Ade yinka - August 4, 2019, 3:16 am
HOW TO PROCEED WITH COMMENCING AN ACTION IN ANY COURT OF LAW IN NIGERIA.
When a civil wrong has been committed by one against another, a legal practitioner is entitled to commence a court proceeding or action against another.
Actions are commenced in the high court through four different processes:
1. Originating motion: This is only provided for by statute or by rules of court. Examples of actions to be commenced this way is
• Application for habeas corpus
• Order for mandamus
• Prohibition or certiorari
• Application for judicial review
• Action for the enforcement of fundamental human rights
Where a statute provides that action can be commenced by application but does not specifically provide the procedure, originating motion should be used. Akunnia v. Attorney General Anambra State 1977.
2. Originating summons: This is used whenever there is interpretation of a written law. It is used generally for non-contentious matters. i.e those matters where the facts are not likely to be in dispute. Examples of action to be commenced by this mode are:
• Action for interpretation of a written law, documents.
• Company proceedings.
• Interpretation of any instrument or deed
• Wills, contracts agreements or some other questions of law
3. Petition: This is a written application made to the court setting out a party’s case. It is only used where a statute or rule of court provides for its use. Examples of suits to be commenced by petition includes
• Dissolution of marriage-matrimonial proceedings
• Election petitions
• Winding up of companies under CAMA
• In a petition, the parties are referred to as petitioners and respondents.
4. Writ of summons: it is used to commence every action except if a particular rule or law, provides otherwise. The writ is the main mode of commencing actions in the high court. For contentious matters, the writ of summons shall be the form of commencing all proceedings, where a claimant claim:
• Any relief or remedy for any civil wrong
• Damages for breach of duty, where contractual, statutory
• Damages for personal injuries
• Where claim is based or includes allegation for fraud
• When an interested person claims declaration
In conclusion, an action is commenced when all of the following has been done:
• Any affidavit or witness statement on oath have been taken before the commissioner for oaths
• Filing fees are paid on processes.
• The process has been duly served on adverse parties
• The registrar of the court gives it a suit number and it is centered in the cause book.
UBA v. MODE NIG LTD, ALAWODE V. SEMOH
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