPEAL AS AN INTERESTED PARTY AND
THE OTHER, APPEAL WITH THE LEAVE OF THE COURT. THE COURT HAS
THE RIGHT TO GRANT BOTH PRAYERS OR REFUSE BOTH OR GRANT ONE
AND REFUSE THE OTHER.
NOTE THAT FLOWING FROM THE ABOVE, IF YOU ARE NOT OUT OF TIME,
YOUR MOTION PAPER WILL HAVE TWO PRAYERS: leave to appeal as an
interested person and leave to appeal. WHERE YOU ARE OUT OF TIME, THEN IN
ADDITION TO YOUR PRAYER FOR LEAVE TO APPEAL AS INTERESTED
PARTY; YOU MOTION MUST ALSO CONTAIN THE TRINITY PRAYERS. THUS,
Page 266 of 389

IT WILL HAVE FOUR PRAYERS. ALL THESE CAN BE SOUGHT IN THE SAME
APPLICATION.
Leave to appeal
Where the appeal is by leave of court, the power of a judge to grant leave to appeal is
discretionary. The principles which a judge should follow in exercising his discretion to
grant leave were stated in ADAMOLEKUN v DIKE as follows:
a) Leave should be granted where the question is one of general principles decided
for the first time; OR
b) Where there is a real and substantial complaint which the trial judge though may
not agree with, nevertheless considers arguable; that is, capable of being seriously
canvassed and opposed on appeal
c) The court should refuse leave where the complaint is obviously frivolous.
Leave to appeal is not automatic but granted with judicious discretion. See OJORA v.
ODUNSI.
Procedure AND TIME for application of Leave to appeal - Order 6 rr 1 CA Rules,

2016
By Order 6 r 4 CA Rules, 2016, application for leave to appeal must first be made to the
lower court (HC or FHC) whose decision is being appealed against except if there are
special circumstances which make it impossible or impracticable to apply to the lower
court. In such cases, the application may then be made first to the court of appeal.
The application to the lower court is usually by Motion ON NOTICE. OR 6 R 2 CAR

2016.
Where the application for leave to appeal is refused by the lower court, then by Order 6 r
3 CA Rules, 2016, a similar application may be made to the Court of Appeal within
fifteen (15) days of such refusal.
By Order 6 r 2 CA Rules, 2016, an application to the CA for leave to appeal, other than
an application made after the expiration of time for appealing, shall be by notice of
motion (motion on notice) which must be served on all the affected parties. Thus, by
Order 6 r 7 CA Rules, 2016, the application shall consist of the following documents:
 Notice of Motion (Civil Form 5)

 CTC of the decision of the lower court sought to be appealed against
 Copy of the proposed notice and grounds of appeal
Page 267 of 389

 Where leave has been refused by the lower court, then a CTC of the order or
ruling refusing leave to appeal.
Where a person is seeking leave to appeal as an interested person and there is already a
pending appeal, there will be no need to attach the judgment or order of the lower court
sought to be appealed against. This is because it would already be in the court’s file. See
ADELEKE v> OYO STATE HOUSE OF ASSEMBLY (In Re Ladoja).
Time for filing appeal – section 25 CA Act(as amended)
By section 25 of CA Act, an appeal or an application for leave to appeal against an

interlocutory decision must be filed within fourteen (14) days from the day the judgment
was delivered. In the case of a final judgment, the appeal or application for leave to
appeal must be filed within three (3) months from the day the judgment was delivered.
The time limit to commence an appeal depends on the decision of the Court been
appealed against as follows:
a) Appeal against the final judgment of the Magistrate Court to the High Court-
within 30 days of the delivery of the judgment
b) Appeal against the final decision of the High Court to the Court of Appeal-within
3 months of the delivery of the judgment
c) Appeal against the Court of Appeal decision to the Supreme Court- within 30
days of the delivery of the judgment
d) For all interlocutory decisions in any Court to be appealed against- within 14 days
of the delivery of the ruling
See S. 25(2) (a) of the Court of Appeal Act.(as amended)
RECORDS OF APPEAL
ORDER 8(3) AND 4 CAR 2016. THE REGISTRAR HAS 60 DAYS TO COMPILE
AND TRANSMIT THE RECORDS OF APPEAL. If at the expiration of 60 days, he
is not able to compile the record, the appellant should compile the record of appeal
within 30 days of failure.
ORDER 8 R 6 CAR 2016-upon compilation, if the respondent is not satisfied with

the records of appeal compiled, he will file additional records of appeal within 15
days.
THIS TIME FOR COMPILING RECORDS OF APPEAL IS APPLICABLE TO FINAL

AND INTERLOCUTORY APPEALS
PRACTICE DIRECTION 2013-APPLIES ONLY TO INTERLOCUTORY APPEALS

Page 268 of 389
this makes the time for compilation of appeals shorter than the normal time in the rules.
 Practice direction applicable to interlocutory appeals irrespective of the subject

matter
 Paragraph 3(ii)(a)&(d)-priority in listing appeals and not more than 2
adjournments.
 Record of appeal to be compiled not later than 7 days after filing Notice of
Appeal, paragraph 6(b). Record of Appeal to be compiled within 7 days
 Appellant 7 days after failure by registrar. Thus,Para 6(b)(h), where at the
expiration of 7 days, the registrar has failed to transfer the record of appeal, it
shall be mandatory on the appellant to compile same and transmit to the court.
BRIEF OF ARGUMENTS
 Under the Rules, Order 19 r (2) CAR RULES,the appellant within 45 DAYS
of the receipt of the records of appeal from the court below, file his
Appellants brief
 Under 19 R (4), 30 days of service of the brief of the appellant, Filie the
Respondents brief.
 Under 19 r 5, within 14 days of service of the respondents brief file a reply
brief which shall deal with all new issues raised in the respondents brief.
FORMS AND CONTENTS OF BRIEF
Number of pages OF APPELLANT BRIEF shall not exceed 35 pages. ORDER 19 R

3(6)(a)-(b) CAR 2016.
Failure to comply, the brief shall not be accepted by the Registry for filing. OR 19 R
3(6)(C) or the brief will be struck out or the court will order that another brief be
filed.
RESPONDENT BRIEF
Not exceed 35 pages. OR 19 R 4(2).
REPLY BRIEF
Not exceed 15 pages. OR 19 R 5(2).
CONSEQUENCES OF FAILURE TO FILE BRIEF
ORDER 19 R 10 CAR 2016.
Page 269 of 389

Where the appellant fails to file his brief within 45 days, or within the time extended
by the court, the following can happen
 The respondent can bring an application to the court of Appeal to dismiss the
appeal for want of prosecution
 The court may suo motu dismiss the appeal for want of prosecution.
RESPONDENTS FAILURE
OR 19 R 10
 He will not be heard in oral argument.
REPLY BRIEF
 He will be deemed to have concede all the new points of issues arising from
the respondents brief.
JOINT AND SEVERAL BREIFS, OR 19 R 6 CAR 2016
 All parties whose interests are identical or joint shall file joint briefs, and
separate briefs may be filed only by those parties whose interests are
separate or in conflict.
ORAL APPLICATION
ORDER 19 R 9(1)
Oral argument will be allowed at the hearing of appeal to emphasize and clarify the
written argument appearing in the briefs already
Mode of appeal
An appeal is lodged in the CA by means of a Notice of Appeal as in Civil Form 3. The

Notice of Appeal, though headed in the name of the Court of Appeal, is FILED in the
Registry of the HC or FHC or NIC that gave the decision appealed against
Where there is need for leave, an application for leave shall first be made to the HC or
FHC unless there are special circumstances pursuant to OR 6 R 4 CAR 2016. The Notice
of Appeal shall then be filed after the leave has been obtained.
Note that by Order 6 r 5 CA Rules, 2016, the filing of the Notice of Appeal must be
within the time prescribed by section 25(2) of CA Act.
Page 270 of 389

QUERRY: when is an appeal deemed to have been brought? By Order 6 r 10 CA

Rules, 2016, an appeal shall be deemed to have been brought when the Notice of
Appeal has been filed in the Registry of the Court below.
When is an appeal deemed to have been entered? ByOrder 4 R 10 CAR Rules, an appeal
will be deemed to have been entered when the registrar of the lower court transmutes the
records of proceedings in the court below to the registrar of the court of appeal and the
records are received and entered into the cause book of the court of appeal. See order 4 R
10 CAR RULES 2016
The effect of entering an appeal is provided by Order 4 r 10 CA 2016 Rules to the

effect that after an appeal has been entered and until it has been finally disposed of, the
CA shall be seized of the whole proceedings as between the parties thereto and except as
may be otherwise provided by the CA Rules, every application made in the proceedings
shall be made to the CA and not to the lower court. See OGUNREMI v. DADA
Appeals out of Time/Applications for Enlargement of Time – Order 6 r 9 CA Rules,

2011
Note that it is only the court of appeal or the appropriate appellate court that has the
power to enlarge the time within which to appeal when a party is out of time. See section
25(4) CA Act; Order 6 r 9(1) CA Rules, 2016 These provisions are the authority for the
power of the CA to enlarge time and they both provide to the effect that: the CA may
enlarge the time provided by the Act and Rules for the doing of anything to which the
rules apply except the filing of a notice of intention not to contest an application.
Where the time for filing an appeal has elapsed, the intended appellant must apply to the
court of appeal for an enlargement of time within which to appeal. See section 25(4) CA
Act. This applies even if the appeal is as of right and the appellant is out of time, he must
still seek for an enlargement of time within which to appeal
The application for enlargement of time is made directly to the Court of Appeal, see
section 25(4) CA Act; Order 6 r 9(1) CA Rules, 2016. This is because the High Court has
no jurisdiction to grant an extension of time within which a person may appeal against its
decision. OGUNREMI V DADA, This rule also applies in the case of appeals to the
Supreme Court. Thus, in OWONIBOYS TECHNICAL SERVICES LTD v. JOHN
HOLTS LTD, it was held that the Court of Appeal has no jurisdiction to grant an
extension of time within which a person may appeal or seek leave to appeal against its
decision to the Supreme Court.
Page 271 of 389

The application for enlargement of time is by way of Motion on Notice supported by an

affidavit stating good and substantial reasons for the delay or failure to file the appeal
within the prescribed period and the grounds for the appeal which prima facie show good
cause why the appeal should be heard. See Order 6 r 9(2) CA Rules, 2016; UKWU
v.BUNGE (1997) 7 SCNJ 262. It is also desirable to annex a CTC of the judgment
appealed against and all other documents necessary to support the complaints against the
judgment.
The factors which the court of Appeal in granting or refusing an application for
enlargement/extension of time include:
 Whether the failure to file the appeal within time was caused by negligence or
inadvertence of counsel or the delay is attributable to the court below. Where this
is the case, leave will readily be granted. See BOWAJE v. ADEDIWURA
(1976) 6 SC 143
 The length of time that has elapsed between the time when the application ought
to have been made and when it was actually made. Thus, if there is unreasonable
delay in filing, the court will refuse to grant the enlargement of time. However,
where there is no unreasonable delay in filing, the court may be willing to grant
the extension of time. See OJORA v. BAKARE (1976) 1 SC 47
 In NNPC v> ODIDERE ENTERPRISES NIG LTD, it was held that where the
proposed grounds of appeal complain of lack of jurisdiction, then the applicant
has satisfied a special or exceptional circumstance to warrant the necessity of
inquiring into the reasons for the delay in bringing the appeal because jurisdiction
is always a good and substantial reason why an appeal should be heard.
TRINITY PRAYERS: there is a big difference between “leave to appeal” and “leave for
extension/enlargement of time within which to appeal”. While the former presupposes
that the appeal is not as of right an d the appellant seeks the leave/ consent and
permission of the court to appeal against the decision; the latter presupposes that the
statutory time limit within which to appeal has elapsed, and the appellant prays the court
to extend the time for him to appeal against the decision.
It is possible for the both of them to coincide such that the appeal is not as of right but by
leave of court, and the time within which to file the appeal or seek leave to appeal may
have expired. That is, time may have expired within which to appeal against a decision
that requires leave of court to do so. In such circumstances the application must one
seeking an extension/enlargement of time within which to seek leave to appeal
Page 272 of 389

Where the application is for extension/enlargement of time within which to seek leave to
appeal, then in addition to the supporting affidavit and other documents, it must contain
the TRINITY PRAYERS which are as follows:
 An order of extension of time within which to seek leave to appeal

 An order for leave to appeal
 An order of extension of time within which to appeal against the ruling in Suit
No: delivered on the 10th day of December 2016 by Honourable Justice Owens
Briggs.
See OWENA BANK NIG LTD v. NIGERIAN STOCK EXCHANGE (1997) 7 SCNJ
160
These prayers are mandatory and failure to include the three of them or any of them is
fatal to the application as it would be refused/ struck out. See BOLEX v. INCAR;
EMMANUEL KADIRI YUSUF v. NATIONAL TEACHER’S INSTITUTE (2002) 7
WRN 194; CCB NIG LTD v. EMEKA OGWURU (1993) 3 SCNJ 54.
By Order 6 r 9(2) CA Rules, 2016 whenever there is an extension/enlargement of

time within which to seek leave to appeal, a Copy of the order granting such
enlargement/extension shall be annexed to the notice of appeal.
The documents required to apply for the trinity prayers are:
 Notice of motion for extension of time

 Affidavit in support
 CTC of judgment of the lower court
 Proposed notice of appeal.
The notice of appeal is usually filed at the court that gave the decision which is appealed
against. This is because it prepares the record of proceedings for appeal. See OBI v.
INEC
Contents of a Notice of Appeal
The notice of appeal must be in the proper form, which is Civil Form 3. It must be filed
in the Registry of the Court that gave the decision appealed against. By Order 7 r 2(1) CA
Rules, 2016, it must contain the following:
 Part of the decision complained against: it must state whether it is the whole or
only part of the decision of the lower court is complained against. Where the
Page 273 of 389
complaint is against only a part of the decision of the lower court, the relevant
part must be specified.
 The grounds of appeal
 Particulars of error
 Reliefs sought: It must also state the exact nature of the reliefs sought
 Persons interested in the appeal: the names and addresses of all the parties
affected by the appeal.
 It must have an address for service
See Order 7 r 2(1) CA Rules, 2016. The notice of appeal must in sufficient number for all
the parties and shall also have an address for service.
The detailed contents of a notice of appeal are:
 Heading of the court of appeal

 Suit and appeal number
 Parties
 Heading (NOTICE OF APPEAL)
 Body (it will contain the judgment you are appealing against, the court, name of
the judge and the date of judgment).
 Part of decision appealeding against
 Grounds of appeal and particulars of error
 Relief sought from court of appeal
 Persons directly affected by the appeal
 Date
 Signature, name and particulars of lawyer that prepared it.
 Address for service
Grounds of appeal
A ground of an appeal is a complaint on an issue of fact or law or procedure which if

upheld will lead to the appeal being allowed – EGBE v. ADEFARASIN.
A bare notice of appeal that does not contain any ground or grounds of appeal is valueless
and incompetent and an abuse of court process – AKEREDOLU v. AKINREMI;
HALABY v. HALABY.
By Order 7 r 2(3) CA Rules, 2016, a notice of appeal should set forth concisely and under
distinct heads, the grounds of appeal which the appellant intends to rely on at the hearing
of the appeal without any argument or narrative and shall be numbered consecutively.
Page 274 of 389

By Order 7 r 3 CA Rules, 2016, no ground which is vague or in general terms or which

disclose no reasonable ground of appeal shall be permitted except the omnibus ground
that the judgment is against the weight of evidence; and every ground of appeal or any
part thereof which is not permitted may be struck out by the court either suomotu or on
application by the Respondent. The ground of appeal must be valid and raise serious
questions to be considered on appeal.
By Order 7 r 2(2) CA Rules, 2016, where the grounds of appeal alleges misdirection or
error of law, the particulars and the nature of the misdirection or error shall be clearly
stated. Therefore, the grounds of appeal are not considered alone, particulars must be
supplied with it. While the grounds of appeal are the complaint, the particulars of reason
are the reasons for the complaint. Each reason (particulars) are to be in paragraph(s). In
ORAKOSIN v. MENKITI, the Supreme Court stated that in determining the nature of a
ground of appeal, the ground and its particulars must be read together. For it is only by
reading the ground as a whole that it can be determined what the appellant is complaining
about in the judgment. The body of the grounds is not to be considered in isolation of its
particulars.
All grounds of appeal, whether misdirection or error of law must be supported by the
necessary particulars. Failure to include the particulars renders that ground worthless and
incompetent. See OSAWARU v. EZEIRUKA; OKORIE v. UDOM
The only ground of appeal that can survive without its particulars is the omnibus/general
ground which is the decision of the trial court is against the weight of evidence. This is
because Order 7 r 3 CA Rules, 2016 expressly excludes it from this requirement. See
ATUYEYE v ASHAMU; STEPHENS INDUSTRIES v. BCCI
Misdirection or error of law: from the rules, an appeal could be founded on law, facts, or
mixed law and facts. There are only three possible grounds of appeal namely:
 Misdirection: WHEN THE JUDGE MISCONCEIVES THE ISSUES,

WHETHER OF FACTS OR LAW, OR SUMMARIZES THE EVIDENCE
INADEQUATELY OR INCORRECTLY
 Error of law: THIS WILL ARISE ONLY AFTTER THE ISSUE HAS BEEN
PROPERLY IDENTIFIED AND DECIDED BUT WRONG APPLICATION OF
THE LAW.
 Omnibus/general ground that decision of lower court is against weight of
evidence. In civil cases, it is simply drafted”. the decision of the lower court is
unreasonable and cannot be supported having regards to the weight of the
evidence.”
Page 275 of 389

Note that a ground of appeal cannot be both an error of law and a misdirection at the
same time. See NWADIKE v. IBEKWE. For instance, fi the judge makes a mistake with
regards to the general burden of proof in a case, that will be an error of law. But if he
failed to direct his mind to the question whether the burden on any party has been
discharged, he misdirects himself in law. See OBEMBE v. EKELE
Distinguishing between ground of law and facts
This is important in order to determine whether an appeal lies as of right or with the leave
of court. A ground of law is any ground of appeal that complain about misunderstanding
of law or misapplication of law to settle or admitted facts (applied law wrongly to facts).
For instance, the law that a willing employer cannot be forced on an unwilling employer
does not apply to employment with statutory flavor. Grounds of facts are where the court
has to settle issues of facts or evaluation of evidence.
Mixed law and facts deal with the application of law to facts. Ground raises partly law
and partly facts, These are instances of mixed facts and law. The exercise of discretion
which is to be done judicially and judiciously is mixed law and facts. METAL
CONSTRUCTION LTD V MILGORE.
The following are grounds of law
Determination of who has the burden of proof, Determination of whether a piece of

evidence is admissible, Determination of jurisdiction of court, construction of documents
or the constitution., STATING THE LAW ON A POINT WRONGLY. OGBECHIE V
ONOCHIE.
CROSS APPEAL AND RESPONDENT’S NOTICE
Respondent’s Notice:
A respondent who agrees with the decision of the trial court, which is in his favour, but
who also wishes to urge the CA that the judgment should be affirmed or varied on other
grounds other than those relied on by the trial judge in reaching the decision. To achieve
this, such a respondent is required to file a RESPONDENT’s NOTICE in Preacipe
Form 10 B. The notice must specify the grounds for the contention and the precise form
of variations which he proposes the court of appeal to make. See Order 9 rule 1 CA
Rules.
In BRIGGS v. BOB-MANUEL, it was held that the traditional role of a respondents

notice is to seek to affirm the judgment appealed against on other grounds that may have
been given in the judgment. That is, the judgment is correct, but there are other grounds
which could either be in substitution for some of the reasons given for it or in addition to
Page 276 of 389
the grounds for the judgment. See also LAGOS CITY COUNCIL v. AJAYI; WESTERN
STEEL WORKER LTD &Anor v. IRON & STEEL WORKERS UNION OF NIGERIA
&ors where it was stated that a respondent’s notice is only available to vary and retain the
judgment and not it’s reverse.
Note that by Order 9 r. 4 CA Rules;
a) In the case of an appeal against an interlocutory decision, the respondent’s notice

must be filed and served on all parties to the proceedings in the High COUrt who are
directly affected by the Respondent’s contention, within fifteen (15) days of the service
of the Notice of Appeal on the respondent.
b) In the case of a final judgment, the respondent’s notice must be so served within
thirty (30) days of the service of the Notice of Appeal on the respondent.
By Order 9 r 3 CA Rules, where the respondent fails to file the respondent’s notice, he
will not be heard praying for a variation or affirmation of the decision on grounds other
than those relied on by the trial court, except by leave of the court of appeal.
CROSS APPEAL. ORDER 19 r 7.
As a general rule, a party should not appeal against a judgment that is in his favour. If the
judgment is challenged by the unsuccessful party, the successful party is required to
defend the judgment. However, if the successful party intends to argue a substantive
point of law or fact not covered by the unsuccessful party’s notice of appeal or seeks to
challenge some part of the judgment, he can only do so by filing a substantive cross
appeal. See ADEKEYE v. AKIN OLUGBADE.
In UTB NIG LTD v. AJAGBULE the CA held that the traditional role of a respondent in
an appeal is to defend the judgment appealed against. If, however, a respondent wishes to
depart from this role by attacking or challenging the judgment or ruling in any way, he or
she should file a cross appeal.
The consequence of failure to file that notice of a full and sufficient address for
service is that it will not be necessary to serve on such a respondent any other
processes in the appeal or any notice of hearing of the appeal. However, in practice,
the CA will not hear the appeal unless and until the respondent has been served.
Briefs of argument
This is a brief summary of argument at the hearing of appeal. Presently, it represents the
entire argument. There is no room for arguing what is not contained in it. The content of
brief is the same as the content of a written address
Page 277 of 389

 Introduction
 Summary of facts
 Issues for determination
 Argument on each issue
 Conclusion
 List of authorities
 Date & signature
 Address for service
The time for filing briefs of argument is 45-30-14.
The appellant is required to his own brief, called the “appellant brief” within forty-five
(45) days from the date he received the records of appeal from the lower court (high
Court). See Order 19 r 2 CA Rules 2016. It must be noted that where the Record of
appeal is not complete or is not correctly compiled to the satisfaction of the parties, the
time for filing of briefs will not begin to run. See WESTERN STEEL WORKS LTD v.
IRON & STEEL WORKERS UNION where it was held that until the Records of appeal
is correctly compiled to the satisfaction of the parties or without any valid compliant from
the parties, the time ordered for the filing of briefs does not begin to run.
By Order 19 r 4(1) CA Rules 2016, the respondent is required to file his “Respondent’s
brief” within thirty (30) days from the date he received service of the Appellant’s brief.
By Order 19 r 5 CA Rules, on being served with the respondent’s brief, the appellant
may, if necessary, file a “Reply brief” within fourteen (14) days from the date he received
service of the respondent’s brief.
NOTE the following general points in relation to briefs:
1) Except where permitted by the CA, all briefs shall not exceed thirty (35) pages of
A4 paper. Failure to comply with the page limit and paper size will lead to a refusal by
the registrar to accept the brief for filing. See Order 19 r 3(6) CA Rules
2) Oral argument is allowed for 15 minutes to emphasize and clarify written
argument appearing in the brief already filed in court – Order 19 r 9(3) CA Rules.
3) Parties who have identical or joint interests may file joint briefs. Parties with
separate or conflicting interests my file separate briefs.
4) A respondent may include arguments in respect of his cross appeal or a
respondent’s notice in his brief of the main appeal.
5) Parties are required to file at least 10 copies of all briefs which must all be duly
endorsed for service.
Page 278 of 389

6) Failure by the appellant to file his brief within the time specified by the rules
or any extended time will lead to the dismissal of the appeal upon application by the
Respondent for want of diligent prosecution. See Order 19 r 10 CA Rules;
UKANGWU v. PITT. Although the rules provide for dismissal, it is humbly submitted
that the proper order is for striking out since the appeal has not been heard on the merits.
Where the respondent fails to file his brief within time or within any
extended time, if enlarged, he will not be heard in oral argument except by
leave of the CA. See Order 19 r 10 CA Rules; UKANGWU v. PITT
If the appellant fails to file a reply brief within time or extended time, he will
be deemed to have conceded and admitted all new points or issues raised in
the Respondent’s brief. See POPOOLA v ADEYEMO.
RELATIONSHIP BTW ISSUES FOR DETERMINATION AND GROUNDS OF

APPEAL:
Issues for determination and grounds of appeal are not the same. The grounds of appeal
must be traced to the decision of the lower court. They accentuate the defects in the
judgment sought to be set aside; while the issues for determination are the questions of
law arising from the complaints in the grounds of appeal, the resolution of which
determines the appeal one way or the other. Only issues formulated within the parameters
and context of the grounds of appeal can be properly regarded as valid issues for
determination. See ONYIA v. ONYIA.
The issues must relate to or arise from the grounds of appeal filed. It must be noted that
while one issue can cover several grounds of appeal; that is, while one issue can arise
from and relate to more than one ground of appeal, the issues formulated should not be
more than the grounds of appeal. See AP v. OWODUNMI. To raise more issues than
grounds of appeal amounts to proliferation of issues for determination. That is, if
you have more than one issue from one ground of appeal, it amounts to proliferation of
issues for determination. See IDRIS v. ARCHIBONG
Do not formulate more than one issue from one ground of appeal. You can have one
issue from several grounds; but each can only have a maximum of only one issue.
Any issue that does not arise from or relate to any ground of appeal goes to no issue. In
the case of a respondent who has neither filed a cross appeal or a respondent’s notice, any
issues raised by him must be restricted to and arise from the grounds of appeal filed by
the appellant or else they would be incompetent having not arisen from any ground of
appeal. See IBATOR v BARAKURO.
Any ground of appeal from which no issue is raised or formulated and argued is deemed
abandoned. See NEPA v. AROBIEKE; ARAKA v. EJEAGWU.
Page 279 of 389
WITHDRAWAL OF APPEAL-ORDER 11 CAR 2016
 Unilateral withdrawal
 Withdrawal by consent.
EFFECT OF WITHDRAWAL
PRELIMINARY OBJECTION TO APPEAL
 ORDER 10 CAR 2016

 FORM 11
 Grounds of objection to be stated
 File 20 copies
 To be served 3 clear days before hearing to the appellant. OR 10 R 1
 Non compliance- objection cannot be heard or adjourn. Or 10 R 3
Alternative Dispute Resolution in Court of Appeal – Mediation – Order 16 CAR
Before the appeal is set for hearing, the court may in appropriate circumstances upon the
request of any of the parties refer the appeal to the Court of Appeal Mediation
Programme – CAMP. This is limited to an appeal of a purely civil matter and relates to
 Liquidated money demand

 Matrimonial causes
 Child custody; or
 Such other matter as may be mutually agreed by the parties – Order 16 r 1 CAR
The request for ADR is to be made in Form 15 in the first schedule to CAR – Order 16 r
2 CAR. Once there is reference to CAMP, the appeal is to be adjourned. The parties can
also resort to other ADR mechanism – Order 16 r 3(a) CAR. The parties are to take joint
responsibility of all administrative expenses and can operate and give due regard to the
CAMP at all times – Order 16 r 3(1)(b) CAR. Where the parties were able to settle, the
agreement reached by the parties will be adopted by the Court of Appeal as the decision
of the court. Where they were not able to settle, the appeal shall be set down for hearing –
Order 16 r 4 CAR.
Departure from the rules
An appellant instead of waiting for 60 days within which the registrar is to compile
record of appeal can apply for departure from the rules, so that he compile the record at a
shorter period.
Amendment
Page 280 of 389

The processes filed on appeal can be amended at any time before judgment.
Preliminary Objection to Hearing of Appeal
Where a respondent intends to raise a preliminary objection, he is to do so by filing a

Notice of Preliminary objection at least three (3) clear days to the day fixed for the
hearing of the appeal. See Order 10 r 1 CA Rules. He is to file at least twenty (20) copies
of the PO. This is a mandatory provision and failure to comply with it is fatal. See EMIR
OF KANO v AGUNDI
It must be noted that the preliminary objection can be filed in the respondent’s notice. On
the date set for hearing, you raise the objection before the appellant adopts his brief.
Hearing of Appeal
An appellant may at any time before hearing serve on the parties to the appeal and the
registrar a notice of withdrawal. See Order 11 r 1 CA Rules; EDOZIEN v. EDOZIEN.
By Order 11 r 2 CA Rules, if all the parties consent to the withdrawal, then the appeal
shall be struck out. It must be noted that by Order 11 r 5 CA Rules, where the appeal is
withdrawn, it is deemed to have been dismissed
By order 11 r 4 CA Rules, if the parties do not consent, the appeal will remain on the list.
Every appeal is heard by way of a re-hearing. See Order 6 r 2(1) CA Rules; POWELL v.
STREATHAM MILNE NURSING HOME. A re-hearing is a reconsideration of the case
on the printed evidence and not a re-trial.
In appeals, the appellate court will not interfere with findings of fact of the trial court
except if it is so perverse and not supported by the evidence admitted and on the record.
See OLORUNFEMI v. ASHO; ODIBA v MUEMUE
If at the hearing, a party or his counsel does not appear to advance oral arguments, then
the appeal will be deemed to have been duly argued on the briefs if the following
conditions are satisfied:
a) Briefs have been duly filed

b) There is proof of service of hearing notices on the absent party
c) There is no letter seeking adjournment.
See Order 18 r 9(4) CA Rules; IRHABOR v. OGIAMEN
Judgment
Page 281 of 389

For the hearing of the appeal, at least three judges while for the delivery, at least one. The
one judge need not be the judge who participated in the hearing – section 294 CFRN. The
judgment is to be pronounced in the open court – Order 19 r 1 CAR. A judge who
participated can either have his opinion read or pronounced. The lead judgment must be
read. The Court of Appeal’s decision is final as it relate to the National and State House
of Assembly, Election Tribunal – section 246(2) CFRN, section 239(8) CRFN (second
alteration). In Shitta-Bey v. AG of federation, the Supreme Court stated that a decision
derived at by the Court of Appeal or the Supreme Court in which a member who
participated at the hearing and at conference and signified his views therein could on
account of death, retirement, elevation, dismissal or other cause, have his judgment
pronounced by another justice as the case may be. The time for appeal is:
 Interlocutory decisions is within 14 days

 Final decisions within 3 months
RECOVERY OF POSSESSION OF PREMISES
Week 17
DEFINITION OF TERMS
LANDLORD: this is the person entitled to the immediate reversion of the premises
and this includes:
A. The attorney, solicitor, agent or caretaker of the landlord.

B. Any person receiving rent or who has a right to receive rent.
C. A former landlord where the context so requires.
D. Any person to whom the title and ownership rights on property.
Section 2 recovery of premises act 1990, section 47 Tenancy Law of Lagos
State.
TENANT
Any person who holds, uses or occupies another person property temporarily for a term
certain or fixed duration by an agreement, whether on payment of rent or otherwise or by
operation of law.
Page 282 of 389
 Once a person has been put in lawful occupation by the owner of the property,
that person is a tenant statutorily.
 A tenant does not include any person occupying a premises under a bona fide
claim to be the owner. Section 2 RPA Abuja, 47 TLL.
 It includes a sub tenant. See Okedare v Hanid.(sub tenant to the landlord, tenant to
the initial tenant)
 It has been held by Supreme Court to include service tenants. Sule v Nig.Cotton
Board, Oduye v Nig. Airways, Eliochin Nig.Ltd v Mbadiwe. THESE ARE
BASED ON SERVICE OCCUPATION, UPON TERMINATION OF THE
EMPLOYMENT THEY WIL BE EVICTED FROM THE HOUSE WITHOUT
NOTICE.
PREMISES
This includes a house, building, together with appurtenances and land without any
building there on. Section 2 RPA Abuja. This includes premises used for business,
residential and non-residential purposes. Section 47 TLL.
APPLICABLE LAWS
 Laws Governing Recovery of Premises;

ABUJA
a. Recovery of Premises Act(CAP 544) LFN(ABUJA)1990
b. District Courts(Increase in Jurisdiction of Judges)Order 2014.
LAGOS
i. LAGOS STATE TENANCY LAW(NO 14)2011

Not applicable in some areas, that is
 Apapa,
 Ikeja GRA,
 Ikoyi and
 Victoria Island. Section 1(3) TLL.
However, the Governor may from time to time by Order published in the State Official
Gazette exempt the application of TL to any other area or premises in Lagos State.
Furthermore, with respect to the TL of Lagos, it must be noted that by section 1(2) TL,
the TL shall not apply to:
 Residential premises owned or operated by an educational institution for its staff
and students;
 Residential premises provided for emergency shelter;
Page 283 of 389
 Residential premises:
o In a care or hospice facility;
o In a public or private hospital or a mental health facility: and
o that is made available in the course of providing rehabilitative or therapeutic
treatment.
Ii. RECOVERY OF PREMISES LAW(Cap 118) Laws of Lagos,1973
Iii. MAGISTRATE COURTS LAW(NO 16)lAGOS STATE 2009
 What law will apply to exempted areas specified in Section 1(3) TLL? The law
applicable is the RECOVERY OF PREMISES LAW OF LAGOS STATE 1973.
PLEASE NOTE: Rent Control and Recovery of Residential Premises Law, No 6 of

Lagos State 1997 no longer applicable
TYPES OS TENANCIES
1) TENANT AT SUFFERANCE: He enters into the occupation of the premises
lawfully, but after the expiration of the tenancy he becomes a tenant as sufferance
and the landlord can exercise his power of re-entry and eject the tenant without
any notice to quit or recourse to court under THE COMMON LAW. However,
under the statute a tenant at sufferance is under the Recovery of Premises Laws or
Act in Nigeria known as a statutory tenant that is protected by statute and can
only be ejected when due process is followed.. SULE V NIGERIAN COTTON
BOARD.
2) A TENANT AT WILL: this is a tenancy relationship created where the landlord

permits the tenant to occupy the premises with no definite time. Thus, importantly
the tenant occupies the premises with landlord’s consent but no definite time. The
following are the instance that it can arise:
 When the tenant whose lease expires holds over possession of the property after
expiration of tenancy.
 Where the person holds property before entering into a formal tenancy agreement.
 Where a person is allowed to occupy premises for an indefinite period rent free.
ODUTOLA v. PAPERSACK NIG LTD.
SECTION 8(1)(A)RPA Abuja…..It must be noted that tenancy at will can be

determined at any time. The only requirement is a weeks notice (7) days’ Notice to
Quit. S.13(1)(a) TLL. Durueke v Kasumu
The difference between tenancy at will and tenant at sufferance is that the former holds
over possession with the consent of the landlord, but without a fixed period; while in the
latter, the tenawernt holds over without the consent of the landlord
Page 284 of 389

3) TENANCY BY ESTOPPEL: Estoppel from denying the existence of a tenancy.

In the same vein, once a tneed enant enters into lawful occupation, he cannot deny
the existence of the tenancy. UDE V NWARA.
4) Licensee: A licensee does not have an estate in the premises. Also, the licensee
does not have exclusive possession of the premises. However, a licensee is
entitled to 7 DAYS NOTICE OF OWNERS INTENTION TO RECOVER
THE PREMISES. Ben Chukwuma v Shell Dev Pet. Ltd.
5) STATUTORY TENANT: Once his tenancy expires, the landlord cannot lawfully
evict him as the tenant becomes protected by statute. Before ejecting a person
from the premises, Notice to Quit, Notice of intention to recover premises and
then a lawful action is instituted against him seriatim.
6) PERIODIC TENANCY: Example is Weekly, monthly, quarterly, yearly. It goes
on from period to period until a notice to quit is issued on the tenant. The tenancy
Agreement must evidence the nature of the tenancy.
Where the agreement is silent on the nature, reference will be had to the
mode of payment or when rent is usually demanded. Section 13(6)TLL.
8(3)RPA Abuja.
It is pertinent to note that a tenant can change from a periodic tenant to a fixed
term tenancy and such person does not need a notice to quit.
It carries with it an automatic renewal clause for the same period created
commencing from the anniversary of the tenancy and so on until
determination by a valid notice to quit.
7) TENANCY FOR A FIXED PERIOD: this is otherwise known as tenancy for a
term certain. They have definite commencement date and the duration is certain.
See UBA V TEJUMOLA& SONS, OKECHUKWU V ONUORAH
It does not have a renewal clause. It terminates automatically by effluxion of time.
IT HAS BEEN STATED CATEGORICALLY, THAT WHERE A TENANCY IS
FOR A FIXED PERIOD, THERE IS NO REQUIREMENT FOR A NOTICE TO
QUIT, but Seven days OWNERS INTENTION TO RECOVER PREMISES
WILL BE ISSUED.13(5) and 26 TLL, NWEKE V IBE
APPLIES TO LAGOS ONLY.
However, where there is a proviso in the tenancy agreement enabling one or either of the
parties to determine it earlier than by the stipulated time by. A NOTICE TO QUIT , such
notice must be served.
Courts having jurisdiction
Page 285 of 389

 Magistrate courts and High Courts depending on annual rental value of the
premises. Section 2(4) &47 TLL, 2 RPA Abuja.
 NOTE: Limit of Magistrate Courts jurisdiction in Lagos and District Courts in
Abuja. SECTION 28(1)(B) MAGISTRATE COURT LAW, SECTION 13 DCA
ABUJA.
 Claimant may in addition claim arrears of rent and mesne profit. Section 28(1)
(b)MCL, Lagos.
 Excluded- CUSTOMARY & AREA COURTS. SECTION 2 RPA, ABUJA,
SECTION 47 TLL.
From the foregoing, the courts having jurisdiction over recovery of premises are:
Magistrate Court in Lagos: the Magistrate Courts have the flat rate of N10, 000, 000.
Thus for recovery of premises, the annual rental value must not exceed N10, 000, 000 if
the action is to be commenced in the Magistrate Court. Once the annual rental value is
ten million or less, the MC will have jurisdiction regardless of the fact that the total sum
of the arrears of rent exceeds ten million. This does not derogate from claims of
ARREARS OF RENT AND MESNE PROFIT
District Court: the District Court in FCT, Abuja have civil jurisdiction. Thus for
recovery of premises, where the annual rent value is within the jurisdiction of the District
Court, the action will be commenced there. The monetary jurisdiction is N5, 000, 000
(five million)
High Court: where the annual rent value exceeds the flat rate jurisdiction of the
Magistrate or District Court, the action would be commenced in the High Court.
Note that even when the matter falls under the jurisdiction of Magistrate Court, it
can still be commenced in High Court but it would not be diligent of a lawyer to do
so. This is because proceedings in the MC are summary proceedings and would be
dispensed with quickly.
It must be noted that recovery of vacant lands or premises is not covered under the
recovery of premises laws in some states. In such cases, the common law position will
apply. See COLE v. BEGHO. However, in Abuja and Lagos, the Recovery of
Premises Act and Law respectively, are applicable to vacant lands. See section 2 of
both laws that define premises to include “land without buildings thereon”.
The laws governing Recovery of Premises provide the procedures that a landlord
intending to recover possession must follow. These procedures are designed to primarily
protect the interests of the tenant against that of the landlord and to place limitations on
the common law rights of the landlord. See OKEDARE v. HAMID. At common law, the
landlord, on theeffluxion of time or on the expiration of a valid notice to quit, had the
Page 286 of 389
right to go to court for repossession. But, under the recovery of premises laws, an
additional requirement of seven (7) days’ notice of owner’s intention to recover
possession must be served on the tenant before the landlord can go to court. On the
expiration of that seven (7) days’ notice, the tenant automatically becomes a statutory
tenant and cannot be evicted by force but by a lawful court order. If the landlord
evicts by force, he will be liable in damages for unlawful eviction. See IHEANACHO
v. UZOCHUKWU, which condemns self-help.
PROCEDURE FOR RECOVERY OF PREMISES
 Procedure is the same in all jurisdictions

 Strict compliance or else the whole proceedings becomes null and void.
 Landlord must issues 2 statutory notices to recover possession.
1 NOTICE TO QUIT. SECTION 7 RPA ABUJA, 16 TLL, 7 RPL LAGOS.
 Not applicable where tenancy expires by effluxion of time, i.e, fixed tenancy
or tenancy for term certain.
 FORM B,C,D. SEE Schedule of RPA Abuja, or FORM TL2 AND TL3 IN
THE SCHEDULE TO TL, LAG, depending on the status of the person
giving the notice.
2 NOTICE TO TENANT OF OWNERS INTENTION TO APPLY TO RECOVER

PREMISES.
NOTICE TO QUIT
WHO MAY ISSUE THE NOTICE TO QUIT
 Generally landlord as the owner of property. He may however delegate the

function to his agent or legal practitioner.
 However, he must give a written authority to the agent or legal practitioner. Thus,
any oral instruction given to issue notice to quit is not valid. Section 2 RPA
ABUJA, 47 TLL. AYIWOH V AKOREDE.. The court held that the requirement
of a legal authority to the event will apply to notice to quit and notice of intention
to recover premises.
 HOWEVER, in the case of OLUSI V SOLANA, NIANDA V ALAKE, the court
criticized decision in AYIWOH V AKOREDE as too wide and held that written
authority of landlord will only apply to 7 DAYS NOTICE OF OWNERS
INTENTION TO APPLY TO RECOVER POSSESSION.
Page 287 of 389

 HOWEVER, in the latter case of COKER V ADETAYO, the court held that
written authority of the landlord applies to the 2 statutory notices. BAR PART II.
LENGTH OF NOTICE TO QUIT
HOW IS THE LENGTH OF NOTICE TO QUIT DETERMINED?
 By agreement between the parties this is because as a general rule landlord and
tenant relationship is based on contract. Where the parties do not agree to the
length of notice; then
 By statute.
Where there is no express agreement between the parties on length of notice to
quit:
a) Tenant at will or weekly tenant----A WEEK’S NOTICE
b) Monthly Tenancy-----A MONTH’S NOTICE
c) Quarterly Tenancy------A QUARTER’S NOTICE(3 MONTH’S
NOTICE).
d) Half-yearly Tenancy, 3 months notice(Section 13(1)(d)TLL.
e) Yearly Tenancy-------Half a year’s notice(6 months notice, 8(1)RPA,
SECTION 13(1) TLL.
 What determines the length of notice to terminate a Tenancy?
In the absence of any evidence to the contrary, WHEN RENT IS
PAID OR DEMANDED. SEE 8(3) RPA; SECTION 13(6) TLL.
TERMINATION OF TENANCY BY OPERATION OF LAW
 Some tenancies automatically terminate by operation of law. Applicable to

LAGOS ONLY.
1 monthly tenant who is in arrears of rent for 6 months. Section 13(2)TLL.
2 Quarterly or Half-yearly tenant who is in arrears of rent for 1 year. Section

13(3)TLL.
 Service of notice to quit is not necessary. However, it is advisable to serve 7

days notice of owners intention to apply to recover possession.
WHEN IS NOTICE TO QUIT GIVEN?
 Any time before the date of termination or expiration of current term of tenancy.
Section 9 RPA abuja.
 Length of notice to quit must not be less than the period stipulated by the statute
or as agreed by the parties or else it will be null and void. A.P V OWODUNMI.
Page 288 of 389
 Can the length of notice to quit be more than the period required by statute?.
OCHIE V AJOSE. Yes, the notice to quit can be given more than the period
required.
COMPUTATION OF A MONTH’S NOTICE
 The Gregorian's Calendar under Section 18(1) Interpretation, i.e one calendar
month is not applicable in recovery of premises.
 A month in recovery of premises means one clear calendar month, i.e 1st of any
month to the last day of the month. SEE OYEKOYA V G.B OLLIVANT,
ARUKU V FAYOSE.
COMPUTATION OF 3 MONTHS NOTICE
 We give 3 months notice to quarterly tenants(lagos and abuja) and half yearly
tenant(in lagos) Section 13(1)(c) and (d) TLL, section 8(1)(c) RPA abuja.
 Abuja and under the exempted areas n Lagos- Notice to be 3 clear calendar
months to expire on eve of anniversary.
 LAGOS- 3 months notice to quit terminates on or after the expiration of the
tenancy.
 IT MAY TERMINATE ON OR AFTER THE DATE OF EXPIRATION OF THE
TENANCY. SECTION 13(4) TL LAGOS.
 Thus, it can be given at any time provided 3 months notice is given(BAR PART
11 give at least 4 months notice).
COMPUTATION OF HALF A YEAR’S NOTICE
 It is a periodic tenancy where the tenant pays yearly rent.

 Half a year notice is the notice to be served.
 ABUJA AND UNDER RPL IN LAGOS GOVERNING THE EXEMPTED
AREAS IN LAGOS: 6 calendar months that must expire on the eve of the
anniversary of the tenancy, or else the notice to quit will be invalid. AFRICAN
PETROLEUM V OWODUNMI, OWOADE V TEXACO AFRICA LTD.
 NOT APPLICABLE UNDER THE TENANCY LAW IN LAGOS BY VIRTUE
OF STATUTORY PROVISION. 13(4) TLL.
 In Lagos, under the Tenancy Law, recovery of premises from yearly tenant need
not terminate on the anniversary or eve of anniversary provided six months’
notice is given..
 It may terminate on or after the date of expiration of the tenancy. SECTION
13(4)TLL.
CONTENT OF NOTICE TO QUIT

Page 289 of 389
 Must be certain, definite and unambiguous.

 It must state the following:
 That the tenant should quit and deliver up possession of the property, with
all appurtenances to the landlord
 Clearly describe the property sought to be recovered and where it is
situated.
 The kind of tenancy.
 The date of the expiration of the tenancy.
 The date the tenant should quit and deliver up possession.
 Must be dated and signed by the person giving the notice. FORM TL2 &
TL3 LAG, FORM B,C,D, ABUJA.
NOTE: the significant date IS service of notice and not date on the notice to quit. IT helps
to determine whether the proper length of notice to quit has been given. SEE
NNADOZIE V OLUOMA.
FORM OF NOTICE TO QUIT
Must notice to quit conform strictly with the form or specimen in the statutes?
 A form used which differs from the prescribed form shall not make the notice to
be invalid, if the difference is not material, or calculated to mislead, and so long
as it contains the essentials of a valid notice to quit. SECTION 31 RPA ABUJA,
SECTION 23 TLL lagos. Adejumo v HUGHES.
EFFECT OF SERVICE OF NOTICE TO QUIT
 Once it is served on a tenant and it expires, it automatically terminates the

tenancy. U.I.C.LTD V HAMMOND NI. LTD
 No more landlord and tenant relationship. Thereafter, landlord is referred to as the
‘owner’. CHIWETE V AMISSAH.
 What happens where landlord collects rent from tenant after termination of
tenancy? HAMILTON V HOLMES. It implies that a tenancy relationship has
been revived. This is because such payment and acceptance of rent will be
evidence of intention of the parties to create a new tenancy.. THIS SHOULD
NOT BE DONE.
2. 7 DAYS NOTICE OF OWNER’S INTENTION TO APPLY TO RECOVER

POSSESSION
Page 290 of 389

 When do you serve the notice of owner’s intention, i.e, 7 days notice? It is
when the tenant has failed to deliver up possession after the expiration of
the notice to quit. Section 7 RPA ABUJA, SECTION 16 TLL, U.I C. V
T.A . HAMMOND.
 Compliance with Form not mandatory.
 Indicates owners intention to proceed to court within the jurisdiction
where the property is situated on a date not less than 7 clear days
from date of service. THE DATE THE NOTICE WAS GIVEN MUST
NOT BE COUNTED. THE LANDLORD CAN GO TO COURT AFTER
THE EXPIRATION OF THE 7 CLEAR DAYS.
 What happens where action is commenced in court before the expiration
of 7 days after date of service? The action will be a nullity. LASAKI V
DABIAM.
 What happens where action is filed before the end of 7 days after service
of notice but the matter is not heard by court until after 7 days. The action
will still be valid as held in IHENACHO V UZOCHUKWU.
 Can the landlord dispense with service of notice to quit and just go
ahead to serve 7 days notice of owners intention to proceed to recover
possession?
o In lagos and abuja, where tenancy is for fixed term certain and
expires by effluxion OF TIME. NWEKE V IBE. SECTION 13(5)
TL5,
o IN LAGOS, WHERE LANDLORD WANTS TO TAKE OVER
POSSESSION FROM LICENSEE. SECTION 14 TLL. Form TL4
o In Lagos, where a monthly tenant is in arrears of rent for 6 months.
Section 13(2)TLL.
o In Lagos, where quarterly or half yearly tenant in arrears of rent for
1 year.SECTION 13(3)TLL
o In lagos, where the premises is deemed abandoned. SECTION 15
TLL.
SERVICE OF STATUTORY NOTICES.
ABUJA
 By personal service on the tenant. Where the tenant is evading service or cannot
be found, there can be substituted service by pasting on some conspicuous part of
the premises. Section 28 RPA, CHIWETE V AMISSAH.
LAGOS
Page 291 of 389

 By proper service: any manner of service that will ensure that the person to be
served will have knowledge of the notices to be served. Section 17 TLL.
 Proper service of notices on a Tenant of residential premises shall be personal
service and will include but not limited to all the manners stated in Section 18
TLL.
 The manner includes:
a. Service on the person
b. Delivering it to an ADULT residing at the premises to be
recovered
c. By courier where the tenant cannot be found, by delivering same to
the premises sought to be recovered, and the courier must show
proof of delivery
d. Affixing the notice on the prominent part of the premises sought to
be recovered and providing corroborative proof of evidence.
 Proper service of notices on a tenant of a business premises shall be as stated in
Section 19 TLL.
 The manner includes:
a) Delivering it to a person at the business premises sought to be
recovered.
b) Affixing the notice on the prominent part of the premises sought to
be recovered and providing corroborative proof of evidence
o Before substituted service can be valid, the server must establish that he made
several efforts at personal service without any success. CHIWETE V AMISSAH.
o Service can be effected by landlord, his agent or legal practitioner, A BAILIFF
IS NOT NECESSARY.
TIME FOR EFFECTING SERVICE
 Statutory notices can only be served between the hours of 6:00am and 6:00pm on
a week day
 6:00am and 2:00pm on Saturdays.
 Any service effected after 6:00pm on a week day will deemed to take effect at
6:00am the following day.
 Service effected after 2:00pm on Saturday or any time on Sunday will be deemed
to take effect at 6:00am on Monday.
GROUNDS FOR RECOVERY OF POSSESSION OF PREMISES
 Arrears of rent.
 .tenancy has been duly determined by notice to quit and landlord has taken
irretrievable steps to sell the property.
Page 292 of 389
 Tenant has committed, a breach of an express term of the agreement.

 If premises is required for a purpose which is in public interest. OLAOYE V
MANDILAS.
 Tenant is guilty of nuisance or conduct that is inimical to interest or annoyance of
the landlord or other neighbors, Example Immoral or illegal purposes. , COKER
V ADETAYO.
 Premises is overcrowded and dangerous to health of occupants.
 Premises is subject to abatement order issued by a public authority.
 Premises requires substantial repairs
 Premises is required by the landlord for his personal use, or children over 18
years or his parents. COKER V ADETAYO
LAGOS ADDS TWO.
 The premises has been abandoned.

 Premises is unsafe and unsound and is dangerous to human life or property.
SEE GENERALLY SECTION 25 AND 26 TLL.
INSTITUTION OF PROCEEDINGS TO RECOVER POSSESSION
 After expiration of the 7 days notice if the tenant fails to deliver up possession the
owner/legal practitioner may:
 IN ABUJA: apply for the issue of a writ(high court) OR PLAINT in FORM F
(magistrate court) against tenant.(RPL IN LAGOS TO EXEMPTED AREAS)
 IN LAGOS. File a Writ(HIGH COURT) or a claim in FORM TL 6B And an
ordinary summons in Form TL6A will be issued by the court upon filing of the
claim. for recovery of possession.
Action will be commenced in the judicial division or magisterial district where the
property is situated.
TAKE NOTE: FORM F AND FORM TL 6B shall contain the following:
 That the plaintiff/claimant is entitled to the possession of the premises

 A brief and accurate description of the premises’
 The period of tenancy and rent payable on the property.
 Date of termination of the tenancy by notice to quit or effluxion of time
 The fact that the plaintiff claimant also served a notice of intention to apply to
recover possession. A copy of this notice must be attached.
 A description of the mode of service of the 7 days’ notice.
 Inspite of the notice served, the tenant has refused or neglected to deliver up
possession.
Page 293 of 389
 Must contain the reliefs to be claimed namely:

 Possession of the property
 Arrears of rent or mesne profits:
NOTE: THE DIFFERENCE BETWEEN ARREARS OF RENT AND MESNE PROFIT

Accumulated rent owed to the landlord during the period of the tenancy. Mesne profits
means the rents and profits accruing from the use and occupation of the premises after the
termination of the tenancyuntil possession is delivered. It is paid as compensation.
NOTE: THE MENSE PROFITS. IT IS CALCULATED AT THE CURRENT MARKET

VALUE OF THE PROPERTY AS HELD IN HENDERSON V SQUIRE. SEE
SECTIN 31 and 47 TLL. WHILE THE ARREARS OF RENT IS AGREED BY
THE PARTIES.
 Must state the grounds for seeking recovery
 State the present rental value of the premises
TRIAL
 Pertinent to note that judgement for RECOVERY OF PREMISES cannot be
entered in default of appearance or defence as held in PHILIPS V NIGERIAN
GENERAL SECURITY AND SAFETY CO. This is because at the hearing,
relevant statutory notices and letter of Authority given to the agent issuing the
notices must be tendered or at least any secondary evidence of such notices must
be given.
 IMPLICIT IN THE ABOVE, the matter must be set down for hearing.
EVIDENTIAL ISSUE: Where the owner seeks to tender the secondary evidence of any
of the statutory notices, the original of which is in possession of the tenant, any secondary
evidence of the contents of the documents is admissible pursuant to section 90(A) of the
Evidence Act 2011. It is not mandatory to issue notice to produce the original to the
defendant since the originals of the documents are themselves notices pursuant to the
Proviso in Section 91
Burden of Proof is on the landlord, once he discharges it, it shifts on the defendant to
adduce evidence as to why possession should not be granted to the landlord.
The standard of proof is determined on the balance of probabilities.
PROCESS OF EJECTION
 Court may order possession to be given to plaintiff/claimant either immediately
or at the expiration of a time stipulated by the court. Example in Lagos,
court can give up to 6 months to the tenant within which to give up
possession. Section 27(4)TLL, 19(1)RPA.
Page 294 of 389

 On landlord’s liability to special damages. Section 29(1)Abuja.

 Where tenant fails to comply with judgement landlord can apply for a
warrant of possession. Section 20 & 21 RPA, 39 TLL.
 Life span of a warrant of possession, in lagos it is 3 months, renewable for 3
months and there can only be 3 renewals. Section 41 TLL.
 In aBUJA, 3 MONTHS AND NO LONGER. SECTION 23 RPA ABUJA.
COUNTER CLAIM
 Tenant can counterclaim in the following instances:
a) Compensation for unexhausted improvement made on the property with
the WRITTEN consent of the landlord.
b) Any expenses incurred on the property with the WRITTEN consent of
the landlord.
c) Where excess rent has been paid on the property. Akanbi v Adeyemi.
FORCEFUL AND UNLAWFUL EJECTION
Can a landlord resort to forceful eviction of tenant or use of self help? He cannot use
self help. He must apply for a warrant of possession. In Ihenancho v Uzochukwu,
the landlord will be liable for damages in trespass.
TENANT CAN CLAIM THE FOLLOWING BY INSTITUTING AN ACTION: an
action in trespass.:
1 Declaration that ejection was unlawful
2 Order for restoration
3 General damages for trespass.
4 Special damages for any destruction done to defendants property.
NOTE: There’s penalty in Lagos for any person who attempts to or forcibly ejects or
molests a tenant or willfully damage any premises. Section 44 TLL.
KENNETH’S NOTE
RELIEFS
The following are the reliefs to be sought
1. An order granting possession/ recovery of possession

2. An order for payment of arrears of rent, if applicable
Page 295 of 389

3. An order for mesne profit

4. you can claim for damages if the property was damaged by the tenant
There is a difference between rent and mesne profit. Rent is tied to tenancy. During the
tenancy period, the tenant is to pay rent. Once the tenancy relationship terminates, the
tenant pays mesne profit which is payment for use of the premises. Mesne profit is
usually calculated with prevailing market value but in practice, the last rent paid until the
possession is given up, is used.
Reference to Arbitration and other ADR
The alternative dispute resolution mechanisms applies to actions for recovery of

possession of premises. Section 30 TL. Once there is an arbitration clause in the tenancy
agreement, the parties are bound by it and such clause is not construed as an ouster
clause. The arbitral award is entered as judgment of the court. The arbitral award must be
registered in court within three (3) months from the date of the award. See section 30
TL
By section 32(1) TL, the court is enjoined to promote reconciliation, mediation and
amicable settlement of parties in recovery of premises. By section 32(2) TL, the court
may refer the proceedings or any part of it to mediation at the Citizens Mediation Centre
(CMC) or the LMDC. By section 32(3) TL, the consent of the parties is not required
before the court can make such referral.
Under the Recovery of Premises Act in Abuja, no such provisions, but parties can still
resort to arbitration.
Judgment and Enforcement
After the hearing and proof of necessary facts, the court may make an order for
possession of the premises either immediately or on or before such date (within 6 months
from the date of the order) as the court may direct – section 27 TL.
Where mesne profit is claimed or a sum for use and occupation of the premises, once
such is proved, judgment is to be entered for the amount so proved – section 31 TL.
The modes of enforcing judgments if provided for under sections 39 -43 TL
By section 39 TL, where the landlord is entitled to possession of any premises, the Court
may issue a warrant for possession notwithstanding that the counter claim is
undetermined or unsatisfied.
The mode of enforcing an order for possession is by a Warrant for Possession. Where
judgment includes arrears of rent and mesne profit, Writ of Fifa or garnishee
Page 296 of 389
proceeding will also be taken out. Where the date of vacation of premises is not stated in
the judgment, warrant of possession is to be filed after 14 days of delivery of judgment.
By section 41 TL, Warrant of possession is to be in force for 3 months and can be
renewed for another 3 months not exceeding 3 renewals. See section 41 TL
By section 42 TL, the warrant of possession shall entitle the landlord a justified entry,
with such assistance as he deems necessary and be given possession of the premises.
Under Recovery of Premises Act (RPA), it is warrant of possession and under Sherriff
and Civil Process Act, it is known as Writ of Possession (non-money judgment only for
the judgment on recovery of possession of the premises and not the rents and mesne
profits)
ETHICAL ISSUES INVOLVED IN ISSUING, SERVING NOTICES AND

COMMENCING ACTIONS FOR RECOVERY OF PREMISES
The ethical issues involved in the issuing, drafting of quit notices and services of the
required notices and court processes and the famousJankara practices. Rule 1, 14, 15, 16,
23, 30 RPC. (READ THEM UP)
DRAFTING FOR RECOVERY OF PREMISES
1) Letter of Authority from Landlord to Solicitor
Chief Jeffery Owhor-Chuku

11, Ikeja Street,
Ikeja,
Lagos State
March 5, 2013
Kenneth Okwor
11, Ikoyi Road,
Ikoyi,
Lagos State
Dear Sir,
Page 297 of 389
AUTHORITY TO ISSUE NOTICE TO QUIT AND OTHER RELEVANT NOTICES

TO THE TENANTS IN KOKO LODGE, SURULERE
I, Chief Jeffery Owhor-Chuku of 11, Ikeja Street, Ikeja, hereby appoint you Mr. Kenneth
Okwor, a legal practitioner, to act on my behalf with respect to the issuance of notices to
the tenants in occupation of my property at number 7, Surulere, Lagos, known as KOKO
Lodge.
I undertake to pay the necessary fees.
Please find a copy of the Tenancy Agreement.
Thank you for your Agreement.
Yours faithfully
(signature)
Chief Jeffery Owhor-Chuku
ENCL.
2) Notice to quit
KENNETH OKWOR & ASSOCIATES

LEGAL PRACTITIONERS AND SOLICITORS
STAR CHAMBERS
NO 11 Ikoyi Road, Lagos
Email: Kennethokwor@gmail.com
Phone: 07064793812
Our Ref: _______________________ Your Ref:
_______________
Page 298 of 389
To:
Mr. AkinolaWahab
7, Uyo Road,
Surulere,
Lagos
Sir,
NOTICE TO QUIT
I, Kenneth Okwor, as legal practitioner to Chief Jeffery Owhor-Chuku, your landlord,

hereby and on his behalf, give you notice to quit and deliver up possession of the 3
bedroom bungalow with the appurtenances situate at No 7, Uyo Road, Surulere, Lagos,
which you hold of him as yearly tenant thereof on the 31st day of December, 2015
Dated this _____________ day of _________, 2015
(signature)
Kenneth Okwor
Legal practitioner to the Landlord,
Kenneth Okwor & Co.,
46, Igbosere Road,
Lagos.
3) Notice of owner’s intention to recover possession

K.O OKWOR & CO.
Phone: 07064793812
Our Ref: _______________________ Your Ref:
_______________
Page 299 of 389

Date: (same
date)
To:
Mr. AkinolaWahab
7, Uyo Road,
Surulere,
Lagos
Dear Sir,
NOTICE TO TENANT OF OWNER’S INTENTION TO APPLY TO COURT TO

RECOVER POSSESSION OF PREMISES.
I, Kenneth Okwor, legal practitioner to Chief Jeffery Owhor-Chuku, the OWNER, do

hereby give you notice that unless peaceable possession of the 3 bedroom bungalow with
the appurtenances situate at No 7, Uyo Road, Surulere, Lagos which you HELD of the
owner under a yearly tenancy, which was determined by notice to quit given by the
owner on the 30th of June, 2015 and expired on the 31 st of December 2015, and which
premises are now held over and detained from the said owner, be given to the owner on
or before the expiration of seven (7) clear days FROM the date of service of this notice, I
shall apply to court for summons to eject any person therefrom.
Dated this __________day of _________, ____________ (same date as above)
(signature)
Kenneth Okwor
K.O.Okwor & Co
Solicitors to the Owner
No 1,Adeola Hopewell,VI Lagos.
A claim at the Magistrate Court
IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE IKEJA MAGISTERIAL DISTRICT

Page 300 of 389
HOLDEN AT IKEJA
CLAIM NO:
BETWEEN
CHIEF JEFFERY OWHOR CHUKU CLAIMANT
AND
AKINOLA WAHAB DEFENDANT
PARTICULARS OF CLAIM
The claimant and the defendant entered into a tenancy agreement on a yearly tenancy in
2006 at the rent of N500, 000 per annum over a flat at Koko lodge. The defendant paid
the rent of 2006 and 2007 and has since then refused to pay. A notice to quit determining
the tenancy was served on the defendant on _________ to expire on
_____________________. The defendant failed to deliver up possession. The notice to
tenant of owner’s intention to apply to recover possession was served on
__________________ to expire on _______________; and that notwithstanding the said
notice, the defendant has refused to deliver up possession of the premises.
The claimant thus claims as follows:
1. The outstanding rent of 2008, 2009, 2010, 2011, 2012, 2013, 2014 and 2015
2. The mesne profit for use of premises being N50, 000 per month, and
3. An order granting possession of the premises.
Dated this_______day of__________2013
(signature)
Kenneth Okwor
Legal practitioner
ADDRESS FOR SERVICE ON CLAIMANT:

Page 301 of 389

STAR CHAMBERS
Phone: 07064793812
All the foregoing must be drafted. It could be from the letter of authority to the claim or
writs of summons. A legal practitioner cannot issue quit notices without letter of
authority. State the fact that the tenant/landlord is still in occupation and grounds for
seeking possession.
FORMS FOR RECOVERY OF PREMISES:
ABUJA:
Form B: notice to quit by Landlord himself

Form C: notice to quit by agent/legal practitioner
Form D: notice to quit by Landlord to quit lodgings.
LAGOS:
Form TL1: general form of title of proceedings

Form TL2: notice to quit signed by landlord in person
Form TL3: notice to quit signed by agent or legal practitioner
Form TL4: notice of owner’s intention to apply to recover possession (with notice
to quit)
Form TL5: notice of owner’s intention to apply to recover possession (no notice
to quit)
Form TL6A: summons. See section 24 TL
Form TL6B: particulars of claims. See section 24 TL
ELECTION PETITION
Week 19
 Election petition is sui generis. It is a special procedure guided by its own

rules as held in ORUBU V NEC.
 Time is of the essence. Time line must be complied with
 Election petitions and appeals therefrom enjoy accelerated hearing and are
given precedence over other cases
 There must be strict compliance with the prescribed procedure
Page 302 of 389
Applicable laws
The following are the laws applicable to election petition as stated in OBI v. MBAKWE.
i. The Constitution of FRN, 1999 as amended

ii. Electoral Act 2010, as amended
iii. The Rules of Procedure for Election Petitions ( First Schedule to Electoral Act)
(RPEP)
iv. The election tribunal & Court Practice Directions 2011-made by the President,
Court of Appeal pursuant to Section 145(2)EA.
v. Federal High Court (Civil Procedure) Rules (where electoral act is silent)
vi. Evidence Act.
Before any election can be conducted in Nigeria, there must be an Electoral Act in place.
Election petition is the process meant to challenge the validity of an election. An election
petition is a special procedure on its own (sui generis). The following are the elective
positions awarded in Nigeria:
 The office of the President of FRN

 The office of the Vice-President of FRN
 The office of Governor of a state
 The office of the Deputy-Governor of a state
 Members of the National Assembly (Senate and House of Representatives).
 Members of the House of Assembly of States
 Chairman of Local Government Area/ Vice Chairman
 Councillor of LGA
The foregoing except the last two are regulated by the Electoral Act 2010. The various
laws enacted by state regulates the last two being residual matters to the state. See section
7 CFRN; AGAbia&ors v. AG Federation.
Courts with jurisdiction in election petitions
The following are the courts with jurisdiction over election petition, their composition
and their subject matter. The courts with jurisdiction are:
 Court of Appeal pursuant to section 239 CFRN

 The National and State Houses of Assembly Election Tribunal, section 285 1999
Constitution.
 The Governorship Election Tribunal
Page 303 of 389

Court of Appeal - section 239 CFRN, 1999; section 7 of 2nd alteration and section 133(2)
Electoral Act as amended.
The jurisdiction of the court of appeal in election petition is over the office of president
and vice-president and it is EXCLUSIVE. OBASANJO V YUSUF
The jurisdiction is on any of the following:
 Whether any person has been validly elected into the offices of the president or
vice-president
 Whether the term of office of the president or vice-president has ceased; or
 Whether the office has become vacant.
The jurisdiction of the court of appeal in this regard is exclusive and the
composition of the court is at least three justices of the court of appeal - section
239(1)(2) CFRN.
Quorum is also three justices of the court of appeal.
National and State Houses of Assembly Election Tribunal - section 285(1) CFRN,
section 9 2nd alteration; section 133(2)(b) Electoral Act as amended
It is to be established in each state of the federation and the FCT. Their jurisdiction is to
determine whether a person has been validly elected as a member of the National
Assembly (both senate and house of reps) or State House of Assembly - section 285(1).
Their jurisdiction is exclusive.
The composition as found in the 6th schedule, CFRN is
 The chairman who shall be a judge of the HC; and

 Two other members appointed from judges of High Court, Kadis of Sharia Court
of Appeal, judges of the Customary Court of Appeal or other members of the
judiciary not below the rank of chief magistrate. They are to be appointed by
President of the Court of Appeal (PCA) in consultation with Chief Justice of
the State, the Grand kadi of the Sharia Court of Appeal or the President of
the Customary Court of Appeal of the state – section 1(1)(3) of sixth
schedule. Note that their jurisdiction is exclusive.
The quorum is the chairman and at least, one member
Governorship Election Tribunal – section 285(2) CFRN
Page 304 of 389

There shall be a Governorship Election Tribunal for each state of the federation – section
285(2) CFRN (second alteration). The jurisdiction is to determine whether any person has
been validly elected to the office of Governor or Deputy-Governor of a state.
Composition and quorum is the same as the National and State House of Assembly
Election Tribunal – section 2(1)-(3) sixth schedule CFRN (second alteration) Act.
In the FCT Abuja, the Electoral Act prescribes the procedure for election into Area
Councils in Abuja. It establishes the Area Council Election Tribunal for the FCT and an
Area Council Election Appeal Tribunal for the FCT. The decisions of the appeal tribunal
on area council elections is final. The Electoral Act does not create election tribunals for
local government councils as they are under the exclusive jurisdiction of the states.
SECTION 135 electoral Act.
General principles in Election Petitions
1) All actions arising from the conduct of an election are commenced by way of
petition. See section 133(1) Electoral Act.
2) Election tribunal shall be constituted not later than fourteen (14) days before the
day of the election. See section 133(3)(a) Electoral Act, as amended and by section
133(3)(b), its Registries must be open for business seven (7) days before the election.
3) Where quorum is not formed or quorum is subsequently lost during the
proceedings, any decision so reached is a nullity.
4) An election petition must be filed within twenty-one (21) days after the date of the
declaration of the result of the election. See section 285(5) CFRN as amended; section
9 of 2nd Alteration, section 134 electoral Act. The date the result is declared is excluded
from the computation, and if the next day is a Sunday or a public holiday, both days are
equally excluded. See section 15(2) Interpretation Act, Order 23 FHC (civil procedure)
Rules; YUSUF v. OBASANJO
5) There is no extension of time within which to file the petition. Once a petitioner
fails to file his petition within the 21 days, he is statute barred and loses his right to relief.
See KAMBA v BAWA (2005) 4 NWLR (Pt. 914) 43; MOGHALU v. NGIGE (2005) 4
NWLR (Pt. 914) 1. However, it must be noted that by paragraph 45(1) of the First
Schedule to the Electoral Act, as amended, the court or tribunal may extend the
time within which to do any other thing under the Act, except filing a petition and
determining a petition.
6) An election tribunal shall deliver its judgment in writing within 180 days from the
date of filing the petition. See section 285(6) CFRN as amended; section 9 2 nd alteration;
section 134(2) Electoral Act, ABUBAKAR v GONI
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7) An appeal from a decision of an election tribunal or court shall be heard and

disposed of within sixty (60) days from the date of the delivery of judgment of the
tribunal or court. See section 285(7) CFRN as amended; section 9 2 ndalteration. Section
134(3) Electoral Act says 90 days for determination of appeal RECONCILE THAT.
8) By section 285(8) CFRN, in all final appeals from election tribunals, the
court may adopt the practice of first giving its decision and reserving the
reasons thereof to a later date. See section 285(8) CFRN as amended.
SECTION 134(4) ELECTORAL ACT.
9) The requirement as to time in section 285(6) CFRN within which a tribunal or
court shall deliver its judgment is sacrosanct, strict and cannot be extended. This rule also
covers trials de novo ordered on appeal. Such trial de novo can only take place within the
180 days from the date of filing the petition. See ABUBAKAR v. GONI (2012) 7 NWLR
(Pt. 1298) 147, where in interpreting the said section 285(6) CFRN, the SC per Rhodes-
Vivour laid the following principles:
a. The period of 180 days is not limited to trials only but also to de novo trials that
may be ordered by an appeal court
b. Once an election petition is not concluded within the 180 days from the date the
petition was filed by the petitioner, an election tribunal no longer has jurisdiction to hear
the petition and this applies to rehearings
c. The period of 180days shall at all times be calculated from the date the petition
was filed.
d. Courts do not have the vires to extend the time assigned by the Constitution. The
time cannot be extended, or expanded, or elongated, or in any way enlarged. The time
fixed by the constitution is like the Rock of Gilbraltar or Mount Zion which cannot be
moved. If what is to be done is not done within the time so fixed, it lapses as the court is
thereby robbed of the jurisdiction to continue to entertain the matter.
e. The court of appeal in its appellate jurisdiction has no power to order the retrial of
a petition which had lapsed by effluxion of time. There is no statutory provision for such
a step.
However, while it is salutary that the provision as to time sought to cure
the mischief of prolonged election petitions, deserving de novo cases
should not be shut out on grounds of this technicality as this would defeat
the purpose of the provision. Mores, mischievous parties and counsel may
capitalize on it to raise frivolous objections and go on appeal when they
are overruled on as a tactic to waste time. This raises ethical issues which
would be considered subsequently.
E. Section 133 Electoral Act provides that the originating process is an ELECTION
PETITION.
PRESENTATION OF ELECTION PETITION

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Parties to election petition
The parties to the election petition are the petitioner and the respondent. By section
137(1) Electoral Act as amended, the two categories of persons who can present or file an
election petition are:
i. a candidate in an election pursuant to Section 137(1)(a)Electoral Act : he can

challenge the conduct of the election itself or the result
ii. A political party which participated in the election pursuant to Section 137(1)
(b)Electoral Act.: the party can file a petition to challenge the conduct of the election or
the result so long as it participated in the election. To participate in an election, the
political party or its candidate need not have participated in the polls on the polling day.
It is sufficient that the political party had validly nominated and sponsored a candidate at
the election. See PPA v SARAKI (2007) 17 NWLR (pt. 1064) 453
iii. Although not provided under section 137(1) Electoral Act as amended, a person
who was validly nominated and cleared, but is unlawfully excluded from the election
by INEC can file an election petition either alone or with his political party
pursuant to section 138(1)(d) Electoral Act.. See PPA v SARAKI (2007) 17 NWLR
(pt. 1064) 453
However, where the person was validly nominated and cleared but excluded from
the election by his PARTY through unlawful/substitution, it will be a pre-election
matter and an intra-party dispute; and the election tribunals lack jurisdiction over
intra-party disputes and pre-election matters. The aggrieved person cannot
petition but can seek redress in the ordinary courts. See AMAECHI v. INEC;
ODEDE v INEC(high court)
The political parties have the power to substitute their candidates before the
election, but such substitution must be lawful and done in accordance with the
law. Where such substitutions are unlawfully done, the courts would intervene to
uphold the candidacy of the victim as in UGWU v. ARARUME. The courts have
even declared a wrongfully substituted candidate the winner of an election in
place of a victorious wrongful candidate. See AMEACHI v. INEC.
Under the Electoral Act 2010 as amended, substitutions can only be made in the
following instances:
a) in the case of death or
b) in the case of withdrawal by a candidate.
A withdrawal by a candidate will only be valid and allowed if done not less than
forty-five (45) days before the election. In the case of death; if a nominated
candidate dies after the time for filing nominations but before the elections, the
Chief National Electoral Commissioner or the Resident Electoral Commissioner
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shall cancel the poll in which the deceased candidate was to participate and INEC
shall fix another convenient date for the election within fourteen (14) days.
By section 137(2) Electoral Act as amended, the following persons can be respondents in
an election petition.
i. The person whose election is complained of (that is, the person who won the
election)
ii. The political party whose candidate won the election (BUHARI v. YUSUF)
iii. INEC(where the petition contains a compliant against any INEC official. Example
Electoral Officer, Presiding or Returning Officer). There is no need to join individual
electoral officer, once INEC is joined as a respondent. Section 137 EA.
Also where the petitioner complains of the conduct of the electoral officer, a presiding or
returning officer, the person to join as respondent is the INEC. INEC is to defend the
petition on its behalf and on behalf of the officer concerned. See section 137(3) Electoral
Act as amended. The non-joinder of such officer is not fatal so long as INEC is joined.
Where there is an election, the losers cannot bring a joint petition and you cannot
make another aggrieved party as co-petitioner. Each aggrieved person must
commence/present his petition independently. However, the tribunal may
consolidate them for ease of hearing.
STAGES OF ELECTION
 Nomination
 Accreditation of voters
 Voting
 Collation
 Declaration of results
 No election tribunal/court can declare any person a winner at an election in
which such person has not fully participated in all stages of the election.
Section 141 ELECTORAL ACT.
 ACCRONYM: NAVCD
Presentation of election petitions
By Paragraph 3(1) of the First schedule to the Electoral Act as amended, the election
petition shall be presented to the secretary or registrar of election tribunal/court either by
the petitioner or his solicitor. Thus a petition is presented when it is actually brought by
the petitioner or his solicitor, if any, named at the foot of the petition before the Secretary
or Registrar of the Tribunal for filing, coupled with the payment of filing fees and
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obtaining a receipt (Form TF002) for same and the payment of security for costs. See
OZOBIA v. ANAH; Para. 3(1) First schedule
By paragraph 3(2), a copy of the petition to each respondent and 10 copies of the petition
to the court is to be delivered to the secretary/registrar.
An election petition must be presented at the registry of the appropriate court or tribunal.
Presenting the petition in a wrong court or tribunal is a fundamental error which cannot
be rectified. See OGBOLUMANI v. OKOBI. The electoral act does not provide for the
transfer of a petition from one tribunal to the other. Thus, a petition filed at a
wrong tribunal shall be struck out. See OLANIYONU v. EME AWA. Where it is
not subsequently re-filed before the appropriate tribunal within the 21 days period,
it becomes statute barred and the cause of action is barred. MOGHALU V NGIGE.
Filing fees must be paid and Receipt of payment (Form TF002) of the filing fees must be
obtained from the Secretary/registrar in respect of the filing fees so paid. Failure to pay
the filing fees renders the petition invalid and it will be struck out unless the tribunal
orders otherwise. See EZEANI v. OKOSI.
Part payment of filing fees is not fatal especially where the error is that of the
secretary/registrar of the tribunal. In such a case, there will be stay of proceedings
pending full payment of the filing fees.
Security for costs: By Paragraph 2(1) of the First schedule to the Electoral Act as
amended, at the time of presenting the petition, the petitioner must give security for all
costs which may become payable by him to a witness summoned on his behalf or to the
respondent. Failure to pay security for costs is not fatal but the proceedings will be stayed
until the security for costs is extracted from the petitioner. See NWOBODO v. ONOH;
OMOBORIOWO v. AJASIN; By Paragraph 2(4) of the First schedule to the Electoral
Act as amended.
The security for costs is an amount of #200, 000 to be deposited with the tribunal by the
petitioner. There shall be a further deposit of another #200, 000 to make up for the costs
of service of notices, registered postings, and all other expenditures which may be
occasioned by the petitioner. See Paragraphs 3 and 4 respectively of the Election Tribunal
and Court Practice Directions made by the PCA on the 1st of April, 2011.
Contents of Election Petition
By Paragraph 4(1) of the First schedule to the Electoral Act as amended
 Heading of the appropriate court or tribunal – IN THE NATIONAL AND STATE

HOUSES OF ASSEMBLY ELECTION TRIBUNAL
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 Petition number
 Heading: IN THE MATTER OF THE PETITION OF GOVERNORSHIP
ELECTION
 Parties: the names of the parties interested in the election petition
 The right of the petitioner to present the petition
 The holding of the election, the result of the election, the scores of the candidates
and the person returned as the winner. This clause is very important as it helps to
ascertain whether the petition was presented within time or not etc. Failure to
include it is fatal. See OJONG v DUKE
 Grounds for the petition
 Facts in support of the grounds for the petition
 Prayers/reliefs sought
 Address for service and occupier
 Signature of the petitioner or his solicitor, if any, named at the foot of the election
petition.
See para. 4(1) First schedule to Electoral Act.
By Paragraph 4(7) of the First schedule to the Electoral Act as amended, failure to
comply with the above requirements or any of them renders the petition defective and it
may be struck out.
With particular respect to the PRAYERS and signature: The prayers and reliefs to ask for
must be one of those contained in Paragraph 4(3)(a) First Schedule to Electoral Act,
they are:
a) That the petitioner be declared validly elected having polled the highest number
of lawful votes cast at the election; OR
b) That the election be declared nullified and a consequential order of
bye-election/fresh election be made.
See Paragraph 4(3)(a) First Schedule to Electoral Act
The two prayers cannot be asked at the same time as such would amount to contradictory
prayers. A court cannot nullify an election and still declare a person winner of such
election. They can only be asked for in the alternative. See IGE v. OLUNLOYO, OPIA v.
IBRU. On the signing of the petition, the petitioner or all the petitioners or the solicitor
must sign at the foot of the petition. See ORIZU v. OZOEGWU.
ALSO note that your relief must accord with your grounds. For instance, ground two is
not compatible with prayer for declaring the petitioner winner. The most appropriate
relief for ground two is the prayer for nullification of the election and a consequential
order for fresh election. The only ground that can lead to the relief of declaring and
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returning him winner is ground three which is that the respondent was not elected by a
majority of the lawful votes cast. The other three grounds can work only with the relief of
nullification of the election and re-run.
Time to file petition and reply
An election petition must be filed within twenty-one (21) days after the date of the
declaration of the result of the election. See section 285(5) CFRN as amended;
section 9 of 2nd Alteration. The date the result is declared is excluded from the
computation, and if the next day is a Sunday or a public holiday, both days are equally
excluded. See section 15(2) Interpretation Act,; YUSUF v. OBASANJO
The respondent’s reply is to be filed within fourteen (14) days of the service of the
petition. See Paragraph 12(1) of the First schedule to the Electoral Act as amended
The petitioner’s reply to the respondent’s reply shall be filed within five (5) days from
the day he received the respondent’s reply. A petitioner’s reply is in answer to the new
issues raised in respondent’s reply. This reply is limited to new issues and the time given
is not to be extended. See Paragraph 16 of the First schedule to the Electoral Act as
amended.
JUDGEMENT
An election petition tribunal must deliver its judgement within 180 days from the date of
the filing of the petition in writing.
Front loading
The system of frontloading applies to the election tribunal and the following documents
are to be frontloaded along with the petition:
 The election petition

 A list of the witnesses that the petitioner intends to call in proof of the petition
 Written statements on oath of the witnesses; and
 List and copies of every document to be relied on at the hearing of the petition.
Page 311 of 389

See Paragraph 4(5) of the First schedule to the Electoral Act as amended,
paragraph 1 of the Election Petition Practice Direction.
By Paragraph 4(6) of the First schedule to the Electoral Act as amended, the effect of
failure to comply with this frontloading requirement is that the petition would not be
accepted for filing by the Registrar. See also UDUMA v. ARUNSI
A respondent’s reply to the petition is also expected to be accompanied by the

documents listed above. See Paragraph 12(3) of the First schedule to the Electoral Act as
amended.
However, no such requirement is applicable to the petitioner’s reply to the respondent’s

reply under Paragraph 16 of the First schedule to the Electoral Act as amended
Grounds for an election petition
The grounds of petition to be contained in the petition must be within the purview of the
Electoral Act. Section 138(1)(a)-(d) Electoral Act provides for the grounds as follows;
 That a person whose election is questioned was, at the time of the election, not
qualified to contest the election;
 That the election was invalid by reason of corrupt practices or non-compliance
with the provisions of Electoral Act; (the non-compliance must be substantial as
to substantially affect the election)BUHARI VOBASANJO
 That the respondent was not duly elected by majority of lawful votes cast at the
election; or
 That the petitioner or its candidate was validly nominated but was unlawfully
excluded from the election. SARAKI V PPA
See section 138(1) (a) – (d) Electoral Act as amended; OBI v. ENWEREM.
1) That a person whose election is questioned was, at the time of the election, not
qualified to contest the election;
The grounds for disqualification are provided under the constitution. The grounds
are basically the same for all offices except for the age requirement which varies
from office to office. Therefore, by section 137 Constitution, a person would not
be qualified to contest an election if:
i) He is not a citizen of Nigeria. A candidate for the Presidential or Governorship
elections must be citizens of Nigeria by birth. It must be noted that except in cases
prescribed by NASS, a person shall not be qualified if
a. he has voluntarily acquired the citizenship of a country other than Nigeria or
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b. has made a declaration of allegiance to such other country

ii) He has been elected into such office at any two previous occasions (applicable to
President and Governor only)
iii) He is adjudged a lunatic or a person of unsound mind under any law in nigeria.
iv) He is an undischarged bankrupt
v) He has presented a forged certificate to INEC
vi) He is under a death sentence or a sentence of imprisonment or fine for an offence
involving dishonesty or fraud by a court of competent jurisdiction.
vii) Within a period of ten (10) years prior to the election, he has been convicted
and sentenced for an offence involving dishonesty or he has been found guilty of a
contravention of the Code of Conduct. ACTION CONGRESS V INEC.(2007) 12
NWLR(pt. 1048) 222
viii) He is employed by the public service of the Federation or of a State and he

does not resign, withdraw, or retire from such employment thirty (30) days before
the date of the election. In determining whether a person in the public service has
resigned, withdrawn or retired at least 30 days before the date for the election, the
relevant conditions of service relating to the mode of resignation, withdrawal or
retirement must be complied with. See MELE v. MOHAMMED; See also MBUKURTA
v. ABBO where it was held that a person on leave of absence was still in the employ of
his employer for the period of leave had not met the requirements of resignation,
withdrawal or retirement.
ix) He is a member of a secret society. See definition of secret society in section 318
CFRN; Regd TRUSTEES OF AMORC v. AWONIYI
x) The age of qualification for Presidential candidates is 40years (s. 131(b) CFRN),
it is 35years for both Governors and Senate; and it is 30years for both House of
Representatives and House of Assembly.
xi) He must be citizen of Nigeria by birth or else disqualified
xii) He is a member of a political party and is sponsored by that party or else he is
disqualified
xiii) He has been educated up to at least, School Certificate or its equivalent or else he
is disqualified.
In addition to the above grounds for disqualification, the constitution also requires
that a person contesting an election must be a member of a political party and is
sponsored by that political party. He must also have at least school certificate
level or its equivalent (WAEC)
It must be noted that the indictment of a person for fraud or embezzlement by a

judicial or administrative panel of inquiry does not automatically disqualify that
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person from contesting election. The indictment is not sufficient to deny a citizen
eligibility to contest unless and until he has been prosecuted and found guilty by a
competent court of law. See AMAECHI v INEC.
Where the candidate who won the election was not qualified to contest, the
petitioner who claims to have polled the next majority of votes cannot be declared
winner by the tribunal unless the facts of disqualification were notorious and
within the knowledge of the electorate. If the facts were not notorious, the tribunal
must nullify the election and order a fresh one. See section 140(2) Electoral Act,
2010 as amended; BAYO v. NJIDDA
2) That the election was invalid by reason of corrupt practices or non-compliance

with the provisions of Electoral Act: an allegation of corrupt practices like bribery,
forgery, falsification of results, over-votingetc is criminal, and so, proof beyond
reasonable doubt is ordinarily required. See section 135(1) EA, 2011.
Where the election is challenged on grounds of non-compliance with the Electoral
Act, it must be shown that such non-compliance is substantial and sufficiently
affects the result of the election. Once there is substantial compliance with the
Electoral Act and the non-compliance does not substantially affect the result of
the election, it will not be set aside. Section 139 Electoral Act.
3) That the respondent was not duly elected by majority of lawful votes cast at the
election. If the election is challenged on this ground, and the tribunal is satisfied, it will
return the person that polled the highest votes as elected.
4) That the petitioner or its candidate was validly nominated but was unlawfully
excluded from the election. See section 138(1)(d) Electoral Act. The political
party or the candidate can bring the petition. See PPA v. SARAKI. Note that in
Amaechi v. INEC, it was held that this provision did not apply to intra-party
disputes.
Service of the processes on the Respondent
Generally, service of the petition and frontloaded documents is to be by personal service.

See paragraph 8(1) First Schedule. However, if the respondents cannot be found at the
places listed by petitioners for service then, upon application by the petitioner, supported
by affidavit showing that reasonable efforts have been made to effect personal service,
the tribunal may order substituted service. See paragraph 8(2). Substituted service shall
be effected in the same manner as it is done in other civil cases
STEPS TO BE TAKEN BY THE SECRETARY
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 He posts a Certified copy for onward transmission to the person required by law
to adjudicate and determine the petition.
 Notifies the respondent.
 Notifies the tribunal members who will sit over the matter.
Respondent’s Reply/Entry of appearance
The respondent, upon being served with the petition and frontloaded documents, is to
enter an appearance by filing a memorandum of appearance. See paragraph 9(1)(a)-
(b). Thereafter the respondent files his reply to the election petition in the registry within
14 days from receipt of election petition.It must be noted that a respondent can file a
reply without filing a memorandum of appearance. See paragraph 10(2). The respondent
is to provide/deliver 10 copies of his reply to the court and a copy each for all the parties
to the petition. See paragraph 12(4).
Where the respondent has a preliminary objection , he should file a conditional

appearance.
If the respondent fails to file his memo of appearance, he can still file his reply to the
petition. However the effect of failure to file memo of appearance is that he will be
deemed to have waived personal service and all subsequent processes will be deemed
duly served on him by pasting it on the Notice board at the Tribunal Registry.
NB no counter claim. In election petition you cannot counter claim. You only defend
or keep quiet.
Content of reply
 The facts admitted

 The facts denied
 The facts he relies on in opposition to the election petition
 The facts and figures clearly and distinctly disproving the claim of the petition
 Signature of the respondent or solicitor
The reply should be signed by the respondent or his solicitor. The following documents
are to be frontloaded with the reply
 A list of the witnesses that the respondent intends to call in proof of the petition
 Written statements on oath of the witnesses; and
 Copies or list of every document to be relied on at the hearing of the petition.
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Note that within five (5) days after receiving the respondent’s reply, the petitioner is
to file a reply to the new issues raised therein.
Amendment of election petition and reply
In election petitions, an amendment can only be made to the petition within the 21 days
period allowed for the presentation of the petition. Within the 21 days, any of the
contents of the petition can be amended. However, after the expiration of the 21 days
period, no amendment can be made to the petition. See paragraph 14(2) of the First
Schedule to the Electoral Act as amended; see also OPIA v. IBRU; NGIGE v. OBI
This same rule applies to amendments to the respondent’s reply and the petitioner’s reply.
Thus, such amendments can only be made within the time limited by the Act for
filing them, which is 14 days and 5days respectively from the date of service of the
petition and the respondent’s reply respectively. See paragraph 14(2) of the First
Schedule to the Electoral Act as amended; see also OPIA v. IBRU; NGIGE v. OBI
However, in all cases, minor amendments such as clerical and typographical errors may
be allowed by the tribunal at any time before judgment. See IGE v. OLUNLOYO
Where an amendment can be made, application for amendment is by Motion on Notice,

affidavit and written address.
THE PRACTICE AND PROCEDURE AT the election tribunal is similar to that of the
FHC and the FHC civil procedure rules apply. Thus the procedures for joinder,
amendments etc. under FHC civil procedure rules apply to election petitions.
The time for doing anything in the petition may be abridged upon ex parte application.
Even though the court can order service.
Pre-hearing notice (Pre-hearing session and scheduling ) – para. 18
This notice is for the Pre-hearing conference or session. In election petitions, the pre-
hearing session is just like the case management conference. The procedure for applying
for the issuance of the pre-hearing notice is as follows:
 Within 7 days of filing and service of the last pleading, whether petitioner’s reply
or respondent’s reply, the petitioner applies for the pre-hearing notice in Form
TF008. The application is by Motion on Notice, Affidavit and Written Address.
Note that if the petitioner fails to apply within the prescribed seven (7) days, he
can bring a motion for extension of time within which to apply for the pre-hearing
notice. Provided it is within the 180days for the hearing of the case
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 The tribunal or court issues the pre-hearing notice accompanied by a pre-hearing

information sheet in Form TF009.
 Where the petitioner fails to do so, the respondent may
o Bring the application.
o May apply for an order dismissing the petition
Thus both petitioner and respondent can bring the application. It must be noted
that where the petitioner fails to bring the application, the respondent also has the
option of applying for an order dismissing the petition by a motion which must be
served on the petitioner. See Paragraph 18(3) First Schedule
 Where both petitioner and respondent failed to apply for pre-hearing notice, the
tribunal shall dismiss the petition as an ABANDONED PETITION. See Para. 18
1st schedule; SALVADOR v. INEC. The order of dismissal is final and the
tribunal or court shall be functus officio
 The pre-hearing session must be completed within fourteen (14) days of its
commencement. See paragraph 18
At the pre-hearing session, the tribunal or court addresses the following among others
 Amendments and further particulars

 Interlocutory applications
 The admission of facts, documents and other evidence by consent of the parties.
 Formulation and settlement of issues for determination
 Hearing and determination of objections on point of law
 Giving directions for hearing of the petition.
 Preliminary objections
Effect of failure to attend the pre-hearing session:
Like the CMC, attendance of parties at the prehearing session is mandatory. If the
petitioner fails to attend, the petition will be dismissed. If the respondent fails to attend,
judgment will be entered against him.
Upon application by the person whom judgment at pre-hearing session was against, of
which application is accompanied by an undertaking signed by such person and his
legal practitioner to participate fully in the pre-hearing session, the order of the court
may be set aside. See paragraph 18(1)-(13) for the foregoing. The undertaking signed by
the applicant and his solicitor must be attached to the affidavit.
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All the interlocutory application/motions are to be taken at the pre-hearing session. Thus
interlocutory applications are not allowed at the election tribunal, they are only limited to
pre-hearing session. However at the hearing with the leave of court, motions can be
moved – paragraph 47(1); NGIGE v. OBI.
Applications at the pre-hearing session are by way of motion, affidavit and written
address. The respondent to the application has seven (7) days to file his counter affidavit
and/or written address (if point of law only).
Hearing of the petition
Election petitions are to be heard in an open court or tribunal. See paragraph 19. Notice
of the time and place of the hearing (may be Form TF005) is to be given by the secretary
or registrar to the parties at least five (5) days to the day fixed for the hearing – paragraph
20(1)
 On the date fixed for the hearing, if neither of the parties are present, the tribunal
shall strike out the petition and no application can be brought to re-list except
good cause is shown – paragraph 46(1).
 If only the petitioner appears and is present, the petitioner will be asked to prove
his case, if burden of proof lies on him and judgment will be given (final
judgment). See paragraph 46(2)
 If only the respondent appears and is present, the respondent shall be entitled to
the final judgment of dismissing the petition. See paragraph 46(3). Where both
parties are present, then hearing commences.
Generally, The onus of proof is on the balance of probabilities or preponderance of

evidence as provided in section 134 EA. However, where there is allegation of fraud or
crimes generally, then the proof of such is beyond reasonable doubt as in criminal cases.
See section 135(1) EA, 2011; NWOBODO v. ONOH., IKPEAZU V OTTI & ors.
Note that in appropriate cases the principle of severance of pleadings will also apply to
allegations in election petitions. NWOBODO V ONOH & ors.
By paragraph 46(10)-(13), the filing and service of final written addresses shall be as
follows: 10 – 7 - 5
 When the party beginning has concluded his evidence, if the other party does not
intend to call evidence, the party beginning shall within ten (10) days after close of
evidence, file a written address.
o Upon being served with the written address, the other party shall file his own
written address within seven (7) days.
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 Where the other party calls evidence, he shall within ten (10) days after the close
of his evidence, file a written address.
 Upon being served with the other party’s written address, the party beginning
shall file his written address within seven (7) days.
 The party who files the first address shall have a right of reply on points of law
only and the reply shall be filed within five (5) days after the service of the other party’s
address.
See paragraph 46(10)-(13) of the First Schedule to the Electoral Act 2010 as amended
Judgment in election petitions
By section 140 Electoral Act, the following orders can be made by the tribunal or the
court in the election petition:
 Where the court or tribunal finds that the returned candidate was not validly
elected on any ground, the tribunal or court shall nullify the election.
 Where the court or tribunal finds that the person returned had the majority vote
cast but was not qualified to contest the election; a fresh election shall be entered.
 Where the court finds that the candidate returned did not secure the majority of
valid votes cast at the election, the court or tribunal shall declare as elected the
candidate who scored the highest votes cast at the election and satisfied the
requirements of the constitution and the Electoral Act. See section 143, Electoral
Act as amended.
 That the person returned as winner was validly returned and thus, dismiss the
election
 The court may uphold the petition and order that the person returned was not
validly returned on grounds of lack of qualification, then orders a fresh election.
See section 140(2) Electoral Act as amended.
 Order a fresh election in whole or in part for irregularity.
It must be noted that the judgment of the court must be entered within the 180 days. See
section 285(6) CFRN; ANPP v. GONI
Section 141 Electoral Act as amended provides that an election tribunal or court
shall not, under any circumstance, declare any person a winner at an election in
which such person has not fully participated in all the stages of the election. This is a
legislative reaction to the consequential order granted by the SC in AMAECHI v.
INEC. Thus, by the said section 141, no person who has not participated in all the
stages of the election can be declared winner of the election by a tribunal or court.
Appeals in Election petitions

Page 319 of 389
An appeal from the tribunal or court’s decision is to be filed within 21 days from the date
of the decision of the tribunal. See section 143 Electoral Act.
The appeal is to be heard and disposed within 60 days from the date of the delivery of the
judgment of the tribunal or of the Court of Appeal. See section 285(7) CFRN (second
alteration). There is no room for extension of the time prescribed.
 Appeal from the National and State House of Assembly Election Tribunal lie to
the Court of Appeal. This appeal is as of right. See section 246(1)(b) CFRN as
amended. It must be noted that the decision of the Court of Appeal in respect of
appeals arising from the National and State House of Assembly Election Tribunal
shall be final. See section 246(3) CFRN.
 Appeal lies from the decisions of the Governorship Election Tribunal to the Court
of Appeal as of right and at first instance. See section 246(1)(c) CFRN as
amended. Appeal also lies from decision of the Court of Appeal in that respect to
the Supreme Court. See section 233(2)(e)(iv) CFRN as amended.. The appeal is
as of right. Thus, only governorship election tribunals enjoy two steps of appeals.
First to the CA, then to the SC
 Appeal lies from the decision of Court of Appeal sitting as Presidential election
tribunal to the Supreme Court. The appeal is as of right – section 233(2)(e)(i)
CFRN.
The person returned as elected remains in office pending the determination of the appeal
The secretary/registrar of the tribunal has ten (10) days, from the date of the Notice of
Appeal, to compile the Records of Proceedings.
Appellant’s brief of argument must be filed within ten (10) days from the date of service
of the Records of Proceedings
Respondent’s brief of argument is to be within five (5) days from the date of service of
the appellant’s brief.
Reply brief is to be filed within three (3) days of service of respondent’s brief.
Note that the time specified cannot be extended. See MARWA v. NYAKO.
10-5-3: ten days for appellant’s brief, five days for respondent’s brief and three days for
reply brief.
Secretary/registrar has ten days to compile records of proceedings.
ETHICAL ISSUES
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Rule 14, 15 and 16
DRAFTING OF ELECTION PETITION
FORM TF001
IN THE GOVERNORSHIP ELECTION TRIBUNAL

HOLDEN AT LAGOS
OR
IN THE NATIONAL AND STATE HOUSES OF ASSEMBLE ELECTION

TRIBUNAL
HOLDEN AT LAGOS
OR
IN THE COURT OF APPEAL

HOLDEN AT ABUJA
PETITION NO: EPT/0558/2015
THE ELECTION TO THE OFFICE OF THE PRESIDENT FRN/GOVERNOR LAGOS

STATE/ NASS FOR LAGOS NORTH SENATORIAL DISTRICT HELD ON THE 28 TH
OF MARCH, 2015
BETWEEN
1) DR GOODLUCK JONATHAN PETITIONERS

2) PEOPLES DEMOCRATIC PARTY (PDP)
AND
1) GENERAL MOHAMMED BUHARI (RTD)

2) ALL PROGRESSIVE CONGRESS (APC) RESPONDENTS
3) INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
PETITION
THE PETITION OF DR. GOODLUCK JONATHAN OF OTUEKE IN BAYELSA

NORTH LOCAL GOVERNMENT AREA OF BAYELSA STATE, AND THE
PEOPLES DEMOCRATIC PARTY, WHOSE NAMES ARE/IS SUBSCRIBED:
1) Your 1st petitioner Dr. Goodluck Jonathan was a candidate at the above election
(or claims to have had a right to contest or be returned at the above election). He was
validly nominated by his political party, your 2nd petitioner, for the
Page 321 of 389

Presidential/Governorship/NASS/SHA election. AND your 2nd petitioner is a registered

political party that participated in the above election and sponsored your 1st petitioner.
2) And your petitioners state that the election was held (or was scheduled to hold on)
on Saturday the 28th of March, 2015, when the following were scored (depending on your
grounds for challenging the election, you may add: despite the fact that there was no
election in some parts of the federation/state/constituency):
NAME PARTY VOTES
i) Goodluck Jonathan PDP 200
ii) Mohammed Buhari APC 500
iii) SuleLamido ANPP 12
iv) Nasir El-Rufai HOPE 09
Mohammed Buhari was declared winner of the election and returned elected by
the 3rd Respondent (you may add: though there was no election on the said date)
GROUNDS FOR THE PETITION
3) Your petitioners state that the grounds on which they rely for the petition are as
follows (NOTE that the ground(s) must be one or more of those specified in section
138(1)(a)-(d) of Electoral Act as amended. You can couch them as follows):
a. That the 1st respondent was not qualified to contest the election in the first place
b. The return of the 1st Respondent as winner of the election for the office of
President of FRN/Governor of Lagos state/Senator representing …/etc held on the 28 th of
March, 2015 was invalid by reason of a substantial non-compliance with the provisions
of the Electoral Act 2010 as amended
c. That the election was marred by corrupt practices such as forgery, over-voting,
under-aged voting and falsification of result.
d. That the 1st respondent was not duly elected by a majority of the lawful votes cast
(as no lawful vote was cast in … polling unit(s), state, LGA, etc)
e. If applicable, you can add the last ground that though the 1 st petitioner was validly
nominated by the 2nd petitioner, the 1st petitioner was unlawfully excluded from the
election by the 5th Respondent
FACTS IN SUPPORT OF THE GROUNDS FOR THE PETITION
4) Your petitioners state that the facts in support of the grounds for the petition are
as follows:
a. Here state all the facts and surrounding circumstances. Just like facts in divorce
petition (state everything that happened. Note that you can use sub paragraphs)
b. ………………………………………………………
c. ………………………………………………………
Page 322 of 389
d. ………………………………………………………
PRAYERS
5) WHEREOF your petitioners prays this Court/Tribunal for the following:

a. A DECLARATION that the 1st Respondent, Mohammad Buhari, was not duly
elected and returned as winner of the election to the office of ___________ held on the
28th of March, 2015
b. A DECLARATION that the election to the office of ________________ held on
the 28 of March, 2015 is null and void
th
c. AN ORDER FOR A BYE ELECTION into the office of ____________ on a date

to be fixed by the 5th Respondent.
OR OR OR
d. A DECLARATION that the 1st Respondent, Mohammad Buhari, was not duly
elected and returned as winner of the election to the office of ___________ held on the
28th of March, 2015 having failed to secure a majority of the lawful votes cast at the
election
e. OR IN THE ALTERNATIVE, DECLARATION the 1 st petitioner is the winner of
the election to the office of ___________ held on the 28 th of March, 2015 having
secured/polled a majority of the lawful votes cast as the said election.
ADDRESS FOR SERVICE
i) 1st Petitioner
DR GOODLUCK JONATHAN
No 5 Otueke Market Road,
Bayelsa North,
Bayelsa
Occupier:
Dr. Goodluck Jonathan
ii) 2nd Petitioner

PEOPLES DEMOCRATIC PARTY (PDP)
Plot 34, Wuse Zone 4
Abuja
Occupier:
Peoples Democratic Party (PDP)
Page 323 of 389

iii) 1st Respondent

GENERAL MOHAMMED BUHARI (Rtd)
No 3 KasuwanNamaVillage
Katsina South
Katsina State
Occupier:
General Mohammed Buhari (Rtd)
iv) 2nd Respondent

ALL PROGRESSIVE CONGRESS (APC)
Wadada House
Wuse Zone 4
Abuja
Occupier:
All Progressive Congress (APC)
v) 3rd Respondent
Independent National Electoral Commission
INEC National Headquarters
Wuse Zone 2,
Abuja
Occupier:
Independent National Electoral Commission (INEC)
The Name of the Petitioner’s Solicitor is:
K. O OkworEsq
Whose address for service is:

SimmonsCooper Partners
Legal Practitioners and solicitors
9th Floor, Fortune Towers,
27/29 AdeyemoAlakijaStreet
Victoria Island
Lagos.
Page 324 of 389

Signed by __________________________
Dr. Goodluck Jonathan
Signed before me this _______ day of __________, 2015

______________________________
Secretary
MATRIMONIAL CAUSES
WEEK 18
 It is the Practice and procedure that governs family relationship. This applies to
nuclear family.
 To what kind of marriage will matrimonial causes Act apply? HYDE V HYDE.
This applies to only statutory marriages that are contracted under the marriage
Act,
 It will not apply to customary marriage or marriages contracted under Islamic law
and church marriage per se.
 In Hyde v Hyde, it was held that matrimonial causes will apply to only
monogamous marriage which is the voluntary marriage between one man and a
wife.
DISTINCTION BETWEEN STATUTORY MARRIAGE AND CHURCH MARRIAGE
o Is there any instance when a church marriage or marriages in a place of worship

can become statutory marriage?
a) Licensed place of worship for that purpose
b) Recognized minister of the church, denomination or body to which such place
of worship below.
c) According to the rites or usages of marriage observed in such church,
denomination
Section 21 Marriage Act provides that the marriage must be conducted in the
hour of 8am and 6pm, at the registry it is 10am to 4pm, it must be a place
where the public has access to the marriage and it must be witnessed by two
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or more witnesses different from the officiating priests. NWANGWA V

UBANI, ANYAEGBUNAM V ANYAEGBUNAM.
o The law looks at a church marriage as a mere marriage so long as the place is not
a Licensed place of worship. At best it will be a church blessing. In
CHUKWUMA V CHUKWUMA, ANYAEGBUNAM V ANYAEGUNAM, it
was held that where a person has done traditional marriage and merely goes ahead
to a place of worship not licensed, the church marriage is merely a church
blessing and not a statutory marriage.
o IN WHICH PLACES CAN STATUTORY MARRIAGES BE CONTRACTED?
Section 21 and 27 MA.
 Licensed place of worship
 Marriage registry.
 Section 13 of the marriage Act,
APPLICABLE LAWS
o Marriage Act, cap M6 LFN 2004

o Matrimonial causes Act, Cap M7 LFN 2004
o Matrimonial causes Rules 1983
SCOPE OF MATRIMONIAL CAUSES
o Dissolution of marriage
o Nullity of marriage: NULLITY OF A VOID ,MARRIAGE, NULLITY OF A
VOIDABLE MARRIAGE
o Judicial separation
o Restitution of conjugal rights
o JACTITATION OF MARRIAGE
o Any consequential reliefs that may be granted under the matrimonial causes.
There are other ancillary proceedings like maintenance, custody of children,
damages for adultery among others.
o SECTION 2 & 114(1) MCA.
Courts with jurisdiction
The only court with jurisdiction for any of the above proceedings is any State High Court
of Nigeria. See section 2(1) MCA. Suffice it is say that there is only one high court for
the purpose of matrimonial causes.
However, where the High Court of a State makes an order for maintenance, the order can
be enforced in a court of summary jurisdiction in a summary manner. Thus the
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Magistrate Court being a court of summary jurisdiction can enforce such order of
maintenance, subject to its jurisdictional limit. See section 2(1) (b) MCA. There is a
single jurisdiction for the High Court as any High Court of any state of the federation can
exercise jurisdiction irrespective of where the parties to the proceedings are domiciled.
Thus for the purpose of matrimonial causes, there is only one domicile which is Nigeria,
notwithstanding that the parties being domicile in different states – section 2(3) MCA.
Note that because the Act has conferred on every High Court of a state jurisdiction on
matrimonial causes where the petitioner is domiciled in Nigeria, the jurisdiction of the
court cannot be objected to. Even though where the petitioner and respondent are resident
in Lagos and the petitioner decides to commence petition for dissolution of marriage in
Zamfara High Court, which he can validly do, there is room for forum convenience (the
court that is more convenient for the parties).
The basis of a Nigerian court assuming jurisdiction in Matrimonial causes is DOMICILE.

Thus, where it cannot be established that the petitioner was resident in Nigeria, the Court
cannot have jurisdiction over such matrimonial causes. BHOJWANI V BHOJWANI.
For a person to establish domicile, the person must show that he has properties in that
place and an intention to reside in that place. BHOJWANI V BHOJWANI.
At birth, the child takes the domicile of his father and where his father is late, the
domicile of the mother.
For a married woman, she takes the domicile of her husband, and she cannot take
domicile of another place until the marriage breaks down.
In the case of a deserted wife, she shall be deemed to be domicile in Nigeria, if she was
domiciled in Nigeria immediately before her marriage or immediately before the
desertion
HOWEVER, Section 9(2) MCA provides for the transfer of any matrimonial proceeding
in a court where it was commenced to another court on the ground that the first court is
not convenient for the parties and the latter is more convenient. In Adegoroye v.
Adegoroye, the petition was bought in Benin, Edo state while the parties were resident in
Lagos. The respondent was a 68 years old woman,on her application for transfer, the case
had been transferred. Also in Folorunsho v. Folorunsho, the proceeding had been
transferred from Kaduna to Lagos where the parties were resident in Lagos. The transfer
under this provision is subject to the discretion of the court and an application is to be
brought for the petition to be transferred to a forum convenient. The provision of section
9(2) prevents forum shopping. Another practice which usually arises from the single
jurisdiction granted is abuse of court process. This can happen when the petitioner is
seeking dissolution of his marriage at all cost. Thus he files a petitioner in Kano High
Page 327 of 389
Court and then when there is delay, without application for it to be struck out, files
another petition in Enugu High Court. Section 9(1) MCA provides that upon such
incidence, the court may stay proceeding. Importantly as a counsel, application should be
made for one of the petitions to be struck out as these amounts to abuse of court process.
See Harriman v. Harriman.
Domicile
The general rule is that it is the domicile of the petitioner that confers jurisdiction on the
High Court of a state for the purpose of hearing matrimonial proceedings. The petitioner
must be domiciled in Nigeria before the court can have jurisdiction. Section 2(3) MCA,
see Bhojwani v. Bhojwani, Ugo v. Ugo, Omotunde v. Omotunde. Domicile in one word
is the permanent home of a person. There are three types of domicile:
a. Domicile of origin
b. Domicile of choice; and
c. Domicile of dependence
Domicile of origin is given to a child on his birth. If legitimate, he takes the domicile of
his father. If illegitimate, he takes the domicile of his mother.
Domicile of choice is the domicile taken by a person upon attaining majority. In this like,
there must be residence in that state permanently or indefinite period and an intention to
so remain. That is the animus. State here refers to country.
Domicile of dependence is a domicile given to persons dependent on others e.g. a child,

wife, e.t.c. thus the domicile of wife follows that of the husband. Upon marriage, the wife
takes the domicile of her husband. If the husband changes his domicile, the wife's
domicile automatically changes. Hence, before a wife can bring matrimonial proceedings
in Nigeria, she must be domiciled in Nigeria, that is, her husband must be domiciled in
Nigeria. However, because of the injustice that is likely to be done to a deserted wife in
Nigeria whose husband may have change his domicile, special domicile for the purposes
of matrimonial proceedings before the Nigerian court was created for such wife - section
7(a) &(b) MCA. Thus where the wife was domiciled in Nigeria either immediately before
her marriage or immediately before the desertion, she shall be deemed domiciled in
Nigeria - section 7(b) MCA. Also, where at the date of instituting the proceeding, she has
been resident in Nigeria for at least 3 years before instituting the matrimonial proceeding,
she shall be deemed to be domicile in Nigeria - section 7(b) MCA. The special domicile
so created is only for the purpose of matrimonial proceeding, thus limited.
MATRIMONIAL RELIEFS
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The matrimonial reliefs to be considered are
1. Decree of dissolution of marriage

2. Decree of nullity of void marriage.
3. Decree of nullity of voidable marriage
4. Decree of judicial separation
5. Decree of restitution of conjugal rights
6. Decree of jactitation of marriage
( s. 2(2) MCA).
NULLITY OF A VOID MARRIAGE
 What is a void marriage? This is a marriage that is void ab initio. The order of the
court is not necessary to annul it. However, parties still go to file a petition for a
void marriage. Section 3(1) MA provides for void marriage
 What circumstances will make a marriage void:
o Either party is at the time of marriage lawfully married to another person.
Section 33 and 35 of the MA, provides that where a person has been
legally married under customary law, he cannot go ahead and marry
another person under the statutory act, this is because there has been a
valid married under customary law.
However, where the person contracts customary marriage, and he goes
ahead to marry the same person to do a statutory marriage under the act,
the marriage is valid and not void.
o The penalty for marrying another person while having a valid marriage, is
5 years imprisonment pursuant to section 46 and 47 MA. The criminal
code in section 370, provides for seven years’ imprisonment. See R v
prince will.
o The parties are within the prohibited degrees of consanguinity or affinity.
Consanguinity is by blood and affinity is by marriage. For affinity,
application can be made to a judge for leave permitting them to marry -
section 4. Look at first schedule to the MCA for the prohibited degree of
consanguinity and affinity - section 3(2) & (3) MCA
o The marriage is not a valid marriage under the law of the place where the
marriage took place by reason of a failure to comply with the requirements
of the law of that place with respect to the form of solemnization of
marriages.
o The consent of either of the parties is not a real consent because
 It was obtained by duress or fraud
 That party is mistaken as to identity of the other party or as to the nature of the
ceremony performed
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 That party is mentally incapable of understanding the nature of the marriage

contract
o Either of the parties is not of marriageable age. The marriage Act is silent on the
marriageable age. However, the MA provides that where any one of them is under
the age of 21 the consent of their parents or guardians must be sought. Under the
child's right Act provides that a person will be a child if he is under the age of 18
years.
Suffice it to say that any one above 18 years can get married but must seek the
consent of their parents where they are below 21., otherwise it will be void.
o Both parties knowingly and willfully acquiesce to celebrating the marriage
a. In a place that is not the office of registrar of marriage or licensed place of
worship
b. Under false names
c. Without registrar certificate
d. By a minister that is not licensed
See CHUKWUMA V CHUKWUMA.
NULLITY OF A VOIDABLE MARRIAGE
 This is a marriage that is valid and subsisting until a competent court of

jurisdiction annuals it.
 The circumstances that will make a marriage voidable depends On THE Time
OF THE MARRIAGE. Pursuant to SECTION 5 MCA
A. Either of the parties is incapable of consummating the marriage.
B. Either of the parties is of unsound mind or mentally defective or subject to
recurrent attacks of insanity or epilepsy.
C. Either party is suffering from a venereal disease in a communicable form.
D. Where at the time of the marriage, the wife is pregnant by a person other
than the husband. Section 5(1) MCA.
o Can any of this factors be condoned? Yes, a party can condone any of the factors,
where are the time of the marriage any of the four factors are present and the party
condoned it, after marriage the party cannot bring a petition to annul the marriage.
o There are categories of persons that are barred from bringing a petition for nullify
of a voidable marriage. Section 35 MCA.
 The person who is incapacitated from consummating the marriage
 The person that is epileptic cannot bring an application to nullify the
marriage.
 The person who had veneral disease cannot bring a petition.
Page 330 of 389

 The woman who was pregnant cannot bring a petition to void the
marriage.
o The court will not make a decree for nullify of a voidable marriage:
 Except the incapacity under section 5(1) MA, existed also at the time of
hearing the petition and the incapacity is incurable or the respondent
refuses to submit to medical examination or treatment.
 Where by the reason of the petition knowledge of the incapacity at the
time of the marriage or conduct of petitioner since the marriage or lapse of
time, it will be too harsh and oppressive to the respondent or contrary to
public interest to make a decree. Section 36(2) MCA
 Where the marriage is voidable under section 5(1)(b-d) , a decree will not
be made on that ground unless the court is satisfied with the grounds
specified in section 37 MCA.
EFFECT OF A DECREE OF NULLITY OF A VOIDABLE MARRIAGE
o The marriage shall be annulled from and including the date the decree becomes
absolute. Section 38(1) MCA.
o However, where the court annuals a marriage that ought to be valid, that order
invalidating the marriage will not affect any child the parties had together, or
legitimated during the marriage, will not be rendered illegitimate. SECTION
38(2) MCA.
MODE OF PETITION FOR A DECREE OF NULLITY OF A MARRIAGE IS BY

FORM 6. OR 5 R 18 MCR
TITLE OF THE DOCUMENT
PETITION FOR A NULLITY OF A VOID OR VOIDABLE MARRIAGE
DIFFERENCES BETWEEN A VOID AND VOIDABLE MARRIAGE
 A void marriage will be regarded as void ab initio and deemed to never had taken
place, while a voidable marriage is valid and subsisting until annulled by the court
 A void marriage may be put in issue at any time even where the parties to the
marriage are dead, a voidable marriage becomes unimpeachable once any of the
parties to the marriage is dead.
 Anybody interested can challenge a void marriage, however, it is only the parties
to the marriage that can Challenge a voidable marriage
DISSOLUTION OF MARRIAGE
 Another name for dissolution of marriage is divorce.

Page 331 of 389
 Under MCA there is only one ground for dissolution of marriage, which is that
the marriage has broken down irretrievably. See section 15(1) MCA. See
Megwalu v. Megwalu.
 However, the court can only hold that a marriage has irretrievably broken down if
at least one of the facts provided under section 15(2)(a)-(g) MCA is proved. They
are:
- The respondent has willfully and persistently refused to consummate the
marriage. Willful implies that it is within the capacity of the respondent to do so
and persistent refusal implies that there must have been a request. Owobiyi v.
Owobiyi.
- That since the marriage, the respondent had committed adultery and the petitioner
finds it intolerable to live with the respondent. Intolerable implies repulsion. The
petitioner must not have condoned the adultery. For instance, any act of subsequent
sexual intercourse is condonation. Adultery is mostly proved by circumstantial
evidence. See Akinyemi v. Akinyemi, Erharon v. Erharon. Opportunity, evidence of
STDs, cohabitation can be evidence of adultery among others. Importantly, where
facts are on adultery, there must be a co-respondent. See Ebe v. Ebe.
- That since the marriage, the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the respondent. This seems like an
omnibus ground and section 16 MCA provides circumstances that can fall under the fact.
Example rape, sodomy, bestiality, drunkenness, going in and out of jail e.t.c Note that
cruelty falls under the ground. JOHNSON V JOHNSON, DAMULAK V DAMULAK,
- That the respondent has deserted the petitioner for a continuous period of at least
one year immediately preceding the presentation of the petitioner.
Desertion means living apart with intention to bring to an end all rights and duties of
marriage. Living apart with consent of the other party does not amount to desertion. Note
that such consent can be withdrawn and upon withdrawal of consent, the period for
purpose of desertion begins to count. There is willful and constructive desertion. In
willful desertion, the person that left is in desertion while in constructive desertion, the
person in the house is in desertion (by conduct causing the other party to live apart).
- That the parties to the marriage have lived apart for a continuous period of at least
two years immediately preceding the presentation of the petition and the respondent does
not object to a decree being granted.
- That the parties to the marriage have lived apart for a continuous period of at least
three years immediately preceding the presentation of the petition. This is the no fault
fact to be proved.
Page 332 of 389
- 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 MCA.
- 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. Under the Evidence Act, a party must be absent for 7 years. Section 164(1)
EA, 2011, section 16(2)(a) MCA.
SECTION 16(1) of MCA, PROVIDES THAT WHERE THE RESPONDENT IS

GUILTY OF RAPE, SODOMY AND BESTIALITY, section 16(2) where the respondent
within the space of 5 years he has been jailed for a maximum of 3 years and has not
provided for her upkeep, the respondent is under narcotics and other drugs.
INSTITUTING PROCEEDINGS FOR DISSOLUTION OF MARRIAGE

 Section 30(1) MCA provides that institution of dissolution of marriage cannot be
brought where the marriage is under two years unless the leave of the court is
sought.
 The procedure for asking for leave is by motion ex PARTE supported by
affidavit. ORDER 4 R 1&2 MCR
 The petitioner must establish exceptional hardship on the part of the
petitioner/applicant and exceptional depravity on the respondent.
 See AKERE V AKERE, MAJEKODUNMI V MAJEKODUNMI, WILLIAMS V
WILLIAMS.
 UNDER what instances will the two years rule not apply without leave of court.
SECTION 30(2) MCA.
 Willful and persistent refusal to consummate the marriage - section 15(2)(a)
 Adultery since the marriage by the respondent and the petitioner finding it
intolerable to live with the respondent - section 15(2)(b)
 Commission of rape, sodomy, or bestiality - section 16(1)(a)
PARTIES TO PETITION
 Who are the parties to a petition for dissolution of marriage.. ? Usually the
husband and wife. ORDER 9 r 1 MCR.
 When third party can be a party to the suit. Section 32 MCA, order 9 r 2 and 3
MCR, ERAHON V ERAHON.
 When will the court not award damages for adultery? Section 31 MCA.
 Where the petitioner has condoned the adultery.
 Where the adultery has been committed for more than 3 years.
 Where adultery has not been made as a ground for dissolving the
marriage.
Page 333 of 389
RECONCILIATION
 Where a party to proceedings for dissolution of marriage is represented by

counsel. What steps must counsel take?
 Certificate of reconciliation must be filed by counsel to accompany the petition.
ANYASO V ANYASO, FORM 3A, order 2 r 2 MCR
 The court or judge is also enjoined to try and reconcile the parties in a
matrimonial cause proceedings. HE HAS THRE WAYS TO DO THIS
- The court can ask the parties inter set to try and settle amongst themselves
and adjourn the proceedings
- The judge can call the parties to chambers with or without their counsel to
try and reconcile the parties.Where the judge is not successful at reconciling the
parties, the judge must resile from continuing the action and he will send the
matter back to the chief judge for reassigning, unless the parties consent.
- Thirdly, the judge will refer the parties to a conciliation for 14 days.
Where the reconciliation cannot work, the trial will continue but the proceedings
of the conciliation cannot be given in evidence during the trial.
COMMENCEMENT OF ACTION
 This is by petition usually in Form 6. Order 3 r , order 5 r 1

 Contents of a petition.
 Heading of the court
 Petition number/suit number
 Parties and status
 Title of petition
1. Full names, occupation and address of each of the party to the proceeding.
SurName of the wife immediately before marriage.
2. Particulars of the marriage
3. Particulars of the place of the marriage
4. Particulars of a third party adulterer sought to be joined.
5. Particulars relating to domicile or residents of the marriage in Nigeria
6. Particulars of cohabitation of the parties to the marriage and its ceasing
7. Particulars of children of the parties to the marriage and the children of either
party to the marriage., if any. Name, date of birth,
8. Particulars of previous proceedings between the parties to the marriage,
9. Ground of the petition
10. Facts relied but not evidence by which the facts are to be proved. Facts to support
the ground.
11. Condonation, connivance and collusion
Page 334 of 389

12. Proposed arrangement for children

13. Custody
14. Maintenance and settlement of property
15. Reliefs sought
16. Date
17. Signature and address of petitioner’s counsel
18. Settler of petition
19. Address for service on respondent
The following documents are to accompany a petition when it is being filed, namely:
 Notice of petition
 ORIGINAL Marriage certificate
 Acknowledgment of service – Form 11
 Verifying affidavit. See Or 5 R 10(1) MCR, ANYASO V ANYASO
 Discretion statement
CUSTODY OF CHILDREN
 Section 69 MCA says that any child of the marriage who has not attained the age
of 21 years
 Any child above 21 who is still being maintained.
 Any child of the spouses who has been adopted.
 Any child of one of the spouses who is now part of the family.
WHAT WILL THE COURT CONSIDER BEFORE GRANTING CUSTODY
 SECTION 71 MCA, NZELU V NZELU, WILLIAMS V WILLIAMS. The

court considers the best interest of the child. In Williams v Williams, the
court granted joint custody of the child.
 The custody to parents
 Custody to third party.
 Where one party is given total custody, the other party will be given right of
access.
MAINTENANCE
 What factors will the court take into consideration in ordering maintainable
in matrimonial proceedings?
Page 335 of 389
 Means of the parties

 Earning capacity
 Conduct of the parties
 Section 70(1) MCA, MENAKAYA V MENAKAYA, ERAHON V
ERAHON.
ORDERS TO BE MADE
 After hearing the parties, the first order the court will make is a Decree NISI,
dissolving the marriage, and to see if the parties will reconcile.
 After 3 months the decree nisei becomes ABSOLUTE. SECTION 56-58 MCA,
DEJONWO V DEJONWO
 NO RIGHT OF APPEAL AGAINST A DRCRRE ABSOLUTE IN
MATRIMONIAL CAUSES. SECTION 241(2) Constitution 1999. However, if it
is nisei, there will be a right of appeal.
COMPULSORY CONFERENCE
 Example is maintenance, custody of the children, education of the children,

settlement of property, moral upbringing of a child. Order 11 r 33-37 MCR
Setting down for hearing
It is the petitioner that sets down the matter for hearing. There is no room for default
judgment in matrimonial proceedings, therefore all facts or matters must be proved, thus
there are defended or undefended suit. In defended suit, the parties join issues as there are
petition, answer or cross-petition and answer; and reply. Defended suit is set down for
trial in Form 32 MCR. Undefended suit is where parties have not joined issues because
respondent did not file answer. It is set down in Form 31 MCR. Then a Registrar
Certificate is issued that the matter is ripe for hearing. The notice of the trial is in Form
33 MCR. Every matrimonial proceeding is to be heard in public – section 103(1) MCA.
In MENAKAYA v. MENAKAYA, the Supreme Court held that this did not permit a
court to sit in chamber to hear matrimonial proceedings but rather allows the proceedings
to be heard in court with the public excluded. The Supreme Court was interpreting
section 103(2) which empowers the court to exclude every other person aside phase facts
the parties and their counsel or representatives where it is desirable for the interest of the
proper administration of justice.
INTERVENTION BY OTHER PARTIES
 Attorney general of the federation. Section 62&63 MCA
Page 336 of 389

 THE AG FEDERATION CAN DELEGATE HIS POWER TO THE AG STATE,

WHERE THE MATTER IS BEING HEARD, SECTION 64 MCA,
 Any other party can intervene where he has facts. Section 65 MCA
ANSWER TO PETITION
 It is the respondent or co-respondent that files an answer to petition where he

wants to respond to the petition.
 It is filed within 28 days. Order 5 r 29 MCR. It shall contain facts to controvert
the petition
 FORM 15 is used
RELY TO ANSWER
 Form 17. Order 7 r 4(5)

 This is filed by the petitioner where there are new facts raised by an answer to
petition.
CROSS PETITION
 This is filed by the respondent.

 Filed within 28 days.
 Form 15A.
 It is an independent petition.
JUDICIAL SEPARATION
 It will be applied for where the parties don't want a dissolution of their marriage,
but they do not want to live together again and they want a formal order of the
court.
 Facts on which petition for judicial separation can be brought here. Section
15(2),16 & 39 MCA
 THE EFFECT OF JUDICIAL SEPERATION: the marriage between the parties
remain intact , but the parties cannot live together under the same roof.
 Either party to the marriage can bring an action in tort or contract against the
other, although the marriage is still valid.
 Where any of the parties die, the property of the party will devolve on the other
party. Thus, the party alive can have benefit if the deceased estate.
RESTITUTION OF CONJUGAL RIGHTS
Page 337 of 389

 The parties have been living apart but not based on judicial separation. However,
the party can bring a petition for an order to compel that person that ran away to
come back and cohabit with the party, but however he cannot consummate the
marriage. Section 47 MCA.
JACTITATION OF MARRIAGE
 A party persistently asserting and falsely boasting that a marriage has taken place
between himself and another.
 An application can be brought to the court. The court will grant such petition is if
in truth there has NEVER been a marriage between the two parties in existence,
section 52 MCA, OR 22 r 2 MCR. FORM 60 MCR.
 Where the petitioner had acquiesced.AYENI V OWOLABI.
 Use of petitioner’s name after dissolution of marriage, nullity of marriage or
jactitation of marriage, provided that there is no persistent assertion or false
boasting. AYENI V OWOLABI.
Where there are two petitions before the court, one to nullify the marriage and the
other for dissolution. The court will hear that of the nullity first.
Note the ethical issues – Rule 17 on conflict of interest, Rule 16 on competency, Rule 15
on acting within the bounds of law and Rule 15(3)(d) RPC on ADR option. ADR is only
relevant in custody, maintenance and other ancillary reliefs and not for a decree of
dissolution, nullity, judicial separation or jactitation of marriage proceedings. In the
absence of marriage certificate, proof of marriage can be by a certified true copy obtained
from the Registrar of Marriage.
A PETITION FOR DISSOLUTION OF MARRIAGE ON ADULTERY
HOLDEN AT LAGOS
SUIT NO:
PETITION NO:
BETWEEN
LYDIA BABA PETITIONER
Page 338 of 389

AND
1. PAUL BABA RESPONDENT
2. ADA OGUN CO-RESPONDENT
1. PETITION FOR DISSOLUTION OF MARRIAGE
The petitioner, Lydia Baba, whose address is at plot 111, Balarabe Close, Victoria Island,
Lagos and who ose occupation is a legal practitioner, petitions the court for a decree of
dissolution of marriage on the ground that the marriage has irretrievably broken down,
against the respondent Paul Baba whose address is plot 121, Balarabe Street, Ikoyi, Lagos
and the co-respondent is Ada Ogun, whose address is 7, Sharp Street, Ajegunle, Lagos
whose occupation is a company secretary.
2. MARRIAGE
a. The petitioner then a spinster was lawfully married to the respondent then a
bachelor at the Marriage Registry, Lagos on 7th January, 2010.
b. The surname of the petitioner immediately before marriage is Roberts
3. BIRTH OF PETITIONER AND RESPONDENT
The petitioner was born on 22nd March 1984 in Lagos state, Nigeria and the respondent
was born in 1980 in Delta state, Nigeria.
4. 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; prior to
the marriage and immediately after desertion, has been resident within the jurisdiction –
Nigeria, Lagos.
5. CO-HABITATION
Particulars of the places at which and periods during which the petitioner and the
respondent co-habited are as follows:
Immediately after marriage, the petitioner and the respondent lived at plot 121, Balarabe
Street, Ikoyi, Lagos.
The date and circumstances in which co-habitation between the petitioner and the
respondent first ceased are as follows:
Page 339 of 389

14th September, 2012, the petitioner found a note written by the petitioner stating that he
was leaving for Australia and never to come back to Nigeria.
6. CHILDREN
Nil
7. PREVIOUS PROCEEDINGS
Since the marriage, there have not been any proceedings in court between the petitioner
and respondent.
8. GROUND FOR PETITION
That the marriage has irretrievably broken down
9. FACTS SUPPORTING THE GROUND
a. The fact that the respondent has repeatedly committed adultery with co-
respondent, as he contacted veneral disease and the petitioner finds it intolerable
to live with him.
b. That the respondent had constantly used every opportunity and slight provocation
to inflict physical injury on the petitioner.
10. CONDONATION, CONNIVANCE AND COLLUSION
The petitioner has not condoned, connived at the facts specified above and not guilty of
collusion in presenting this petition.
11. PROPOSED ARRANGEMENT FOR CHILDREN
Nil
12. CUSTODY
Nil
13. MAINTENANCE
The petitioner claim a lump sum of N100, 000, 000 as maintenance from the respondent
14. RELIEF
Decree of dissolution of marriage on the ground that the marriage has irretrievably
broken down.
DATED THIS__________DAY OF____________2013

Page 340 of 389
(signature)
K. O. D. OkworEsq
Star Chambers
7, AdeyemoAlakija Street
Victoria Island, Lagos
07064793812
kennethokwor@gmail.com
The petition was settled by Kenneth Okwor, legal practitioner for the petitioner. Filed
on__________day of___________20_____by Kenneth Okwor on behalf of the petitioner
whose address for service is………….
FOR SERVICE ON
1. Respondent
…………….
2. Co-respondent
………………..
WEEK 19
FUNDAMENTAL RIGHTS ENFORCEMENT
There are natural rights, human rights and fundamental rights. There are differences
among them. Natural rights are rights that pertain to individual by virtue of the fact that
Page 341 of 389
they are human. These rights need not be codified before they can be regarded as ‘natural
right’. Human rights are the rights that are recognized by laws. Fundamental rights are
the rights that have a constitutional backing UZOUKWU V EZEONU. In Nigeria, such
rights are contained in chapter IV of the Constitution of the Federal Republic of Nigeria,
1999, as amended (CFRN, 1999).
For the purpose of this discuss, enforcement of fundamental rights would be limited to
the chapter IV, CFRN 1999 and by extension, the African Charter on Human and Peoples
Rights (Ratification and Enforcement) Act, Order 1 r 2, Fundamental Rights
(Enforcement Procedure) Rules, 2009. Human rights for the purpose of enforcement
includes fundamental rights – Order 1 r 2 FR. The rules use human rights also.
For the purpose of enforcement, the principal law is the Fundamental Right (Enforcement
Procedure) Rules 2009, which repealed the 1979 Rules. The rules are made pursuant to
section 46(3) CFRN by the Chief Justice of Nigeria. In addition, where a lacuna exist in
the rules in the course of any human rights proceeding, the civil procedure rules of the
court (high court where the action is commenced) shall be resorted to – Order 15 r 4 FR.
Preamble to the Fundamental Right Rules
 Unlike the old rules, the scope of the new rules is wider as the definition of
fundamental rights includes the African charter
 Also, there is an overriding objectives of the rules as it concerns chapter IV
CFRN, 1999, African charter and other international bills of rights where
reference is made to by the charter. Also, the Universal Declaration of Human
Rights and other instruments in UN human rights system – paragraph 3 of the
preamble to the rules.
 Also, the overriding objectives are for the purpose of advancing and never for the
purpose of restricting applicant’s rights and freedom.
 Even consequential orders to be made by court should be for the foregoing
purpose
 There is duty on the court to enhance access to justice for all classes of litigants
especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated
and the unrepresented.
 There is encouragement of public interest litigation as no action can be struck out
for lack of locus standi. Specifically, human rights activists, advocates or groups
as well as any non-governmental organization may institute action on behalf of
potential applicant. Order 1(2)
In human right litigation, the applicant includes any of the following:
Page 342 of 389

i. Anyone acting in his own interest – the person whose rights have been breached.
ii. Anyone acting as a member of, or in the interest of a group or class of persons
iii. Anyone acting on behalf of another person
iv. Anyone acting in the public interest, and
v. Association acting in the interest of its members or other groups or individuals –
paragraph 3(e)(i)-(v) of preambles to the rules
Also any person who desires to be heard in Human Right application and who appears to
be a proper party whether or not he has been served any of the relevant processes or has
any interest in the matter, he may be heard – Order 13 r 1. Again, amici curiae who are
friends of the court may be encouraged in human rights application and may be heard at
any time if the court’s business allows it – Order 18 r 2. The respondent could be an
individual, corporate, the government, any person who has legal personality and who is
alleged to have infringed the provisions of chapter IV CFRN and African charter. See
Abdulhamid v. Akar, Theresa v. Nwafor. In Theresa’s case, the widow had brought
human rights action against the family of her deceased husband. The deceased and
applicant had been married under the Act. When the husband died, the family compelled
her to stay with the corpse, for the purpose of complying with the burial rites. The
respondent objected that fundamental rights cannot be enforced against individual. The
Supreme Court found otherwise and held that it can be enforced against individuals.
Courts and jurisdiction…. Section 46 CFRN 1999.
Where a person alleges that the fundamental rights in chapter IV CFRN and African
charter to which he is entitled has been, is being or is likely to be infringed is to apply to
the court in the state where the infringement occurs or is likely to occur for redress -
Order 2 r 1. The definition of court means Federal High Court and the High Court of a
state or High Court of FCT - Order 1 r 2.
The FHC have jurisdiction in this regard where the infringement arise from original
exclusive jurisdiction of the FHC as contained in section 251 CFRN, 1999 or any other
Act of National Assembly. The division of the FHC must be the one where the
infringement occurred and if there is no division, then the one covering that state.
The foregoing is the decision of Tukur v. Gov of Gongola state, NDLEA V BABA
SUWE Adetona v. I G Enterprise Ltd, Inah v. Ukori. As it affect the FHC, ignore the
decision in Grace Jack v. University of Agriculture, Makurdi. Where there is cross border
infringement, the state where substantial infringement took place should have
jurisdiction.
 Note when the state HC will have jurisdiction.
Page 343 of 389

 See section 254C of the 1999 Constitution. For when the NATIONAL
INDUSTRIAL COURT will have jurisdiction over enforcement of fundamental
rights. Section 242(1) 1999 Constitution.
Mode of commencement
Mode is by originating process without leave of court and Form No 1 in appendix may be
used as appropriate. - Order 2 r 2 provides that leave of court is no longer necessary
before bringing an application.
Originating motion is most often used and any other form is appropriate as long as it is
accepted by the court. The originating motion is motion on notice. The originating
motion is to contain the following:
1. Name/heading of court/judicial division/venue

2. Suit number
3. In the matter of an application for an order of the enforcement of a fundamental
right.
4. Parties AND - : in the matter of ........XYZ………APPLICANT
AND………….ABC ………..respondent
5. Title - ORIGINATING MOTION BROUGHT PURSUANT TO SECTION 46 of
the 1999 CONSTITUTION OF THE FRN (as amended) , ORDER 2(1) OF THE
FUNDAMENTAL RIGHT(ENFORCEMENT PROCEDURE) RULES, 2009
AND UNDER THE INHERENT JURISDICTION OF THIS COURT.
6. Body……NORMAL MOTION DRAFT.
7. Relief sought, DECLARATORY reliefs.
8. Statement as to attachment of affidavit and exhibits
9. Date and signature
10. Address for service
Necessary particulars should be supplied in the reliefs like section of law or type of right
breached and the reliefs can be a declaration, injunction, damages, apologye.t.c. The
originating motion is to be accompanied with the following documents.
 Statement of facts setting out the name and description of the applicant, the relief
sought, the grounds upon which the reliefs are sought - Order 2 r 3
 Affidavit setting out the facts upon which the application is made – Order 2 r 3
 Written address, a succinct argument in support of the grounds of the application -
Order 2 r 5
Note the following on the affidavit, Order 2 r 4
Page 344 of 389

 The affidavit can be deposed to by the applicant himself

 By a person who has personal knowledge of the facts
 By a person who was informed of the facts by the applicants
The other categories of person can swear where the applicant is in custody or if for any
reason is unable to swear to an affidavit. It must be stated in the affidavit that the
applicant is unable to depose personally to the affidavit
 Where respondent intends to oppose the application, he shall file his written
address within 5 days of the service on him of such application – Order 2 r 6.
 The written address may be accompanied by a counter-affidavit. This is where he
wants to depose to a contrary fact. If opposing the application on ground of law
alone, there is no need for an affidavit, counter-affidavit.

 The applicant upon being served with respondent written address may file and
serve an address on points of law within 5 days on being served. The address –
Reply may be accompanied with a further affidavit (when new contrary facts arise
in counter-affidavit) Order 2 r 7
Where the respondent intends to challenge the jurisdiction of the court, he is to file
pursuant to ORDER 8 r 1 and 2
 A notice of preliminary objection

 Counter-affidavit, where he is opposing facts.
 Written address
Where he decides not to file a counter-affidavit, he is presumed to have admitted the facts
in affidavit – order 8 r 3.
In this like, there would be two applications before the court. The court will take both
applications and hear both preliminary objection and substantive application. The court
can make either of the following orders:
a. Strike out the application for want of jurisdiction

b. Set aside the service of original application – Order 8 r 5
If the court assume or did not decline jurisdiction, it can go ahead and give its ruling on
substantive application. – Order 8 r 6
WHO CAN ENFORCE RIGHTS?
 Infants through his guardian or next friend
Page 345 of 389

 Artificial bodies
 Any person, including a foreigner in Nigeria
 Deceased person(no action). However where the action is for damages, the estate
of the deceased can bring an action.
 Several persons can bring an action.and subsequent
Service of court process
i. Originating application and order of court is to be served by a sheriff, deputy

sheriff, bailiff, or other officer of the court – Order 5 r 1
ii. Service may be effected between 6 a.m and 6 p.m – Order 5 r 10
iii. Service is not to be effected on Sunday or public holidays unless authorized by
court in exceptional circumstances – Order 5 r 11
iv. Personal service on persons to be served where it is an order for production of
applicant, personal service would include, if the person directed to as police
officer, a prison superintendent or other public officer, leaving it with such
person.
 Any other officer working in the office of the police officer, office of
superintendent, or
 Office of public officer
Order 5 r 3 – 6. Where personal service with or without attempt at it, appear to the court
that it cannot be conveniently effected, substitutional service upon application may be
ordered. This includes:
a. Delivery to adult members of abode or business place last known.

b. Delivery to agent on prove that such in ordinary course will come to knowledge
of the party
c. Delivery to any senior officer of any government agency that has office where
breach occurs or FCT.
d. By advertisement in official gazette, federal government official gazette or some
newspapers circulating within the jurisdiction; or
e. Notice put up in court, public place within judicial division, last known place of
abode or business – Order 5 r 7(a)-(e)
Service is important as where a person who ought to be served is not served; the court
may adjourn the hearing of the application – Order 7 r 9
Hearing
The date for hearing of the application is to be fixed within 7 days of filing of the
application – Order 4 r 1. Application for enforcement of fundamental rights is to be
Page 346 of 389
treated as urgent matter and the court will not entertain or grant frivolous adjournments,
except that which is extremely expedient – Order 4 r 2. The hearing of the application is
to be on the parties’ written address – Order 12 r 1. The content of written address is as
follows:
a. Introduction
b. Statement of facts – brief, with reference to exhibit if any attached
c. Issues arising for determination
d. Argument on each issue
e. Prayers and reliefs
f. Conclusion
g. List of authorities
h. Date and signature
i. Address for service – Order 12 r 4 & 5
There must be heading of court and other preliminary matters. Oral arguments are
allowed for twenty minutes from each party on matters not contained in written address
and which to his knowledge after filing his written address – Order 12 r 2. If on the date
set for adoption of written address and either of the parties is absent, the court may
suomotu or on application(oral) of the counsel to the party present, order that the
addresses be deemed adopted, if the court is satisfied that: order 12 r 3
 Parties had notice of the date of adoption as he was present in court that day it
was made; or
 He was served with the notice of the day of adoption – Order 12 r 3
VERY IMPORTANT, to note that an application for the enforcement of

fundamental right shall not be affected by any limitation statute whatsoever. The
Public Officer Act is not excluded – Order 3 r 1.
Ex Parte application
Because time is already being abridged in fundamental right enforcement application,

where a party desires interim orders on ex parte application, the court may only hear ex
parte application on interim reliefs, where
 Exceptional hardship will be done to the applicant especially when life or liberty
of the applicant is involved – Order 4 r 3
 The application ex parte is to be supported by affidavit, setting the grounds why
delay in hearing the application would cause exceptional hardship – Order 4 r 4(a)
Page 347 of 389

 May be supported by an address
This is in addition to the originating motion application.
Amendment and consolidation
Amendment is permissible on only the statement of facts, as further affidavit can deal
with new issues in counter-affidavit – Order 6 r 3. Amendment is by application
supported by an exhibit of the statement of facts to be amended – Order 6 r 3. The
applicant upon grant of amendment is to amend within the time stated or apply for
extension, else amendment would be deemed abandoned – Order 6 r 4.
is upon application of applicant where the applications relating to infringement of rights

is
 Pending against several parties

 In respect of the same matter; and
 On the same grounds
 The same issues - Order 7 r 1,3
If the applications are before different judges, then application can be made to chief judge
to re-assign to one of such judges - Order 7 r 2
Effect of non-compliance with rules
Non- compliance at any stage in course of or in connection with the proceedings shall be
treated as an irregularity and not nullify such proceeding except if such non-compliance
relate to
 Mode of commencement of the application; or

 The subject matter is not within chapter IV of the CFRN or the African charter on
Human and Peoples Right (Ratification and Enforcement) Act - Order 9 r 1
Orders the court can make
The court is empowered to make orders as it may consider just or appropriate. The orders
are: Order 11 r 1
 Orders contained in chapter IV CFRN

 Orders in African charter on Human and Peoples Right (Ratification and
Enforcement) Act
 Damages
 Declaration, injunction, mandatory order
Page 348 of 389

 Apology
 Interim orders as provided in Order 4 r 4

 Grant bail or order release of applicant from detention.
 Production of applicant on the date the matter is fixed for hearing if unlawful or
wrongful detention is alleged.
 Injunction restraining respondent from acting - maintaining statute quo
 Others orders like access to counsel and family members; mandatory order not to
arrest again.
Judicial Review and Fundamental Right Enforcement
Judicial review is usually directed at interior courts and administrative body(s) and it is
the means of enforcing fundamental rights. However the application for judicial review is
usually on.
 An order of mandamus - this is compelling a public officer to do an act

 An order of certiorari - this is to quash the decision of the court or administrative
body or tribunal where he acts in excess of his power.
 An order of prohibition - this is to stop or prevent the doing of an act
 Declaration and injunction
 Habeas corpus - an order commanding the body of a person to be brought to court
and determine why the body is being detained. Order 42 LAG, Order 40 ABJ.
Application for the foregoing orders is by leave of the court - Order 40 r 3 LAG, Order
42 r 3 ABJ. The application is ex parte supported by statement of facts, verifying
affidavit and written address. After grant of leave, the application on motion is brought
supported with necessary documents.
Note the following
 Judicial review is directed at only inferior courts and tribunals and administrative
actions and decision.
 The leave of court is a condition precedent for seeking the orders
 Motion ex parte is used for seeking the leave of court on judicial review.
 Not used for enforcement of fundamental rights
 Restricted to certain orders namely: certiorari, mandamus, prohibition order and
habeas corpus
 No urgency in the hearing.
Page 349 of 389

COSTS AND SANCTIONS

Sanctions are usually punitive in nature. Usually penalties are paid to court, while costs
are paid to parties.
THPES OF SANCTIONS
 : striking out of an action for lack of diligent prosecution order 30 r 1 & 19 Lagos,
order 35 r 2 Abuja. See Also Order 30 r 3 LAG, 35 R 4 ABUJA.
 Striking out of applications/motions. OR 39 r 6 Lag, order 7 R 22 Abuja.
 Striking out of actions for failure to comply with rules of court. Order 5 r 1&2
Lag, Order 2 r 1(2).
 Failure to perform an act within time Authorised by the judge or rules. Order 9 r
5, order 24 r 4 and 44 r 4 LAG.
 Committal for contempt. Order 42 r 9 lag, order 41 r 1 Abuja, order 30 r 20
Abuja. ONAGORUWA v ADENIJI
 Dismissal of action against claimant and entry of final judgment against defendant
during CMC. Order 25 r 5 & 6 Lag
 Payment of sums as penalties/fines/punitive costs. Order 19 r 2(3) & 3(3)Lagos,
order 26 r 11 lag, order 30 R 20
 Failure to enter appearance within time: 200 Naira for each day of default. See
order 24 rule 4; order 44 rule 4 Lagos.
 Disciplinary measures against counsel for professional misconduct. Rule 24(2) &
(3) RPC.
COSTS
See order 49 rule 1(1) Lagos and Order 52(7) Abuja for basis for award of costs.
The general rule is that costs will follow events ORDER 49 R 11 lagos. Thus, it is not in
all case that the winning party will be paid for expenses of litigation.
Lagos provides for these additional factors to be considered. This is the payment of
money by one side to the other side.
Expenses to be considered in awarding costs:
1) the cost of legal representation and assistance of the successful party to the extent that
the judge determines that the amount of such cost is reasonable
Page 350 of 389
2) 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
3) such other expenses that the judge determines ought to be recovered, having regard to
the circumstances of the case
The nature of Award of costs is at the discretion of the court, but is must be judicially and
judiciously exercised. Court considers. UNION BANK V NWAOKOLO, ORDER 49 r 7
LAG.
- Whether costs are to be paid
- When it is to be paid
- How much is to be paid
General rules as to costs:

1) The unsuccessful party will be ordered to pay the costs of the successful party. See
Order 49 r 1. However this is not in all cases. See Order 49 r 2 Lagos
2) Cost follows events. See order 49 r 11 Lagos; Union Bank v. Nwaokolo. Here where
an event occurs which gives the court good reason to grant costs, the court will grant
costs to the party so entitled.
Factors to be taken into account in determining and awarding costs.
EXAMPLE WHEN THE WINNING PARTY MAY BE ASKED TO PAY COST TO

THE OTHER PARTY.
- Conduct of the parties. Conducted himself in an improper manner that delayed the
matter
- An offer at settlement or out of court or any payment made into court. order 49 r 12
- Whether a party has succeeded on part of his claim.
- Anything is done or omission is made improperly or unnecessarily.
Security for costs: order 49 r 3 & 4 Lagos in any cause or matter in which security for
costs is required, the security shall be of such amount and be given at such times and in
such manner and form as the judge shall direct.
Costs is payable forthwith, that is, immediately and within seven days of order. See
Order 49 r 10(2) lag.
Page 351 of 389

Failure to pay Costs: Consequence of failure to pay costs is that further proceedings will
be stayed. In this instance it will be a sanction.See order 49 r 9 Lagos , order 52 r 9
Abuja,
When can costs be awarded? The issue of costs can be considered at any stage of the
proceedings even up to the time judgement is given. See order 49 r 10(1) Lag
WHO DETERMINES. COST? Generally, the judge determines the amount of costs. But
where the judge cannot determine it either on account of quantum etc, court will refer it
to a taxation officer who is usually an officer of the court. Order 49 r 1(2)&(3) lag,
52 r 10 Abuja. This is because costs are not punitive.
Types of orders as to costs:
- An Order as to costs of action (loser pays the winner for costs of prosecuting the case)
- No order as to costs (here each party bears his own costs)
- Costs in the cause. See Dike v Union Bank. Here the judge postpones the award of
costs on an interlocutory matter to the end of the matter. So that at the end of the case,
the winner would get the costs in the action and the postponed costs.
- Application dismissed with costs. Here where a person brings an application and the
application is dismissed and the court awards the costs against the party that brought the
application. The respondent is paid the costs
- Costs in any event. This means from the application brought, such as an interlocutory
application to amend the other party must be compensated for time spent.
Personal liability of legal practitioners for costs:
Order 49 r 14(1) & (2) Lagos; Order 4 r 17 Abuja. It is called wasted costs because
you wasted court’s time.
Similarities and differences btw costs and sanctions
 Sanctions, like costs could be monetary

 Lagos allows for costs same as Abuja
 Lagos and Abuja can ask for security for costs.
 Lagos says costs once made will be payable for with and within seven days,
Abuja not express provision for when costs is to be paid.
 Lagos and abuja provides that where costs will not be paid, proceedings will be
stayed.
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Sanctions
o Lagos LP will be paid 5000 where the document produced is frivolous. While
Abuja is silent
o Failure to admit documents and documents are proved against you, 5000 in
Lagos, Abuja is silent.
o Additional 200 for every day of default in complying with the rules while Abuja
is silent. Order 44 R 4 lagos.
Sanctions are punitive, costs are not punitive but are made to compensate or indemnify
the parties for expenses, time and effort.
Sanctions are paid to the court. Costs are paid to the other party
COST AND SANCTIONS
Cost and sanctions are different. Failure to comply with the rules will amount to
sanctions. Cost is usually paid by the party who lost for making the other party incur
expenses in pursuing the action. Cost is paid to the party who is right and he is to be
indemnified for the necessary expenses which he has incurred. The object is to award
cost to compensate a litigant for his expenses as cost usually follow event and cost is at
the discretion of the court. What is paramount is to take into account all circumstances of
the case. See Rock shell Int'l Ltd v. BQS Ltd. The cost should not be awarded as a means
of punishing the losing party. The object of awarding cost is not to punish the
unsuccessful litigants but to compensate the successful litigant for his expenses. The
court will not allow costs which are unreasonable in the sense that they are incurred as a
result of the self-aggrandizement of the litigant. It is also the law that cost should not be
inflicted on a party who is not to be blame. See Atanda v. Lakanmi. But the court may
order that costs be paid before such party institutes further proceedings. That order is also
discretionary. It should not be given without regard to certain parameters such as when
the defendant is known to be a vexatious litigant or where without any reason files a
matter and when he discover a block wall discontinues in order to file another one in such
a case as a matter of practice and sometimes the rules of court provide for such a
procedure. The foregoing is the decision of Commasie v. Tell Comm. Ltd
Importantly cost goes to the party while sanctions goes to the court. That is the fees to be
paid as cost or sanction. Cost may be dealt with at any stage of the proceedings - Order
49 r 10(1) LAG and it is to be paid within 7 days of the order - Order 49 r 10(2). Cost
can be ordered against a legal practitioner - Order 49 r 14(1)(a)-(c) LAG. Cost is covered
by Order 49 LAG and Order 52 ABJ. An example of sanction is found in Order 9 r 5
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LAG. Where a defendant files an appearance after the time prescribed, he is to pay N200
for each day of default. Also where a party files final address after expiration of the
period specified. An example of cost against the legal practitioner is Order 4 r 17 ABJ,
where the counsel upon signing the pre-action counseling certificate and the case turns
out to be frivolous, the counsel shall be personally liable for costs of the proceeding.
Where the court awards cost, there is a right of appeal, only that, the appeal can only be
made with the leave of court - section 241(2)(c) CFRN.
Note the ethical issues in Rules 14, 15, 16, 24(2)(3),47 RPC.
ALTERNATIVE DISPUTE RESOLUTION
Litigation is the traditional method of dispute resolution. Any form of dispute resolution
other than litigation is an alternative dispute resolution method. ADR and litigation
cannot run together, it has to be one at a time. Ideally, ADR is usually resorted to prior to
instituting an action but subject to the circumstances of each case, it can be resorted to
before judgment is given. Thus pendency of litigation does not stop ADR as ADR must
not necessarily precede litigation. If litigation is pending and the parties go into ADR, the
terms of settlement reached by the parties would be brought to court and the court will
enter and deliver it as a consent judgment. The following are ADR mechanisms:
 NEGOTIATION between two parties

 MEDIATION involving a neutral third party
 CONCILIATION involving a neutral third party who can give an
opinion or suggestion
 ARBITRATION involving a neutral third party(s) called the
arbitrator(s) who can give an award which is enforceable.
 HYBRID PROCESSES
 Private judging – parties hire a private judge
 Early Neutral evaluation involving third party who would
evaluate the dispute, evaluate the relative strengths and weaknesses of each party’s case,
the probable outcome of litigation and advices the parties.
 Mini-trial, just like court trial in absence of live evidence
 Online dispute resolution uses UNCITRAL rules of
arbitration in order to avoid incidence of conflict of law. Used basically to resolve
disputes between persons in different countries
There is now the multi-door court house which is not an ADR mechanism but a place or
forum where ADR mechanisms can be exploited. The Lagos State High Court and High
Court of FCT now have a multi-door court house. In Lagos, it is statutory. Approaching
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the multi-door court house could be court connected like in Lagos state or independent
court. There are also Citizens’ Mediation Centers as in tenancy cases.
CRIME AND ADR
Ordinarily, it would be thought that ADR only applies to civil cases. ADR applies to
some crimes. For instance, compoundable offences under Criminal Procedure Code,
parties can agree to settle and come back to court. Traffic accidents involving repair of
vehicles. Plea bargaining involves negotiation between the prosecution and defendant.
Section 75 & 76 Administration of Criminal Justice Law of Lagos. Plea bargaining under
the ACJL is not limited to any offence.
NEGOTIATION
Negotiation is a problem-solving process in which the parties to a conflict or an imminent

conflict voluntarily come together (either personally or by their representatives) to
discuss their differences and attempt to reach a joint decision or resolution of the conflict,
on their own and without the involvement of a third party.
Negotiation is different from other types of alternative dispute resolution mechanism as

no third party is involved. It is probably the most private ADR technique. Also, it is less
formal and technical since it involves only the parties to the dispute. There is no
external interference which could complicate their issues. Again, unlike other
alternatives, it can be used in both criminal litigation (plea bargaining) and civil
litigation.
It must be noted that negotiation can be done through any of these three (3) modes/forms:
(a) face to face communication

(b) telephone communication
(c) written communication (which should always be marked without
prejudice)
It must be noted that where the parties to a dispute have gone to court and while the case
is pending, they decide to go into negotiation in a bid to settle out of court; any amicable
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terms of settlement reached by the parties can be filed in court and the court will enter it
and deliver it as consent judgment.
The Roles of a Legal Practitioner in Negotiations
Every legal practitioner is expected to cultivate the skill of negotiation. This is because
Rule 15(3) (d) RPC states that every legal practitioner is to advise his client on the
options of ADR before resorting to or continuing litigation on behalf of his client. A legal
practitioner plays the following roles in negotiation.
 As an adviser: The legal practitioner in this like advises his

client on options to choose from when various offers are made to him that is, the client
during negotiations. He can also peruse agreement decided on by the parties before
executing it.
 As an evaluator: The legal practitioner evaluates the situation of
the case for his client. He evaluates the position of his client. He does not evaluate as a
third party but for and on behalf of his client.
 As a negotiator: A legal practitioner can act as a negotiator for
his client while an action is pending or before an action is commenced
 As a draftsman: When parties to negotiation have concluded
negotiation, the agreement reached would be reduced into writing in the proper form. The
services of a lawyer would certainly be needed in the drafting and preparation of the
terms of settlement.
It must be noted that a lawyer representing a client in a negotiation process must conduct
a client interview to elicit all the important information concerning the dispute from the
client before the negotiation. However, where a particular fact emerges in the course of
the negotiation which the lawyer does not have adequate information or instruction on, he
should contact his client before taking any further step in the process. See Rule 14(2)(a)
RPC
TYPES OF NEGOTIATION
There are other types of negotiation, but for this purpose, there are:
1. International negotiation; and

2. Domestic negotiation
Domestic negotiation is divided into civil and criminal negotiation.
ACHIEVABLE GOALS/OBJECTIVES IN NEGOTIATION: Before negotiating, there

must be certain objectives which are:
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 Must achieve objective

 Intend to achieve objective.
 Likely to achieve objective.
Always identify your achievable goals and whatever the nature of the negotiation, it is
important to have the requisite knowledge of the applicable law. Where the negotiation is
based on an area of law where you are not an expert, always seek relevant help/assistance
from your colleague or seniors. See Rule 16 RPC
As a solicitor engaged in negotiations on behalf of your client, you must always bear in
mind your achievable goals and the limit to which you can go. Thus do not demand what
the other party may not be able to afford. When considering your limit, bear in mind the
two major yardsticks which are:
 Your client’s WATNA:

WATNA means Worst Alternative To Negotiated Agreement. This is the
last resort the party has if negotiation fails. Usually, the negotiation would
have failed utterly and gotten to a lose - lose situation before a party
considers his WATNA because the WATNA represents the worst course
of action which a party may take if negotiation fails and no agreement is
reached. For instance, the alternative the client has is to resort to litigation
where he may not be too sure of the amount to be given to him in
judgment and the time the case will be concluded, it is better to resort to
negotiation.
 Your client’s BATNA:

BATNA means Best Alternative To Negotiated Agreement. A party's
BATNA is his walk away alternative. It is his best course of action for
satisfying his interest in the event that negotiation with the other party
fails. The BATNA of a party is the best option which he will resort to in
the event that nothing comes out of the negotiation. The BATNA should
be capable of implementation in the absence of agreement after
negotiation. For instance, if a party is negotiating with his employer over
increment in his wage package, his BATNA may be to find another job
with the prospect of good remuneration. A good negotiator must also find
out as far as possible, the BATNA of the other party. This is done by
reviewing the other party’s interests, powers and rights. The negotiator
will then be able to compare his client’s BATNA with the BATNA of the
other party. This will help in setting a reasonable BOTTOM LINE for his
client.
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The bottom line is minimum amount or benefit which a party is prepared to accept in the
negotiation. It is the point beyond which the party cannot go. When this point is reached,
a party’s only choice is to pursue his BATNA. The BATNA must always be determined
first before the bottom line is fixed. It is risky and disadvantageous for a party to first fix
a bottom line before he determines his BATNA. Some of the disadvantages include:
a) The premature setting of the bottom line reduces the potential for
using problem-solving strategy in the negotiation. This is because the negotiating parties
usually find it hard to abandon their chosen bottom lines in the course of the negotiation.
b) The premature setting of the bottom line will not adequately cater
for possibility of unforeseen solutions that may come up during the negotiation,
particularly where such solution is inconsistent with the already set bottom line.
c) The premature bottom line may either be too unrealistic or too
high or too low.
CONTEXT OF NEGOTIATION
Whenever there is a dispute and negotiation is resorted to, the negotiation usually takes
place within the context of these three factors: rights of the parties, interests of the parties
and powers of the parties.
i) Rights of the parties: these are independent standards that

demonstrate the legitimacy or fairness of a party’s position in the negotiation process.
Such rights may arise from statutes, contracts, case law, treaties, custom and usage of
trade, precedents etc. usually these rights determine the extent of compromises a
negotiating party would be willing to make.
ii) Interests of the parties: negotiating parties in a dispute usually
have interests to protect. The negotiator must adequately identify these interests in order
to obtain the best available bargain for his client. These interests could be financial,
psychological, reputational, or other basic human needs.
iii) Power of the parties: this refers to the ability of a party to coerce
another to do something he would otherwise not do. The power may be political, social,
psychological, expertise etc. This power could be asserted through the withholding of
benefits accruing to a party or through aggression. The commonest example of the
exercise of power through withholding of benefits is the use of industrial action (strike
action) by workers. The workers withhold their services to the employer by refusing to
work. This puts pressure on the employer during negotiations as he always tries to avoid
such an occurrence. It must be noted that the powers available to a negotiating party
depends on the position of such a party.
REASONS FOR NEGOTIATION
1. Unnecessary delay in litigation. Up until recently, a matter commenced in the Lagos

High Court can take as long as 10 years. For instance, the case of Rossek v. ACB took 25
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years till it got to the Supreme Court and the court in its decision ordered a retrial.
Negotiation is usually for short period within couple of weeks or months.
2. Inadequate award of cost. Most times the cost usually awarded is very insignificant
compare to the amount used in the litigation.
3. Reluctance of court to award interest on damages. Eagle Super Pack v. ACB (813)
2005
4. Uncertainty in litigation
5. Litigation is costly
6. Litigation attracts unnecessary publicity. For instance, the case of Jadesimi v.
Okotie-Ebor, the deceased had died during the first coup d état in 1966. Yet persons not
born at that time have a lot of information about him. This is also increased with online
reporting.
7. Litigation discourages continuity of relationship
8. Litigation is always rigid and inflexible.
NEGOTIATION STRATEGIES
There are two types of negotiation strategies, namely
1. Positional strategy also known as the win/lose strategy or the

competitive strategy or the adversarial strategy or the “zero-sum negotiation”. In
this strategy, a party to the negotiation has maintained a position or a stand and he is not
ready to shift – he is only interested in having his way. Where parties adopt this, in most
cases there is always a deadlock and the parties end up in court. The negotiating parties
are assertive and are not willing to shift on their positions.
Here the parties often adopt a win-lose approach with little or no regard for any
compromise. At the early part of the negotiation, the parties would make opening offers.
The parties would also determine their respective bottom lines. The area between the
opening offers made by the parties and their respective bottom lines is known as the
BARGANING RANGE.
This strategy of negotiation is often rigid and the parties in the negotiation operate on the
basis of lack of trust. There is therefore the deliberate reluctance by the parties in
disclosing information relating to the subject matter of the negotiation. This strategy
focuses mainly on the power and interests of the parties.
The advantages of this strategy include:
a) it helps the negotiating parties to determine their bottom lines at
an early stage in the negotiation
b) it helps the negotiating parties to place economic value on the
item being negotiated.
The disadvantages of this strategy are:
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a) it adopts a win-lose negotiation style which leaves the loser in a

very vengeful position and destroys any relationship between the parties
b) it is inconsistent with the maintenance of goodwill between the
parties after negotiation
c) It destroys the pre-dispute relationship between the parties
d) it is rigid in nature
e) Parties are usually hostile and are reluctant to disclose relevant
information on grounds of mistrust.
2. Co-operative/Problem solving strategy: this strategy seeks to

meet the interests of all the parties by resorting to and adopting a win-win style of
negotiation. Here, the parties are ready to make compromises on their positions as far as
practicable. There is room for trust as the parties openly express their needs and interests.
They also bargain for .their interests, rather than their positions. This helps the parties to
settle their differences amicably and preserve their existing relationships. The proponents
of this strategy of negotiation have advocated that for this strategy to work, it must be
based on the following criteria or rules:
 Separate the people from the problem so that the problem is
considered on its merits
 Focusing on the interest of the parties and not their positions
 Inventing other options for mutual settlement
 Insisting on using objective criteria in inventing the various
options.
At the end both parties are contented. This is the win-win situation.
The basic features of the co-operative strategy are:
a) It focuses on interests and what will benefit the parties

b) .
c) Both parties are working for mutual gain. They explore options
for mutual gain
d) The parties using this strategy adopt objective criteria
e) It separates the people from the problem
The foregoing are the criteria/elements/features of co-operative strategy.
The advantages of this strategy include:
a) It maintains the pre-dispute relationship and goodwill of the

parties after the dispute
b) It leads to creative problem-solving as the parties have to put
their heads together to find a solution to their problems.
c) It is conciliatory
d) There is room for mutual trust in the negotiation process
e) The process is not hostile
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The disadvantages of this strategy are:
a) Lack of trust (mistrust) by one of the parties will frustrate the

process
It must be noted that depending on the circumstances, a negotiator may use a
combination of both strategies to achieve his goal.
NEGOTIATION STYLE
 Hard style - maintaining a position; that is, being rigid. This style
is not flexible and usually results in deadlock.
 Firm style – a firm negotiator is a determined one who is neither
soft nor hard. He does not trade concessions cheaply or maintain an unyielding position.
He is always very fair in approach and ensures that the problem is solved. Accords with
the Win-Win style
 Soft style – a soft style is when a negotiator trades concessions
cheaply and hastily to reach a settlement. The effect is that it is open to manipulation and
exploitation by the other party.
NEGOTIATION TACTICS
1) Control of agenda - where the party who is the convener has

issues of his own, which he deems important, he can make such issues to be discussed
first before any other.
2) Contextual manipulation - useful where a party is the convener.
Where the convener knows the strategy usually adopted by the other party, he may create
an atmosphere with is not conducive to the other party so as to negatively influence his
negotiation power.
3) Overwhelming numerical strength: useful in voting when there
is a deadlock. A party to the negotiation bringing in more persons to the negotiation table.
4) Puffs - this involves misleading the other party. Being deceptive
about your BATNA
5) Threats, whether to call off the negotiation and result to
industrial actions or litigation
6) Deadline/ultimatum: putting the other party under pressure by
giving him a time limit within which to reach a decision
7) Lack of authority: this is also known as “refer upstairs”. Here,
the negotiator actively participates in the negotiation process until the parties reach a
commitment stage where a binding agreement would be entered. Having reached this
stage, the negotiator informs the other party that he does not have the authority to enter
into a final binding agreement on behalf of his client or he may reach an agreement but
state that the agreement is not binding until his client confirms it. In either case, he would
demand to first consult with his client before the agreement becomes binding. The
rational of this tactic is that it gives the negotiator time to evaluate and consider the offer
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before accepting it. Usually, this tactic is used by government agencies particularly in
FG/ASUU negotiations
8) Limited authority: this refers to a situation where one of the
negotiators insists that he has authority only in respect of some of the issues in dispute
and not on all the issues. He has to contact his client or employer before making any
commitment in respect of those issues on which he lacks authority.
9) Behavioural (unusual behaviour): this tactic often works where
during the bargaining process, a negotiator expresses anger, boredom or lack of interest
so as to put the other party under pressure. He may even walk out or cause an uproar
feigning that he can call the bluff of the other party.
10) Flattery– psychological: under this tactic, some gimmicks of
psychological, emotional or moral appeals are deployed to arouse the other party to
sympathy such as flatteries, humour to disperse tension in order to avert a deadlock.
11) Piecemeal/nibble: Negotiating issues one after the other. This
refers to a situation where a negotiator decides to have the issues in dispute negotiated
one after the other. The issues are not taken together as a whole, but once an agreement is
reached on one issue, the parties go to another one until all the issues have been taken
care of.
12) Package deal: discussing all components of the dispute. This is
the opposite of piecemeal. In order to check the exploitation of the piecemeal tactic, a
negotiator may adopt the package deal tactic by insisting that all the issues be taken as a
whole. This counteracts the bargain a party would have secured with a piecemeal tactic.
The party adopting this package deal tactic makes it clear to the other party that he will
not agree on anything unless all the components of the dispute are discussed fully. A
party with a stronger bargaining power will find it easy to adopt this package deal tactic.
13) Leapfrogging: this involves jumping from one point to the other
during negotiation. It may be used to hide some of the weaknesses in the case of a party
or to divert the attention of the other party from such weaknesses. It is often useful when
a party’s case is suffering some continued setback and coming under heavy attacks
14) Take it or leave it: this tactic is not compromising at all. The
negotiator employing this tactic does not intend to be involved in protracted negotiations
with the other party. He makes his one-time offer and states clearly to the other party that
has only two options: to either take the offer or to forget about it. This tactic is usually
used by employers negotiating salaries with an employee or prospective employee.
15) Freeze out: Suggesting to the other party that he does not know
what he is doing. This tactic tends to ridicule the other party by beating him at each point
and suggesting to him that he does not know what he is talking about or that you know it
better than he does. This is competitive in nature and may weaken the confidence of the
other party in the negotiation process. This may lead to a walk out by the other party.
16) Hit and run: No room for discussion, just give in to the demand.
Here, negotiator simply tells the other party what his client needs and makes it clear that
there is no need discussing the demands of his client. It is therefore open to the other
party to either accept it or leave it.
17) Humour: Cracking jokes in the course of the negotiation. This
tactic helps the negotiator to break deadlocks and to maintain a cordial atmosphere and a
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rapport between the parties during the negotiation. It is usually used in the problem-
solving strategy.
18) Win-win: adversarial or positional. The negotiator is all out to
win the negotiation at all cost and does not care if the other party gets anything at all.
This tactic destroys any goodwill existing between the parties and does not restore the
pre-dispute relationship of the parties.
19) Win-lose: This is the opposite of the win-win style. The win-lose
tactic encourages concessions by the negotiators. It considers the interests and needs of
the other party and attempts to make some compromises in order to accommodate the
opposing party. This tactic ensures that nobody is an outright loser at the end of the
negotiation.
20) Blackmail. This tactic is used to demand concessions and are
especially effective where the party against whom it is used has an interest to protect and
would do anything to avoid a showdown.
STAGES OF NEGOTIATION
There are essentially five stages of negotiation. However, some authors categorized them
into five to six stages.
 Planning stage
 Opening stage: In this stage, there is preparation by the parties,
and the parties meet.
 Agenda setting stage
 Bargaining stage: The parties discuss the items one after the
other or issues involved in dispute or anticipated. Here the style, tactics, and strategies are
adopted.
 Closing stage: The parties summarize what they have agreed on
and reduce it into writing.
 Execution stage: This is the stage where the parties sign the
binding agreement between them. Where there is an action pending in court, the
agreement will be filed in court and consent judgment will be given to it.
If no pending action in court, the parties would accept it as binding agreement.
FACTORS TO BE TAKEN INTO CONSIDERATION IN NEGOTIATION
They are social considerations, cultural consideration and religious considerations.
1. Social background of the parties: People come from different social background and
their ideas may not be the same. There is need for every negotiator to put this into
consideration
2. Cultural background of the parties: The cultural background of a negotiator is a factor
to put into consideration. For instance, in eastern Nigeria, women cannot be involved in
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negotiation over family land. While in the Western Nigeria, if a woman is a principal
member of a family, she must be involved in negotiation of family land.
3. Religious background of the parties: In today's world, where persons of different
religion interact, it is pertinent for a negotiator to put into consideration the religious
belief of the other party. For instance, Muslim party to the negotiation would want to
pray once it is 1:30pm. Also, a Christian would not want to negotiate on Sunday.
ETHICAL ISSUES INVOLVE IN NEGOTIATION
A legal practitioner acting as a negotiator, the following should be observed:
 He should not make unfair and unrealistic demand

 He should not be emotional
 He should not be abusive while negotiating
 He should not strive to maintain good relationship.
 He should endeavour to give something in exchange from the
party.
 He should prepare for the negotiation
 He should act within the bounds of the law. Rule 15(c) RPC.
 He should uphold and observe the law. Rule 1 RPC.
 He should not withdraw or abandon the negotiation except on
good cause. Rule 21 RPC.
PLEA BARGAINING:
This is the form of negotiation that takes place in criminal cases. This is a situation where
the prosecutor enters into an agreement with the accused on the sentence he is going to
recommend to the court or on the charges he is going to bring against he accused person
in court in exchange for a plea of guilty from the accused to save the prosecutor from the
stress of a full trial. There are two types of plea bargaining:
a) Charge bargaining: this involves negotiations between the

prosecutor and the accused as to the charge the prosecutor would bring or maintain
against the accused person in exchange for a plea of guilty by the accused person.
b) Sentence bargaining: this relates to a negotiation by the
prosecutor with the accused person on the type of sentence he is going to recommend to
court in consideration of a plea of guilty by the accused person.
It must be noted that all the strategies, styles and tactics involved in negotiation in civil
cases also apply to plea bargaining. However, one difference is that in plea bargaining the
State is always the stronger party and dominates the process.
MEDIATION
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Mediation is an offshoot of negotiation, it is a stage further to negotiation. This is

because negotiation creates a polarized situation; one on one side and other on the other
side. Mediation is triangular in that there are two parties and a third party in the middle.
Thus, it involves three parties. Note, however that for a person to be a good mediator,
such person must have excellent skill of negotiation. Note that block-communication
which is a feature of negotiation does not arise in mediation.
Mediation is a process in which a neutral and impartial third party called the mediator is
invited by the disputing parties to facilitate the resolution of the dispute by the self-
determined agreement of the disputants. The mediator facilitates communication,
promotes understanding, focuses the parties on their interests and uses creative problem-
solving techniques to enable the parties to reach their own mutual settlement/agreement.
The mediator is jointly procured by both parties and the process is voluntary as the
parties are not under an obligation to accept the suggestions of the mediator.
Some mediators are formal while others are informal. A formal mediator may demand for
pre-mediation processes like discovery of documents, and the drafting and execution of
pre-mediation agreement which will stipulate how the mediation will be conducted.
Most mediator are retired judges. The mediator cannot compel the parties to come to an
agreement against their wish. He can only facilitate such agreement. The major function
of a mediator is to create a structure which allows for easy communication between the
parties so that their views can be aired.
NOTABLE FEATURES OF MEDIATION
a. Mediation is consensual and voluntary in nature.

b. There is party autonomy as parties still reserves the right to
walk away.
c. The third party is not imposed on the parties. This is a
remarkable difference between mediation and litigation. The third party in mediation
must be agreed to by the parties and must be respected by the parties.
In litigation, the judge is imposed on the parties and even when there is objection on
judge hearing a matter, the next judge to be assign to the matter is not determined by the
parties. The third party need not be independent of the parties like in litigation. A
mediator can be related to either of the parties. However, the rule of impartiality still
applies despite the mediator relationship with the parties. Parties can appear for
themselves or through representatives who are experienced in the ADR process
QUALITIES OF A GOOD MEDIATOR
There are three points which are fundamental to a mediator.
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a. A mediator facilitates resolution of the dispute by the parties.

He is not the one resolving the dispute, he only acts as a facilitator. Thus, he moves
parties from an area of dispute to an area of resolution,
b. The mediator is not to impose his decision on the parties but
help parties reach amicable settlement. No rule says that a mediator cannot influence
the reaching of the decision, only that he cannot impose his decision.
c. Final resolution is not binding until it is reduced into formal
agreement, with an enforcement clause. Where a party to the agreement did not
perform, his part, the other party can commence action in court by originating summons
to enforce the agreement. The mediator should ensure that such an agreement is reached.
A good mediator should have the following qualities:
a) Ability to build trust in the mediation process and in the parties

b) Impartiality and neutrality
c) Ability to control the mediation process
d) Flexibility and the ability to adapt to varying situations that may
arise in the process of mediation.
WHY CHOOSE MEDIATION OVER LITIGATION & OTHER ADR

PROCESSES?
It is so because of the advantages of mediation over other ADR processes.
Advantages of mediation over Negotiation include:
i) Mediation tends to be faster as the presence of a third party

quickens the problem-solving
ii) Mediation essentially achieves a win-win solution instead of a
win-lose approach
iii) The presence of a third party in mediation will help the parties to
be more committed to the process than when the parties are only discussing with
themselves as in negotiation
iv) Enforcement of the agreement reached in mediation is easier as
the mediator stands as a witness to the settlement reached by the parties
v) The expertise of the mediator in dispute resolution is usually of
immense value to the parties in reaching a lasting solution to their problems
Disadvantages of mediation over Negotiation include
i) Mediation is more expensive than negotiation as it involves a

third party who must be paid
ii) Where the mediator is partial, the process is frustrated and the
quality of the agreement reached by the parties may not be much
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iii) Privacy, which is the hall mark of ADR cannot be maintained in

mediation. The mediator himself is a third party and his presence may lead to leakage of
information
iv) Parties may not be at ease to disclose all relevant information at
their disposal as they may not trust the mediator
v) More time may be wasted if the matter in dispute is a complex
one which is not within the expertise of the mediator.
Advantages of mediation over Arbitration include:
i) The opinion of the mediator is not binding on the parties as they

can accept or reject such opinion. On the other hand, an arbitrator’s award is binding
ii) Mediation is less expensive than arbitration. This is because
mediation is less formal than arbitration and there is no need to call witnesses before a
mediator
iii) Mediation seeks to achieve a win-win solution, while arbitration
is a win-lose solution
iv) Mediation allows the parties to find a solution to their problems
without imposing anything on them. The parties in an arbitration are not given that
privilege
Disadvantages of mediation over Arbitration include:
i) The enforcement an agreement reached in mediation may lead to

fresh litigation as it is merely an agreement between the parties. Arbitration is statutorily
enforceable by the court
ii) Mediation is not statutorily protected like arbitration (ACA)
iii) In mediation, there is the possibility of the parties not reaching an
agreement on all or some of the issues in dispute. There is no such possibility in
arbitration as the arbitrator must reach an award after the proceedings.
ETHICAL STANDARDS FOR MEDIATOR
This involves basic things that a mediator must imbibe and observe
a. A mediator must be knowledgeable. That is, sufficient

proficiency on the subject matter. This does not necessarily equate with being practitioner
of the subject matter, but a knowledge which can be acquired.
b. A mediator must be honourable and observe fairness,
candour, and decorum in order to earn the respect and confidence of the parties.
Note that honourable is not just a mere title but a skill and character that must be shown.
c. A mediator must be a good listener and have highly
analytical skill: This does not mean a mediator should faze out during the proceeding but
rather he should take note of everything that has been said. Note that listening is a skill.
d. A mediator must be an impartial facilitator in that he moves
the parties towards amicable resolution of the dispute.
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e. Also, he should facilitate resolution of dispute timely. Time is

of the essence in mediation and no unnecessary adjournments as in litigation.
f. A mediator should ensure confidentiality: Parties are not to be
recorded verbatim. This is one way of ensuring confidentiality.
g. A mediator is not to impose decision on the parties but he is to
adopt technique that will help the parties to arrive at their mutually agreeable solution.
h. Also, he is to ensure that resolution by the parties is reduced
into an agreement in writing with all terms/points of resolution clearly spelt out.
i. More so, he must display leadership skills and control the
proceedings. Note that leadership skills help control proceedings.
j. He must ensure that the parties act within the bounds of the law
STAGES/STEPS IN MEDIATION
1) Preparation stage: appointment of mediator, choice of venue,

date. Where the mediator insists on a formal approach, then parties execute the pre-
mediation agreement. Fees and allowances of mediator are considered. If the matter is
pending in court, parties seek an adjournment.
2) Opening stage: first day of meeting. Mediator introduces
himself and his qualification, tells them the role he intends to play in the process and
educates them on the rules and regulations that would guide the mediation process and
which he expects the parties to obey. He must remind the parties that all communications
in the process are privileged and do not possess any legal relevance as they are “without
prejudice” and are inadmissible in court.
3) Agenda/issue setting stage: In this stage, each party tells his
story and the basic rule is that no interruption. Even in multi-party mediation each group
must present their story. While they tell their stories, the mediator makes notes
identifying the areas of agreement by the parties and the areas of dispute so as to identify
the real areas of dispute. The areas where they agree would be excluded from
consideration and issues would be framed for the areas of dispute. The mediator would
show the parties the issues framed and arrange with them on when to hold private and
joint sessions with the parties for the purpose of settling the dispute.
4) Bargaining stage/moving the parties to settlement: for every
issue framed, the mediator presents the possible solutions to the parties and they are free
to accept them or to reject them. The mediator co-ordinates the discussions of the parties
and employs subtle persuasion to guide the parties to make reasonable concessions where
necessary.
5) Reaching an agreement stage: where the parties have discussed
all the issues and have come to a mutual agreement, the mediator assists the parties and
encourages them to put it into writing and execute same. It could be possible that the
parties do not reach any agreement at all or reach an agreement on only some of the
issues. Where that is the case, the written agreement should cover only the issues
resolved.
6) Conclusion stage: if the parties have reached a mutual
resolution, reduced it into writing and executed same, the mediation was a success.
However, if they fail to do so, the mediator should encourage to seek other ways of
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settling the dispute with or without his assistance. In either case, at the end, he should
thank the parties for giving him the opportunity and declare the mediation process closed.
ARBITRATION AND CONCILIATION
Arbitration and Conciliation are regulated by the Arbitration and Conciliation Act,
applicable to the whole federation except Lagos state which has its own Arbitration law.
The major difference between them is that an arbitrator makes an award which is binding
and enforceable amongst the parties, while a conciliator does not make an award but
gives his opinion or suggestion which even if reduced into writing (written agreement
between the parties) cannot be enforced on its own unless the process of resolving dispute
through litigation is undertaken.
An arbitration clause is sometimes found in contractual agreements. The position of the

law is that parties to an agreement which contain arbitration clause must first abide by the
arbitration clause before going to court. See SCOTT v. AVREY, where the court held that
the arbitration clause was valid and constitutes a bar to an action in court until the
arbitration is taken. The foregoing is also contained in the Arbitration Act.
When a party to an arbitration clause in an agreement, proceed to court contrary to the

arbitration clause, the other party can apply for stay of proceeding and the court, upon
fulfillment of the relevant conditions will stay the action. See Sections 4 & 5, Arbitration
and Conciliation Act. When there is no prior arbitration clause in agreement between the
parties, the parties can still go for arbitration upon a subsequent, separate arbitration
agreement. An arbitration clause/agreement in an illegal contract can be enforced. That
is, even though contract is illegal, any arbitration clause in it is enforceable
notwithstanding the illegality of the contract. This is because an arbitration agreement is
an Independent agreement thus a contract found or tagged to be illegal does not make
the arbitration clause in such contract void. See section 12(2) ACA. This is called the
severability doctrine and autonomy of arbitration clause.
CONCILIATION
Conciliation has a lot of similarities with mediation. However, while mediation has no
statutory protection, conciliation is statutorily protected and regulated by the ACA.
Conciliation is a system of ADR where a third party known as the conciliator uses his
best endeavours to bring the disputing parties to a voluntary settlement of their dispute.
The process of conciliation is much more interventionist than mediation. Section 37-42 of
ACA deals with conciliation in domestic commercial disputes.
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By section 38 of ACA, a party who wishes to conciliate or initiate conciliation shall send
to the other party a written request to conciliate and any request so sent shall contain a
brief statement setting out the subject of the dispute. The conciliation is deemed to
commence on the date the conciliation request is accepted by the other party.
The parties may appoint one or three conciliators known as the conciliation body to
handle the dispute. Where the parties decide to appoint one conciliator, they are to
appoint the conciliator jointly. However where they choose to appoint three conciliators,
each party will one and both parties will jointly appoint the third conciliator. See section
40 ACA
After listening to the parties, the conciliation body will present its terms of settlement.
That is, it reaches an agreement for the parties and presents it to them. The parties are
free to accept or reject it. See section 42(1) ACA.
By section 42(2) ACA, where the parties accept the terms of settlement, the conciliation
body will draw up a record of settlement and sign it. If the parties accept the terms of
settlement, they become binding on the parties and either of them can take an action to
enforce it.
By section 42(3) ACA, where the parties do not accept the terms of settlement, the
conciliation body may recommend that the parties should submit the dispute to arbitration
or litigation. Where this is the case, their respective rights should not be affected. See
section 42(4) ACA.
DIFFERENCE BETWEEN ARBITRATION ND CONCILIATION
Note that unlike in arbitration, litigation and mediation, a conciliator has the power to go
outside the cases presented to him by the parties and do independent investigation just to
arrive at the truth. In all the other cases, the other third parties are bound by the case as
presented to them by the parties.
The conciliators could be one or three. If it is one, he is jointly appointed by the parties.
Where it is three conciliators, each party shall appoint one each and then both parties
would jointly appoint the third conciliator. This is different from what happens in
arbitration where the two arbitrators jointly appoint the third arbitrator. In the case of
conciliation, the parties themselves jointly appoint the third arbitrator.
ARBITRATION
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Arbitration is a method of ADR where parties to a dispute submit to a third party called
an arbitrator for the resolution of their dispute. The decision of the arbitrator, called an
award, is binding on the parties and enforceable by the courts. Arbitration is regulated by
the ACA except in Lagos where it is regulated by the Lagos State Arbitration Law, 2009.
However, in Lagos, the parties can choose in their arbitration clause that the applicable
law should be the ACA. Therefore, the statutes governing arbitration in Nigeria are the
ACA and the Lagos State Arbitration Law, 2009.
By its very nature, arbitration is voluntary, but under the Lagos Rules, 2012, it is
mandatory.
It must be noted that it is not every dispute that can be resolved through arbitration.
Therefore, there are arbitral matters, which can be settled by arbitration; and non-arbitral
matters, which cannot be settled through arbitration. Arbitral matters are basically civil
matter and they include:
i) Breach of contract
ii) Matrimonial causes
iii) Torts
iv) Compensation for compulsory acquisition of land/ land disputes.
Non-arbitral matters include:
i) Criminal proceedings/ disputes involving crime

ii) Disputes relating to the interpretation of the constitution or other
statutes
TYPES/FORMS OF ARBITRATION
1) Customary arbitration: this is not covered by ACA and

customary arbitral awards are not enforceable in the same manner as ordinary arbitral
awards. Customary arbitration is usually conducted in accordance with the customs,
usages, and trade practices of a particular community or group of people.
Customary arbitral awards are not readily enforceable because the arbitrators in such
cases usually have prior knowledge of the facts and prejudge the issues; and the courts
are always wary to hold that a particular customary arbitration has extinguished the rights
of the disputing parties to resort to litigation. See OHIAERI v. AKABUEZE.
In AGU v. IKEWIBE, it was held that for a customary arbitration to be valid and
enforceable, the following conjunctive/cumulative conditions must be satisfied:
i) That the disputing parties voluntarily submitted the dispute to an
arbitrator(s)
ii) That there was an agreement by the disputing parties, either
expressly or by necessary implication, that the customary arbitral award would be
accepted as final and binding
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iii) That the arbitration was conducted in accordance with the

custom, usages, or trade practices of the parties or their trade or business
iv) That the arbitrator(s) reached a decision and published an award
v) That the decision or award was accepted by the parties at the
time it was made.
See also OHIAERI v. AKABUEZE; OKEREKE v. NWANKWO
2) Domestic arbitration: this type of arbitration is conducted btw

parties in the same country and in respect of disputes arising within that country. The
transaction giving rise to that dispute and the obligations of the parties are all within that
country
3) Institutional arbitration: this refers to arbitrations conducted by
arbitral institutions such as the London Court of International Arbitration, Chartered
Institute of Arbitrators, American Arbitration Association, Lagos Multi-Door
Courthouse, and the Abuja Multi-Door Courthouse. Each of these arbitral institutions has
its own regulations which govern any arbitration conducted by the body. These
regulations are procedural and are binding on the parties to the arbitration. Once the
parties choose to have their arbitration conducted by any of these arbitral bodies, the
arbitral regulations and procedures of such institution are deemed to have become part of
the agreement of the parties.
4) International arbitration: this is where the parties to the
arbitration are from different countries or where the dispute arose out of business carried
on in different countries by the parties. Such arbitration is usually governed by
International conventions and treaties.
5) Ad-hoc arbitration: section 63(1) Lagos State Arbitration Law
2009 defines it as an arbitral proceeding that is not administered by an institution or other
body and which requires the parties themselves to make their own arrangements for
selection of arbitrators and for designation of rules, applicable law, procedures and
administrative support.
6) Maritime arbitration
METHODS OF ORIGINATING AN ARBITRATION PROCESS
An arbitration process may arise through any of the following methods:
1) Arbitration clause in an agreement or an independent

arbitration agreement: this is where there is an arbitration clause in the agreement btw
the disputing parties. Such an arbitration clause or arbitration agreement operates as a bar
to litigation and precludes the parties from going to court until the arbitration has been
taken and concluded. See SCOTT v. AVERY. Thus, where a party to such a dispute
commence an action in court in breach of the arbitration agreement btw the parties, the
court may, on application of the other party, stay the proceedings in that case and refer
the parties to arbitration. See section 5(1) ACA. In such a situation, the arbitral
proceeding may be commenced or continued while the case is still pending. See section
6(2) Lagos State Arbitration Law (LSAL, 2009).
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By section 6(1) LSAL, 2009, the application by the defendant to resort to arbitration must
be made to the court before he takes any step in the proceedings and he must also be
ready and willing to conduct the arbitration. See also CARLEN NIG LTD v. UNIJOS.
Where he takes any step in the proceeding such as filing his statement of defence, before
applying to resort to arbitration, he would be deemed to have waived his right to
arbitration. See also section 5(1) ACA.
An arbitration clause in an agreement is an independent contract which does not derive its
life, validity and existence from the agreement. Where, therefore, the agreement
containing the arbitration clause is declared a nullity, the arbitration clause is not affected
by such a decision and remains valid. See section 12(2) ACA, section 19(2) LSAL, 2009.
All agreements to resort to arbitration must be in writing. See section 3(3) LSAL. An
arbitration clause or agreement cannot be revoked except by express or written agreement
of the parties. See section 4 & 5 LSAL. Thus, even the death of either of the parties will
not nullify the arbitration clause or agreement.
There are three (3) types of arbitration clauses and they are:
i) The mandatory clause: this is also called the SCOTT v. AVERY
clause. Where it is contained in the agreement, it ousts the jurisdiction of the court until
the arbitration has been taken and concluded. The ATLANTIC SHIPPING CLUB CASE
has ameliorated the problem in Scott v. Avery by holding that where the arbitration
clause has a time limit for arbitration, then once that time elapses, the parties can go to
court whether or not the arbitration has been taken or concluded.
ii) Discretional clause: this is an optional arbitration clause. The
discretionary clause is subject to further consent of the parties. Read section 4 and 5 of
ACA properly
iii) Atlantic Shipping Club Case clause: this is a hybrid of the two
clauses above. Which makes arbitration mandatory but provides that if no meaningful
arbitration is held within a specified period, the parties can resort to court by submitting it
to court through a submission agreement.
2) Statutory arbitration clause: statutes establishing some bodies
stipulate that disputes between the body and another party shall first be referred to
arbitration. Such provision serves as a bar on the right of any of the parties to institute
any action in court until the arbitration has been taken and concluded
3) Post dispute agreement to refer to arbitration: where the
parties to the arbitration did not insert an arbitration clause in their original agreement,
they may subsequently agree in writing to refer the matter to arbitration after the dispute
arose. Where the parties do this and refer their dispute to arbitration, they cannot resort to
court until the arbitration is concluded
4) Reference by the court: the court can do this suomotu or upon
application of a party. Instances where a court would refer parties to arbitration include
where a party goes directly to court in breach of the arbitration agreement, or where one
of the parties is refusing to enter into arbitration despite the arbitration agreement. See
section 7 ACA (use statute and put details of court compelling a party to go into
arbitration)
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Note that the party seeking arbitration has a duty to set in motion. See ONWARD
ENTERPRISES LTD. v. MV MATRIX (2010) 2 NWLR (Pt. 1179) 419
APPOINTMENT OF ARBITRATORS
There are four (4) major ways through which arbitrators can be appointed. They are: by
the parties, by the arbitrators, by a duly authorised institution, and by the court.
i) Appointment by the parties: the arbitration clause may provide

the number of arbitrators to be appointed and such number should always be an odd
number. Where the parties choose to appoint one or three arbitrators, then in the
absence of agreement on a specific procedure by which they would be appointed: in
the case of one arbitrator, both parties will jointly appoint him; while in the case of three
arbitrators, both parties shall each appoint one then the two arbitrators so appointed will
jointly appoint the third arbitrator. See section 7(2) ACA
ii) Appointment by the arbitrators: this usually occurs where the
arbitrators already appointed have to appoint a third arbitrator, known as an UMPIRE.
Where the arbitrator are to be two or three, then both parties appoints one each, while the
two so appointed will jointly appoint the third arbitrator so as to make the number of
arbitrators to be an odd number. It must be noted that the arbitrators may be more than
three, but in all cases, they should be in odd numbers so that ties in voting can be broken.
iii) Appointment by an institution: the arbitration clause in an
agreement may name a third party or an institution as the appointing authority. Such
institution would be responsible for appointment of the arbitrator.
iv) Appointment by the court: this occurs where a dispute has
arisen btw the parties and one of the parties refuses to enter into arbitration or neglects to
appoint an arbitrator. Upon application by any of the parties to court, the court will
appoint an arbitrator and compel the parties to go into arbitration. See section 7(2) ACA
and section 8(4) LSAL. In making the appointment, the court should take into
consideration the provisions of the arbitration clause on the number and qualifications of
prospective arbitrators.
NUMBER OF ARBITRATORS
The disputing parties may stipulate the number of arbitrators to be appointed. It is

advised that the number of arbitrator be odd; however, where they agree to appoint an
even number of arbitrators, such agreement will be deemed to imply that a third arbitrator
(or one more arbitrator to make it odd number) called an UMPIRE is to be appointed to
chair the arbitral tribunal. See section 7(2) LSAL.
It must be noted that where the parties fail to stipulate the number of arbitrators, the
number shall be statutorily deemed to be three (3) arbitrators for the purpose for the ACA
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or one (1) arbitrator for the purposes of the LSAL. See section 6 ACA and section 7(3)
LSAL.
PROCEDURE/MODE OF APPOINTING ARBITRATORS
The parties have the right to stipulate the procedure for the appointment of their
arbitrator(s). However, in the absence of express agreement stipulating the procedure for
the appointment of arbitrators, the procedure specified in the ACA or LSAL, as the case
may be shall be applied. Below are the procedures for appointing one and three
arbitrators respectively:
1) One arbitrator: where the parties provide for the appointment of

one arbitrator but fail to provide the procedure for appointing such arbitrator, then the
parties shall jointly appoint the arbitrator. By section 7(2)(b) ACA where the parties fail
to agree on one arbitrator, the appointment shall be made by the court on the application
of any of the parties and the application must be made within thirty (30) days of the
disagreement or dispute. See section 7(2)(b) ACA
In Lagos, under the LSAL, the procedure is different. Where the parties fail to appoint the
one arbitrator and where no appointing authority is designated by the parties, then, upon
application, the appointment of the arbitrator is to be made by the Lagos Court of
Arbitration. See section 8(4)(b) LSAL.
However, where an appointing authority is designated by the parties, but no procedure for
the appointment is specified, the sole arbitrator may be appointed in the following
manner:
i) The parties may propose one or more arbitrators to the
appointing authority
ii) If within thirty (30) days after the first proposal for appointment
was delivered by a party, the parties fail to reach an agreement on the arbitrator to be
appointed, the appointing authority shall make the appointment. See section 7(3)(a) & (b)
LSAL.
2) Three arbitrators: where the parties provide for the

appointment of three arbitrators, but fail to provide the procedure for the appointment of
such arbitrators, then each party shall appoint one arbitrator each and the two arbitrators
thus appointed shall jointly appoint the third arbitrator. See section 7(2)(a) ACA. This
procedure applies where the number of arbitrators are more than three in number.
it must be noted that by section 7(2)(a)(i) & (ii) ACA, if either of the parties fails to
appoint the arbitrator within thirty (30) days of the receipt of request to do so by the other
party, or if the two arbitrators fail to agree on the third arbitrator within thirty (30) days,
the appointment shall be made by the court on the application of any of the parties to the
arbitration agreement. However, by section 7(3) ACA, the court may not have the power
to make such appointment where the parties stipulated other procedures to be followed
where there is failure by any of the parties or arbitrators to appoint.
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By section 7(4) ACA, there is absolutely no right of appeal against a decision of a court
appointing an arbitrator for the parties. Finally, by section 7(5) ACA, in appointing
arbitrators for the parties, the court shall have due regards to the qualifications required of
an arbitrator by the arbitration agreement and such other factors as are likely to secure the
appointment of an impartial and independent arbitrator.
READ UP PROCEDURE FOR APPOINTING THREE ARBITRATORS UNDER
LSAL. PAGES 332-334 OBIOKOYE
CHALLENGE OF ARBITRATORS section 8(3) ACA; section 10(3) LSAL
After the appointment of arbitrators, any party can challenge the arbitrator. The grounds
for challenging arbitrators are provided for under section 8(3) ACA; section 10(3) LSAL
as follows:
i) if circumstance exist that give rise to justifiable doubts as to his

impartiality or independence
ii) if he does not possess the qualifications agreed upon by the
parties
Section 8(3) ACA
iii) if the arbitrator is physically or mentally incapable of conducting
the proceedings or there are justifiable doubts as to his capacity to do so
iv) if the arbitrator has refused to use all reasonable dispatch in
conducting the proceedings or making an award, and substantial injustice has been or will
be caused to the applicant by such conduct of the arbitrator.
ADDED TWO BY section 10(3) LSAL
PROCEDURE FOR CHALLENGE
By section 9(1) ACA and section 11(2) LSAL, the parties may determine the procedure
for challenging arbitrators. However, in the absence of express provision of such
procedure, then by section 9(2) ACA, the party who intends to challenge an arbitrator
shall send a written statement of the reasons for the challenge to the arbitral tribunal and
this must be done within fifteen (15) days of that party becoming aware of the
constitution of the arbitral tribunal or becoming aware of any circumstances mentioned
above.
The arbitral tribunal has the power to determine issues of competence of a member or its
jurisdiction. Therefore, by section 9(3) ACA, unless the arbitrator who has been
challenged withdraws from office of the other party agrees to the challenge, the arbitral
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tribunal shall decide on the merit or otherwise of the challenge of the arbitrator by the
party. This called the “competence-competence rule”
By section 11(4) LSAL, in Lagos, where an arbitral institution is the appointing authority
designated by the parties, the challenge of an arbitrator may be decided by the arbitral
tribunal or the arbitral institution as the case may be.
TERMINATION/REMOVAL OF ARBITRATORS
The mandate of an arbitrator can be terminated on any of the following grounds:
i) Where he voluntarily withdraws from office. This may be due to

the fact that he has been challenged
ii) where the parties agree/consent to terminate his appointment by
reasons of his inability to perform his functions
iii) where for any reason, he fails to act without undue delay. That is,
he delays unduly in discharging the functions of his office and the applicant suffers or is
likely to suffer as a result of the delay
The foregoing are provided by section 10(1) ACA,
iv) where circumstances exist showing justifiable grounds as to the

arbitrator’s impartiality and independence
v) where the arbitrator does not possess the required qualifications
as agreed by the parties before his appointment.
vi) Where the arbitrator is considered to be physically or mentally
incapable of handling the arbitral proceedings or that there are justifiable doubts as to his
capacity to handle such proceedings.
These last three are not in ACA, but are provided by section 12(1) LSAL.
An application for the removal of an arbitrator shall be made to court by any of the
parties. By section 11 ACA, upon the termination/removal of an arbitrator, a
SUBSTITUTE arbitrator shall be appointed in his place in accordance with the same
rules and procedure that applied to the appointment of the arbitrator who is being
replaced. See section 11 ACA
By section 12(2) LSAL, where an arbitral tribunal or other institution is empowered by

the parties to remove an arbitrator, the court shall not entertain the application for
removal of the arbitrator unless it is satisfied that the applicant has exhausted the chances
of applying to such institution or tribunal. See section 12(2) LSAL.
JURISDICTION OF ARBITRAL TRIBUNAL
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First of all, it must be noted that by section 12(1) ACA, an arbitral tribunal shall be
competent to rule on questions pertaining to its own jurisdiction and on any objections
with respect to the existence or validity of an arbitration agreement
The jurisdiction of an arbitral tribunal may be challenged on the following grounds:
i) When the arbitrators exceed their scope of authority: this

occurs where the subject matter is generally within the jurisdiction of the arbitral tribunal,
but some aspects of the subject matter is not within the scope of the arbitral tribunal to
decide.
ii) Total lack of jurisdiction
Time for raising an objection to jurisdiction:
Where a party challenges the jurisdiction of an arbitral tribunal on the ground that it
exceeded its scope of authority, such objection should be raised as soon as the matter
alleged to be beyond its scope of authority is raised at the arbitral tribunal. See section
12(3)(b) ACA; section 19(3)(b) LSAL.
A party challenging the jurisdiction of an arbitral tribunal on the grounds of total lack of
jurisdiction should raise such objection not later than the time of the submission of his
points/statement of defence or reply/defence to counterclaim; and such party shall not be
estopped or precluded from raising such objection on the grounds that he actively
participated in appointing any of the arbitrators or that he appointed one himself. See
section 12(3)(a) ACA, Article 21(3) of Arbitration Rules, made pursuant to ACA.
Ruling on the objection: it must be noted that by section 12(1) ACA, an arbitral tribunal
shall be competent to rule on questions pertaining to its own jurisdiction and on any
objections with respect to the existence or validity of an arbitration agreement
The decision of the arbitral tribunal on the issue of jurisdiction is final and binding on the
parties. See section 12(4) ACA. However, where an award is made, a party may
challenge the award on the ground that the tribunal exceeded its scope of authority or
lacked jurisdiction.
STAGES OF ARBITRATION/ARBITRAL PROCEEDINGS
The stages of arbitration/arbitral proceedings are:

1) Initiating/commencing the arbitral proceedings: for there to
be arbitration, there MUST be a dispute. When a dispute arises in relation to a particular
transaction, which the subject of an arbitration agreement, one of the parties has to notify
the other in writing. This NOTICE IN WRITING is known as the DECLARATION OF
DISPUTE OR NOTICE OF ARBITRATION. It serves as a notification of the dispute to
the other party as well as a request for the parties to go into arbitration. It must be noted
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that by section 17 ACA and Article 3(1) & (2) Arbitration Rules, the arbitral
proceedings is deemed to commence on the day the notice is received by the other
party. See section 17 ACA and Article 3(1) & (2) Arbitration Rules.
The Notice of arbitration/declaration of dispute shall contain the following:
i) The fact of the dispute
ii) A demand that the dispute be referred to arbitration
iii) The names and addresses of the parties
iv) A reference to the arbitration clause in the agreement or the
independent arbitration agreement.
v) A reference to the contract out of or in relation to which the
dispute arose.
vi) The general nature of the claim and an indication of the amount
involved, if any
vii) The relief or remedy sought
viii) A proposal as to the number of arbitrators to be appointed, if the
parties had not previously agreed on it.
See Article 3(3) of the Arbitration Rules. The foregoing provisions are
mandatory and must be contained in the notice.
Note that the party seeking arbitration has a duty to set in motion. See ONWARD
ENTERPRISES LTD. v. MV MATRIX (2010) 2 NWLR (Pt. 1179) 419
2) Appointment of arbitrators: at this stage, the parties appoint

the arbitrator(s) in accordance with the procedure they agreed on. Where no procedure
was agreed on, then in accordance with the procedure provided by the relevant statute.
Where the parties fail to appoint within the specified time, the court shall make the
appointment upon application by any of the parties. It must be noted that by section 5(1)
LSAL, the death of a party shall not revoke an arbitration agreement and by section 5(2)
LSAL, the authority of an arbitrator who is already appointed shall not be revoked by the
death of the party that appointed him.
3) Preliminary meeting: the arbitrator meet with the parties to
agree on certain preliminary points such as determining jurisdiction and powers of
arbitrators, the mode of hearing whether oral or documentary; the number of witnesses
and mode of presenting them; manner in which processes would be presented (whether
traditional pleadings or statement of case); the fees and remuneration of the arbitrators;
the deposit of costs; interlocutory issues such as challenge of jurisdiction, preservative
Page 379 of 389
measures (interim measures of protection); security for costs; directional order and
adjournment of the preliminary meeting.
4) Submission of points/statement of claim and defence: the
points/statement of claim is submitted by the party that initiated the arbitration and is
called the claimant. The points/statement of claim contains a summary of his case and the
remedies sought. Therefore, the points/statement of claim contains:
i) The facts supporting the claim
ii) The points at issue
iii) The reliefs or remedies sought
iv) The names and addresses of the parties.
SECTION 19 ACA
It is to be accompanied by a
 copy of the contract and the arbitration agreement, if it is not contained

in the contract.
 Also, all documents considered by the claimant to be relevant to

establishing his claim and;
 the written statements of the evidence of witnesses should also

accompany the points/statement of claim.
The points/statement of defence is submitted by the other party and may
contain a counter claim, if necessary. It shall contain the same particulars as
the points/statement of claim. Also, all the documents that the other party is
seeking to rely should accompany the points/statement of defence.
5) Hearing: hearing during arbitral proceedings are less formal and
private, unless the parties agree otherwise. By section 257(1)(a) EA, 2011, the arbitral
tribunal are not bound to observe the provisions of the Evidence Act.
Where any of the parties fail to appear at the hearing, after the adequate notice
was issued to him, the arbitral tribunal shall continue with the trial.
However, where the claimant fails to state of file his points/statement of
claim within the prescribed time the tribunal may terminate the proceedings
unless the other party intends to present a claim.
Where the defendant fails to submit his points/statement of defence, the
tribunal shall proceed with the arbitration except where the party in default
shows good cause for such default. Such default on the part of the defendant
Page 380 of 389

should, however, not be treated by the tribunal as an admission of the claim of

the claimant.
SECTION 21 ACA
After the hearing, the arbitral tribunal shall fix a date for the pronouncement
of the award. But they can re-open the hearing at the instance of any of the
parties if there are sufficient reasons to do so.
6) Award: this is the decision of the arbitral tribunal. It determines the rights of
the parties with finality. The award shall be in writing and should contain the
following pursuant to section 26 ACA
i) The names of the parties
ii) The reasons for the award, unless the parties earlier agreed that
no reason should be given by the arbitrator.
iii) The date the award was made
iv) The place where it was made
v) It must be signed by the arbitrator(s) or majority of them. If not
signed by all, reasons for the absence of the signature must be stated.
The award may be delivered in pubic if the parties so agree. After the service
of the award on the parties, the arbitral proceedings is deemed to be
terminated. See section 27(1) ACA. It must be noted that where the parties
settle some of the issues in the course of the proceedings, the terms of
settlement is adopted by the arbitral tribunal as their award. Such award has
the same status and effect as any other award made on the merits of the case.
See Article 25(2)(b) Arbitration Rules.
There are different types of award: partial award, interim award, interlocutory
award, final award, and additional award.
TERMINATION OF ARBITRAL PROCEEDINGS BY THE ARBITRAL TRIBUNAL

The arbitral tribunal may terminate the proceedings before the time of an award in any of
the following circumstances:
i) Where the parties consent to terminate the arbitration
ii) Where the claimant withdraws the submission of the dispute
iii) Where the tribunal discovers that it is unnecessary or impossible
to continue with the proceedings
Page 381 of 389

Where any of these foregoing instances arise, the arbitral tribunal shall issue an order
terminating the proceedings. See section 27(1) ACA. It must be noted that by section
27(3) ACA, once the arbitral proceeding is terminated either by the arbitrators or upon
the announcement of an award, the mandate of the arbitrators comes to an end.
After the receipt of the award, a party may request the tribunal to correct any clerical,
typographical errors or errors in calculation or to interpret any part of the award. Such
application must be made within thirty (30) days after the receipt of the award. The other
party should also be notified of the application and such corrections, when made, shall
form part of the original award. Section 28 ACA. Upon receipt of the request, the arbitral
tribunal shall within 30 days make the corrections to the typographical or clerical errors,
or interprets a part of the award. The tribunal can suo motu reflect such corrections within
30 days of making the award. Section 28(3) ACA.
CHALLENGE/IMPEACHMENT/SETTING ASIDE OF AN AWARD
By section 29 ACA, a party aggrieved with the arbitral tribunal may, within three
(3) months from the date of the award, challenge the award on any of the following
grounds:
i) The arbitral award exceeded the scope of the submission to
arbitration
ii) That an arbitrator misconducted himself
iii) Where the arbitral proceeding or award was improperly procured
by any of the parties
The above are under ACA. The subsequent ones are under LSAL and apply only to
Lagos.
iv) Where a party to the arbitration agreement is under some legal
disability or incapacity
v) That the arbitration agreement is not valid under the laws of
Nigeria or the laws the parties chose to govern the proceedings.
vi) The composition of the arbitral tribunal or the procedure adopted
by the tribunal is contrary to the agreement of the parties; except where such agreement
offends the mandatory provisions of a statute.
vii) That the arbitration agreement is invalid, non-existent or
ineffective
viii) The subject matter of the arbitration is incapable of being settled
by arbitration in Nigeria, such as criminal cases
ix) The arbitrators or any of them received some improper payment
or benefit
Page 382 of 389
x) Lack of qualification on the part of the arbitrators

xi) The award is contrary to public policy.
Where any of the foregoing grounds is established, the court may set aside the award
either wholly or in part or remit the award either wholly or in part back to the arbitral
tribunal for reconsideration. A court should not completely set aside an award unless
it is satisfied that it would be inappropriate to send it back to the arbitrators.
NOTE that the grounds for setting aside an award was affirmed in BAKER MARINE
NIG LTD v CHEVRON NIG LTD (2000) 12 NWLR (Pt. 681) 393
NOTE ALSO that in practice, where an application is made to enforce an award
and another application is made to set aside the same award; it is the application
to set aside the award that has priority while the one to enforce is stayed. See
SHELL TRUSTEES NIG LTD v. IMANI SONS LTD (2000) 6 NWLR (Pt. 662)
639. However if the application to set aside fails, the award becomes
automatically enforceable.
TIME WITHIN WHICH TO CHALLENGE AN AWARD
The application challenging an award should be brought before the High Court:
i) Within three (3) months from the date of making the award. See
section 29(1)(a) ACA
ii) If any of the parties requested for an additional award, then
within thirty (30) days from the date the additional award is disposed of by the arbitral
tribunal. See section 29(2)(b) ACA
See generally section 29(1) ACA
Where the request was not for an additional award, but for corrections in the original
award made, then the time within which to challenge the award is three (3) months from
the date of the original award. See VITAMALT PLC v. IBRAHIM ABDULLAHI.
PROCEDURE FOR CHALLENGING AN AWARD
The award should be challenged by a motion on notice supported by affidavit stating the
grounds for the challenge and a written address. The application be accompanied by the
following:
i) A CTC of the award
ii) A copy of the arbitration agreement
iii) A copy of the contract in respect of which the arbitration was
conducted.
Page 383 of 389

Where an award is successfully challenged, the court can make any of the following
orders:
i) Where the ground for challenging the award is that it contains
matters which are outside the scope of authority of the arbitral tribunal, the court may set
side such offending matters and uphold the rest of the award where it is practicable to do
so. See section 29(2) ACA
ii) Where the whole award is challenged on other grounds, the court
may set aside the whole award
iii) In Lagos, where necessary, the court may remit the award back to
the arbitral tribunal for reconsideration. See section 55(4) LSAL
RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS IN NIGERIA
By section 31(1) ACA, an arbitral award is recognised as legally binding on the parties
and is enforceable by the court on application.
The application is by way of an ORIGINATING SUMMONS supported by affidavit. By
section 31(2) ACA, the application shall be accompanied by:
i) The duly authenticated original award or a duly certified copy of
it
ii) The original arbitration agreement or a duly certified copy of it
Where these conditions are satisfied, then by leave of court, the award shall be
enforceable as a judgment of the court and with same effects. See section 31(3) ACA
REFUSAL TO ENFORCE ARBITRAL AWARDS GOTTEN IN NIGERIA
The court may refuse to enforce an award on any of the following grounds:
i) Incapacity of any of the parties to the arbitration agreement
ii) On grounds of public policy
iii) Where the applicant was not given proper notice of the
appointment of an arbitrator, the arbitral proceedings or to present his case before the
arbitral tribunal
iv) The award exceeded the scope of the submission to arbitration
v) The composition of the tribunal or its procedure is contrary to the
agreement of the parties
vi) The parties did not observe the provisions of the law in the
appointment of the arbitrators where they did not stipulate the procedure for appointment
Page 384 of 389

vii) The award has not yet become binding on the parties or has been
set aside in the jurisdiction where it was obtained
viii) Where the award is not in writing, or is not signed or dated, or
does not contain the reasons for the award.
ix) Where the subject matter of the arbitral proceeding s had become
statute-barred before the arbitration.
RECOGNITION/ENFORCEMENT OF INTERNATIONAL ARBITRAL AWARDS
By section 51(1) ACA, an arbitral award, irrespective of the country in which it was
made, be recognised as binding and may be enforced by a court in Nigeria upon
application.
The application is by way of a motion on notice supported by affidavit. By section 51(2)
ACA, the application shall be accompanied by:
i) The duly authenticated original award or a duly certified copy of
it
ii) The original arbitration agreement or a duly certified copy of it
iii) Where the award or arbitration agreement was not made in
English, then a certified translation of it into English Language.
REFUSAL TO ENFORCE INTERNATIONAL ARBITRAL AWARDS
By section 52(2)(a) ACA, the courts may refuse to enforce an international arbitral award
on the following grounds:
i) That a party to the arbitration agreement was under some legal
incapacity, or
ii) that the arbitration agreement is not valid under the law which
the parties have indicated should be applied, or failing such indication, that the arbitration
agreement is not valid under the law of the country where the award was made, or
iii) That he was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was otherwise not given enough opportunity to
present his case, or
iv) That the award deals with a dispute not contemplated by or not
falling within the terms of the submission to arbitration. That is, that the subject matter of
the award was not within the terms of submission to arbitration.
v) That the award contains decisions on matters which are beyond
the scope of submission to arbitration, so however that if the decision on matters
submitted to arbitration can be separated from those not submitted, only that part of the
Page 385 of 389

award which contains decisions on matters submitted to arbitration may be recognised

and enforced, or
vi) That the composition of the arbitral tribunal, or the arbitral
procedure, was not in accordance with the agreement of the parties, or
vii) Where there is no agreement btw the parties as to the arbitral
procedure, that the composition of the arbitral tribunal, or the arbitral procedure, was not
in accordance with the law of the country where the arbitration took place, or
viii) That the award has not yet become binding on the parties or has
been set aside or suspended by a court in which, or under the law of which, the award
was made; or
ix) That the award is against the public policy of Nigeria
x) That the dispute was not legally capable of being settled by
arbitration under Nigerian Law.
See section 52(2)(a) ACA
ADVANTAGES OF ARBITRATION AGAINST MEDIATION AND
NEGOTIATION
1) An arbitral award is final and binding on the parties and is not
appealable. Negotiation and mediation only produce agreements which the parties can
resile from.
2) An arbitral award is enforceable as the judgment of a court, but
this is not so with agreements reached in negotiation and mediation
3) Arbitrators have powers to summon witnesses through the court.
mediators and negotiators cannot do that
4) Parties in an arbitral proceedings can reach a settlement and it
will operate as an award of the arbitral tribunal. While settlements reached in negotiation
or mediation remains an ordinary agreement which can only be used as evidence in court.
5) Arbitration is statutorily regulated by the ACA or LSAL, while
negotiation and mediation are not.
DISADVANTAGES OF ARBITRATION OVER OTHER ADR PROCESSES
1) Arbitration is too rigid and almost passes as litigation
2) It is expensive as the arbitrator(s) are paid huge fees. The lawyers
representing the parties are also paid as well
3) In arbitration, parties lose their right of appeal on the merits of
the case as they can only challenge the procedure or jurisdiction of the tribunal
Page 386 of 389
4) Arbitral processes leads to a win –lose result which may not

preserve the pre-dispute relationship of the parties.
ADVANTAGES OF ARBITRATION & OTHER ADR PROCESSES OVER
LITIGATION
1) Cheaper than litigation: In short term, ADR can be more expensive than litigation
but in long term it is cheaper than litigation. In ADR, all the expenses are borne by the
parties while in litigation; some of the expenses are not borne by the parties.
2) Faster than litigation: In litigation, there is competition but in ADR, the parties'
case is likely to be the only one. It takes less time than litigation as there would not be
long and unnecessary adjournments, which is usually associated with the judicial process
3) Preservation of pre-dispute relationship between the parties: Most ADR has a
win-win situation on both sides, although arbitration is now similar to litigation as it is
governed by stringent rules where there is a winner and loser. Strictly in litigation, it is a
win-lose situation. Preserves the pre-dispute relationship between the parties.
4) Privacy of the parties and confidentiality of the proceedings: ADR helps preserve
the privacy of the parties. In litigation, the process must be held in public except under
certain conditions thus in private. Again most parties to litigation do not return as friends
even in matrimonial proceedings. And in commercial area of law, ADR is most relevant
as there might still be need to continue business relationship.
5) It is less formal and less rigid than litigation: The court room where litigation is
carried out is usually tense. For the lawyers, it is difficult, there are a lot of rules and
procedures which must be followed and also for the layman, and it is extremely difficult.
In ADR session, it is more of business meeting where coffee can even be served. Hence
the layman is likely to prefer such environment.
6) The parties can determine the umpire. They determine the mediator or arbitrator
or conciliator. That is, they choose the persons who will preside over their case
7) Parties choose a venue which is convenient for them.
DISADVANTAGES OF ADR
1) In arbitration, the arbitrator is not protected against hostility

while in litigation; the judge can give judgment without fear or favor.
2) ADR hinders the development of case law. This is however seen
as a positive limitation and not a negative one as case law is not an end in itself but a
means to an end.
3) Lack of binding force: ADR processes usually lack binding force
except arbitration as the ACA provides for its bindingness. However for the others that
have no binding force, the parties can and usually make an effort to reduce the decision
reached in the ADR process into a binding agreement. In other words, by their own
nature, most are not binding but there are means to making them binding.
4) It is more expensive in the long run
Page 387 of 389
5) Difficulty in finding qualified personnel.

6) The other methods have no legal framework. Only arbitration
and conciliation have binding force under ACA
ADR IS NOT USEFUL IN CERTAIN CASES. These are:
1) In criminal cases generally, ADR is not used but there are exceptions. For
instance, plea bargaining in its effect involve some ADR issues as it is give and take
position; negotiation of plea of guilty.
2) Election petition being matter of public policy cannot be resolved through ADR.
3) In matrimonial causes, ADR is only relevant in certain ancillary matters and not
in issue of dissolution of marriage as it is only the court that can decree a Decree
Absolute.
4) Certain matters that require evidence to be proved. For instance, a declaratory
relief being sought must be proved by evidence.
5) Dispute relating to binding interpretation of law, statute or document. The court is
the only institution that can do so.
6) Cases of urgency (immediate help like seeking an injunction) ADR will not be
necessary.
HYBRID ADR PROCESSES:
The notable hybrid ADR processes are ARB-MED, MED-ARB, & NEG-MED, CON-
ARB. The fact that the parties have resorted to litigation or any of the ADR processes
does not preclude them from adopting other ADR processes to resolve the dispute.
The hybrid process allows the parties to commence the settlement of their dispute with
one ADR process, then subsequently have recourse to another method in the course of the
settlement of the dispute. The major advantage of the hybrid process is that it allows the
parties the time to explore an ADR process to settle their dispute until they discover that a
particular problem requires some other ADR process. Parties are therefore not restricted
to one ADR process at a time in order to settle their dispute.
MULTI-DOOR COURT HOUSE
The multi-door courthouse is a court-connected ADR centre. Its objective is to provide

the necessary framework for the attainment of the alternative dispute resolution
processes. It also operates as an arbitral institution with its own rules of procedure. In
Nigeria now, we have two multi-door courthouses. They are:
Page 388 of 389

i) Abuja Multi-Door Court House (AMDC)

ii) Lagos Multi-Door Court House (LMDC)
There are “door” options available at the AMDC or LMDC. That is, unlike our regular
courts where the dispute is resolved through the mono-door of litigation; under the multi-
door processes, there are several doors available. They are arbitration, conciliation,
negotiation, mediation, early neutral evaluation.
Page 389 of 389

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OKWOR, KENNETH ONONEZE DOMINIC – NLS LAGOS CAMPUS, 2014/2015

ALTERNATIVE DISPUTE RESOLUTION

ADR can Be Taken Up In 2 Ways:

 Conciliation: Here, conciliation is governed by ACA. The conciliator comes up

Sections 29 and 30 of ACA, otherwise the award is binding. Bindingness of the

 Early Neutral Evaluation: Used in International commercial transactions.ample a

Advantage of ADR over litigation

1. ADR hinders the development of case law..

a. Where the case is purely a criminal matter..

SOURCES OF CIVIL LITIGATION

The following are the various sources of civil litigation

3. Statutes creating courts

4. Special statutes on procedure (civil)

 A multi-door court rules is a practice direction.

6 Decisions of courts on procedure

 There must be constitution as to qualification and numbers of members of the

There should be a distinction between procedural and substantive jurisdiction.

Procedural jurisdiction relates to matters of practice such as : preaction notice, matters

The Supreme Court is established by section 230(1) CFRN.

Constitution - At least 5 Justices, however on the following, it must be 7 justices. Section

Appointment - CJN is appointed by the President on recommendation of NJC subject to

The Supreme Court in EleluHabeeb v. Attorney-General of Kwarastate, stated that other

 In disputes between the federal and state government. Section 232(1).

 In dispute between the National Assembly and the President.

Section 237(1) CFRN creates the Court of Appeal

Constitution: At least 3 in exercising an original jurisdiction and in appeal from Sharia

Qualification: At least 12 years at the bar.

 Valid election to the office of the president/vice president.

Appellate jurisdiction - section 240 of CFRN

 State High Court

Federal High Court

Constitution – section 253 CFRN at least one judge

Appointment – section 250, same as Court of Appeal

Qualification – at least 10 years at the bar.

Jurisdiction – section 251(1) (a)-(s) CFRN, 1999. In addition to other jurisdiction to be

a. Revenue of the government of the federation whether it or its organ as a plaintiff

r. Such other exclusive civil jurisdiction to be conferred on it by an Act of National

CASES ON THE POINT

(READ YOUR HANDWRITTEN NOTES.)

High Court of a State

Appointment – chief judge is appointed by the governor on recommendation of NJC and

Qualification – at least 10 years at bar.

Magistrate court (Lagos)

 Personal actions arising from tort and contracts

 Power to grant injunctions

Customary and Area Courts

Election tribunals. SECTION 285 CFRN 1999(as amended)

National Industrial Court – section 254 (third alteration)

Appointment – appointed by the President on recommendation of NJC and senate

FHC TO MAGISTRATE COURT: SECTION 26 FHC ACT

TRANSFER OF CASES FROM MAGISTRATE COURT TO FHC: SECTION 27 FHC.

PARTIES TO A CIVIL ACTION

Why are parties to an action important?

Capacity to sue and be sued

Who can sue and be sued

There are different types of parties to a civil action

Reconciling locus standi with constitution of parties to an action.

How parties are designated

 Writs of summons – Plaintiff (but called Claimant in Lagos)/Defendant

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

KENNETH OKWOR CLAIMANT

JEFF OWHOR-CHUKU DEFENDANT

IN THE FEDERAL HIGH COURT OF NIGERIA

Dated this _ day of _,

Dated this _ day of _,