See you in court!

The pre-action protocol/certificate is a declaration by the lawyer instituting an action on behalf of their client, stating that they have looked at the claim of their client and have assessed its strengths and weaknesses, and have discussed the option of alternate dispute resolution with the client. This is to prevent lawyers from abusing the court process and bringing frivolous lawsuits to the courts. Lawyers may be held personally liable if the court finds that they have brought a frivolous matter to court. Anyway, so you have a dispute with another party and it is not likely that it can be settled out of court, or attempts at a settlement out of court have failed. The next thing you do is instruct your lawyer with a view to taking the matter to court. And the often long pursuit for justice begins. The first step in commencing an action is to file the originating process, depending on the subject of the dispute, the originating process could be a writ of summons, originating summons, originating motion or petition. The writ of summons is the most commonly used mode of commencing an action where there are contentious issues to be resolved. It is used where the claimant is claiming: (1) any relief or remedy for any civil wrong; (2) damages for breach of duty, whether contractual, statutory or otherwise; (3) damages for personal injuries to, or wrongful death of any person or for damage or injury to any property; (4) where the claim arises from allegation of fraud; or (5) where an interested person claims a declaration. The courts have also held that where there is uncertainty as to which mode to use in commencing an action, the writ of summons should be used. Basically, a writ of summons is a court order notifying a defendant that a suit is pending against him, and requiring that he enter appearance in the suit within a specified period. The order also warns that judgment may be entered against him if he does not comply. After the writ is filed, the matter is effectively out of the lawyer’s hands and the action has commenced. It is now for the judicial mechanism (registrar, bailiffs), etc. to ensure that service of originating processes is effected in good time. Service of processes must be done personally. However, effecting service is not always straight forward as the defendant may have relocated to a new address or may simply be evading service. In that case, the claimant has to obtain the leave of the court for substituted service. The bailiffs(under the direction of the Sheriff or Deputy Sheriff) effect service, but note that although this is in their schedule of duties already accounted for in your filing fees, the bailiffs need to be further “mobilised” to ensure that service is effected. The case cannot go on if there is no proof of service. The court has to be convinced that the defendant has received notice that there is a case against him. The bailiffs could cause substantial delays in effecting service so it is important that lawyers follow up after filing their processes. These days, the courts operate what is called a frontloading system. This is where certain documents are sent along with the writ of summons. These are the statement of claim, list of witnesses to be called at the trial, written statements on oath of the witnesses, copies of every document to be relied on at the trial and pre-action protocol form/certificate. The advantages of frontloading are that it saves time; discourages frivolous suits; gives the parties advance notice of the case of the other party and helps everyone involved to be prepared for the case. It takes out the possibility of springing surprises on the opponents. You will not find any Perry Mason moments here. The defendant has 14 days after entering appearance to file their own processes (statement of defence, etc.). The civil procedure rules stipulate the period within which a party should enter appearance (8 days in Abuja, and a generous 42 days in Lagos); however, failure to file within this period is not fatal, provided the other party has not obtained summary judgment before it is done; the defendant can bring an application for extension of time within which to file an appearance, and the same is often granted, but the defaulter may be ordered to pay costs. After plaintiff and defendant have joined issues (i.e. filed their various statements of claim and defence, counterclaims, etc.) There is also the requirement for a pre-trial conference in Lagos which further takes up time for certain preliminary issues to be resolved before the matter goes to trial. The pre-trial conference must take place within a stipulated time after joining issues; this time can further be extended. Once trial begins, the parties start going through the motions, literally. The applications for matters such as the extension of time mentioned above, are done by motions. A motion could be exparte, where the presence of the other party is not required, or it could be on notice, where notice is given to the other party whose presence and response to the motion is expected. So, when you are in dispute with someone and you decide to take the matter to court, expect a wait of three months, at the minimum, between when initiating processes are filed and the trial proper commences. Litigation is no joke. The wheels of justice turn slowly. On television, disputes arise, court action commences and judgment is given in one neat one-hour episode. Not so in real life. Definitely not so in Nigeria. If there is an opportunity to get a good settlement to the dispute out of court, please do so. Bear in mind also that the length of time that a matter will carry on before it is disposed of is not within your lawyer’s control – some of it depends on the convenience of the court and the disposition of the opposing party’s counsel.]]>