Method of Commencing Action in the Magistrate Court in Nigeria
How proceedings are initiated in the magistrate court.
-LAGOS AND ABUJA AS A CASE STUDY.
(A) Magistrate Court in Lagos
Under ord 1, Magistrate’s Courts (Civil Procedure) Rules, two forms of commencement are provided:
A person can institute an action using any of the following:
1. Claim: see O. 1 R. 1 of the Magistrate Court Rules of Lagos 2009. The claim is to be attached with Particulars of Claim.
2. Originating Application: See O. 1 R. 2(a) (b) &(c) of the Magistrate Court Rules of Lagos 2009. It is used when facts are not in argument.
Procedure in the use of CLAIM
1. Claimant to deliver to the Registrar of the Court, a praecipe in Civil Form 1 of the Appendix to the Rules together with Particulars of claim signed by the claimant.
2. Registrar to go into claim on Civil Cause Book
3. The Registrar will issue and serve the defendant Ordinary Summons for contentious matters while Summary Summon for non-contested matters (CIVIL FORM 4 with Form 4A annexed) and the Particulars of Claim. See O. 2 R. 4 of the Magistrate Court Rules of Lagos 2009
4. The defendant is to respond to the Claim within 6 days in Civil Form A4. The likely steps to be taken by the defendant are:
a. Request for further particulars within 6 days
b. File a defence or counter-claim within 6 days
c. File a counter-claim against another person and ask for time to permit him add the person as a defendant
d. Tender before action the subject matter of the suit.
See O. 2 R. 4-8 of the Magistrate Court Rules of Lagos 2009
This is used when the claimant wants a quick judgment. After filing a Claim with the Particulars of Claim, the Claimant will request via a letter to the Registrar to endorse the Claim as a Summary Summons. See O. 3 R. 1 of the Magistrate Court Rules of Lagos 2009.
The defendant may do any of the following upon receipt of the claimant’s processes:
1. File a counter-claim within 5 days if he has a defence to it
Failure to do any of the above will entitle the claimant to apply and judgment in default will be given. See O. 3 R. 4 of the Magistrate Court Rules of Lagos 2009. If the defendant admits it, the claimant is to within 5 days, file an acceptance or rejection of the admission. The life span of summary summons is 3 months. See O. 3 R. 8 of the Magistrate Court Rules of Lagos 2009.
Actions commenced by Originating Application. Order 1 R.8(1)
Used where proceedings are empowered to be commenced in Magistrate Court and not required to be commenced otherwise, such proceedings to be commenced by originating application and shall be referred as action. It shall be in writing, stating the order applied for and sufficient particulars showing the grounds for which the applicant makes the application.
(B) Methods of commencing actions in District Courts in Abuja are by:
1. Plaint, Form 1
2. Default summons
3. Originating application
It is to be filed along with a Particulars of Claim. The Registrar will then issue a plaint observe to the applicant. The Registrar will issue and serve Ordinary summons in Form 6 with the Particulars of Claim to the defendant. It is issued outside the jurisdiction with the leave of the Court. See Nicholas V. General Manager Nig. Railway Ltd.
Default Summons-Form 7
This is used in liquidated money need which the Plaintiff feels the defendant will not have any reasonable defence to it. This is issued after the Plaintiff has filed a Plaint with his Particulars of Claim supported with an affidavit in Form 8. The Registrar will then issue and serve the default Summons in Form 7 annexed with Form 7A used to go into defence on the defendant. The defendant is to reply within 16 days by way of denial, counter-claim, and request for time or tender before the action contained in his Notice of Intention to defend. If the defendant does not respond in 10 days, judgment may be entered against him if proven that he was served with Form 9. The judgment can be set aside if the debt has been satisfied.
Abandonment of excesses
Here a Plaintiff/Claimant claiming above N250, 000 in Abuja or N10, 000, 000.00 in Lagos of the general monetary jurisdiction of the Magistrate, will have to forego the excess amount otherwise the Court will without the competence to sit on the matter. The fact that a Claimant/Plaintiff foregoes the excess in his claim must be stated in the Particulars of Claim before the Court. The effect of abandonment is that no separate action can be commenced to retrieve the excess amount abandoned.