HOW TO COMMENCE A CIVIL PROCEEDING IN THE HIGH COURT

Introduction

In Nigeria, an action is deemed instituted when a party invokes the jurisdiction of a court to seek legal redress. Civil proceedings are regulated mainly by the rules of court, each court operating under its own set of rules. Usually made by authorities prescribed by statute establishing the court[1].

There are various rules of courts, namely;

• Supreme Court Rules, 2024
• Court of Appeal Rules
• Federal High Court Rules
• High Court of the Federal Capital Territory (Civil Procedure Rules) 2018
• High Courts Civil Procedure Rules of various states
• Magistrate/District Court Rules, etc.

Definition

Civil procedure is the process through which a person whose rights have been violated may have recourse to the court for the resolution and determination of the dispute[2]. It is also defined as a body of law that sets out the rules and regulations that courts follow when adjudicating civil suits. These rules regulate how a lawsuit or case may be commenced, service of processes (if any) is required, pleadings or statement of claims to bring before the court, filing of motions or applications, orders allowed in civil cases, the timing and conduct of trials, procedures for judgment, and the process for post-trial procedures[3].

This article examines the various methods of initiating civil proceedings in the High Court, with specific reference to the Lagos State High Court Rules. It also examines categories of parties to a civil suit, outlines limitation periods for various classes of actions, and highlights factors to consider before commencing a civil action in court.

Parties to a Civil Suit

In a civil action, a plaintiff can only sue a living person or a legal person[4]. Parties to civil proceedings must have the capacity to sue and be sued. Generally, any juristic person may bring an action against any other juristic person[5]. A juristic person is a person, office or organization that is regarded by law as being capable of bringing an action or having an action brought against it. A non-existent person cannot bring an action or have an action brought against it[6]. The following have been recognized by the Supreme Court in Gani Fawehinmi v. Nigerian Bar Association & 4 Ors[7] as capable of suing or being sued.

• Natural persons, which refers to any human being.
• Companies incorporated under the Companies and Allied Matters Act 2020.
• Certain unincorporated associations granted the status of legal personae like registered trade unions, partnerships, friendly societies and sole proprietorships.
• Corporations aggregate (collection of individuals) and corporations sole (e.g., the bishop or a diocese) with perpetual succession.

In law, only legal, natural or artificial persons have the capacity to sue or be sued in their names. A natural person, despite being a recognized person, may lack the capacity to initiate proceedings or be sued as a party. This lack of capacity may be considered under the following:

• Adults:They have full legal capacity to sue or be sued in their own names.
• Infants:They lack the capacity to sue or be sued directly. An infant may institute proceedings as a plaintiff by their next friends and may be defended by their guardian ad litem appointed for that purpose, who must enter appearance on their behalf[8].

• Lunatics or Persons of unsound mind: These categories of persons lack the capacity to sue in their own names. They may sue as plaintiffs through their committees in lunacy or next friends and may likewise defend actions through their committees or guardians appointed for that purpose, who must enter appearance on their behalf[9].

• Locus Standi: Before instituting or defending an action, a party must possess locus standi. In Senator Abraham Adesanya v. President of the Federal Republic of Nigeria[10], locus standi was defined as the interest a party has in the subject matter of a suit. In Gani Fawehinmi v. IGP[11]. The Supreme Court reiterated that Section 6(6)(b) of the 1999 Constitution does not confer locus standi on a litigant but merely vests jurisdiction in the court to determine questions relating to civil rights and obligations. Where a party lacks locus standi, the court cannot assume jurisdiction[12], as it is a condition precedent to determining a case on the merit[13].

 

Types of Parties

• Proper Parties:This refers to persons who are directly involved in the cause of action. This is the plaintiff who sustained the injury or loss, and the defendant, whose conduct is alleged to have occasioned the damage or injury. See Mobil Producing Nig v LASEPA[14].

• Desirable Parties:These are persons who has interest in the proceedings or whose rights may be adversely affected by the outcome of the suit. Their interests would be prejudiced if they are not joined as parties to the suit. See  G Federation v. A. G Abia State & 35 Ors[15].
• Necessary Parties: These are parties who are not only interested in the subject matter of the suit, but whose presence is indispensable to the fair and just determination of the matter. In their absence, the court cannot properly adjudicate on the issue before it. See Green v. Green[16] and Babayeju v. Ashamu[17].
• Nominal Parties: These are parties who has no direct interest in the subject matter of the suit but are joined by virtue of the office they occupy. For example, the Attorney General of a State or the Federation may be made a party in actions instituted against the Government[18].

 

Factors to be considered before commencing a civil suit

• Venue: The venue in which an action may be heard or determined is an aspect of court’s jurisdiction. A suit filed in the wrong judicial division may still be tried there unless the Chief Judge directs otherwise[19]. The High Court rules prescribe the judicial division in which an action should be instituted. For example; Lagos State High Court (Civil Procedure) Rules provide that land matters must be commenced and determined in the division where the land is situate, while actions for breach of contract or specific performance should be filed in the division where the contract was to be performed[20].
• Jurisdiction: Jurisdiction of court is the authority a court has to decide matters that are litigated before it, and what determines the jurisdiction of the court to adjudicate over a matter is strictly circumscribed by the provisions of the Constitution or the enabling statute establishing the court[21]. Jurisdiction of a court is a fundamental issue in any proceeding, and as such, it can be challenged at any time or stage, even for the first time at the Supreme Court[22]. It is therefore necessary that a court must have the requisite jurisdiction before determining a suit, because once it is shown by the defendant that the court or tribunal adjudicating on the issue lacks jurisdiction at any stage of the proceeding, the entire proceeding, however well conducted, will be rendered null and void[23]. Determinant of jurisdiction usually arises from the court being properly constituted in terms of numbers and qualifications of the judges (b) the subject matter is within the jurisdiction of the court; and (c) the case is initiated by due process of law[24].
• Limitation of Action: There is a statutory limitation period applicable to all actions that may be instituted in court. The rationale behind statutes of limitation is to prevent litigants from sleeping on their rights and to ensure that claims are pursued promptly once a wrong has been committed. Counsel for the plaintiff must always consider whether the cause of action is statute-barred before incurring the expense of litigation. Any action commenced outside the period prescribed by statute is incompetent, even if it exceeds the limitation period by a single day. Once an action is found to be statute-barred, the court lacks jurisdiction to entertain it, it is immaterial whether or not the suit has merit, no court has jurisdiction to entertain such a suit[25].
• Existence of cause of Action: A cause of action is an act or omission by a person that gives another person the right to maintain an action in court. These are the events that gave rise to a civil action. It forms the basis upon which a person is entitled to obtain a remedy against another in Court. The cause of action is founded in the relief or claim sought by the litigant[26].
• Alternative Dispute Resolution (ADR): Parties to a civil suit may choose to resolve their dispute outside the courtroom through alternative dispute resolution (ADR) before filing a case in court. ADR methods include arbitration, negotiation, and [27] Rules of the Court: Every court in Nigeria operates under specific rules that bind the court, litigants, and legal practitioners. These rules must be strictly followed when initiating an action. Lawyers are advised to consult the rules of relevant courts, whether Magistrate Court, High Court, National Industrial Court, or Federal High Court to determine the proper procedure to commence a suit[28].
• Pre-action counselling: This is a procedural requirement that mandates a Counsel to inform the plaintiff on the relative strengths and weaknesses of his case before initiating his proceeding in court[29].

 

Limitation periods for different classes of action and the law applicable in Lagos:

Limitation laws are not mere procedural requirements; they buttress the principles of fairness, efficiency, and ensure legal certainty. The objective of limitation periods is to ensure that all claims are litigated diligently and timeously while evidence is still available and memory is intact[30]. Thus, the principle of limitation of action is founded on the legal policy that litigation should have an end[31].

Examples of limitation periods for different classes of action include:

• Action founded on simple contract: Action on simple contracts must be commenced within 6 (six) years of its occurrence. Section 8(1)(a) Limitation Law, Lagos 2005[32].
• Action for damages for negligence, nuisance or breach of duty: Must be commenced within 3 (three) years of committing the offence. Section 9 Limitation Law, Lagos State.
• Action claiming damages for slander: Must be commenced within 3 (three) years of its occurrence. Section 10, Limitation Law, Lagos.
• An action upon an instrument under seal: It must be commenced within 12 (twelve) years of the date on which the cause of action accrued. This is provided in Section 12, Limitation Law, Lagos[33].

• Action by the state authority to recover land: Must be commenced within 20 (twenty) years from the date on which the right of action accrued to the state authority. See Section 16, limitation law, Lagos[34].

• Action for recovery of land by (Individual): Must be commenced within 12 (twelve) years from the date on which the right of action accrued to the individual other than the state authority[35].

• Actions against public officers: Must be commenced within 3 (three) months by virtue of Section 2(a) Public Officers Protection Act[36].

 

Modes of Commencing Action in High Court

Generally, there are four (4) ways to commence civil action in the High Court[37]:

Writ of Summons: A writ serves to notify the defendants that a legal action has been commenced against them and requires their appearance in court to respond to the claims made by the plaintiff. It outlines the nature of the action and informs the defendant of the time frame within which they must respond, typically by entering an appearance in court. This is the most common method of commencing actions at the High Court, except where particular rules, law or other statutes provide otherwise[38] . It is used where facts in issue are contentious or where statutes, rules or laws specifically provide for it. Also, where there is uncertainty as to the mode to commence an action, a writ of summons can be used[39].

A writ of Summons is a form used in commencing all proceedings where:

1. A claimant claims:
2. Any relief or remedy for any Civil wrong or;
3. Damage for breach of duty, whether contractual, statutory or otherwise; Or

• Damages for personal injuries to or wrongful death of any person, or in respect of damages or injury to any property.

1. Where the claim is based on or includes an allegation of fraud, or
2. An Interested person claims a declaration[40].

All civil proceedings commenced by writ of Summons are expected to accompany the following documents:

1. Statement of claim; (ii) List of witnesses to be called at the trial
2. List of witnesses to be called at the trial

• Written Statements on Oath of the Witnesses; and

1. Copies of documents to be relied on at the trial
2. Pre-Action Protocol Form 01 with necessary documents[41].

The procedure is otherwise known as front-loading system as it allows for quick dispensation of cases[42].

Originating Summons: This procedure is used where facts are not in dispute, or where there is no likelihood of them being in dispute[43]. It is used for non-contentious matters, typically where the sole or principal issue borders on the interpretation of a written law, instrument, deed, contract, or other document. When an action is commenced by originating summons, pleadings are not required. Instead, the proceedings rely solely on affidavit evidence. All exhibits to be relied upon, together with a written address in support of the application and compliance with pre-action protocols, must be filed alongside the originating process[44].

Examples of actions to be commenced by this mode:

• Action for the interpretation of a written law, documents,
• Will, contract agreement or some other question of law.
• Interpretation of any instrument or deed,
• Company proceedings[45].

 

Originating Motion (or Application): This mode of commencing action is mostly used only if it is provided for by the statute or a rule of court. An action commenced by way of originating motion usually consists of the applicant and the respondent. Therefore, where a statute provides that an application may be made but does not provide for any special procedure, then an originating motion can be used.

Examples of actions to be commenced by originating motion:

• Application for judicial review.

• Application for habeas corpus

• Prohibition or certiorari,
• Action for the enforcement of fundamental rights under the Fundamental Rights Enforcement Procedure rules 2009

• Order for mandamus[46]

Petition: A suit may be commenced by originating motion or petition where either by the rules or under any written law, the suit in question is required or authorised to be so begun, but not otherwise.[47] This particular process is similar to the originating motion. It is mostly used where a statute or rules of court provide for it.

Examples of suits to be commenced by Petition include:

• Election petitions
• Winding up of companies under the CAMA
• Dissolution of marriage-matrimonial proceedings.

Conclusion

Understanding the modes of instituting an action in court is fundamental to civil proceedings in Nigeria. Whether by writ of summons, originating summons, originating motion, or petition, the chosen procedure must comply with statutory and procedural requirements. A civil action may therefore be commenced through any of these processes, depending on the subject matter of the dispute and the applicable rules of court at the time of bringing the claim.

This article is provided for general informational and educational purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal counsel. Readers are advised to seek specific legal advice on any matter discussed herein.

[1] https://legalportalng.wordpress.com/law-school/law-school-notes/civil-procedure/

[2] https://www.learnnigerianlaw.com/learn/legal-system/procedures

[3] Ibid

[4]  Kwara Investment Co. Ltd. v. Garuba (2000) 10 NWLR (Pt. 674) 25

[5] Jide Olakanmi, Civil Litigation: Synopsis, (2019 edition)

[6] Ibid

[7] (S.C. 229/1986) [1989] NGSC 10

[8] Ernest Ojukwu & Chudi Nelson Ojukwu ‘’Introduction to Civil Procedure’’, 2009 (3^rd Edition)

[9] Ibid

[10] (1981) All N.L.R. 1 SC

[11] (2002) 7 NWLR (pt. 767) 606

[12] Jide Olakanmi, Civil Litigation: Synopsis, (2019 edition)

[13] Ibid

[14] (2002) 18 NWLR (Pt. 798) 1

[15] (2002) 6 NWLR (Pt. 763) 264.

[16] (1987) 3 NWLR (Pt. 61) p. 480

[17] (1998) 9 NWLR (Pt. 567) p. 546

[18]  https://cjokoyelawview.com/civil-litigation/week-5-parties-to-a-civil-suit

[19] Order 4 Rule 3, High Court of Lagos State (Civil Procedure) Rules 2019

[20] Order 4 Rule 1, High Court of Lagos State (Civil Procedure) Rules 2019

[21] Nwanze v. N.R.C. (2022) 18 NWLR (Pt. 1862) 265 SC

[22] Madukolu v. Nkemdilim (1962)2 SCNLR 341

[23] Kurma v. Sauwa (2019)3 NWLR (Pt. 1659) 247

[24] Eze v. P.D.P. (2019) 1 NWLR (Pt. 1652) 1

[25] Useni v. Atta (2023) 8 NWLR (P.546, paras. F-G)

[26] A.-G Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 663

[27] Order 28 Rule High Court of Lagos State (Civil Procedure Rules) 2019

[28] https://www.resolutionlawng.com/how-to-commence-civil-action-in-nigeria/

[29] Order 5 Rule 2(e) High Court of Lagos State (Civil Procedure Rules) 2019

[30] Sulgrave Holdings Inc v. Federal Government of Nigeria (2012) 17 NWLR 4 (Pt. 1329) 309, 343.

[31] Nasir v. C.S.C Kano (2010) 6 NWLR (Pt. 1190) 253

[32] Ibid

[33] Ibid

[34] Ibid

[35] Section 16(2) Limitation Law of Lagos State, 2005

[36] Ibid

[37] Oruku v. Oruku (2024) 1 NWLR (Pt. 1919) 371

[38] Nwadialo, F, “Civil Procedure in Nigeria”, 2nd Edition, (Lagos: University of Lagos Press, 2000) Pg. 615

[39] Doherty V Doherty (1968) NMLR 241

[40] Order 5 Rule 1, High Court of Lagos State (Civil Procedure Rules) 2019

[41] Order 5 Rule 2 High Court of Lagos State (Civil Procedure Rules) 2019

[42] Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) 114 at 146, per Agube JCA

[43] [43] Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59 SC

[44] Order 5 Rule 4, High Court of Lagos State (Civil Procedure Rules) 2019

[45] Shema v. Gov. Katsina State (2020) 5 NWLR (Pp. 217, paras. C-E) CA

[46] U.B.A. v. Ekpo (2003) 12 NWLR (Pt. 834) 332

[47] Ibid