Outline PIL 202
Types of Parties in Civil Litigation
In any civil action, there must be at least two parties; the plaintiff and the
defendant. Depending on the type of action however, parties may also
described as applicant and respondent. An integral of civil action is that the
party (ies) that are brought before the court are those who can institute the
cause of action or against whom the cause of action may be instituted
against. There are four basic types of parties. These are:
i. Proper Parties: These are those who are directly affected or
involved in the cause of action of a suit. For the plaintiff, it must the
party who has suffered damage or who has a valid claim against the
defendant. This claim forms the basis of the right (Locus standi) ito
institute the action. A defendant is also a proper party when he is
the person whose act or omission has resulted in the cause of
action. In Mobil Producing Nig. Ultd v LASEPA AND Ors [2002] 12
SCNJ 1 at 25, it was held that any party whose interest will be
directly affected if a relief were granted is a proper party.
ii. Desirable parties: A desirable party is one who was not originally
a party to the action nor whose presence is necessary for the just
determination of the issues in the action but nevertheless needs to
be a party in order to be bound since the decision in the case may
directly affect him. Col. Hassan Yakubu (Rtd.) v The Governor of
Kogi State and Ors [1995] 9 SCNJ 122. In the case, the appellant
was deposed by the government as Ejeh of Ankpa. He therefore
instituted an action at the High Court, Lokoja. During the pendency
of the action, Alh. Ahmadu Yakubu was appointed the new Ejeh. The
new Ejeh and the fifth respondent then brought an action to be
joined to the suit. The considered held that although the 5 th
respondent was not a proper party, he was a desirable party.
iii. Necessary Parties: A necessary party is one whose presence is
necessary for the effectual and complete determination of issues in a
suit. In such situations, it might be necessary to join such party if
they not made a party ab initio.
iv. Nominal Parties: These are persons who are made parties to an
action not because of any direct involvement in the issues that
constitute the cause of action but because the law requires them to
be made parties because of the office that they hold. Parties in this
category include Attorney Generals and Speakers of Houses of
Assembly. Therefore,, a speaker will always be a party where a state
is being sued and likewise the Speaker where the action is against
the House of Assembly. In Padawa v Jatau [2005] 5 NWLR (pt.813)
247, it was held that a nominal party is a party, who though, having
some interest in the subject matter of the suit will not be affected by
any judgment of the court but is nevertheless joined in the suit to
avoid procedural defects.
Commencement of Civil Proceedings in the High Court
i. Originating Summons
This form of procedure is used where the sole or principal question to
be determined is the construction of a written law or instrument, deed,
will, contract or other documents or where special statutory provisions
exist for its use.
ii. Application/Originating Motions
Application or originating motions are required for certain proceedings.
These include actions for prerogative orders of mandamus, certiorari,
prohibition and habeas corpus.
iii. Petitions
These are special prayers framed in a special form supported with facts.
They are often adopted in election, divorce and winding-up proceeding.
iv. Writ of Summons
This is the most common method of commencing civil actions. It is used
for all civil action except those that are expressly precluded by statutory
provisions. A writ is in the form of an order from the court issuing it to
the named defendant, to cause an appearance to be entered for him
within a stipulated time. Every writ is expected to be headed in the
court in which it has been filed. Writs also contain some mandatory
information called endorsements. Formal endorsements required to be
on a writ include:
- Address of plaintiff
- Address of the legal practitioner
- Defendant’s current address or last known address.
- Where the plaintiff so wishes, a writ can be endorsed with the
statement of claim of the plaintiff. When this is done the
endorsement on the writ is described as a special endorsement.
- Special endorsement is however not permissible in claims involving
allegations of fraud, breach of promise of marriage, seduction, libel,
malicious prosecution and false imprisonment.
- The life span of a writ is 12 months from and including the day it is
issued.
Service of writs and other Processes
One of the fundamental aspects of litigation is the service of processes.
These include the originating processes as well as all other processes used in
the course of the trial.
The law requires that processes should be served personally except
where personal service would be impossible or impractical. In such situations,
service by subsisted means such as pasting at the defendants last known
address, publication in a newspaper or pasting within the court premises
would be adopted. Before processes can be served through substituted
means, it must be proceeded by a motion ex-parte, supported by affidavit
showing the efforts made at effecting personal service.
All processes are expected to be served by bailiffs of court, by virtue of
the Sheriffs and Civil Processes Act. Services of court processes can only be
done during weekdays and Saturdays between 6:30 in the fore-noon and 6:30
in the afternoon.
Where a bailiff is prevented from serving a document through threat of
violence, he may inform the person to be served of the nature of the process
and leave it as near as practicable for such a person.
After the service of every process, the bailiff is required to prepare an
“affidavit of service”. The affidavit shall suffice as a prima facie evidence of
service.
Appearance
After the service of a writ or other originating processes, the defendant
may enter an appearance by delivering a memorandum of appearance
within the stipulated time. The defendant may enter appearance at any time
before judgment though it is always better to do so at the earliest possible
time. A defendant may also take steps aimed at setting aside the writ before
entering appearance.
Judgment in Default of Appearance
Where a defendant is served a specially endorsed writ for a liquidated
sum of money, application for judgment can be made by the plaintiff based
on the writ if the defendant fails to appear before the court.
Where there are more than one defendant, he may obtain judgment
against those who have failed to enter appearance while the substantive
action commences against the others.
It can also be used in actions for the recovery of land. Judgment can be
given in respect of any land or part of land in respect of which appearances
have not been entered.
Although judges may refuse an application to set aside a default
judgment when it is found that there has been inordinate delay by the
defendant. The court can however be moved to set aside or vary a default
judgment.
Pleadings
Pleadings have been defined as formal document used in civil litigation
which sets forth in summary form material facts which a party to an action
intends to rely. It may contain the claims that constitute the cause of action,
as well as the denial or defence to those claims.
Consequently, pleadings include the statement of claims, statement of
defence and reply.
Content of Pleadings
- Name of the court and judicial division in which the action is instituted.
- Contain only material facts and not evidence.
- Each of the material fact should be contained in separate paragraphs
and numbered, consecutively.
- Must bear a date and address of legal practitioner handling it.
- It must also contain an address for service.
Function of Pleadings
- The main function of pleadings is to notify/inform an adverse party of
the case he is likely to meet in court.
- It also help to ascertain the facts that are in dispute.
- It charts the expected course of the trial because parties are restricted
to their pleadings in the presentation of evidence before the court.
- It helps the court to keep track of issues.
- They also constitute the basis of res judicata.
Trial
- A matter is set-down for trial at the close of pleadings.
- Pleadings are deemed closed at the expiration of 30days after the
services of a reply or a defence to counter-claim, or if there is none, at
the expiration of 30days after the service of the defence.
- At the close of pleadings, the plaintiff may apply to the Registrar within
30days after the close of pleadings for the case to be set-down for trial
and where he fails to do so, the defendant may make the application
within 14days after the expiration of the 30days.
- Where neither party makes the application, the Registrar will prepare a
certificate of default, the judge on receipt of the certificate of
default, cause the case to be listed for striking cut.
- Where a plaintiff cannot appear in person, he may be represented by a
proxy where the plaintiff fails to appear at all, the defendant can apply
for the action to be dismissed.
Trial Process
Where both parties are present in court, the process of trial involves the
following steps:
• Plaintiff opens his case by calling this witnesses the plaintiff’s witness
present their evidence through the examination-in-chief.
• They are cross-examined by the defendant if he so wishes.
• Re-examination is undertaken by the plaintiff if he deems it necessary.
• The plaintiff then closes his cases and the defendant is called to open
his case.
• The steps above are also repeated by the defendant.
• But where the defendant has no witnesses, he can rely on the evidence
put before the court by the plaintiff.
• After the close of the defendant’s case, the plaintiff has a right of final
reply and address.
After hearing the case of both parties, the court has either deliver
judgment immediately or reserve judgment till a date in future but not later
than 3months after the final address.
Judgment and Orders
The judgment of the court is the outcome of all the processes
undertaken by the parties. Usually it concludes the matter except where
parties choose to appeal the judgment. In which case the matter goes before
a higher court. It can never be brought before a court with coordinate
jurisdiction with the trial court. There are different forms of judgment
depending on how parties conducted their case.
Consent Judgment
This is a judgment that is based on terms of settlement arrived at by
the parties as their agreed resolution of the disputes between them. For a
consent judgment to be valid, parties must have agreed on all the terms of
settlement which is then filed in court.
Which parties resolve some disputed facts but cannot agree on others,
they will be allowed to reach an agreement on those facts, while the disputed
facts will be resolved through evidence.
Default Judgment
A default judgment is a judgment that is entered on account of the
default of a defendant making an appearance or filing pleadings. Where a
defendant fails to appear of file pleadings, the plaintiff can apply to the court
through a motion on notice supported by affidavit for the trial to proceed as if
the defendant had appeared.
Where a defendant fails to file a statement of defence within the
prescribed time, the plaintiff can bring an application supported by affidavit
for judgment.
The defendant may however also apply for a default judgment to be set
aside. This grant or refusal of this application will depend on the consideration
of various factors that may include:
- Whether the defendant had a tangible reason for his failure to file the
necessary processes.
- Whether there has been undue delay in making the application to set-
aside the default judgment.
- Whether the defendant/applicants behavior has been such as should
entitle him to sympathetic consideration.
Final Judgment
A final judgment can be described as a judgment on the merit. It is the
decision of the court at the close of the case of the parties and their
addresses. It may be delivered immediately or reserved till another date. It
must also be delivered in open court.
EXECUTION OF JUDGEMENT
Interlocutory Judgment
An interlocutory judgment is an order of the court that does not deal
with the final rights of the parties but merely directs on how the parties are to
proceed in order to obtain the final decision. Interlocutory judgments are
usually enforced by contempt proceedings.
For final judgments, the proceeding for their execution takes different
forms depending on the nature of the judgment.
The writ of FIFA (Fieras Facias)
This is used for the execution of money judgment and it involves an
order of the court authorizing the court bailiff to seize and sell movable
property, and with the leave of the court immovable property of the judgment
debtor.
Writ of Garnishment (Garnishee Proceedings)
This is an execution that is effected by diverting money due to the
judgment debtor from other persons (i.e. money paid into a bank account of
the judgment debtor) to the judgment creditor. The Order will be directed to
the person or institution that has custody of the money usually a bank. The
bank would now pay the money in its custody over to the judgment creditor.
Writ of Sequestration
This type of writ empowers the persons appointed by the court to enter
upon all the immovable property of the judgment debtor to collect rents and
profits there from and to take possession of all his movable property until he
complies with the judgment.
Writ of Possession
This is used for the enforcement of judgment on landed property. The
party who obtains judgment employs the writ to take actual possession of the
property.
Writ of Delivery
This is a mode of enforcement of judgment for the delivery of goods. It
is usually an order for the judgment debtor to return specified goods or
chattel to the judgment creditor on or before a certain date.
