Encyclopedia of Laws is work containing exhaustive information on laws. We intend to cover all branches of legal knowledge. It is a series, although not in alphabetical order. The Civil Procedure covers a period of over one hundred and thirty four years of pronouncement of Judges of superior courts.
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TABLE OF CONTENT
ABUSE OF COURT PROCESS
Condition and categories of abuse of court process 1
Connotation of – effect on court’s jurisdiction
Connotation of – effect on court’s jurisdiction 2
Determination of whether an action constitutes
abuse of court Process 3
Definition of – what constitutes – filing a motion before court
to set aside its judgment and commencing certiorari
proceedings while appeal is pending to nullify same decision
of same court between same parties – whether amounts to
abuse of court process – whether application for order of
certiorari is a concurrent remedy with the right to appeal – order
43 rule 3(6) of the Adamawa state high court
(civil procedure) rules – considered. 4
Filing a motion before court to set aside its judgment and
commencing certiorari proceedings while an appeal is pending
to nullify same decision of same court between same parties
– whether it amounts to abuse of court process – order 43 rule
3(6) of the Adamawa state high court (civil procedure)
rules – considered. 7
Filing certiorari proceedings while appeal is pending to nullify
same decision of same court between same parties
– whether amounts to abuse of court process. 8
Meaning of abuse of process of court 9
Nature of issue of abuse of court process and inherent
powers of courts to dismiss proceedings which constitute
abuse of court process. 9
Need for litigation to have an end 10
Proper order court should make where action
an abuse of court process 10
Suit constituting abuse of court process. 11
The meaning of multiplicity of action amounting
to an abuse of court process. 11
The principle applicable in determining whether or not there
has been a multiplicity of action amounting to an abuse of
court process 11
What a court must do in cases of abuse of judicial process 12
What abuse of process denotes and when may occur. 12
What amounts to abuse of court process. 13
When issues of abuse of court processes and none certification
of documents raised. 15
When it will arise. 16
Whether an appeal against the refusal of interrogatories
and better particulars constitute an abuse of court process. 16
Whether filing more applications than one and seeking the
same or similar reliefs before different courts at the same
time will amount to abuse of process of court. 16
Yardstick used by court to determine whether an action is
an abuse of court process 17
ABUSE OF JUDICIAL PROCESS
Circumstances in which abuse of judicial process can be said
to exist 17
Meaning of abuse of process and what includes. 18
What amounts to abuse of judicial process? 19
ABUSE OF PROCESS AND PLEA OF RES JUDICATA
Relationship between abuse of process and plea of res judicata 19
ACTION AT FEDERAL HIGH COURT
Conditions to be satisfied before embarking on any action
at Federal High Court 20
ACTION FILED IN COURT
Relevant law applicable to action filed in court 21
ACTION FOR “MANDAMUS”
Mode of commencement of – whether originating summons will
be appropriate by virtue of Order 2 Rule 2 of the Federal High
Court Rules – need for court to read the entire content of the
originating summons to determine whether a suit qualifies to be
instituted by such process incompetence of action commenced by
or against non-existing person, rationale forand basis of
juristic personality. 23
ACTION FOR AN ACCOUNT
Action for an account of a partnership 23
ACTION FOR BREACH OF CONTRACT
Venue for institution of action for breach of contract 24
Venue for institution of action based on breach of contract 24
ACTION FOR TRESPASS
Effect where exclusive possession and trespass are not proved
in action for trespass 25
Nature of action in trespass 25
Nature of possession required to maintain an action for trespass 25
Whether mere possession is sufficient to maintain action for 26
trespass
ACTION IN PERSONAM
Actions which are aimed at the person 26
ACTION IN REM
What is action in rem. 26
Admiralty 27
ACTION IN TORT FOUNDED ON CONTRACT
Implication where action in tort is founded on contract 27
ACTION-IN LIBEL OR SLANDER
What plaintiff must plead in his statement of claim in an action
for libel or slander. 28
ADDRESS
Fundamental nature of address to the trial process. 28
Hearing of address. 29
Impropriety of address of counsel taking the place of evidence. 29
Impropriety of an accused counsel raising a fresh defence
in his final address. 29
Impropriety of counsel making a case not pleaded in his address. 30
Need for address of counsel to be based on evidence 30
Order of address 30
Order of address 30
Parties must be given the opportunity to address the court on
issues raised. 31
Proper approach of trial court to evaluation of evidence and
mandatoriness of giving parties opportunity to address it. 31
Whether counsel address constitutes evidence and treatment
of counsel’s submission on facts not pleaded. 32
Written address 32, 33
ADJOURNMENT
Duty on court to properly record counsel’s submissions on
adjournment 34
Exercise of discretion 34
Discretion of court in grant or refusal of – duty on court to
exercise its discretion judicially and judiciously by not
allowing or encouraging litigants to hold it to ransom on
flimsy excuses. 34
Discretion of court in grant or refusal of – how exercised –
whether court is bound by a previous decision to exercise
its discretion in a particular way – need for there to be an
end to litigation – attitude of appellate court to exercise of
discretion by lower court and exceptions thereto. 37
Discretionary power of trial court to grant adjournment and
when appellate court will interfere with same 38
Duty on trial court to ensure hearing of matter, onus on
applicant for adjournment to proffer sufficient reasons to
justify grant of and when appellate court may interfere
with discretionary powers of court to grant. 39
Exercise of court’s discretion to grant or refuse application for
Adjournment 40
Exercise of discretion 41 Late application for adjournment 41
Principles guiding grant of adjournment. 41
What grant or refusal of adjournment involves 42
ADMISSION
Admission as the best evidence in determination of liability. 42
Treatment of admission in pleadings 42
What an admission is in civil cases and when the court will
give probative value to. 43
When a court would give judgment based on the admission of
a party. 43
Whether fact admitted requires further evidence in proof? 43
Whether the defendant’s silence as to the amount of damages
claimed in the pleadings and at the trial is an admission that
the amount claimed was reasonable 44
AFFIDAVIT
Fact not denied or countered by a party – effect. 44
What affidavit in support of notice of intention to defend
under the undefended list procedure must show before
same can be transferred to the general cause list. 45
AMENDMENT
Application for amendment of judgment 45
Amendment of judgment 46
Impropriety of counsel seeking amendment outside the purview
of the order of the supreme court. 46
Slip rule 46
When amended court process takes effect. 46
Whether capacity of parties may not be amended. 47
Whether claim for injunction may be added by amendment. 47
Whether the amendment to section 230(1) of the 1979 constitution
by decree no. 107 of 1993, has altered the law as stated in
Tukur v. Government of Gongola State? 47
APPEARANCE
Conditional appearance 49
Condition precedent to appearance of defendant to suit 49
Mandatoriness of compliance with rules of court on service of
writ and appearance in court 50
Meaning of “appear” in Order 44 Rule 10(1), High Court of Cross
River State (Civil Procedure) Rules 50
Meaning of the word ‘appear’ in Order 44, Rule 10(1), Cross River
State High Court (Civil Procedure) Rules, 1987. 51
Memorandum of appearance – effect of failure to enter
appearance or to controvert averments in affidavit filed in
support of originating summons. 51
Plaintiff who is absent in court where his counsel is present. 52
Purpose of memorandum of appearance. 52
Right to appear in person 53
Right of appearance 53
Unconditional appearance 53
When personal appearance of a party may be excused at the
hearing of a suit 54
Whether compulsory for a Commissioner of Police to be physically
present in court for every case affecting his office – the maxim ”
impotentia a excusat legem” applied 54
Whether personal appearance in court by a party
in all cases necessary 55
Whether physical appearance of a party in court is compulsory 56
APPLICATION
Application for instelmental payment of judgment debt 56
Duty on applicant for amendment to file same after grant by
court without deeming order 56
Duty on applicant for leave to issue writ of summons for
service outside jurisdiction 57
Duty on court to hear every application before it 57
Failure to file a formal application to correct accidental slips or
omissions as insufficient reason to nullify court proceedings
granting requests for 58
Leave to appeal 58
Mandatoriness of court considering all applications before it. 58
Manner of approaching the high court during its annual vacation. 59
Manner of approaching the high court during its annual vacation. 59
When a civil matter or application may be entertained during
annual vacation of court. 60
Principles governing application – fair hearing and duty on court
with respect thereto 61
Principles governing grant of application for extension of time to
take procedural steps 61
Procedure for making application for default judgment where
claim is for unliquidated damages 62
Proper order court should make where application for
discontinuation of action is brought before hearing date and
when filed after commencement of trial. 63
Relevant consideration for grant or refusal of application for leave
to issue writ of summons for service outside jurisdiction 64
When application may be made directly to the Supreme Court 64
When court may exercise its discretion to conduct full hearing
in an application for judicial review, Federal High Court
(Civil Procedure) Rules, 2000, Order 47, Rule 9(5) considered. 65
Whether an application for leave to seek judicial review may be
brought before the expiry of the period limited for appeal 65
Whether application made under wrong law or rule of court
incompetent thereby and duty on court when such happens 68
Whether application to dismiss a suit on grounds of abuse of
process amounts to challenging jurisdiction of court. 69
ATTACHMENT OF IMMOVABLE PROPERTY OF JUDGMENT DEBTOR
Procedure for attachment of immovable property
of judgment debtor 70 – 73
ATTENDANCE AT TRIAL
Importance of accused persons attending their trial and when
their presence can be dispensed with. 73
AUTHORITY TO CONDUCT A CASE
Presumption of counsel’s authority to conduct a case once he
announces his appearance 74
BANKRUPTCY
Notice of act of bankruptcy 74
BREACH OF THE RULE OF PRACTICE AND PROCEDURE
Effect of breach of rule of practice – who bears burden of raising
issue of irregularity and legal consequence of failure to object to. 75
CAPACITY TO DEFEND AN ACTION
Importance of legal capacity to defend an action and on where
onus of proof of capacity of party to defend action 75
CAUSE LIST
Aim and objective of a cause list 76
Definition and purport of cause list and whether a judge is duty
bound to follow same 76
CAUSE OF ACTION
Accrual of cause of action. 77
Applicable law governing cause of action 77
Applicable law in respect of a cause of action 78
Applicable law to a cause of action 78
Breach of contract cases. 79
Cause of action as a prerequisite for initiating legitimate
Proceedings 79
Constituents of cause of action. 80
Definition of “cause of action.” 80
Distinction between a cause of action and a right of action. 80
Duty on court in determining whether a suit discloses reasonable
cause of action 81
Law applicable in respect of cause of action 81
Meaning of cause of action. 81 – 87
Meaning of cause of action and determination of whether and
when statute barred 88
Meaning of cause of action and reasonable cause of action. 88
Meaning of cause of action and when it accrues 89
Meaning of reasonable cause of action. 90, 91
Principle that law applicable to a matter is the law in existence
at the time the cause of action arose. 91
Processes court looks at in ascertainment of existence of a
reasonable cause of action 91
Proper approach of court to determine whether a reasonable
cause of action exists? 92
What constitutes a cause of action. 92
What constitutes a reasonable cause of action. 93
What court considers in determining whether case discloses
reasonable cause of action. 93
What court considers in determining whether suit discloses
reasonable cause of action 94
What plaintiff will prove for his cause of action in libel to arise 94
When a cause of action is said to be statute barred 94
When a claim discloses reasonable cause of action. 95
When a cause of action accrues 95
When a cause of action accrues in action founded on breach of
contract 97
When cause of action accrues in action founded on contract 97
When cause of action accrues in an action for loss of
goods under investigation. 97
When cause of action arises. 99, 100
When cause of action is struck out 100
When suit can’t be struck out for non-disclosure of reasonable
cause of action 100
Whether cause of action is terminated by death of a party. 101
Whether cause of action survives a deceased plaintiff’s in a joint
action. 101
Whether the agent of a disclosed principal may be proceeded
against for – wrong done by the principal 102
Whether there must be a cause of action before an intending
litigant can initiate any legitimate proceedings. 102
Writ of summons or statement of claim as determinants of cause
of action in a matter 103
CHALLENGE OF COMPETENCE OF A WRIT
Ways of challenging competence of a writ 103
CHALLENGING EXPIRATION OF TENURE OF A GOVERNOR
Challenging expiration of tenure of a governor by way of petition
based on an election into the office – when will abate. 104
CHANGE IN THE LAW
Effect of change in the law at the commencement of
the action on future proceedings 104
CHOICE OF WHO TO SUE
Whether plaintiff has the capacity to choose who to sue. 105
CLAIMS
Basis of action in trespass and one of claim of possession
of land and distinction between both 105
Basis of and principle governing claim of relief in the alternative 106
Bindingness of claim on plaintiff 106
Challenging of representative’s authority – onus on claimant to
satisfy the court as to his authority 107
Claim for declaratory reliefs – effect 107
Distinction between claim and counterclaim. 108
Duties on claimant for declaratory relief and on the court 108
Duty on claimant for declaratory relief to establish same
by evidence 108
Effect of claim for trespass and claim for injunction 109
Effect where claim for trespass is coupled with claim for
an injunction. 109
Independence of claim for trespass from claim for declaration
of title 110
Mandatoriness of plaintiff establishing his claims to declaratory
reliefs and impropriety of grant on admission by defendant 110
Nature of claim for declaration and onus on party claiming 110
Nature of claim for loss of profit and how to plead and prove same 111
Need for claimant to pursue his remedies in one action. 111
Power of court to award a claim in foreign currency. 111
Procedure for making application for default judgment where
claim is for unliquidated damages 112
Status of a counter-claim 112
Treatment of reference in statement of claim to reliefs
claimed in writ of summons. 113
What defines the claim or defence of parties. 113
When court is entitled to uphold alternative claim of an applicant. 114
When court will not consider alternative claim 114
Where the statement of claim states that plaintiff claims
‘as per writ of summons’ whether the claim in the writ
of summons is deemed incorporated in statement of claim and
becomes part of it. 114
Whether an incompetent process can constitute a defence on the
merit. 115
Whether appropriate for defendant to file his response in the
high court registry of abia state and merely transmit same to
the plateau state high court registry – whether duty on defendant
to pay court fees to the high court of plateau state in order for
its process to be valid. 115
Whether claiming a right under a wrong law defeats claim. 117
Whether means that the unrepeated claims are deemed
abandoned – mandatory nature of the provision of Order 33 Rule
7 High Court Civil Procedure Rules, Rivers State – whether rules of
court meant to be obeyed – afolabi v. Adekunle (1983) 6 s.c.
75; University of Lagos v. Aigoro (1985) 1 S.C. 182. 117
Whom lies – where defendant admits the indebtedness or
receipt of the loan. 119
COMMENCEMENT OF ACTION
Effect of non-compliance with condition precedent to
commencement of action 119
Effect of non compliance with due process for commencement
of an action 120
Effect of non-compliance with statutory procedure for
commencing action 120
COMMENCEMENT PROCEDURE
Proper approach of court to non-compliance with commencement
procedure and mandatoriness of informing court of defect therein,
Federal High Court (Civil Procedure) Rules, 2000, Order 3, Rules
1(1) and 2(1) and Order 47 considered. 121
COMPETENCE OF ACTION
Determinants of competence of action 121
Incompetence of action instituted without compliance with
preconditions. 123
Ingredients of competence of action 123
COMPETENCE TO SUE
Onus of establishing the competence to sue lies with the plaintiff. 124
CONDITION PRECEDENT
Conditions precedent to be fulfilled by an applicant before a court
is seised of a matter and effect of non-compliance therewith,
high court of Anambra State (Civil Procedure) Rules, 1988,
Order 37, Rule 5(4) considered. 125
Effect of non-compliance with a condition precedent 125
Effect of non-compliance with condition precedent to
commencement of action 126
Effect of non-compliance with condition precedent to instituting
derivative action in court 126
Nature of condition precedent 127
COSTS
Appeal against costs. 127
Award of costs. 127
Awarded to the successful party. 128
Distinction between costs awarded according to settled principles
and costs awarded on particular facts. 128
Distinction between costs awarded based on settled principles
and in exercise of discretion, which is appealable and attitude
of appellate court thereto. 128
How discretionary power of court to award costs is exercised. 129
Whether award of costs is discretionary. 129
Whether award of cost can be a bonus to successful party 129
COUNTER CLAIM
Failure to file a reply or defence thereto – effect. 130
Nature of counter-claim. 131
Whether counter-claim is an independent action. 131
Whether failure of plaintiff to file defence or reply to a
counter-claim fatal to his claim. 132
COURT PROCESS
Competence of court process issued in name of law firm. 132
Effect of processes taken contrary to the provisions of the law 132
Mode of signing court processes. 132
DECLARATION
Whether discretionary. 134
Whether declarations are a form of equitable relief 135
Impropriety of court making declarations of right in default of
defence or on mere admission. 135
DECLARATORY ACTION
Purport of declaratory action, onus on claimant therein and
discretionary power of court to grant declaration sought. 136
Purpose of a declaratory action. 136
Purpose of declaratory action as equitable relief 137
What claimant must show to be entitled to relief. 137
Purpose and nature of declaratory action. 137
On whom lies onus of proof. 137
Whether claimant can succeed on the weakness of defence. 137
DECLARATORY RELIEF
Nature of declaratory relief 138
Onus on plaintiff claiming declaratory relief 138
Sought by way of judicial review – how made pursuant to Order
46 Federal High Court Rules, 1999 – circumstances when
declaratory reliefs may be granted – guiding principles –
when may be granted upon admission. 139
What party seeking declaratory relief in the constitution
must show. 141
When courts will grant declaratory reliefs. 142
Whether declaratory relief can be granted on admission
of defendant 142
Whether the burden of proof on the plaintiff is quite heavy
in establishing declaratory reliefs to the satisfaction of the court. 142
DEFAULT JUDGMENT
Power of High Court to grant default judgment. 143
DEFENCE
Application of doctrine of waiver and whether incapacity of
party to defend action can be waived 144
Defence of fraud – to a suit placed on the undefended list –
what defendant must plead and show. 144
Effect when a plaintiff fails to file a defence or reply to
a counter-claim 146
How to raise defence of absence of pre-action notice 146
Legal implication of defendant resting his case on plaintiff’s case 147
Nature of the defence of laches 147
Need for plaintiff to close his case before defendant is called
upon to open defence in a civil case 148
Proper approach of court to defence irregularly filed. 149
What court must consider when defendant raises in limine
defence of limitation of action under provisions of public
officers protection act. 149
Whether failure of defendant to defend his case automatically
entitles plaintiff to judgment. 150
DEMURRER APPLICATION
Attitude of court to documents attached to a demurrer application. 150
Attributes of demurrer application. 151
History, scope and extent of demurrer applications and attitude
of courts to the demurrer procedure. 152
History, scope, attributes, status and attitude of courts to the
procedure – divergence of opinion on the use to be made of
documents attached to a demurrer application – criteria to
be followed in demurrer application vide the case of Boothia
Maritime inc v. Fareast mercantile co. Ltd (2001) 4 S.C. (pt.i)
124 – whether a defendant breaches the provision of Order 27
Rule 2 of the Federal High Court (Civil Procedure) Rules, 1976, by
annexing documentary evidence (bills of lading) already pleaded
by the plaintiff to its own motion in defence to the plaintiff’s action. 153
Nature and application of demurrer 158
Whether defendant who annexed documentary evidence (bills of
lading) already pleaded by the plaintiff to its motion in defence
to the plaintiff’s action – has breached the provision of Order
27 Rule 2 of the Federal High Court (Civil Procedure) Rules, 1976. 158
DERIVATIVE ACTION
Meaning of derivative action and requirements for 159
Process to be followed by minority shareholder intending to
bring a derivative action in the name of a company 159
When a derivative action may be brought 160
DETERMINATION OF A CASE
Whether each case must be determined by the particular
facts of the case. 161
DISCONTINUANCE OF ACTION/SUIT
Application for – matters to be considered and proper orders
that court may make – need for appellate court not to interfere
with lower court’s exercise of its discretion simply because
it may have exercised its discretion differently. 161
Circumstances when it may arise? 162
Discontinuance of action before Federal High Court pursuant
to Order 50 rule 2(1) of the Federal High Court (Civil Procedure)
rules, 2009 – need to seek leave of court – distinction with
discontinuance under Order 50 Rule 2(5) – effect of such
discontinuance – whether a discontinued matter can still
be said to be pending before a court – order 50 rule 2(4)
federal high court rules – considered – whether an appeal
can be pursued in the absence of a pending suit. 163
Discretionary power of court to grant leave to discontinue
a suit and when leave should be refused. 165
Distinction between striking out and dismissal upon
discontinuance of an action. 165
Guiding principles – appropriate order of court 166
How suit should be discontinued after issues have been
settled between parties 167
Need for leave of court to discontinue after trial date is fixed 167
Notable pronouncement on the need to discontinue interlocutory
appeals to the supreme court 168
Principles governing striking out or dismissal of a suit upon
discontinuance by plaintiff 168
Principles underlying requirement of leave to discontinue an
Action 169
Principle underlying the requirement for leave to discontinue
a suit 170
Proper order court should make on application to discontinue
suit after commencement of trial. 170
Pursuant to Order 23 Rule 1 High Court of Lagos State
(civil procedure) rules 1972 – circumstances when plaintiff
may discontinue suit with or without leave of court
thereunder – consequential order to be made by court thereby. 170
Right of plaintiff to discontinue action. 173
Right of plaintiff to discontinue before date fixed for hearing 173
Role of court in granting or refusing application for
discontinuance of a suit 174
When discontinuance of action requires leave of court. 175
When leave of court is required to discontinue action 176
When leave of court not required to discontinue action 176
When leave of the trial court is required to discontinue an
action under Order 22 Rule 4(1) of the High Court of
Anambra State, 1988. 177
When leave required to discontinue an action and when
not required 177
When leave required to discontinue an action and when
not required. 177
When leave to discontinue a suit should not be granted. 178
When plaintiff can discontinue action without leave of court 179
When plaintiff cannot discontinue action without leave of court 179
Whether a plaintiff has the right to discontinue his action
at any state of the proceedings. 180
Whether appropriate to take application for discontinuance during
vacation without the consent of the other party – nature of
urgency required – order 26 rule 9(2) of the Anambra
State (civil procedure) rules, 1988 considered. 181
Whether leave of court is required to discontinue a suit on or
after a date fixed for hearing. 184
Whether suit discontinued and struck out can be relisted 185
Whether the filing of a notice of discontinuance by plaintiff
upon receipt of statement of defence amounts to taking
further steps to prosecute the case pursuant to the 2nd limb
of the said order – whether suit withdrawn may be dismissed
thereunder in the circumstance? 185
DISMISSAL OF ACTION
Attitude of court to dismissal of action in limine and need
to exercise restraint before dismissing a discontinued action. 187
How application for dismissal of action on grounds of law is made. 188
DOCUMENTS DULY EXECUTED BY A PERSON OF FULL AGE
Bindingness of/on the party signing. 188
ESTOPPEL BY JUDGMENT
Need to plead estoppel by judgment 189
EX PARTE ORDER
Validity of ex-parte order until set aside 189
EXTENSION OF TIME
Extension of the time prescribed by the rules of court
for taking certain procedural steps 190
FAMILY PROPERTY
Right of member to protect or defend family property 190
Right of party to sue to protect family property. 191
Whether head of a family can take action to protect family
property or defend action in respect of family property 191
FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2000
Impropriety of grant of declaratory relief upon defendant’s
admission without oral evidence of plaintiff and grant of
judicial review as exception to; Federal High Court
(Civil Procedure) Rules, 2000, Order 47, Rule 1(2) considered. 191
Procedure for grant of application for order of judicial review
and propriety of claim of damages therein, Federal High
Court (Civil Procedure) Rules, 2000, Order 47, Rule 3(2) and 7
considered. 192
Statutory requirements to be satisfied by applicant for judicial
review and effect of non-compliance with, Federal High Court (Civil
Procedure) Rules, 2000, Order 47, Rule 3(2) considered. 193
When a party may apply for judicial review and when application
for injunction by way of judicial review may be made, Order 47,
Rule 1, Federal High Court (Civil Procedure) Rules, 2000 considered.193
FILLING FEES
Effect of failure to pay filing fee on court process. 194
Effect of not paying appropriate filling fees on jurisdiction
of court to adjudicate on a matter 196
Effect on jurisdiction of court of failure to pay filing fee 196
Filing fees on court process. 196
Nature of counter-claim and effect of failure to pay filing
fee in respect thereof 197
FILING OF COURT PROCESS
Computation of time with respect to filing of court process 198
When document or process is deemed duly filed. 198
Whether fault of registrar/registry to assess document for
filing adequately that of litigant or lawyer. 199
FURTHER AND BETTER PARTICULARS
Aim and principles guiding request for further and better
Particulars 200
Effect of failure to comply with an order to furnish further
and better particulars 200
Principles guiding request for further and better particulars 201
Source of authority for request for further and better
particulars in an election petition 201
The utility of a request for further and better particulars. 202
When further and better particulars are not necessary 202
When a party is entitled to ask for further and better particulars 202
When a request for further and better particulars should be
refused. 203
HEARING
Date fixed for hearing. 203
Meaning of interparty hearing. 204
Service of hearing notice – duty on court to notify parties
of subsequent adjournment. 204
The effect of failure to serve a hearing notice where required. 204
Whether a party making objection in the middle of hearing a
matter, needs to swear to an affidavit 204
Whether court bound to hear parties on nature of the order
after hearing a motion 205
HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES, 1994
Commencement date of high court of lagos state
(civil procedure) rules, 1994 205
INTEREST ON DEBT OR LOAN
Non-mandatoriness of payment of interest on debt or loan
not expressly agreed 206
INTERPLEADER SUMMONS
Onus of proof in an interpleader summons or proceedings 206
When claimant in interpleader proceeding will not succeed 207
INTERPRETER
Whether court is duty bound where the court has a language
other than english, to provide an interpreter who can read
and speak the language and english and effect of failure of
counsel to protest against the procedure. 207
INTERROGATORIES
Aim of interrogatories 208
Attitude of court to interrogatories on facts denied in pleadings 208
Basis of interrogatories 209
Interogatoris which should be refused by the court. 209
Main aim of interrogatories 210
Motion for filing interrogatories. 210
Nature and functions of interrogatories 211
Need for widespread use of interrogatories in the Nigerian
System 212
On the nature and functions of interrogatories 212
Principles guiding administration of interrogatories 213
Principles to consider in determining whether or not to allow
Interrogatories 214
Refusal of leave to administer interrogatories. 215
Treatment of admissions made in a reply to interrogatories 215
What interrogatories are 215
What is required of a party in an interrogation 217
Whether interrogatories and further and better particulars
are known to Nigerian law 217
Whether interrogatories can be used to shift the burden of proof. 217
Whether the delivery of interrogatories may be refused for
the reason of procuring a speedy trial. 218
IRREGULAR PROCEDURE
Waiver of right to object to irregular procedure 218
ISSUES FOR DETERMINATION
Settlement of issues for determination from pleadings in
high court. 219
Whether settlement of issues for determination from pleadings
amounts to consent judgment? 220
JOINDER OF PARTIES
Duty and obligation of a plaintiff and court on joinder of parties 220
Duty on person interested in outcome of proceedings but not
joined as party thereto 220
Effect of failure to join necessary party. 221
Need for plaintiff to join original customary tenant in
action to evict sub-customary tenant 221
Policy of courts on joinder of parties 222
Power of Federal High Court to order joinder of a party. 223
Principles guiding joinder of parties. 223
Purpose of principle guiding joinder of parties. 224
Relevant considerations in determination of whether to
join person as defendant to action 224
What applicant who desires to be joined as an interested party
to a suit must show 225
What court will consider in application for joinder 225
When party may be joined as defendant – pursuant to Order
9 Rules 5 of the Federal High Court Rules, 2009. 226
Whether court can suo motu order joinder of a party. 227
Whether failure to join a necessary party to a suit is fatal thereto. 228
Whom lies onus to prove the necessity of being joined as a party
to a suit. 231
JUDGMENT GIVEN IN THE ABSENCE OF THE OTHER PARTY – FOR FAILING TO APPEAR IN COURT
Having not been served hearing notice – whether affected
party entitled to apply to have the judgment set aside by
the same court. 231
JUDICIAL REVIEW – APPLICATION FOR PREROGATIVE WRITS
When may be appropriate under Order 47 Rule 1 of the Federal
High Court (Civil Procedure) Rules, 2000 – scope or nature of
injunction that can be applied for by way of judicial review
– respective meanings of mandamus and mandatory injunction
– classification of injunctions – when mandatory injunctions can
be invoked by the court – conditions applicant seeking order
of mandamus must fulfil – implication of claim for an order
of mandatory injunction in an application for judicial review in
which there is no claim for mandamus – whether amounts to
a claim for an order of mandamus – whether prerogative
order can be invoked in election matters. 232
LEAVE TO SUE IN A REPRESENTATIVE CAPACITY
Whether failure by plaintiff or party to obtain leave to sue in a
representative capacity will vitiate validity of the action 239
LEGAL DEFENCE OR POINT OF LAW IN LIMINE
Procedure for raising legal defence or point of law in limine 239
LEGAL PERSONALITY
Concept of legal personality. 239
LEGAL PRACTITIONER
Duty on counsel in the presentation of his client’s case –
whether extends to casting unjustified aspersions on judges
– (obiter) 240
Duty on counsel not to support an act which is an
antithesis of justice. 241
Duty on counsel to call the attention of a judge to an
omission in the application of principles/practice/law 242
Duty on counsel to refrain from casting aspersions on judges 242
Duty on counsel when his client does not understand the
language of the court 243
Duty on principal counsel to vet briefs and court processes
emanating from their chambers. 243
Need for counsel to be slow in attacking judges 244
Whether a body not vested with juristic or legal personality
can sue or be sued 245
LIMITATION OF ACTION
Nature of issue of limitation of action 245
Precision of timing of limitation statutes – whether leaves the
court in doubt 245
When defence of limitation of action can be raised 246
When limitation law will be inapplicable. 246
LIQUIDATED MONEY DEMAND
What constitutes liquidated money demand 247
LOCUS IN QUO
General principles guiding visits of locus in quo 248
LOCUS STANDI
Determinant of locus standi 249
How to determine whether a party has locus standi 249, 250
Locus standi of party in imminent danger of adverse party’s
conduct 252
Meaning. 252, 253
Meaning of locus standi and how issue of locus standi guides court 253
Meaning of locus standi and what claims must be established for
plaintiff to be vested with 254
Meaning of locus standi, purport of rule of, test for
determination of, determinant of and effect of objection to. 255
Nature of issue of locus standi and how determined where raised. 256
Need for claim to reveal sufficient interest in order for plaintiff
to have standing to sue 256
Party’s standing to sue 256
Treatment of plaintiff who has no locus in the matter before
the court 257
What locus standi connotes. 257
Where locus standi to sue derived from 258
MANDAMUS
Meaning of mandamus and when issued. 258
MIS-JOINDER OR NON-JOINDER
Whether cause or matter can be defeated by reason of
mis-joinder or non-joinder 259
MISTRIAL
Proper order to make where a mistrial is established. 259
When will occur – orders appellate court can make where there is
a mis-trial – whether appellate court can quash conviction
and discharge accused where proceedings have only be vitiated
by unfairness – Onu Okgfor v. The state (1976) 5 s.c.
13 distinguished – principles governing order of re-trial
– the decision in Abodundu v. The Queen (1959) SCNLR,
62 – followed. 259
MODE OF COMMENCEMENT OF ACTION
When originating summons will be a competent process as
prescribed by order 2 rule 2 of the federal high court rules –
whether a party can seek declaratory reliefs and injunctions
by way of originating summons – respective effects of invoking
of mandamus and mandatory injunction – need for opposing
party to raise preliminary objection to issue of incompetent
action – effect of incompetent action not objected to. 261
MONEY HAD AND RECEIVED
Claim for money had and received. 264
Nature of action for money had and received 265
MOTION
Duty on court to examine the substance of a motion before it 266
Incompetence of motion filed without leave where leave is
required 266
Necessity of court determining motions before it prior to
delivering judgment. 266
Whether deposition in support of a motion takes the place
of pleadings 267
MOTOR VEHICLE CLAIMS
Relevant factor in measurement of speed of vehicle in motor
accident cases 267
NO CASE SUBMISSION
Implication and effect where defendant rests his case on
plaintiff’s case. 268
NON-COMPLIANCE WITH MANDAIORY REQUIREMENTS
Effect of non-compliance with mandatory requirement 269
When the court may rightly regard such as mere irregularity
that can be waived 269
NON-DISCLOSURE OF REASONABLE CAUSE OF ACTION
What document court considers in application to strike out or
dismiss action for non-disclosure of reasonable cause of action 270
NON-PAYMENT OF REQUIRED COURT FEES
When the issue of non-payment of required court fees
can be raised and taken 271
NOTICE OF INTENTION TO DEFEND
What defendant’s affidavit in support of notice
of intention to defend must disclose. 272
ONUS OF PROOF
How onus of proof is discharged in civil cases. 272
ORDER 37 RULE 5 (4) OF THE HIGH COURT
(CIVIL PROCEDURE RULES) OF ANAMBRA STATE 1988
Construction of Order 37 rule 5 (4) of the high court
(civil procedure rules) of Anambra state 1988 273
OYO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988
Provision of Order 5 Rule 14 of the Oyo State High Court
(Civil Procedure) Rules, 1988. 273
Provision of Order 5 Rule 6 of he Oyo State High Court
(Civil Procedure) Rules, 1988. 273
ORDER OF CONSOLIDATION
Discretionary power of trial court to grant order of
consolidation and when may be granted. 274
ORDER OF COURT
Bindingness of order of court on parties 274
Test for determining whether an order of court is
interlocutory or final. 275
ORDER OF RETRIAL
Conditions for court to make an order of retrial. 275
Discretionary nature of the order of retrial. 278
Import of an order of retrial. 279
Need to refuse retrial where the plaintiff’s case has failed in toto. 279
Order or retrial caused by trial court’s failure to properly evaluate
evidence. 279
Principles governing an order of retrial
When an order of retrial will be inappropriate? 280
ORDER OF THE COURT OF APPEAL
Whether proper for trial court to discharge – when same is
also pending on appeal before the supreme court. 281
ORIGINATING SUMMONS
Advantage of instituting action by originating summons. 281
Amended originating summons – when deemed to take effect
– whether can take effect from the date of filing the
original originating summons 282
Attitude of court to objection raised in matters commenced
by originating summons. 283
Determinant of a court’s jurisdiction when a case is initiated
by originating summons 283
Meaning of originating summons. 284
Meaning of originating summons and when action can
be commenced by same 284
Originating summons for hostile proceedings 286
Originating summons procedure as means of commencement
of action – when resort may be had thereto 286
Party served with originating process – steps to be taken. 287
Use of in the commencement of suit – when appropriate. 287
What determines whether action commenced by originating
summons is contentious 288
When action can be commenced by originating summons 288
When action may be commenced by originating summons. 289
When actions are instituted by originating summons 289
When appropriate 290
When appropriate to commence action by originating summons
and when not appropriate 290
When not appropriate to commence action by originating
summons 292
When originating summons is appropriate to commence action 293
When originating summons can be used in commencement
of action 293
When originating summons is appropriate to commence action
and whether the case on validity or otherwise of substitution
of electoral candidate was properly commenced therewith 293
When originating summons is used to commence proceedings
at the high court. 294
When originating summons may be used in commencing an action 295
When originating summons will be inappropriate 295
When suit can be commenced by originating summons 295, 296
When to use originating summons to commence an action 297
Whether originating summons was a proper initiating procedure
in the instant case and whether the issue of its impropriety was
raised suo motu by trial court thus occasioning a miscarriage of
justice 297
OVERIDING POWER OF WAIVER
Power of waiver. 304
PARTIES
Capacity of party to the suit fatal accident claims 304
Classes of 305
Conditions for joinder of parties 305
Defences available to the third party. 306
Definition of ‘party’ to an action 306
Desirable and necessary parties 308
Duty of plaintiff to sue all relevant parties and irrelevance
of failure of to validity of action. 309
Duty on a party seeking declaration of title to join all the parties
who may be affected by the declaration being sought. 309
Duty on parties to litigation not to spring surprises on opponent. 309
Duty on person interested in outcome of proceedings but not
joined as party thereto. 310
Effect of failure to join necessary party 310
Effect of non-joinder of a necessary party in the instant case 311
Effect of non joinder or misjoinder of a party and what
court will consider thereof. 311
Effect of non-joinder or misjoinder of necessary party. 312
Effect of non-joinder of necessary party 312
Factors court would consider in determining whether to join a
person as a party in a suit. 313
Guardian ad litem. 313
How party’s case is made out. 314
Impropriety of a party alleging that procedure consented
to by him occasioned a miscarriage of justice. 314
Impropriety of party changing his case per court. 316
Impropriety of parties resorting to self help. 317
Impropriety of party benefiting from own wrong. 317
Impropriety of party resorting to self-help. 318
Irrelevance of misjoinder or non-joinder of party to competence
of action. 318
Irrelevance of non-joinder or misjoinder of parties to validity
of claim 318
Joinder of insurance company as party to action 319
Joinder of insurer as defendant. 319
Joinder of parties. 319 – 321
Joinder of parties – co-plaintiff 321, 322
Joinder of – necessary party – definition of – 322
Joinder of – when joinder will be necessary – when application
for joinder may be made – when court may refuse application
for joinder. 323
Legal capacity to sue or defend an action as determinant for
competence of action and who bears burden to establish 324
Meaning of necessary party. 324
Misjoinder or non joinder of parties who are not necessary
or essential – whether vitiates the action where the necessary
or desirable parties are before the court. 325
Misnomer. 326
Nature and effect of third party procedure. 326
Nature of application for substitution of parties 327
Necessary and desirable party. 327
Necessary parties to original action at the supreme court 328
Necessary party – non-joinder of – effect – whether can
affect the jurisdiction of the court 329
Need and rationale for joining to proceedings – consideration
in determining who is a necessary party – whether absence
of necessary party amounts to a breach of necessary party’s
fundamental right to fair hearing by virtue of Section 36(1)
of the 1999 Constitution – effect of failure to join necessary party. 329
Need for a party to stick to the case he had made out. 330
Need for claimant to pursue his remedies in one action. 330
Need for supreme court to re-examine its position in
cases where a necessary party deliberately excluded in
proceedings which will affect his interest. 330
Object of third party notice 333
Objects of third party procedure. 333
Option available to a person not party to all action but whose
interest is directly in issue 334
Parties are bound by the case they present to the court. 334
Parties as witnesses 335
Person not party to an action – whether entitled to be heard 335
Person who was not a party to an action in which judgment
has been given but has an interest in the judgment –
course open to such a party. 335
Power of court to suo motu order the joinder of a party
to a suit and how exercised. 336
Principles governing joinder of parties to an action 337
Principles guiding non-joinder or mis-joinder of parties in a case. 337
Principles guiding joinder of parties to an action 338
Proper name to be used when suing a party 338
Propriety of party making his claims piece meal in different suits 339
Sole purpose of making someone a party to a suit or action. 339
Substitution of a deceased party – qualification of party applying. 339
Substitution of parties. 340
Test for whether joinder of a party is necessary and jurisdiction
of court to make order for. 340
The need to join all parties claiming in a particular action 341
What constitutes a party’s case 341
What court considers in determining whether party is proper
defendant in an action. 341
What determines proper party to a suit. 342
What is to be considered in treating an application for joinder 342, 343
When a party can cite on account stated. 343
When a party may sue or be sued in a representative
capacity as administrator of estate of a deceased person and
impossibility of retroactivity of letters of administration 343
When application by a party to be joined in a suit may be granted 345
When to object to non-joinder of party or cause of action 345
Whether a non-natural nor juristic person can sue – onus
on plaintiff pursuant to Section 135 of the evidence act to prove
that it is a juristic person where defendant joins issues on same
– when the burden of proof will shift to the defendant – fundamental
nature of jurisdiction in the determination of a suit when a
court will be competent – consequence of an improperly constituted
action for want of proper parties. 364
Whether a party after he has intimated his consent to an act
either by his words or conduct, can later question the legality of
the act he had so sanctioned to the prejudice of those who have
given faith to his words 348
Whether a party can be both plaintiff and the defendant 348
Whether a statement made by a person when he sues or acts in
his personal capacity is not binding on him when he is
sued in a representative capacity 349
Whether capable of defeating a party’s claims. 349
Whether cause of action can be defeated by reason of
misjoinder or non-joinder of parties. 350, 351
Whether failure to join a state (Rivers State) in the instant case)
in an action where validity of edict made by it is being
determined renders the action incompetent. 352
Whether federal mortgage bank of nigeria is an agency
of the federal government. 355
Whether granting a party leave to file a court process means
that the court will grant the relief sought in the process filed. 355
Whether non-joinder of party fatal to a case 356
Whether party can raise objection in final address to
evidence admitted during trial 356
Whether person not party to all action must be put on notice 356
Whether proper parties must be identified for court to be
competent and have jurisdiction on a matter. 357
Who is a necessary party 358
Who is a necessary party to a suit. 359
Who is a party to an action 359
Who may be sued 361
Who necessary parties are. 361
PAYMENT OF FILING FEES
Payment of filing fees as mandatory precondition to validity
of process filed 361
Payment of filing fee as pre-condition to validity of process
filed in court and effect of non-payment thereof. 362
Whether filing fees is not chargeable on notice of intention
to defend by government agencies under Order 54, High
Court of Plateau State Civil Procedure Rules 363
Whether the failure to pay correct filing fees raises the issue
of jurisdiction of court to determine a matter 365
PERSON INTERESTED IN A MATTER
Definition of a person interested in a matter and test
of interest. 365
PERSON NOT PARTY TO ACTION
Remedy available to a person not party to action where court
gives judgment or order against him 366
PERSONAL INJURY CLAIMS
Principles guiding personal injury claims 367
PLAINTIFF
Duty on plaintiff in establishing his claim. 368
Impropriety of plaintiff relying on the weakness of
defendant’s case 368
Implication of resting one’s case on the plaintiff’s 368
Need for a plaintiff to succeed on the strength of its case
and not on the weakness of the defence. 369
Propriety of plaintiffs suing jointly for benefits accruing severally
to parties in an action. 369
The propriety of a plaintiff seeking police intervention after it
has obtained an order of the court to restrain the defendants 370
Whether a plaintiff can rely on the weakness of the case of a
defendant. 370
Whether a plaintiff has the right to withdraw a suit filed by him 370
Whether a plaintiff must succeed on the strength of his own
case and not on the weakness of the defence. 371
Whether co-plaintiffs can set up conflicting claims
against themselves 371
Who is a plaintiff 372
PLEADINGS
Accidental but curable defects in pleadings. 372
Action in negligence. 373
Actions against companies for the acts of their servants. 373
Admission in pleadings 374, 375
Aim and bindingness of pleadings and rationale therefore 375
Aim of pleadings 376
Aim of – need for parties to plead relevant facts. 377
Amendment of pleadings 377 – 390
Amendment – effective date of amendment 391
Amendment of claim in detinue when granted. 391
Amendment of pleadings – attitude of courts to accidental
curable defects. 392
Amendment of pleadings connotes and when same
may be refused. 392
Amendment of statement of defence by counter-claim. 393
Assignment of debt. 394
Attitude of courts to application for amendments in proceedings 395
Attitude of court to insufficient particulars in pleadings 396
Averments therein unsupported by evidence – effect
– what constitutes proper traverse. 396
Basic principle of pleadings 397
Binding effect of pleadings. 397
Binding nature of pleadings on parties and court. 397
Bindingness. 398
Bindingness of court and parties by pleadings and irrelevance
of evidence led at variance with. 399
Bindingness of court and parties by pleadings and irrelevance
of evidence led at variance with. 399
Bindingness of issues in pleadings on court and parties 399
Bindingness of parties by pleadings and irrelevance of evidence
led contrary to. 399
Bindingness of parties by their pleadings. 400
Bindingness of parties’ pleading on the court 400
Bindingness of pleadings 401 -415
Bindingness of pleadings and evidence on parties and court. 416
Bindingness of pleadings and treatment of evidence
at variance with pleadings. 416
Bindingness of pleadings and treatment of evidence
led contrary to pleadings. 417
Bindingness of pleadings on court and parties to a suit. 418
Bindingness of pleadings on parties. 418
Bindingness of pleadings on parties and court effect of
evidence led outside the pleadings. 419
Bindingness of pleadings on parties to a case and need to
give evidence in line thereto. 419
Bindingness of pleadings on party – effect of facts that
are not pleaded 419
Bindingness of -duty on appellate court to expunge
evidence at variance with pleadings. 420
Bindingness of- effect of evidence at variance with
pleadings – duty on appellate court to set aside any
finding/holding resulting from reliance on evidence
on facts not pleaded. 421
Bindingness of – effect of evidence at variance with
pleadings – duty on appellate court to set aside any
finding/holding resulting from reliance on evidence on
facts not pleaded. 423
Bindingness of – effect of evidence led outside the pleadings 424
Bindingness of/on the parties and court. 425
Claim for interest, what plaintiff must plead and prove 426
Contents of pleadings 427, 428
Cross examination on matters not pleaded. 428
Definition of pleadings, purpose of bindingness of on
parties and irrelevance of evidence led contrary to. 429
Denial or reply to averment in statement of claim – how pleaded. 429
Documents pleaded in statement of claim – rule that it becomes
part of the pleadings and the court is entitled to look at them
without the need of any affidavit exhibiting them – whether
applicable where the court is prohibited by the rules of court
from looking at any document save the statement of claim –
Order 27 of the Federal High Court (Civil Procedure) Rules,
1976 – considered. 430
Duty of court in respect of evidence on issues not pleaded. 431, 432
Duty on court not to decide issue not raised by parties in
their pleadings 432
Duty on court not to make out a case outside the pleadings
and evidence of the parties. 433
Duty on court to confine itself to evidence borne out of pleadings 433
Duty of court where party’s pleadings and evidence are relevant
to his claim. 433
Duty on court where pleadings have been settled and issues
joined 434
Duty on defence relying on specific statutory provision to
plead same specifically. 434
Duty on party alleging that a custom is repugnant to
natural justice, equity and good conscience to plead and
prove same by evidence. 434
Duty on party pleading grant as his root of title 435
Duty on trial court. 435
Effect and treatment of admission in pleadings 436
Effect of a party failing to testify in support of pleaded facts. 436
Effect of agreement referred to in pleadings. 436
Effect of defects in pleadings. 437
Effect of documents referred to in a pleading. 437
Effect of evidence contrary to pleadings. 438
Effect of evidence on facts not pleaded. 438
Effect of evidence on facts not pleaded in a case 438
Effect of facts not pleaded. 438
Effect of facts not pleaded – duty on court 439
Effect of general traverse in a statement of defence 439
Effect of non-denial of allegations of fact. 440
Effect of not pleading fact relating to evidence adduced at trial. 440
Effect of pleadings. 441
Effect of refusal of application for amendment of pleadings. 441
Effect of unpleaded facts. 442
Elementary law of pleadings 443
Equitable defences 443
Essence of pleadings 443
Essence of pleadings in proceedings. 444
Evidence at variance with pleadings goes to no issue. 445
Evidence at variance with pleadings. 445, 446
Evasive denial – effect – whether pleading generally that “the
defendant will put the plaintiff to the strictest proof” – amounts
to a clear denial or non-admission. 446
Evidence led outside pleadings 448
Evidence on facts not pleaded 449 – 452
Extension of time to file pleadings 452
Facts, which must be specifically pleaded 452
Failure to give evidence in support of pleadings. 453
Failure to give evidence in support of pleadings notwithstanding
his general traverse. 453
Fraud 453
Function of pleadings. 454, 455
Function of pleadings in determining plaintiff’s case. 455
Fundamental nature of pleadings in the litigation process 455
Further particulars. 456
Further pleadings. 457
Fraud must be pleaded. 457
General traverse. 457 – 459
Guiding principles in consideration of application for amendment.
How allegation of fraud is pleaded. 460
How court treats unpleaded facts. 460
How “express malice” is pleaded. 461
How illegality is pleaded. 461
How onus of proof in civil cases discharged and whether
all documents pleaded must be tendered in evidence. 461
How pleadings framed. 462
How purchaser for value without notice is pleaded. 462
How to apply for severance of pleadings. 462
How to establish right to a relief and whether parties
court are bound by pleadings filed in a matter. 463
How to plead and prove claim for special damages. 463
How to plead agreements. 464
How to plead equitable defences 464
How to plead delegation of authority. 464
How to raise issue of fraud 465
How traverse in pleadings can amount to denial. 465
Illegality of contract. 466
Implication of a pleadings that the defendant is not in a
position to admit or deny a specific allegation of fact 466
Importance and bindingness of pleadings. 466, 467
Importance of facts in pleadings. 467
Impossibility of counsel’s address constituting evidence and
irrelevance of submission made on facts not pleaded. 467
Impropriety of court making a case for parties outside
pleadings and evidence. 468
Impropriety of inconsistencies in party’s pleadings 468
Impropriety of party pleading evidence. 468
Inconsistent defences. 469
Irrelevance of evidence led on facts not pleaded and
resultant effect of failure to call evidence in support of
facts pleaded. 469
Irrelevance of facts in pleading on which evidence is not led. 469
Issues arising from the pleadings 470
Legal consequences of not supporting pleadings with evidence 470
Libel – how privilege is pleaded. 470
Libel – “qualified privilege” – reply. 471
Long possession and acquiescence. 471
Mandatoriness of pleadings being specific and need to
specifically plead documents to be relied on. 471
Mandatory contents of pleadings 472
Meaning and purpose of pleadings. 472
“mere denial” in statement of defence – effect
in cases of negligence 472
Misrepresentation 473
Nature of skill required for formulating pleadings and need
for litigant not to be punished for inadvertence of counsel. 473
Need for a traverse to be concise and specific and effect of
general traverse. 473
Need for allegation of fraud to be specifically pleaded and
standard of proof thereof 474
Need for document sought to be relied upon to be specifically
pleaded – consequence of not pleading same – when a document
will qualify as a purchase receipt – consequence of evidence
led outside pleadings – bindingness and purpose of pleadings. 475
Need for evidence to be in tandem with party’s pleading. 476
Need for evidence to support pleadings 477
Need for oral evidence to be in line with facts pleaded 478
Need for party relying on special statutory provision to
specifically plead same. 478
Need for party to call evidence to support his pleadings
and whether evidence adduced contrary to pleadings
becomes inadmissible. 479
Need for pleadings at the high court. 479
Need for pleading to include facts that are exact and precise 479
Need to accurately plead facts in pleadings 480
Need to lead evidence in support of averments in pleadings. 480
Need to lead evidence in support of pleadings. 480
Need to plead and prove fact of foreign law. 481
Need to plead facts relevant to the proof of an issue and
treatment of evidence led on unpleaded fact 481
Need to specifically plead fraud and the particulars thereof 481
Need to specifically traverse essential allegations in a statement
of claim 481
Need to support pleadings with evidence 482
Needlessness of party pleading evidence. 482
Nexus between facts pleaded and evidence adduced 482
Object of failure to lead evidence in support of – effect 483
Object of pleadings. 483, 483
Object of pleading and treatment of untraversed averment
in statement of claim 484
Objective of an amendment and when it may be refused 485
Onus on party alleging fraud or forgery. 485
Onus on party pleading documentary evidence to tender same
and exclusion of oral evidence in proof of 485
Parties are bound by their pleadings – no party is allowed to
present a case contrary to his pleadings. 486
Pleading foreign laws. 486
Pleading fraud. 486
Pleading frustration of contract 487
Pleadings as basis of trial of civil case in high court and duty
of defendant to raise facts of defence special to him therein 487
Position of the law on whether a party is required to
plead evidence 487
Principle of implied averment. 488
Principles governing pleadings. 489
Principle of law that evidence not pleaded goes to no
issue at trial and whether judgment would be given in
favour of a party whose facts were not pleaded. 490
Principles of pleadings. 491 – 494
Propriety of grant of application for amendment at any stage
where not intended to overreach the court. 495
Propriety of raising and arguing a fresh issue outside
pleadings in the supreme court without first obtaining leave
to do so 495
Purpose of pleadings. 496
Purpose of pleadings and motion on notice 497
Purport of pleadings, bindingness of on parties and irrelevance
of facts not pleaded. 497
Purport of pleadings, irrelevance of pleadings not supported by
evidence and mandatoriness of establishing allegations therein
by evidence 498
Purpose of – duty on claimant not to spring surprises on the
defendant 498
Rationale behind furnishing particulars to a pleading 499
Reference to a written agreement: 499
Reference to an unpleaded document in a pleaded document. 500
Relevance of attitude of applicant for amendment of
pleadings in consideration of grant by court 500
Reply 501
Requirements of the plaintiff to plead and prove his claims
for declaratory reliefs on the evidence called by him without
relying on the evidenc called by the defendant. 501
Res judicata 501
Res judicata -reliance on previous judgment other than
as estoppel. 502
Res ipsa loquitur – how pleaded. 502
Res ipsa loquitur – how pleaded. 503, 504
Rule of pleading 504
Special defences- fraud- 504
Special defences – illegality 504
Standing principle law that requires pleadings not to be
evasive rather it must be cogent and pungent, and object
of pleadings. 505
Statement of claim and writ of summons 505
Statement of claim filled out of time 505
Statement of claim incorporating the writ of summons
by reference – propriety of – Order 13 Rule 7 of the Bendel
State High Court Rules, 1976 – considered. 506
Statement of claim supersedes writ of summons. 507
Statement of claim – claim therein – supersession of – over
claims in writ of summons. 507
Striking out of paragraphs in pleadings. 508
Striking out of pleadings. 508
Supercession of amended pleading by a further
amended pleading 508
Superiority of statement of claim over writ of summons and
resultant effect of non-inclusion of reliefs claimed in writ
of summons in statement of claim. 508
Supercession of writ of summons by the statement of claim. 509
Traverse 509
Treatment of evidence at variance with pleadings. 510
Treatment of evidence led on facts not pleaded 510
Treatment of fact pleaded on which no evidence is led 510
Treatment of pleadings not supported by evidence 511
Types of pleaded fact that need be proved 511
Unpleaded documents. 511
Unpleaded evidence – whether goes to no issue – how
treated by the court. 512
What an issue is 513
What ‘general traverse’ connotes. 513
What must be specifically pleaded 513
What pleadings are, purpose of bindingness of parties by and
needlessness of parties pleading evidence 514
What pleadings should contain 514, 515
When an issue of fact arises between parties and need for
proper traverse of. 515
When issues are said to be joined 515
When issue of fact arises, and need for proper traverse of
and how made 516
When issues are said to be joined and the implication thereof 516
Where defendant by his pleadings admits the description,
location, features and dimension of the land, whether
proof of same is required 516
Where party’s pleadings are relevant to his claim and
produces every evidence in support, whether court is bound
to consider and decide his claim on the evidence. 517
Where trial is conducted by pleadings, whether judgment must
be based on issues joined between the parties. 517
Whether a defendant’s application for amendment should be
refused where the application was made after the cross-
examination of the second witness to the plaintiff. 517
Whether a denial of a particular paragraph in the statement
of claim by means of general traverse has the same effect
as specific traverse. 518
Whether a party can be allowed to amend its pleadings even
after the other party have closed its case 518
Whether a party can plead a court process which does not
exist or plead facts which are not known to him at the time
of settling the pleadings. 519
Whether a party wishing to rely on a statute of
limitation or the administration of estate law, laws of
oyo state must specifically plead same. 519
Whether an application to amend a statement of defence
should always be dismissed when the grant of amendment
could allow the defendant to withdraw or abandon the
admissions earlier made, thereby prejudicing the plaintiffs. 520
Whether an insufficient traverse in a statement of defence can
amount to an admission 520
Whether averment in pleadings constitutes evidence 521
Whether capacity of parties may not be amended. 521
Whether claim for injunction may be added by amendment. 521
Whether court can go outside the pleadings and issues joined 521
Whether evidence can be led on fact not pleaded 521
Whether evidence not in support of pleading should be
disregarded by court. 521
Whether evidence not pleaded goes to no issue and
consequence of 522
Whether evidence to prove fact to be pleaded. 523
Whether facts or evidence are to be pleaded 523
Whether need for trial judge to keep strictly to pleadings. 523
Whether non-compliance with the rules of pleadings could
render a trial not free and fair. 524
Whether parties and court are bound by pleadings before
the court 524
Whether parties are bound by their pleadings. 524, 525
Whether parties can amend their pleadings at any stage
of the proceedings and exception thereto. 525
Whether parties can give evidence on what is not pleaded 526
Whether parties can plead evidence 526
Whether person who makes an allegation in his pleading
must adduce evidence to prove such allegation rather than
rely on evidence from his opponent. 526
Whether pleaded document must be produced. 527
Whether pleadings can constitute evidence. 527
Whether pleadings can take place of evidence 527
Whether pleadings constitute evidence? 528
Whether precludes defendant from raising issues of – on
appeal – Order 25 Rule 6(1) Oyo State High Court (Civil Procedures)
Rules 1988? 528
Whether previous pleading later amended ceases to exist for all
purposes in proceedings? 529
Whether relief’s claimed in suit constitute part of’ facts
in pleadings 529
Whether statement of fact 530
Whether survey plan is part of pleadings. 531
Whether survey plan is part of pleadings of party claiming
declaration of title to land? 531
Whether the federal high court has the power to order pleading
in action improperly commenced via originating summons, Federal
High Court Rules, Order 3, Rule 8 considered. 531
Whether the court of appeal was right in upholding and affirming
the ruling of the trial court dismissing the defendants/appellants’
application to amend their statement of defence. 532
Whether there is need for parties relying on issue of limitation
of liability to lead evidence in support of same in their pleadings? 532
Which evidence was not led – effect. 533, 534
POINT OF LAW
Capability of decisively determining a litigation – whether
may be raised as preliminary issue? 534
PRACTICE DIRECTION
Place of practice directions in our judicial process. 535
Purpose of the practice directions. 535
PRE – ACTION NOTICE
Effect of failure to serve pre-action notice where prescribed by law 536
Effect of failure to serve pre-action notice where required 536 – 538
Effect of non-service of pre-action notice where required and
whether it can be waived 538
Intendment of NNPC act, section 11(2) and resultant effect of
defendants failure to raise issue of service of pre-action notice
hereunder 539
Mandatory nature of pre-action notice 539
Nature of pre-action notice 540
Need to serve pre-action notice on Nigeria Ports Authority 540
Necessity of filing pre-action notice 541
Purpose of pre-action notice 541, 542
Purport of pre-action notice under Section 51 of the
Adamawa State Water Board edict and effect of non
compliance therewith 542
Purpose of pre-action under Section 51(1) and (2) of the
Adamawa State Water Board edict 543
Rationale behind pre-action notice 543
Requirement of pre-action notice and whether same is mandatory 544
Requirement of pre – action notice-effect of failure to comply
with s – 51 (1) & (2) Adamawa State Water Board edict
(no. 4 of 1996) 545
Right of a party to waive service of pre-action notice 547
Scope of pre-action notice under Section 51(1) of the
Adamawa State Water Board edict no.4 of 1996 547
What amounts to proper pre-action notice 548
When action may be commenced against the Nigerian
railway corporation. 548
When and how to raise defence of absence of preaction notice 548
Whether court can raise issue of pre-action notice suo-motu 549
Whether it is necessary for the defendant to plead absence
of pre-action notice 549
Whether plaintiff who fails to file pre-action notice in accordance
with section 11 (2) of NNPC act may have right of action 550
Whether provisions of Section 110 (1) and 110 (2) of Ports
Act, cap. 361, Laws of the Federation of Nigeria, 1990 are
inter-dependent 550
Whether requirement of pre-action notice is a limitation
on constitutional right of access to court 550
Whether right to be served with pre-action notice falls within
the category of rights which can be waived. 551
Whether service of pre-action notice is a condition precedent
to the exercise of jurisdiction by a trial court. 551
Whether the requirement of one month’s pre-action notice
offends the provision of Section 32 of the 1999 Constitution
as per instant case. 552
PRE HEARING SESSION
Business to be transacted by a tribunal or court at a pre-hearing
session. 552
PRELIMINARY OBJECTION
Duty on court to determine and make findings on preliminary
objection which has been moved. 553
Hearing preliminary issues 553
Implication of filing preliminary objection before filing defence. 554
Nature of preliminary objection – when to be supported by
affidavit. 554
Need for objection to be based on application under consideration
and not matters pending at the trial court – effect where objection
is based on matters pending at trial court. 555
Object of a preliminary objection 555
Predicated on action against inexistent person and alleged
order of court. 556
Purpose of a preliminary objection and when it should be taken 556
Purpose of giving notice of preliminary objection 557
Raising of preliminary objection to jurisdiction in suit under
the undefended list procedure 557
Raising thereby a point of law decisive of the whole
litigation – whether appropriate – Order 23 High Court of
Lagos State (Civil Procedure) Rules, 1994. 558
When a point of law may be raised on a preliminary objection? 559
When an objection can be raised. 559
When to employ preliminary objection. 560
Whereby filed and moved before a court – duty on court to
consider the objection before venturing into the main or
cross-appeal. 560
Whether a point of law including that on jurisdiction can
be raised on a preliminary objection. 560
Whether party’s failure to react to preliminary objection
amounts to success of the objection? 561
PRESENCE OF LITIGANT IN COURT
Whether litigant must be physically present in court 561
PRINCIPLE OF PROCEDURE
Whether party can approbate and reprobate over the same issue? 561
PROCEDURAL IRREGULARITY
Distinction between procedural irregularity and a nullity 562
PROCEDURAL LAWS APPLICABLE TO A CAUSE
Whether the one in existence as at the time when a cause of
action arose or the one in force at the time of the pendency
of a suit. 562
PROCEDURE FOR DOING AN ACT
Effect of statutory prescription of a procedure. 563
PROCEDURE IN PROCEEDINGS
Distinction between procedure and proceedings. 564
PROCEEDINGS – BINDINGNESS OF ON PARTIES
Evidence at variance with pleadings – effect. 564
PROCEEDINGS AGAINST THE STATE
How proceedings against the federation must be brought. 565
PROCESS OF COURT
When a document or process of court is deemed duly filed. 566
PROSECUTION OF CAUSE
Notable pronouncement on need for counsel to desist from
pursuing selfish interest in prosecution of cases. 566
PURPORT OF COSTS IN LITIGATION
Purport of costs in litigation and proprietary of court
granting amendment when could be paid for by costs. 567
RAISING LEGAL DEFENCE OR POINT OF LAW IN LIMINE
Procedure for raising legal defence or point of law in limine 567, 568
REASONABLE TIME
Determination of what constitutes reasonable time 568
RECORD OF COURT
Duty on appellate court to look into the records to verify if
appellants had obtained the necessary leave for extension
of time within which to appeal pursuant to Section 25(4)
of the Court of Appeal Act. 569
RELIEF
Claim under the wrong law 569
What court to do where reliefs are claimed on the alternative 569
Whether it is the tradition of the common law and our procedure
rules for a plaintiff to seek relief in the alternative. 571
RELISTING CASE
Case struck out with liberty to relist – effect of such order 571
Power of judge to relist case struck out. 572
REPLY
Function of reply and when unnecessary to file 572
When necessary to file a reply 573
When reply is necessary. 573
Whether plaintiff can introduce new issue or new ground of
claim in reply to statement of defence 573
REPRESENTATIVE ACTION
Action against a community. 574
Action against members of a large community. 574
Action by member of a family. 575
Action for trespass against community. 575
Authority to defend. 575, 576
Authority to sue 576, 577
Authority to sue and defend. 577, 578
Effect of failure to obtain leave to sue in a representative capacity 578, 579
Features of representative action 583
Nature and extent of powers of representative plaintiff and
impropriety of denying represented class of benefit of judgment
obtained. 584
Nature of rule as to representative actions 587
Nature of rules of court governing representative actions 588
Need for named persons in a representative action and
persons being represented to have common interest 588
Onus of proof on plaintiff where representative capacity is
Challenged 588
Power of court to amend representative capacity. 589
Principles governing representative action 590
Proper order for court to make where representative
plaintiffs in a representative action unwilling to continue case
resist their substitution 591
Proper step for plaintiff in representative action who wishes
to withdraw should take. 592
When action can lie in a representative capacity 592
Whether in a representative action the only legal burden cast
upon plaintiff is that of establishing the existence of a common
interest and a common grievance 593
Whether plaintiff in a representative action compelled to
attend court to testify 593
RES JUDICATA
Essence of doctrine of res judicata and effect where successfully
raised 594
Essence of doctrine of res judicata and effect where
successfully raised 594
Preconditions for application of doctrine of res judicata 595
RESORT TO COURT ACTION
Need to exhaust remedy provided by statute before resort to
court action 595
RETRIAL
Circumstance where a retrial 1s ordered. 596
Consideration by court. 596
Discretionary powers of appellate court to order a retrial
and guiding principles for 597
Factors an appellate court considers to justify an order of retrial. 593
Impropriety of order for retrial by appellate court where
plaintiff failed to prove his claims 599
Principles governing an order of retrial. 599, 600
When a re-trial will be ordered 601
When a re-trial will be ordered and when it will not 601
When an order of retrial will be made 602
When an order of retrial will be made by appellate court. 602
When appellate court will be reluctant to make an order of retrial? 603
When issue of retrial will not arise? 604
RIGHT OF ACTION
Meaning of right of action 604
Whether a bona fide exercise of right of action can constitute
abuse of court process 604
RIGHT TO INTERPRETATION
Impropriety of counsel to an accused waiving his right to
interpretation 605
RULES OF PRACTICE
Rules of practice are meant to be obeyed. 605
RULES OF PROCEDURE
Whether all laws or rules of procedure enacted by a state
government are of no effect in cases which are governed
only by the act. 605
SERVICE OF COURT PROCESS
Application for order of prohibition – failure to serve
notice on the other party. 606
Basis of requirement of leave to issue writ of summons for
service outside jurisdiction 606
Basis of requirement to issue writ of summons for service
outside jurisdiction 607
Condition precedent to service of originating process outside
jurisdiction 607
Duty on court to set aside judgment obtained where service
of court process is doubtful 607
Effect of failure to serve court process 608
Effect of failure to serve notice of proceedings. 608
Effect of failure to serve process. 608
Effect of failure to serve process on a party. 609, 610
Effect of failure where service is required. 610
Effect of non-service of a process on a party 610
Effect of non-service of court process 611
Effect of non-service of court process – where service of process
is required – whether failure to serve such process is a fundamental
vice and the person affected by the order but not served with the
process is entitled ex debitio justitiae to have the order set aside
as a nullity. 611
Effect of proceeding without service. 612
Effect of service of originating process on jurisdiction of court 612
Essence of service of court process and effect of failure to
serve process where required. 612
Effect where service of court process is not effected in manner
stipulated by law 613
Fundamental nature of issue of service of process. 614
Fundamental nature of service of court process and effect of
failure of service on proceedings 614
Fundamental nature of service of court process and effect on
jurisdiction of court 615
Fundamental nature of service of court process where required. 616
Fundamental nature of service of process of court and effect
of failure to serve. 617
Fundamental nature of service of writ of summons and
effect of nonservice on jurisdiction and judgment of court 618
How to serve writ of summons 618, 619
How service of process is effected on artificial persons
and effect of non-compliance therewith 619
How to prove service of court process 619
Importance of proper issuance and service of writ and
effect of non compliance therewith. 620
Importance of service of court’s process 620
Importance of service of court process on parties 620
Importance of service of process and effect of non-service. 621
Importance of service of processes on defendant to a suit 622
Legal consequence of non-service of court process 622
Mandatoriness of obtaining leave of court for issuance and service
of writ of summons on defendant outside court’s jurisdiction, order
5, rule 6 of the oyo state high court (civil procedure) rules, 1988
Considered 622
Nature of complaint of denial of fair hearing 623
Nature of contents of affidavit of service and duty on court
where challenged 623
Need to obtain leave to issue writ of summons for service
outside jurisdiction 624
Object and importance of service of court process 624
Object of all types of service of process of court and primary
consideration of court in an application for substituted service 624
On whom lies onus of proof of service of writ of summons 625
Purpose of service of court process 625
Purpose of service of writ of summons 626
Service of writ. 626
Service of writ of summons out of jurisdiction 626
Service of writ out of jurisdiction – effect of non-compliance
with sheriffs and civil process act 627
Service of writ out of jurisdiction – setting aside order. 627
Setting aside service. 628
Substituted service. 629
Ways of effecting service of court processes 630
When issue of service of court process can be raised 630
Where necessary – failure to serve – whether amounts to
breach of fair hearing. 631
Whether issuance of a writ of summons and the service
of same on a defendant are conditions precedent for the
exercise of a court’s jurisdiction. 631
Whether presence of party in court constitutes evidence of
service of process on him. 632
Whether service on a state government can be effected
through its liaison office outside the state 632
SETTING ASIDE ORDER OF JUDGE
Setting aside order of judge of concurrent jurisdiction 633
SETTLEMENT OF ACTIONS BY CONSENT
Necessity for court to sanction settlement of actions by consent 634
SETTLEMENT OF ISSUES
Procedure of settlement of issues. 634
SETTLEMENT OF RELIGIOUS DISPUTE
Need to amicably settle religious disputes out of court. 635
SIGNATURE OF COUNSEL
Duty on counsel signing court processes on behalf of
principal partner in chambers 635
Effect of counsel signing processes before the
supreme court with partnership names without showing
proof of registration 636
Signing of court processes in the name of a firm or
partnership – whether competent 637, 638
Whether name of counsel affixed to documents and
court proceedings qualifies as signature of counsel 639
SLIP RULE
What a slip connotes under the slip rule. 642
STATE RULES
Inapplicability of state rules to cases governed by act 642
STATEMENT OF CLAIM
Nature of statement of claim 643
Need for a statement of claim to contain the prayers sought
– effect- where no prayers are endorsed thereon as
required by the mandatory provisions of Order 33 Rule 7 High
Court of Civil Procedure Rules of Rivers State. 643
Supersession of statement of claim over writ of summons 646
Supercession of statement of claim over writ of summons and
effect of filing fee paid on same 646
Supercession of writ of summons by statement of claim 647
Treatment of relief claim in writ of summons but left;
out of statement of claim 647
Validity of statement of claim incorporating writ of summons 648
Whether statement of claim supersedes the writ. 648
STATUS OF LAW FIRM
Who is a legal practitioner and whether a law firm qualifies as 649
STATUTE BARRED ACTION
Determination of whether cause of action is statute barred 650
Duty of court when determining whether a claim is statute barred. 651
Effect where cause of action is statute-barred 652
When an action is said to be statute barred 652
STATUTORY PROVISION
Effect of non-compliance with statutory procedure for
commencing action 652
SUBSTITUTED SERVICE OF COURT PROCESS
When substituted service of court process can be resorted to 652
Whether substituted service can be effected on defendant
resident outside jurisdiction of court 653
SUIT
Application made on behalf of the defendant to strike out
the statement of claim on the ground that it disclosed no
cause of action. 654
Categories of persons the law recognizes as having the right
to sue and be sued 654
Consolidation of suits – circumstances under which
may be ordered. 654
Effect of striking out of a suit. 655
Importance of facts and how to raise objection in a suit 655
Irrelevance of failure to obtain leave to sue in
representative capacity to validity of action. 656
Liability of corporation to sue and be sued. 659
Relisting a case struck out 659
What an academic matter in a suit is 660
What court is being urged to do when striking out or dismissing
a suit 660
What court looks at in determining application to
dismiss suit in limine. 660
When a suit becomes spent. 661
When a suit is academic. 661
When order of non suit is made 662
When to apply to set aside a suit for irregularity. 662, 663
Whether a decision on the merit. 664
Whether persons who join as plaintiffs in the same suit
can set up conflicting claims. 664
Who can sue or defend action on behalf of family 664
SUMMARY JUDGMENT
Application pursuant to Order 10 High Court of Lagos
State (Civil Procedure) Rules 1972 – preliminary requirements – 665
Application pursuant to Order 10 High Court of Lagos
State (Civil Procedure) Rules 1972 – what applicant should show. 665
Duty on defendant to show that he has a good defence under
Order 10 Rule 3 (a) Lagos State (Civil Procedure) Rules – 666
Effect of failure of defendant to file affidavit disclosing
good defence under summary judgment procedure. 666
General nature of order 10 procedure 666
Grant of leave to defendant to defend actions under
order 10 procedure 667 – 671
Grant of leave to defendant to defend actions under
order 10 procedure – application for interrogatories and
notice to produce documents 672
Implication of dismissal of application for summary
judgment under order 10 procedure 672
Judgment under Order 11 High Court of
Lagos State (Civil Procedure) Rules. 673
Nature and purport of Order 11, High Court of
Lagos State (Civil Procedure) Rules, 1994. 674
Object of and when may be granted 674
Order 10 procedure – onus of defendant seeking to defend. 674
Order 10 High Court of Lagos (Civil Procedure) Rules –
what affidavit of defendant opposing summary judgment
should contain 675
Order 10 Rule 1 & 2 High Court of Lagos State
Civil Procedure Rules 1972 – purport – 675
Order 10 High Court of Lagos (Civil Procedure)
rules – plaintiff’s verifying affidavit nature and content 676
Order 10 high court of Lagos state civil procedure
rules 1972 – purpose – how to disclose good defence. 676
Order 10 procedure – duty of court under order 10 procedure. 677
Order 10 procedure – nature of order 10 procedure. 677
Order 10 procedure – requirements of order 10 procedure 678
Order 10 procedure – when defendant will be
granted leave to defend. 678
Principles guiding exercise of discretion by trial court to grant
leave to defend under summary judgment procedure. 678
Principles guiding exercise of discretion by trial court to grant
leave to defend under summary judgment procedure. 679
Procedure for summary judgment 679
Purport and principles of summary judgment procedure. 679
Purpose of summary judgment procedure 680
Purpose of summary judgment procedure. 680
Raising objection to competence of deponent of
affidavit in support of summary judgment 681
Under Order 10 High Court of Lagos Civil Procedure
rules 1s judgment on the merit 681
Under Order 10 High Court of Lagos Civil Procedure Rules
– differences between summary judgment under order
10 and undefended list- 682
Under Order 10 High Court of Lagos Civil Procedure
rules – setting aside summary judgment under Order
10 High Court of Lagos Civil Procedure Rules – Order
24 Rule 15 – whether need to file statement of defence. 682
What affidavit of defendant seeking to satisfy the court
that he has a good defence to a claim for summary judgment
must contain. 683
What defendant’s affidavit under summary judgment
procedure must contain. 683
When summary judgment may be given. 683
Who is competent to depose to an affidavit verifying
facts in support of application for summary judgment. 684
TRANSFER OF CASES
Whether a case can be transferred from one state to another? 684
TRESSPASS
Whether trespass is a violation of possessory rights and whether
all claim in trespass can only be brought by one in possession
or one who has a right to possession. 685
Whether trespass is actionable perse 685
TRIABLE ISSUE
Determination of whether defence raises triable issue in
undefended list proceeding. 686
Whether there is need for defendant who filed a notice of
intention to defend an action in an undefended list to
disclose in its affidavit, existence of triable issue. 686
TRIAL
Agreement to jeopardise fair trial. 687
Effect of order of trial de novo. 688
Speedy trial 688
Venue of trial. 689
Whether principle of fair hearing can be sacrificed for
speedy hearing of cases 690
UNCHALLENGED AND UNCONTRADICTED EVIDENCE
Duty on court thereby. 690
UNDEFENDED LIST
Aim of rules of court relating to undefended list procedure. 691
Aim of undefended list procedure. 691
Claim cognizable under the undefended list. 691
Condition precedent to validity of notice of intention to
defend action under the undefended list procedure. 693
Conditions that must be present before a claim can issue
under the undefended list procedure. Order 23, rule 1 of the
high court of plateau state civil procedure rules considered 693
Content of affidavit in support of notice of intention to defend – what
it should establish- whether incumbent on plaintiff to lead oral
evidence on the merit – Order 24 Rule 9 (4) High Court Civil
Procedure Rules Anambra State (applicable to Enugu State). 694
Defence available to a defendant under the undefended list
where plaintiff claims repayment of loan. 695
Duty on court in actions instituted under the undefended
list procedure. 695
Duty on plaintiff to establish service of processes under
undefended list procedure 696
Duty on trial court to transfer matter to general cause list
where issue of negligence requiring proper pleadings and
oral evidence arises. 697
Effect of defendant showing intention to defend while
plaintiff filing interrogatories 698
General principles guiding proceedings thereunder. 699
Nature of defence required for the transfer of a claim. 699
Need for court to be satisfied by defendant’s deposition in
allowing a defence to an action under the undefended list. 700
Object of the undefended list procedure 700
Object of undefended list procedure. 701
Principles applicable 701
Principles governing undefended list proceedings 702
Propriety of filing a preliminary objection challenging a suit
brought under the undefended list procedure 703
Purpose of the rules of the undefended list procedure. 704
Purpose of undefended list procedure 704, 705
Purport of undefended list procedure, procedure for commencement
of action thereunder, duty of plaintiff to comply with rules for
and onus on defendant intending to defend, Federal High Court
(Civil Procedure) Rules, Order 3, Rules 9 – 13 considered. 706
When a defence contained in a counter-affidavit in undefended
list procedure is on the merit. 706
What a defence must show for an application for transfer of an
action from the undefended list to the general cause list. 707
What a defendant in an action on the undefended list must
disclose in his affidavit of intention to defend before he is let in to
defend the suit. 707
What a defendant under undefended list procedure needs
establish to secure transfer of case to general cause list. 709
What amounts to a triable issue in the context of an
undefended list proceeding and duty on court when triable
issues are raised therein 711
What defendant’s affidavit in support of intention to defend must
disclose in suit instituted under the undefended list procedure 711
What defendant in undefended list procedure suit must show
before he can be heard 712
What plaintiff’s affidavit in support of action on undefended list
must show 712
When an allegation of fraud can avail a defendant in a suit
under the undefended list. 713
When considering cases under the undefended list. 713
When court is entitled to shut out a defendant or allow a
plaintiff in a suit filed under the undefended list procedure 714
When court will not transfer suit from undefended list to general
cause list. 715
When court will transfer suit from undefended list to general
cause list. 716
When leave to defend action on undefended list will be granted. 716, 717
When misjoinder or non joinder of parties will affect suit on the
underfended list 717
When the burden as to repayment of a debt shifts in an
undefended list action. 718
URGENCY OF AN APPLICATION TO BE HEARD BY THE
HIGH COURT DURING ITS ANNUAL VACATION
What may constitute urgent circumstances for a matter to be
heard during annual vacation of the high court? 718
Whom lies the onus of proving fact of urgency of an application
to be heard by the high court during its annual vacation? 719
VALID PRE-ACTION DEMAND AGAINST COURT BAILIFF
Requirements of valid pre-action demand against court bailiff 719
VENUE OF LITIGATION
Principles guiding construction of contract providing for venue
of litigation 720
VERIFING AFFIDAVIT
Whom onus of filing verifying affidavit lies, High Court of
Anambra State (Civil Procedure) Rules, 1988, Order 37,
Rule 5(4) considered. 721
WITHDRAWAL OF COUNSEL IN COURT
Need to give litigant proper notice where his counsel
withdraws appearance 721
WRIT FOR SERVICE OUT OF JURISDICTION
Endorsement required on writ for service out of jurisdiction
and effect where omitted 722
WRIT OF CERTIORARI
Purpose for which a writ of certiorari will issue 723
Nature and purport of prerogative writ of certiorari. 723
Nature and purport of prerogative writ of certiorari. 725
Conditions for the grant of an order of certiorari. 725
Functions of writ of certiorari/prohibition 726
WRIT OF HABEAS CORPUS
Use of writ of habeas corpus. 726
When writ of habeas corpus ad subjiciendum will issue and
effect thereof 727
Types of writs of habeas corpus 727
WRIT OF MANDAMUS
What applicant for writ of mandamus must establish to justify
grant. 728
Application for – pre-conditions thereto. 728
Whether applicant has to demand for the performance of the
public duty and refused same before an application for order
of mandamus can be invoked – pursuant to Order 47 (2) of
the Federal High Court (Civil Procedure) Rules, 2000. 728
WRIT OF SUMMONS
How competence of writ of summons may be challenged. 733
Nature and contents of a writ of summons. 734
WRIT OF SUMMONS AND STATEMENT OF CLAIM
Distinction between writ of summons and statement of claim 734
Supercession of writ of summons by statement of claim 735
WRIT OF SUMMONS FOR SERVICE OUTSIDE JURISDICTION
Basis of endorsement required on writ of summons for
service outside jurisdiction 735
Effect of failure to endorse writ of summons to be served
outside court jurisdiction 736
Effect of failure to make statutory endorsement on writ of
summons for service outside jurisdiction 736
Required endorsement on writ of summons for service outside
jurisdiction 737
Required endorsement on writ of summons or originating process
for service outside jurisdiction 737
Time limited for appearance to a writ of summons served outside
jurisdiction 737
When failure to endorse time limited for appearance
to writ of summons served outside jurisdiction is not fatal 738
Who has duty to make endorsement required on writ of summons
for service out of jurisdiction 738
WRITS OF HABEAS CORPUS AND CERTIORARI/PROHIBITION
Contrast and comparison of writs of habeas corpus and
certiorari/prohibition 739