LAWSUIT IN NIGERIA
Commencement of a civil action is the process taken to institute an action before a competent court to determine the issues between parties.
Essentially, there are 4 modes of commencing a civil action in court in Nigeria namely;
- By Writ of Summons,
- By Originating Summons,
- By Originating Motion and
- By Petition.
Each of these modes is dependent on the specific nature of cases.
Factors to be considered before commencing a civil suit
Before civil actions can be filed in Court, there are factors to be considered by the litigant (person filing the action). Some of these factors can be summarized as follows:
- Cause of Action: these are the series of events or events that gave rise to a civil action. It forms the basis upon which a person is entitled to obtain a remedy against another in Court. The cause of action is founded in the relief or claim sought by the litigant.
- Jurisdiction: this factor is important to decide the court to commence the civil action. The law is clear on the importance of jurisdiction. Where a matter is filed in a wrong jurisdiction, it is liable to be struck out for want of jurisdiction.
Jurisdiction has to do with the subject matter in dispute, the location where the cause of action arose, the court the matter is brought before, the competence of the court to decide on the matter and the composition of the judges sitting in that matter.
The Lawyer usually advises the client on the right court for the subject matter in dispute to be brought.
- Limitation of Action: this is another important factor to be considered before commencing an action in court. There is a limitation period set for almost all actions that can be filed in court. This is to prevent any individual from sleeping on their right and to promptly exercise their legal right when a wrong is done.
For example, where the subject matter of a suit is a contract, the limitation period is six (6) years, action for recovery of land is 12 years etc. Thus, it is important for the plaintiff counsel to consider whether the cause of action is out of time before venturing into the expense of issuing a process in court.
- Alternative Dispute Resolution (ADR): It is a duty of the counsel to ensure that all alternative dispute resolution methods have been explored before proceeding to file an action in court on behalf of a client.
This, in fact, is an ethical requirement on all counsel as officers in the administration of justice to first of all advise their clients on alternative dispute resolution, before proceeding with litigation. The alternative dispute resolution methods include arbitration, negotiation, conciliation and mediation. The purpose of these ADR mechanisms is to consider if disputes can be settled amicably between parties without resorting to the litigation
- Rules of the Court: every court in the legal system has rules that bind the Court, Litigants and Legal Practitioners. It is imperative that the provisions of the Rules are followed strictly when someone is proceeding to file an action in court.
The Lawyer has the duty to look upon the rules of that particular court either the Magistrate, High Court, National Industrial Court or Federal High Court etc to determine the rules guiding commencement of suits in the court.
In our previous article, we explained the procedure for suing someone in Nigeria and how to commence civil actions in various courts in Nigeria.
In conclusion, some legislation/rules require the compliance of certain conditions for initiating a civil action in court. For instance, the High Court of Lagos State (Civil Procedure) Rules 2019 and provide that for any person to institute an action in Lagos, such person must have complied with the Pre-Action Protocol steps stipulated in the Pre-Action protocol Directives
In order to successfully initiate a civil action in court, the lawyer and the litigants must ensure that these factors that may be determined and considered by the court, are strictly adhered to in order to undertake smooth and successful litigation.
By Litigation Department at Resolution Law Firm
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