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.