#1Civil Procedure in Nigeria A Practice Guide with Legal Precedents and Formats#2Empty#3Civil Procedure in Nigeria A Practice Guide with Legal Precedents and Formats Basil Momodu Esq.#4Basil Momodu Esq., 2023 All Rights Reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise stored in any retrieval system of any nature without the written permission of the copyright holder. First Published May, 2023. ISBN: 978-978-797-416-2 Momodu B. Law Publishing, Benin City, Nigeria. Phone: 07051822705. [email protected].#5Dedication "But as it is written Eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which God hath prepared for them that love him." -1 Corinthians 2:9 V#6Preface Recently, some legal reforms were carried out by many States in Nigeria to improve access to justice and promote efficient disposal of civil matters. Specifically, the reforms were aimed at helping parties towards expeditious resolution of their disputes, improve their confidence in the court system and reduce the cost of litigation to enhance justice delivery. The efforts culminated in the emergence of new civil procedure rules in many courts. The Federal High Court and Lagos State High Court brought forth their new rules in 2019. The Federal Capital Territory, Abuja, brought forth the 2018 rules. With the 2021 rules and numerous Practice Directions made in 2021, the Court of Appeal was not left out in the legal wind of change. Needless to say that the changes introduced into the rules of procedure by the new rules rendered many of the existing textbooks on the subject of civil procedure obsolete and useless for nearly all practical purposes. This book, apart from capturing the essence of the recent reforms with its case-law based explanations of new concepts and procedures, provides a graphic picture of the modern civil procedure of courts in Nigeria with the aid of carefully drafted legal precedents and formats. The book is arranged in bits, section by section contrary to the conventional method of arranging books chapter by chapter. This is to encourage a bit by bit reading for easier understanding in view of the expansive nature of the subject. Relevant issues relating to each topic were examined within the parameters of recent cases decided by the Court of Appeal and the Supreme Court. Relevant statutes, extant rules of courts especially the Federal High Court (Civil Procedure) Rules, 2019, Lagos State High Court (Civil Procedure) Rules, 2019, High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018, the Court of Appeal Rules, 2021 and the Supreme Court Rules, 1985 were examined with overflowing abundance of judicial authorities. It is our hope that lawyers in litigation practice, judges and other stakeholders in justice delivery will find the book immensely useful. I am grateful to all who helped in the preparation of this book in one way or another especially my beautiful wife, Iriagbonse Momodu; my son, Osikhe Momodu; my daughter, Osise Momodu and Mrs Grace Amao for her secretarial works. All errors in the book are mine. Basil Momodu Esq. March, 2023. vi#7Dedication Preface Contents Abbreviations Contents CIVIL PROCEDURE: An overview SECTION 1 (A): Cause of Action Reasonable cause of action, when disclosed in a suit and how determined V vi vii 1 9 • How to establish a cause of action 120 • Effect where there is no cause of action against one of many defendants 13 • Effect of filing an application to strike out or dismiss on ground of no reasonable cause of action 13 SECTION 1 (B): Pre-Action Notice • • Jurisdictional nature of issue of non-service of pre-action notice When pre-action notice can be unconstitutional • When it is not necessary to serve pre-action notice 1667 14 . Objection to competence of suit on ground of failure to issue pre-action notice and need for same to be pleaded . Form of pre-actio notice . Some statutes requesting pre-action notice to be served . • 19 20 20 22222 Pre-action notice - State proceeding Law of Anambra State 1991 21 Sample pre-action notice • Precedent on prayers and grounds of objection challenging competence of suit for non-issuance of pre-action notice 23 vii#8SECTION 1 (C) : Locus Standi • Tests for determining locus standi to sue in an action Test of sufficient legal interest Effect of lack of locus standi on the jurisdiction of court . Order court may make where party lacks locus standi • Locus standi vested by the operation of law 28 • Process court looks at to determine issue of locus standi • Distinction between locus standi and reasonable cause of action 28 222222222 23 24 25 26 27 28 . Application to dispute court's jurisdiction on ground of locus standi 29 Whether donee of a power of attorney has locus standi to institute an action on behalf of the donor in his personal name Sample precedent for preliminary objection challenging the locus standi of the plaintiff SECTION 1 (D): Limitation of Action 29 29 30 30 37 32 • When cause of action accrues and determining whether an action is statute-barred 39 Effect of a statute-barred action 41 • Need to plead limitation laws and procedure for raising question of limitation of action • Exceptions to application of law on limitation of action • Proper order where an action is statute barred . Limitation period for some actions 7777 42 42 43 43 • Precedent on prayers and grounds of objection in application challenging competence of suit based on limitation law 44 44 SECTION 1 (E): Defective Processes . Nature and purpose of writ of summons and effect where defective Who issues and signs a writ of summons and other court 44 45 45 processes and effects where not signed 47 Whether an incompetent process can be amended 480 50 . Effect of incompetent process and principles guiding determination of competing applications 51 Failure to affix seal and stamp or affixing receipt of payment of same on a court process 51 viii#9SECTION 1 (F): Abuse of Court Process . • When, how issue of abuse of court process can he raised and duty of court Scope of abuse of court process 52 62 53 54 345 When an action cannot be said to be an abuse of court process 55 SECTION 1 (G): Res Judicata Conditions for successful plea of res judicata 56 $$ 58 Relevant considerations guiding determination of application of estoppel per rem judicatam 59 Duty on party seeking the striking out or dismissal of a suit on the ground of res judicata 60 60 Test for determination of whether or not an issue has been finally determined for plea of res judicata 60 . Whether a defendant whose favour an arbitration body resolves a dispute can rely on plea of estoppel per rem judicatam Precedent on prayers and grounds of objection challenging competence of suit based on plea of res judicata SECTION 1 (H): Legal Personality • Categories of juristic personality • 60 61 62 63 64 66 • How to prove legal personality of a company or registered trustees Legal personality status of companies not incorporated in Nigeria 64 Whether takeover of company amounts to dissolution . of its legal personality 99 65 . Legal effect of liquidation or receivership on legal personality of company . Effect when action is instituted against non-legal person LOLO 65 65 SECTION 1 (1): Immunity . . Constitutional immunity under section 308 of the 1999 Constitution 66 Whether constitutionalimmunityfrom legal proceedings undersection 308, 1999 Constitution applies to election petition 66 66 matters ix 67#10. . • The concept of diplomatic immunity When international organisations have immunity from suits and legal process in Nigeria Effect where civil proceedings is instituted against a person covered by immunity 20 67 68 80 68 860 SECTION 1 (J): Academic, Speculative or Hypothetical Suit 69 . When a suit is academic When a suit is speculative When a suit is hypothetical SECTION 1 (K): Filing Fees 69 69 28 69 70 70 . Distinction between non-payment and inadequate filling fees and effects on jurisdiction of court 70 • Onus on person alleging non-payment of filing fees 71 • SECTION 1 (L): Disputing Court's Jurisdiction Raising objection to jurisdiction Application to dispute court's jurisdiction Failure to apply within time 71 73 What determines jurisdiction of a trial court 73 74 75 • Duty on court where its jurisdiction is challenged 75 . Where court raises issue of jurisdiction suo motu 76 . Issue of jurisdiction in arbitral proceedings 76 Laws governing determination of action and issue of jurisdiction 77 . Which of two courts should hear a matter where one has jurisdiction over principal and entire claims in a suit and other has jurisdiction over a part of the claims 77 Civil jurisdiction of the High Court of a State and the Federal Capital Territory 77 . Whether the High Court has jurisdiction over land subject of customary right of occupancy Scope of jurisdiction of National Industrial Court 80 78 78 X#11. • • Effect of section 254 C (1) of the 1999 Constitution (as amended) on sections 38 and 41 of the Workmen's Compensation Act Determining the exclusive jurisdiction of the Federal High Court under section 251 of the 1999 Constitution Exclusive jurisdiction on the Federal High Court over matters connected with banks and banking vis-à-vis unlimited jurisdiction of the High Court 80 60 81 32 82 . Exclusive jurisdiction of the Federal High Court over matters pertaining to the taxation of companies .... 84 . Exclusive jurisdiction of Federal High Court over copyright, patent, designs and trademark matters 85 59 . Exclusive jurisdiction of Federal High Court over operation of companies Exclusive jurisdiction of the Federal High Court over 85 85 aviation matters 98 86 . Extent and scope of the admiralty jurisdiction of the Federal High Court 86 90 . Whether Federal High Court has jurisdiction over matters relating to tort, contract and title to land 80 87 . Whether claim for compensation for fatal accident within exclusive jurisdiction of Federal High Court . Exclusive jurisdiction of Investment and Securities Tribunal • Nature and scope of jurisdiction of special or general court martial . Extent and scope of jurisdiction of Election Tribunal 888888 89 89 SECTION 2 (A): Place of Trial of Suits 92 92 . Place of instituting and trial of suit under the High Court of Lagos State (Civil Procedure) Rules, 2019 (HCLR 2019) 93 Place of instituting and trial of suit under the Federal High Court (Civil Procedure) Rules, 2019 (FHCR 2019) Effect of the phrase "subject to" as used in Order 2 R 1(1) FHCR 2019 and Or. 4R1 HCLR 2019 94 95 Taxation of companies and persons subject to federal taxation 96 xi#12. • . • Place of trial of suit against a non-resident company liable to pay tax Any other person subject to federal taxation Recovery of revenue, penalty and forfeiture What amount to penalty and forfeiture? 97 97 98 98 . Action against a public officer 99 . . Specific performance or the breach of any contract Customs, excise, tariff, etc 99 100 . Diplomatic, consular or foreign trade representation 100 . Citizenship naturalisation and aliens, repatriation of a person etc 101 • Copyright, patent, design, trademark and merchandise mark 101 . Land and mortgages 102 . Fundamental rights actions 102 . Any other suit not specifically mentioned 102 . Where there is more than one defendant resident in different judicial divisions 103 When suit commenced in a wrong judicial division may be transferred 103 SECTION 2 (B): Parties 105 • Proper, desirable and necessary parties 106 . Determining necessary parties 106 Action in the name of the wrong parties 107 When there is a misnomer 107 Where plaintiff is in doubt as to person from • . • . whom he seeks redress Defendant need not be interested in all the relief sought Action by and against a person under legal disability Application to add or strike out or vary name of plaintiff or defendant and service on a party whose name is added Alteration of parties Sample motion on notice for substitution of party Where there is no legal personal representative of a deceased person 108 108 108 109 111 112 114 xii#13. . • . . . Where court may makes order enabling suit to proceed Application to discharge order by person under disability Actions against firms and persons carrying on business in names other than their own Disclosures of partners' names Appearance of partners Persons trading as firms 114 115 115 116 116 117 . Legal practitioners or agents 117 . Change of Counsel 117 SECTION 2 (C): Joinder of Parties 118 When joinder of parties permissible 120 Whether person can be joined as plaintiff without his consent Whether necessary to join the President where Attorney-General of the Federation is a party in a matter 120 121 SECTION 2 (D): Joinder of Causes of Action 121 • Causes of action that can be conveniently tried together 122 . Claim in respect of two or more causes of action by plaintiff or defendant 122 SECTION 2 (E): Third Party Notice 123 Application for leave to issue a third party notice and serve same 124 . Scope and application of third party proceedings 125 Appearance by third party 125 . . Default of appearance and pleading by third party Procedure after default of appearance of third party Directions in third party notice 126 126 127 . Leave to defend in third party proceedings 127 . Judgement to be entered at or after trial in third party proceedings 128 Form of third party notice claiming indemnity or contribution or other relief or remedy 129 xiii#14SECTION 2 (F): Representative Action Ingredients of representative action Parties to a representative action and rights of both 13333 named and un-named plaintiffs 134 • Who can challenge and how to challenge authority to sue or defend in representative capacity 134 SECTION 2 (G): Class Action 135 . When court may appoint person as representative of another person or class of persons in an action 136 • Differences between class action and representative action 137 SECTION 2 (H): Consolidation 137 Condition for consolidation of action 138 Whether a court has discretion to consolidate several actions pending before it 139 SECTION 3 (A): Commencement of Civil Action • Mode of commencement of suits - Federal High Court Rules . • Mode of commencement of suits - High Court of Lagos State (Civil Procedure) Rules (HCLR) 2019 Writ of summons བཅུ སྦུ¥ 141 141 142 142 • Purpose, nature and importance of writ of summons and effect where defective 143 • Whom lies the duty of issuing and signing writ of summons and effect of failure to sign 143 • Documents accompanying proceedings commenced by writ of summons 145 • Non-compliance with the frontloading requirements and certain other rules 146 • Written statement on oath of the witness accompanying writ of summons and election petition 147 Status of witness deposition and duty on court in respect of and whether can be amended 148 xiv#15• Whether an affidavit and written statement on oath are similar in form 148 . When statement on oath can be amended Statement of claim accompanying proceedings 149 commenced by writ of summons 149 • Dispute survey plan need not be filed at the commencement of a suit 150 Affidavit of non-multiplicity of action on the same subject matter 150 . Effect where plaintiff fails to comply with frontloading requirements 151 • Indorsements on originating process 151 • Preparation and sealing of originating process 153 . Form of writ of summons 154 . Indorsement as to service 155 SECTION 3 (B): Originating Summons Proceedings 161 • Forms of originating summons 161 . Requirement of raising questions in an originating summons before reliefs claimed 162 . When originating summons is deemed issued and effect when found improper to commence a case 164 Documents accompanying originating summons 165 . • Failure to file accompanying documents along with originating process Affidavit and exhibits in originating summons proceedings 165 165 • Whether verifying affidavit must accompany originating summons in commencement of action 166 SECTION 3 (C): Petitions 169 • Contents of a petition . Petition under the Lagos Rules . Indorsement of renewal 169 170 170 • • Loss of originating process Loss of originating process Sample of a petition 171 171 171 XV#16SECTION 3 (D): Case Management Conference (Pre-Trial Conference) 173 . Application for the issuance of a case management conference notice 174 Sample application for the issuance of a case management conference notice 175 . Purpose of pre-trial conference and pre-hearing notice 176 • Agenda at the case management conference 177 - Time table and trial direction 178 . Special Case by consent or by order before trial 179 Interrogatories at the case management conference Order to answer or answer further 179 180 . Application for discovery of documents 180 . Processes filed after case management conference 180 . Further and better Statement or Particulars 180 • Striking out of Pleadings 181 . Application to set aside judgement and ADR directives 181 . Sanctions 181 . Rejection of offer of settlement - costs 181 . Notice to Admit Document or facts 182 . Delivery of judgement at or after trial or upon admission of facts 182 . Order for recovery of specific property other than land subject to lien, etc 183 . Applying for Case Management Conference under fast track procedure 183 Time limited for case management conference under the fast track procedure 183 Trial direction at case management conference under the fast track procedure 184 . Hearing Notice for Case Management Conference 184 • Case Management Information Sheet 185 xvi#17SECTION 3 (E): Categories Irregularities in Civil Proceedings 189 • When to raise preliminary objection to procedural irregularity 190 Categories of irregularities that may occur in a court's proceeding 190 • When appellate court will interfere with decision of trial court on ground of procedural irregularity 191 Effect of irregularity in form in which oath or affirmation is administered 192 Application to set aside irregularity 192 . Treatment of irregularity in proceedings for enforcement of fundamental rights 192 SECTION 4 (A): Service of Process 194 Service of originating process 194 Lifespan and renewal of a writ for the purpose of service FHCR 2019 195 • Lifespan of originating process under HCLR 196 Form of Memorandum for Renewed Originating Process 197 Concurrent originating process for service within and out of jurisdiction 197 . By whom service is to be effected 197 . How service of process effected 198 . Substituted service of court process 199 Service on employees of government 200 . Service on partners 200 Service upon corporations or companies 201 Service on board ship 202 Service on prisoners, lunatics and persons under legal disability 202 Service on an infant 203 . Service on local agent of principal who is out of jurisdiction 203 Expenses of service 203 Time of service on certain days 204 Recording of service 204 xvii#18• Time limit to enter appearance after service 204 . Procedure of effecting service where violence is threatened 204 • Affidavit of service 205 • Where affidavit of service is disputed 206 207 SECTION 4 (B): Service of Process Outside Jurisdiction Originating process to be served outside jurisdiction to be endorsed and with leave 208 When service out of jurisdiction of a writ of summons may be allowed under FHCR 2019 210 When service out of jurisdiction of originating summons may be allowed under FHCR 2019 211 • Where service of originating process are allowed out of Nigeria under the Lagos rules 212 Application for leave to serve a writ or notice on a defendant out of the jurisdiction 213 • Issuance and service of writ of summons in admiralty action in rem 214 Rules governing issuance and service of court process outside jurisdiction where action in rem and action in personam are combined in admiralty claim 214 • Where leave is granted under the FHCR 2019 215 • Service outside Nigeria under the Civil Aviation Act 216 . Where leave is granted or is not required 217 • Service abroad by letter of request 218 • Mode of service in foreign country with which a convention has been or shall be made 219 • Service on behalf of foreign tribunals under the Lagos rules 220 Sample application for leave to issue and serve originating process out of jurisdiction 221 xviii#19SECTION 4 (C): Action in Rem and in Personam 223 Nature of admiralty action in rem 224 Difference between action in rem and action in personam in admiralty matter 224 SECTION 4 (D): Appearance 225 . Conditional and unconditional appearance 225 • Mode of entering appearance 226 . Recovery of land 228 • Application to appoint a guardian for a person under legal disability 228 • Presumption when Legal practitioner announces appearance in favour defendant 229 . Options open to a defendant wrongfully summoned 230 . Default of appearance 230 • Default of appearance by claimant 231 . Whether matter struck out for default of appearance can be relisted and whether same can ground plea of res judicata 231 . Procedures where the defendant or all of several defendants fail to appear 231 . Where the claim in the originating process is a liquidated demand 232 • Where claim is for pecuniary damages or detention of goods with or without a claim of pecuniary damages 232 • Where it is unnecessary for a plaintiff to proceed for whatever reason 232 . Claim for pecuniary damages or detention of goods and defendant fails to appear 233 Detention of goods, damages and liquidated demand 233 . Judgment for Costs: upon payment, satisfaction etc 234 • Status and effect of default judgment 234 • Setting aside judgement in default of appearance 234 • Sample memorandum of appearance 235 xix#20SECTION 4 (E): Adjournment 236 When court will not grant adjournment 238 Need to resolve first application for adjournment before further proceedings and duty on court where application for adjournment is refused 239 . Letter of adjournment must be formally filed in the court registry in order to have force of law 239 Sample form of application for adjournment SECTION 5 (A): Pleadings 240 241 . Essence of pleadings 241 • Parties are bound by their pleadings 242 . Where pleadings are not supported by evidence 243 . Pleadings to contain material fact not evidence or law 243 • Matters which must be specifically pleaded 244 • Illegality to be specifically pleaded 245 • Statute of limitation to be specifically pleaded 246 • Fraud to be specifically pleaded 247 . Defendant in an action for the recovery of land to plead specifically every ground of defence 249 • Release and performance to be specifically pleaded 249 • Misrepresentation, fraud, breach of trust, willful default, undue influence, estoppel, laches, standing by and acquiescence 249 • Need to specifically plead incidence of customary and binding customary arbitration 250 . Any condition precedent to be distinctly specified 251 • Further and better statement or particulars 251 . Pleading to be consistent 252 • Relief in respect of several distinct claims upon separate facts to be stated separately 252 Technical objection in pleading and striking out pleading 252 . Pleading effect of document is sufficient 253 • Reference to a document in pleading 254 XX#21. Presumption raised by failure to produce a pleaded document . Alleging condition of the mind and notice of a fact to any person . Pleading implied contract or relation . Pleading presumption of law . Stated or settled account . Defence of tender . Close of pleadings 254 254 255 255 255 256 256 • SECTION 5 (B): Statement of Claim Components of statement of claim 256 257 Relationship between statement of claim and writ of summons 258 Propriety of claiming "as per writ of summons" in a statement of claim 258 • Right to object to the irregularity ex facie the statement of claim waivable 259 Cause of action the plaintiff is obligated to plead in his statement of claim 259 • Determining reasonable cause of action 260 Plaintiff may alter his claim without amendment of the indorsement 261 . Where relief sought is couched in imprecise terms 261 Statement of claim to state relief claimed either simply or in the alternative 261 SECTION 5 (C): Damages and Reliefs 264 . General damages 267 • Special damages 268 • Liquidated and unliquidated damages 269 • Claims for loss of profits 269 . Principle guiding assessment of damages for breach of contract 270 • Principles governing award of general damages for personal injury 271 xxi#22. Principles guiding award of damages in cases of violation of human rights 272 Measure of damages for unlawful termination of employment under common law 272 . Principle governing award of damages for destruction or loss of property 273 Principle governing award of damages where there is total loss of a motor vehicle 273 . Principle governing award of damages in cases of detinue 274 . Principle governing award of damages for infringement of fundamental rights 274 • . . Principles governing the award of damages for trespass Distinction between "compensatory" and "punitive" damages Power of court to make assessment of quantum of 276 276 damages where liability is established 276 • Relevance of current value of currency as a factor in computing award of damages 276 • Duty on party claiming damages to mitigate his loss 277 SECTION 5 (D): Statement of Defence 277 • Denial of fact must answer point of substance 278 • • Where a matter of fact is alleged with diverse circumstances Traverse or denial of allegations in a statement of claim The general traverse 278 279 279 • • Effect of "the defendant denies paragraph...of the statement of claim and puts the plaintiff to the strictest proof thereof” Averment that a party is not in position to either admit or 280 deny an allegation 280 • Joinder of issues 281 Defendant to plead a point of law 282 Pleading estoppel, laches, acquiescence and standing by as a defence 282 • Denial of contract 283 • Defendant must raise issue of identity of land in his statement of defence 283 xxii#23. Where the defendant relies upon several distinct grounds of defence 283 Action for debt or liquidated money demand or for money had and received 283 • Action for goods sold and delivered or upon a bill of exchange, promissory note or cheque 284 • Denying the right of other party to claim as an executor or a trustee 284 • Pleading to damages 284 . Admissions, set-off, counter-claim and how pleaded 284 . Sample statement of defence and counter-claim 285 . Defence in originating summons proceedings 287 . Concession to defence 287 . Form of concession to defence 288 SECTION 5 (E): Set-Off and Counter-Claim 289 . Counter-claim 289 • Pleading counter-claim 291 . Counter-claim-nature of burden of proof 292 • Title of counter-claim 293 . Claim against person not parties and appearance by added parties 293 • Judgement for balance 293 • When necessary to file a reply to defence to counter claim 293 • Defence of set-off 294 . Distinction between set-off and counter-claim 294 • Effect of successful plea of set-off 295 SECTION 5 (F): Reply 295 • When necessary to file a reply to defence to counter claim 296 • Grounds of defence after action is brought 297 • Further defence or reply 297 xxiii#24SECTION 5 (G): Default of Defence 298 Judgement in default of defence 299 • Precedent on prayers and grounds of application for default judgement 299 • Setting down matter for trial on default of defence 300 Sample motion on notice setting down matter for trial on default of defence after close of pleadings 300 . Setting aside default judgement 301 . Precedent on prayers and grounds of application to-set aside default judgement 302 . Default judgement in claim for debt or liquidated demand 302 • Damages and detention of goods 303 • Where defence is filed to part of the claim 304 . SECTION 5 (H): Discovery and Inspection Interrogatories that are not allowed 305 305 Form of interrogatories 306 • Using answers to interrogatories at trials 307 . Interrogatories to a corporation or company 308 . Order to answer or answer further and Filing of affidavit in answer 308 . Answer to interrogatories 308 Application for discovery of document 309 . Sample affidavit in answer to request for discovery of a document 310 • Process filed after close of pleadings 312 . Verification of business books 312 • Committal of a party or legal practitioner 313 . Discovery of document in marine insurance policies 313 . Power to order list of document in lieu of affidavit 313 • Production of document 313 • . • Order for inspection Inspection of documents referred to in pleadings Time for inspection when notice to produce is given Affidavit in support of application to inspect a document 314 314 316 316 xxiv#25. Power to order discovery of a particular document or class of documents 316 . Premature discovery 317 . Non-compliance with order for discovery 317 • Service on legal practitioner of order of discovery and his liability 317 • Discovery against sheriff 318 SECTION 5 (1): Admissions 318 . Effect where there is an admission 319 . When admission is irrelevant in civil cases 320 . Treatment of admission in pleadings 320 . Notice to admit document 320 • Sample notice to admit documents 321 . Sample notice of non-admission of documents 322 . Notice to admit facts 323 . Cost of notice where documents are unnecessary 324 • Nature of judgment of court given on basis of admission 324 . Proof and effect of admission of debt 325 . Need for party claiming declaratory reliefs to succeed . on the strength of his own case not on defendant's admission Whether evidence admitted at trial without objection 325 can be challenged on appeal SECTION 5 (J): Amendment 326 326 • When an application for amendment can be brought 327 • The purpose of amending pleadings and when it will be refused 329 • Giving defendant sufficient information as of proposed amendment 331 . Application for amendment 331 • Principle guiding application for amendment introducing allegation of fraud for the first time 335 • When amendment takes effect 335 . Additional witness 336 • Failure to amend after order 336 • Whether an incompetent process can be amended 336 • Whether every detail of particulars of proposed amendment need be highlighted 336 XXV#26SECTION 6 (A): Proceedings at Trial 338 Shifting nature of burden of proof in civil cases 339 . Effect of failure of defendant to adduce evidence 340 . Documentary evidence 341 . Additional witness 341 Exhibits during trial 342 • Custody of exhibit after trial 342 . Close of case of parties 343 . Diligent prosecution 343 Sample application for striking out suit for want of diligent prosecution 344 SECTION 6 (B): Tendering of Documents in Judicial Proceedings 346 • Ways of proving contents of documents 346 . Tendering documents in evidence 350 . Raising objection to admissibility of documents 351 • Need to lay proper foundation for tendering of document 351 • Rule against documentary hearsay 352 . Whether extrinsic evidence admissible to add to, vary, subtract from or contradict terms in a document 353 . Criteria for admissibility of document 354 • When a document tendered in evidence can be withdrawn 354 . Distinction between admissibility of document and weight to attach to document 354 • What are public documents 355 • Admissibility of public document tendered in its original form 355 . Nature of secondary evidence admissible to prove contents of public documents 356 . Essence of demanding for a certified true copy of a public document 357 . Admissibility of certified true copies 358 • Who should certify document 358 . Whether certified true copy of of judgement or document must be signed to be authentic 358 xxvi#27. Condition for admissibility of secondary evidence of public documents 359 . Limitation of using documentary evidence and treatment . of unpleaded document referred to in pleaded document Exclusion of oral by documentary evidence and 359 exception thereto 360 . When document not tendered by maker may constitute breach of right to fair hearing 360 . Whether party who failed to object to admissibility . . of document can complain on appeal about its admissibility Admissibility of document not written in English language Bindingness of document admitted as exhibit on party who tendered same and effect of ducument with no date of execution or commencement date 360 361 362 • Procedure for admitting documents in evidence 362 . Effect of document marked "rejected" by court 363 . Proper time to withdraw a document which was objected to when tendering 363 • When document sought to be put in evidence may be withdrawn and not rejected 364 . . Whether document rejected can be tendered again in evidence 364 Options open to appellate court where trial court fails to admit or reject documentary evidence tendered before it 365 • Probative value of document tendered by person who has limited knowledge of its contents and was not its maker 365 • Treatment and effect of unsigned document 366 . Difference between admissibility and probative value of document and considerations for determining either 366 • Distinction between duplicate copy and photocopy of document 367 . Whether court can make inquisitorial examination of documents outside court room 368 • Effect where court rules documents inadmissible but nevertheless uses them to decide case 368 • Whether court can declare null and void document not placed before it 368 xxvii#28. The doctrine of incorporation by reference in construction of document and use of a document in fact in issue 369 Admissibility of evidence 369 . Admissibility of document made during settlement of suit and marked "without prejudice" 370 • Relevance of evidence of a witness in previous judicial proceedings as proof in subsequent judicial proceedings Nature of decision of trial court involving wrongful admission of evidence 370 371 • Purpose for which unregistered registrable instrument admissible in evidence 371 • Whether statement made by a person interested when proceedings were pending or anticipated is admissible 372 • Whether document used in contradicting witness admissible where not pleaded 373 SECTION 6 (C): Order for Attendance and Examination of Witnesses 374 Evidence of a particular fact 375 . Examination of witness abroad 375 . Examination of a witness before the Nigerian diplomatic agent in foreign country 375 Order for attendance of person to testify or produce document 376 Effect of subpoena and failure to obey same 377 . Deposition not to be given in evidence without leave 378 Oath 378 . • Examination, cross-examination and re-examination of a witness at trial Purpose of evidence-in-chief and cross-examination 378 379 • . Evidence of witness not reproduced for cross examination Where evidence elicited undercross-examination not on facts pleaded 380 381 • Evidence elicited under cross-examination can constitute evidence in support of party who did not call any witness When evidence elicited under cross-examination 381 constitutes evidence in support of cross-examining party case 382 xxviii#29. Propriety of protracted and irrelevant cross-examination 382 . Evidence in proceedings subsequent to trial 383 . Action to perpetuate testimony 383 • Notice to produce 384 . A notice to produce may be in the pleadings and shall specify sufficient particulars 385 . Inspection and taking copies of banker's book 385 . Expert witnesses 385 • When opinion of expert witnesses necessary 386 . Whether expert witness who does not possess required qualification can testify on relevant field 387 • Effect where party failed to challenge competence of expert witness at trial 387 • When court bound to accept evidence of expert witness 387 . Treatment of report of expert witness produced for fee 388 . Ascription of probative value to expert evidence 388 • Treatment of sworn and unsworn evidence of a hostile witness 388 . Distinction between contradiction and discrepancy in evidence of witness of the same party 388 • Power of trial court to recall witness and how exercised 389 SECTION 6 (D): Visit to Locus in Quo 390 Visit to the locus in quo by the sharia court 391 Sufficient proof of identity of land in dispute especially when court visited locus in quo 392 SECTION 6 (E): Evaluating Evidence of Parties 392 . Considerations guiding evaluation or assessment of evidence by trial court 394 . Distinction between summation of evidence and evaluation of evidence 394 Effect of use of the expression “I believe" by trial court in evaluation of evidence 395 xxix#30. Power of court to make deductions during evaluation of evidence and when appellate court will not interfere with such deductions 395 • Duty on court to base judgement on evidence and not to investigate case outside court 395 Duty on appellant challenging evaluation of evidence by trial court 396 SECTION 7 (A): Concept of Waiver 397 • Whether waiver need be pleaded or allowed in affidavit 398 SECTION 7 (B): Laches and Acquiescence 398 . Conditions for successful plea of laches and acquiescence 400 . Need to specifically plead and prove the defence of laches and acquiescence 400 SECTION 7 (C): Fair Hearing 401 Constitutional guarantee of right to fair hearing . Effect of breach of constitutional right to fair hearing . True test and features of fair hearing . Components of rights entrenched in section 36(1) of the 1999 Constitution • Role of court in adjudication and duty where it raises issue suo motu 405 88 8 402 403 404 404 . Need for statutory body to comply strictly with rule of natural justice in acting on recommendation of investigating panel 406 Whether a person who had opportunity of being heard but . did not use same can complain of denial of fair hearing Onus on party alleging breach of his right to fair hearing Necessity for party seeking fair hearing to also be fair to adverse party and in the proceedings 407 407 407 SECTION 7 (D): Computation of Time 408 . • Computing time of service of process Extension of time for doing an act 408 409 XXX#31SECTION 7 (E): Withdrawal and Discontinuance 410 Discontinuance of action with or without leave of court 410 . Effect of notice of discontinuance filed in respect of reliefs 411 Effect of discontinuance on subsequent actions 412 SECTION 8 (A): Undefended List Procedure 413 . Liquidated money demand 414 • Procedural steps for placing and hearing a suit on the undefended list 415 . Duty on defendant raising defence on point of law under the undefended list 415 • Action for recovery of debt involving accounts 416 • Notice of intention to defend and failure to disclose defence on merit 416 • . When suit will be transferred to the general cause list Judgement in undefended suit 417 418 SECTION 8 (B): Summary Judgement Procedure 419 Notice of intention to defend . . Summary judgement procedure under the Lagos rules Precedent on prayers and grounds of application for summary judgement 421 4250 420 422 SECTION 8 (C): Proceedings in Lieu of Demurrer 422 • Distinction between demurrer and objection to jurisdiction 423 • What amounts to jurisdiction in the context of proceedings in lieu of demurrer 424 • Point of law to be raised by pleading 424 • • When decision on point of law may lead to dismissal of action Striking out pleading where no reasonable cause of action 425 is disclosed 425 SECTION 9 (A): Interlocutory Applications (Motions) 326 . Motion on notice . Service of a motion on notice 427 427 XXXi#32. Ex-parte motions . 428 Duration, variation or discharge of ex parte order 428 . Duty on court to hear pending application before it 429 • Procedure where there are two conflicting applications 429 . Options available to a party whose motion was struck out 429 . Evidence in interlocutory proceedings 430 . Affidavit in support of motion 431 . Written address 431 . Application for Anton Piller Order 431 . Sample form of Application for Anton pillar order 432 . Order to show cause 432 • Defence to an order to show cause and making order absolute 434 • Service and return day of an order to show cause 434 SECTION 9 (B): Preliminary Objection 435 When to raise preliminary objection to procedural irregularity 435 Whether mandatory to file affidavit in support of preliminary objection 436 . Whether and when court can hear objection to jurisdiction and merits of a suit together 436 SECTION 9 (C): Affidavits 437 . Using affidavit in proceedings 438 . Where special time is limited for filing an affidavit 438 • Exhibit attached to an affidavit 438 . Defective affidavit 439 • Where an affidavit is self-contradictory 440 . Counter affidavit 440 • Reply affidavit 441 . Oath 442 • Objections, prayer, legal argument or conclusion 443 • • . When a person deposes to his belief in matter of fact Resolution of conflicting affidavit evidence Admissibility of affidavit taken in common wealth country 444 444 445 • Whether waiver and estoppel allowed in affidavits 445 Xxxii#33. Proper step for court where affidavits filed under undefended list procedure are in conflict 445 . Implication of non-filing of further affidavit to a counter-affidavit by a respondent 445 . Power of court to order proof of specific facts by affidavits with or without attendance of the deponent for cross-examination and proviso thereto 446 • Effect and procedure where proceeding commenced by motion 446 • Treatment of self-contradictory affidavit 447 SECTION 9 (D): Written Addresses 447 • Final addresses 448 Effect of unsigned written address 449 Written address by parties and right of reply 449 Form and contents of written address 449 • Address to be deemed adopted where party is absent 450 . Oral argument 450 SECTION 9 (E): Interlocutory Injunctions 451 . Purpose of interlocutory injunction 452 . Principles governing application for interlocutory injunction 453 . Determination of balance of convenience in application for injunction 545 Principles guiding undertaking to pay damages in application for interlocutory injunction 456 Effect of delay in filing application for interlocutory injunction 456 • Court not to pronounce on substantive suit in determining interlocutory application 456 • Principles guiding order of interlocutory injunction in land matters 457 . Whether an interlocutory injunction can be granted to protect a right in equity 457 . Discharging order of injunction on ground of non-disclosure or misrepresentation 458 . Meaning of balance of convenience • An injunction will not be granted to restrain a completed act 458 . Principles guiding grant of mandatory injunction 458 . Mareva injunction 459 xxxiii#34. Essence of mareva injunction 459 • Perpetual injunction 460 . Power of Federal High Court and National Industrial Court to grant injunction 461 . Whether injunction of court can lie against proceedings of another court of co-ordinate jurisdiction 461 . Sample application for order of interlocutory injunction 461 SECTION 9 (F): Interim Preservation of Property 463 . Power to order sample to be taken 463 • Sale of perishable property 464 . Order for early trial 464 • Recovery of personal property subject to lien 464 . Allowance of income of property 465 SECTION 9 (G): Application for Judicial Review 466 . Application for Judicial review and remedies available 466 • Joinder of claims for relief 467 . Order of prohibition and certiorari and distinction between the two writs 467 . • Certiorari and appeal, effect when used in same proceeding Where leave is sought to apply for an order of certiorari in 468 proceeding subject to an appeal 469 • When an order of mandamus will lie 469 • Where leave to apply for judicial review is granted 470 . Application for judicial review and time limit for bringing application 470 . Service and entering motion or summons for hearing 471 . Statement and affidavit 471 . Notice of amendment of statement 471 • Claim for damages 472 Opposing the grant of an application 472 • Hearing of application for judicial review 472 SECTION 10 (A): Judicial Discretion 474 • Basis of exercise of judicial discretion 475 • Whether court has discretion to admit legally inadmissible evidence 475 XXXiv#35. Discretion of court to grant order of amendment of notice of appeal and brief of argument 476 . Principles guiding discretion of court to award costs 476 Principles guiding exercise of judicial discretion and attitude of appellate court thereto 476 Power of court to re-arrange or formulate issues for determination 478 SECTION 10 (B): Judicial Bias 479 • Relevant consideration for determining whether there was real likelihood of bias by trial judge 479 • Onus of proof on person alleging bias or real likelihood of bias against court 480 • Determination of likelihood of bias 480 • When a judge may excuse himself from a case 480 . Need to prove allegation of bias against a judge by clear hard evidence 481 SECTION 11 (A): Settlement Out of Court and Settlement of Issues 482 Principle guiding out of court settlement 483 • Role of courts in out of court settlement 483 . Sample form of terms of settlement 484 • Effect of out of court settlement before completion of trial without order of court 486 • Admissibility of document made during settlement of suit 487 SECTION 11 (B):Arbitration 488 • Arbitration clause 489 • Settlement of pleadings in arbitration 489 • Issue of jurisdiction in arbitral proceedings 490 • Stay of proceedings pending reference to arbitration 490 • Stay of proceedings pending reference to foreign arbitral tribunal 491 Effect of arbitral award 492 • Power of arbitrator to re-phrase issues and duty on him to ensure fair hearing 493 XXXV#36. • . Application to set aside and time within which to apply to set aside an arbitral award Applications under the Arbitration and Conciliation Act Meaning of "error of law on the face of the record" and role 494 494 of High Court over arbitral award 495 • When arbitral award may be set aside and arbitrator removed 495 . What amounts to misconduct on the part of an arbitrator 496 . Need for court to be cautious in setting aside arbitral award 498 . Remission of arbitral award 498 . Findings of fact by an arbitrator 499 . How to plead and prove customary arbitration 500 . Distinction between a lay arbitrator and a professional arbitrator 500 . Appointment of an umpire 501 . Attendance of witness 501 . Extension of time for making award 501 . Power of court in case of death, incapacity to act or refusal to act 502 . Special case for the opinion of court 502 . Court may modify or correct award 503 . Power as to costs 503 . Bindingness and enforcement of arbitral award 503 • Mode of enforcing awards 503 . Registration of foreign arbitral awards 504 SECTION 11 (C): Alternative Dispute Resolution (ADR) Proceedings 504 Mode of ADR application 505 • Enforcement of award 505 Report by ADR judge 506 Alternative dispute resolution mechanism of the Court of Appeal 506 SECTION 12 (A): Non-Suit 508 . Effect of an order of non-suit 508 • When the issue of non-suit is raised suo motu by the court 509 Xxxvi#37SECTION 12 (B): Judgement 509 • Where judge is unable to deliver judgement 510 Judgment on merit 511 • Judgement and entry of judgement under the Lagos rules 511 Delivery of judgement and notice to counsel on reserved judgement 512 • Enrolment of judgement 513 Declaratory and executory judgement 513 • Where payment or interest is ordered 514 . Pre-judgement interest 515 • Time to be stated for doing an act 516 • Date judgment pronounced in court 516 • Date of judgment directed to be entered 517 . Judge may direct time for payment or performance and interest 517 • Judgement by consent 517 Procedure and requirements for a consent judgement 519 • Notice when judgement is reserved and when parties deemed to have had notice 519 • Need for court to authenticate every copy of its decision and how done 519 • Period limited for delivery of judgement of court 520 Whether court can review or set aside its decision reached on merit 521 Finality of judgement of Supreme Court . Whether a judgement executed can be set aside and effect of setting aside • 522 523 Whether the Supreme Court can review its judgement 523 • Procedure for review of judgement obtained by fraud 525 • Exercise of discretion of court to set aside its previous judgement 526 Conditions for court to set aside its previous judgement 526 Whether every slip in judgement of court will lead its reversal on appeal 527 . Validity of judgement until set aside and effect of setting aside a judgement 527 . Notification of judgement 528 • Final disposal of exhibits and documents 528 Interlocutory judgement not to prejudice appeal 529 xxxvii#38. Power of court to give any judgement or order 529 . Whether judges who did not participate in hearing of a case can deliver a decision on same 529 Need for court to authenticate every copy of its decision and how done 530 • Period limited for delivery of judgement and extent to which it applies to the appellate courts 530 SECTION 12 (C): Consequential Order 533 • Whether consequential order amounts to order made after court is functus officio 534 Whether court bound to hear parties before making consequential order 534 . Power of appellate court to make consequential order 535 SECTION 13 (A): Costs 536 . Security for costs 537 . Bond as security for cost 539 . Whether an appellate court can review costs awarded by the lower court 539 . Stay of proceedings until cost is paid 540 • Cost to be dealt with at any stage and to be borne by applicant 540 . Cost arising from misconduct 540 • Personal liability of legal practitioner for cost 541 SECTION 13 (B): Chieftaincy Litigation 541 . Locus standi in a chieftaincy matters 542 . What a party claiming chieftaincy declaration must plead and prove 544 Yardstick for determining right of a plaintiff to sue in a chieftaincy contest 544 . Process for selection of leaders 545 • Right of kingmakers in respect of appointment to vacant chieftaincy stool 545 Whether a chieftaincy case prosecuted in a representative capacity by plaintiff dies with him 545 xxxviii#39. Need for parties to exhaust statutorily prescribed remedies before approaching the court 545 • . Whether declaratory relief is appropriate where decision of appropriate authority over a chieftaincy is being challenged 547 SECTION 13 (C): Fundamental Rights Enforcement Proceedings 547 • Nature of fundamental rights enforcement rules - essence of time thereof 548 • Nature of rights that can be enforced under Fundamental Rights (Enforcement Procedure) Rules 549 • Whether locus standi is required to bring public interest litigation under FREP Rules 2009 550 • • Respective jurisdiction of Federal and State High Courts over action for enforcement of fundamental Human Rights Rules of court governing proceedings for enforcements of fundamental rights 550 551 . Claimingtortuousreliefspursuant to the Fundamental Rights (Enforcement Procedure) Rules 552 • When respondent liable where he sets in motion machinery for breach of applicant's fundamental right 552 • Interpreting the provision of Fundamental Rights (Enforcement Procedure) Rules 552 • Whether action for enforcement of fundamental rights enforceable against a private citizen 553 . Mode of Commencement 553 . Form of application for an order enforcing a fundamental right 554 . Written addresses and serving an address on points of law 555 • Ex parte application 555 . Discharge of ex parte orders 556 Whether all decisions of court under Fundamental Rights (Enforcement Procedure) Rules, 1979 are applicable under the 2009 rules 556 • Whether mere allegation of crime can operate to curtail fundamental rights of suspect • Date for Hearing and adjournments 557 557 557 xxxix#40. . Production of applicant Service of court process 557 559 . Substituted Service 560 . Service on an emloyee of government 560 . Hearing of Application 561 . Non-compliance and notice of application 561 . Consolidation of several applications 562 . Disputing the court's jurisdiction 562 • Effect of non-compliance 563 . Application to quash any proceedings 563 • Hearing of the application 564 . . Right of any other person to be heard Committal for contempt 565 565 • Pending application under 1979 rules 566 • Instances not covered by the 2009 rules 566 SECTION 13 (D): Interpretation of Statutes 566 • Duty on court not to impute absurd and unjust consequence to statute • Purposive rule of construction of statutes . Purport of the golden rule of interpretation of statutes 568 568 568 • The Latin maxim expressio unius est exclussio alterius or expressium facit cessare tacitum 568 • Import of ejusdem generis rule of interpretation 569 • Construction of general and special provisions of a statute 569 . Constrution of statute encroaching on citizen's rights 571 • Whether courts can call to its aid historical facts and whether courts are not at liberty to consider motives of the legislature when interpreting a statute 571 . Distinction between mandatory words in statute and mandatory words in rules of court 571 . • Need to construe statutes on the same subject matter together 572 Principles guiding interpretation of taxation statute 572 • Interpretation of words in a Statute that have been judicially defined 573 . Construction of the word "may" in a statute 573 • Construction of the word "shall" 574 xl#41. Construction of the word "or" 574 . Effect of "subject to" where used in a statute 575 . Meaning of "similar" 575 SECTION 13 (E): Interpretation of the Constitution 575 • The 12 principles of interpretation of Nigeria Constitution as stated by Obaseki, JSC 577 • • • Duty on Courts in Interpreting a statute or Constitution Whether the Supreme Court should embark on the liberal approach to the interpretation of the Constitution Consequence of adopting the liberal approach to the interpretation of the Constitution 578 579 579 • What a court embarking on interpreting constitutional provisions should situate its mind on 579 • Per Tobi, JSC, on major types of Constitution and on whether general definitions can change peculiar meanings of constitutional provisions 580 • Per Tobi, JSC on why the interpretation of the Australian constitution cannot be the basis for the interpretation of the Nigerian Constitution 581 . Duty on judge to interpret the provisions of the Constitution and not 'best ideals' 582 SECTION 13 (F): Construction of Terms in Documents 582 Principles governing interpretation of terms of contract embodied in a document 583 SECTION 13 (G): Trade Marks 584 . Purpose of a trade mark and the main objective of law of trade mark 585 The tort of passing off 585 • • Distinction between passing off and infringement of trademark Meaning of "distinctiveness" as it relates to trademarks and designs 587 586 • How distinctiveness of trade mark is acquired and test for determining distinctiveness 587 • Who can sue for infringement of a registered trademark 588 . 588 Procedure for action on infringement of a registered trademark xli#42• . What plaintiff need prove in an action for infringement of a trademark 589 Whether motive of defendant relevant in an action for infringement of trademark Ingredients of tort of passing-off Distinction between passing off and infringement of trade mark 589 590 590 • Test for determining infringement of registered trade mark 591 . Judicial test for determining infringing, identical or confusingly similar trademarks 591 SECTION 13 (H): Patents and Designs 592 • When infringement of patent actionable 593 • Procedure for nullification of a patent 593 . Restriction on evidence 594 . Procedure for action on infringement of patent or design 595 • Appointment of expert 596 . Appeals and applications under the Trade Marks Act and Patents and Designs Act 596 • Notice of motion 597 • Amendment of notice of motion 597 . Power of the court on appeal 598 • Reference by registrar SECTION 14 (A): Receivership 598 599 • Appointment of a receiver by court 599 Legal effect of appointing a receiver 600 • Proof of debt against a wound up company 600 Receiver's account 601 • Payment of balance by receiver 603 Default by a receiver 603 • Giving security by receiver 604 Who can sue and be sued in respect of the assets of a company under receivership 604 • Whether receiver/manager is principal officer of company under receivership 604 • Exclusive jurisdiction of the Federal High Court where action is against a company in receivership and/or liquidation 605 xlii#43. Distinction between receiver/manager appointed by debenture holders and one appointed by court 606 SECTION 14 (B): Accounts and Inquiries 606 . Application for accounts and inquiries 606 • Direction as to manner of taking account 607 Account ordered to be taken may be verified by affidavit 607 • Party who alleges that an account is erroneous in respect of an amount 607 . Where there is undue delay in the prosecution of an account Distribution of fund before all persons entitled to share in a 608 fund is ascertained 608 • The court may direct any necessary account or inquiry to be taken or made 608 • Mode of vouching accounts 609 Surcharge and just allowances 609 SECTION 14 (C): Administration of Estate 609 . Procedures for grant of probate 610 • Whether executors must be expressly mentioned in a Will as such before they can so act 611 • Requirements for validity of will 611 . Whether there is a formal requirement that testator's signature must be at foot of will 612 • Need for court to exercise caution in the use of opinion of handwriting experts 612 . Whom burden of proof of genuineness and authenticity of Will lies 612 • How corrections and alterations in Will are authenticated 613 . Who is the propounder of a Will and who is an executor and how appointed 613 • What amount to propounding of a Will and Burden of proof an propounder of a Will 614 • Probate or administration of the real estate may be granted with that of his personal estate 614 xliii#44. Law regulating devolution of statutory right of occupancy upon death 615 . Administrator only has power to administer the property covered by the grant 615 . How power to administer estate is vested and revoked . Preservation of Property 615 . Personal application 616 . Application for grants through legal practitioners and further enquiries by judge 617 Oath in support of grant 617 . Grant in additional name 618 . Additional evidence for grant 618 • Notice to other persons 618 . Grants where deceased is domiciled outside the State 618 . Grant to attorney 619 . Grants on behalf of minors 620 . Grant where minor is co-Executor 621 . Grants in cases of mental or physical incapacity 621 . Notice of application to State 622 . Accounts to be filed 622 . Penalty for intermeddling 623 . Evidence of foreign Law 623 . Amendment or revocation of Grant 623 . Grant of probate or letters of administration with will 624 . Requirements for validity of will 624 . Examination of Will as to due execution 625 . Evidence as to due execution of Will 626 . Whom burden of proof of genuineness and authenticity of Will lies 626 • What amount to propounding of a Will and Burden of proof an propounder of a Will 627 Proof of due execution where attesting witnesses are dead 627 . Evidence as to terms, condition and date of execution of Will 627 • Attempted revocation of Will 628 • Affidavit as to due execution 628 xliv#45. Will of blind or illiterate Testator 628 . Interlineations, erasures and obliterations in Wills 628 . Documents referred to, annexed or attached to a Will 629 . Executor dying or not appearing to prove Will 629 . Production of testamentary papers 630 . Judge may order production 630 . Examination in respect of purported testamentary papers 630 . Notice to Executor to come in and prove or renounce probate 630 . Liability for intermeddling before grant 631 . Engrossment of Will 631 . Grants to attesting witnesses 631 . Right of assignee to a grant 631 . Order of priority of grant 632 . Grants to successor of beneficiary 633 . Renunciation of Probate 633 • Resealing 633 . Surety's guarantee on application for resealing 634 . Citations 635 . Citation to accept or refuse grant 636 . Citation to propound a Will 637 SECTION 14 (D): Suits in Respect of Probate or Letters 638 of Administration . Defences to be pleaded with particulars 638 Notice of opposition to Will 638 . Inquiry as to outstanding personal estate 639 . Discretion to order costs 639 • Originating summons for reliefs 639 Order for administration of estate and trust 640 • Persons to be served 640 . Interference with trustee's discretion 641 Judge not bound to order administration 641 • Orders to be made where no account or insufficient account has been rendered 641 • Application for order to produce Will 642 xlv#46. Limited grants 642 . Grants in respect of perishable goods 642 • Application to swear to the death of a person 643 . Applications by originating summons 643 . Service of originating summons 643 . Mode of service 643 • Application 644 SECTION 15 (A): Appeals 645 . Jurisdiction of appellate courts to hear and determine appeals 645 Who can exercise right of appeal? 646 • Forms of appeal 646 • Leave to appeal 647 • Leave to appeal as an interested party 647 . Effect of failure to seek leave to appeal where required 648 • Disposal of certain applications for leave to appeal 648 • Appeals from decisions of the High Court or Federal High Court to the Court of Appeal with leave 649 • Appeal as of right from the High Court or Federal High Court to the Court of Appeal 649 • Appeal as of right from Court of Appeal to the Supreme Court Right of appeal against decision granting unconditional leave to defend an action 650 651 • Right of appeal from decision of Code of Conduct Tribunal to the Court of Appeal 651 Right of appeal against decision of Investment and Securities Tribunal to the Court of Appeal 652 • Right of appeal from Election Tribunal to the Court of Appeal 653 Right of appeal from Customary Court of Appeal to the Court of Appeal 653 Right of appeal from Sharia Court of Appeal to the Court of Appeal 654 xlvi#47. Right of Appeal from the decision of the National Industrial Court to the Court of Appeal 654 . Right of appeal from interlocutory decisions 655 . The appellate court and its functions 655 . Appellate courts created under the Constitution 656 . The Supreme Court 657 . Powers of the Supreme Court under Section 22 of the Supreme Court Act and limits thereto 657 . Powers of the Court of Appeal under Section 15 of the Court of Appeal Act and limits thereto 658 . The purpose of section 15 of the Court of Appeal Act 660 . The use of "may" in section 15 of the Court of Appeal Act 660 . . . Conditions for the invocation of section 15 Court of Appeal Act Bindingness of decisions of the Supreme Court on lower courts Powers of the Court of Appeal and the Supreme Court under the rules of court 661 661 662 SECTION 15 (B): Service of Appellate Court Processes 662 Electronic filing 664 Service of notice of appeal 665 Service of Notice on Parties Mentioned and Parties claiming to be affected 666 • Address for Service and Respondent's Notice 667 • Address for Service and change of address 668 • . Mode of service • Endorsement of address for service Substituted service 668 669 669 . Service of non-originating processes 670 • Ex officio service 670 . Service outside jurisdiction 671 • Waiver of omission to serve a process 671 • Proof of service 672 • Mode of service of court process and other documents on a company 673 • Service of hearing notice 674 Effect of failure to serve hearing notice 676 xlvii#48SECTION 15 (C): Notice of Appeal 676 • Contents and requirements of notice of appeal Notice of Appeal - Sample 677 678 . Appeal as a rehearing and where filed 680 Endorsement as to fees 681 Filing more than one notice of appeal in one case and the principle of consolidation of action 681 . Grounds of appeal 682 Grounds outside notice and whether court restricted by grounds set forth by appellant 685 Abandoned ground of appeal 685 • Waiving a ground of appeal 686 Vague grounds 686 • Particulars of grounds of appeal 687 • Ground of appeal alleging misdirection or error in law 688 When does a ground of appeal raises questions of law or fact? 690 Where counsel is in a dilemma in the characterization of grounds of appeal 694 Leave to appeal on ground of fact or mixed law and fact 694 . Effect of failure to obtain leave 696 • Omnibus Ground 697 Ground of appeal in criminal appeals 698 Striking out notice of appeal 700 Amendment of notice of appeal 700 SECTION 15 (D): References as to the Constitution 700 and Reserved Points of Law • Case stated under Order 5 Court of Appeal Rules, 2021 and Order 5 of the Supreme Court Rules 1985 as amended 1999 700 • Reference of question of law 701 . What constitutes substantial question of law for purpose of reference 702 . Condition precedent to making a reference 703 . Procedure governing reference 703 • Whether reference of point of law by court without hearing one of the parties thereto constitutes denial of fair hearing 706 xlviii#49. Form and documents to accompany case stated to the Supreme Court 707 . . . Contents of a case stated to the Court of Appeal Signature of case stated Right of audience 708 708 708 . Brief of argument in case stated 709 . Dispute of facts determined by the Court of Appeal 710 . Address on case stated 710 . Features of case stated under Order 4 of the Supreme Court Rules 1985 as amended 1999 710 SECTION 15 (E): Applications in Appellate Courts 711 Affidavit in support of motion 712 • Every application to be supported by a written address Application for leave 714 718 • Content and form of application for leave to appeal 719 . Time within which to appeal and enlargement of time to appeal 720 • Exercise of discretion of court in respect of application for extension of time to seek leave to appeal 724 Prayers to seek by party out of time to appeal against interlocutory decision of the High Court on facts or mixed law and facts 725 . Application for leave to appeal as person interested in an appeal 728 What applicant must show to succeed in application for leave to appeal as party interested in an appeal 728 • Enlargement of time in which to apply for leave to appeal as party interested 729 . Court to which application for leave to appeal as interested party should first be made • Whether period stipulated for application for leave to appeal as interested party • When application for leave to appeal against concurrent findings of fact by trial court and Court of Appeal can be granted • Application for extension of time to appeal based on fault or ill health of counsel • Hearing an appeal on a date fixed for hearing of motion www ww30 731 731 732 733 xlix#50. Duty on court to hear pending application before it 733 . Procedure for hearing two conflicting applications where one seeks striking out or dismissal of suit and the other seeks to correct defect 734 Proper step for court where similar or overlapping reliefs are sought in both interlocutory application and substantive suit Oral arguments and time to argue motion 735 735 . Application to strike out or set aside for noncompliance 735 . Control of proceedings during pendency of appeal 736 . Purpose of application for interlocutory injunction pending appeal 737 . Nature of stay of execution and stay of proceedings pending appeal 742 . Effect of application/order of stay of execution on pending appeal 742 . When stay of execution of monetary judgment pending appeal will not be granted 743 . Duty on applicant for stay of execution of monetary judgment pending appeal 744 . When order of stay of execution of declaratory judgment may be granted 744 . Stay of proceedings pending appeal 747 . Purpose of stay of proceedings 748 SECTION 15 (F): Powers of the Appellate Courts 748 • Powers of appellate court not limited by notice of appeal Power of appellate court to make orders by way of injunctions pending appeal 750 750 . Conditions for grant or refusal of injunction pending appeal 751 Power of appellate court to appoint a receiver or manager 752 • Power of appellate court to draw inferences of fact 752 Power of appellate court to receive further evidence 753 • What is fresh or further evidence for purpose of an application for leave to adduce evidence on appeal 754 . Conditions precedent for granting application for leave to adduce further evidence on appeal 754 Distinction between adducing additional evidence on appeal and filing Supplementary record of Appeal 755 1#51• When issue of jurisdiction ground for adducing further evidence . Power of appellate court as to new trial 756 • No new trial on the ground of misdirection, or of the improper admission or rejection of evidence 757 A new trial may be ordered on any question without interfering with the finding or decision on any other question 757 • Procedure when damages awarded by the lower court are excessive or inadequate 757 . Insufficiency of stamp 758 . Duty on appellate court when it makes order of re-trial 758 SECTION 15 (G): Compilation and Transmission of Records of Appeal 758 • Preparation of record of appeal 759 Settlement of records of appeal and when time begins to run 760 • Settlement of records of appeal draft 762 Contents of a record of appeal to the Supreme Court 763 • Record of appeal and the accompanying documents to the Supreme Court 764 . Contents of a record of appeal to the Court of Appeal 764 . Record of appeal and the accompanying documents to the Court of Appeal 765 • Transmission of records to the Supreme Court and entering an appeal 766 • Exclusion of irrelevant records 767 . Whose notes constitute proceedings of the court 768 • Certification of record of appeal 768 • Distribution of record 770 Distinction between adducing additional evidence on appeal • and filing additional or supplementary record of appeal Deposit against cost 770 771 • • Exhibits: Production, registrar's directive and custody thereof Preparation of record of appeal in certain matters 772 773 • Content of record of appeal in cases designed to be accelerated 774 Departure from the rules 774 li#52. . . • . . • Duty on appellate court where no record of appeal is transmitted Principles governing extension of time to compile record of appeal Binding effect of record of appeal on appellate court and on parties to an appeal Power of appellate court to take judicial notice of all relevant information in record of appeal Presumption of correctness of record of appeal compiled by Counsel Procedure where party seeks to challenge record of court Whose duty it is to compile and transmit record of appeal from election tribunal to Court of Appeal . Service of record of appeal to the Supreme Court 775 777 777 778 778 778 780 780 782 783 SECTION 15 (H): Brief of Argument • Effect of failure to file appellant's brief within the time prescribed 783 Appellant's brief of argument . Whether inelegant handling of appeal or Counsel's indolence amounts to want of diligent prosecution 786 . When Supreme Court can relist appeal dismissed for want of prosecution 787 . When appellant deemed to have abandoned appeal 787 • Duty on appellant to state all relevant facts including facts unfavourable to his case in his brief of argument 788 • Form and content of appellant's brief of argument 788 • Address for service in Appellant's brief 790 Issues for determination in appellant's brief 791 • Issue for determination must arise from ground of appeal 792 • Proliferation of issues 793 • Supersession of issues for determination over grounds of appeal and distinction between grounds of appeal and issues for determination 793 • Leave required raising fresh issue on appeal 794 Whether jurisdiction can be raised as fresh issue without leave 796 Attitude of court where counsel failed to indicate the grounds from which he formulated issue 797 • Leave to file and argue additional grounds of appeal 797 lii#53• Inviting the court to depart from laid down principles 797 . Legal authority in support of brief 798 • Reference to all relevant documents or exhibits 799 . Argument in brief 799 . Discretion of court to grant order of amendment of brief of argument 800 . Faulty or inelegant brief 800 . Respondent's brief of argument 801 . Form and content of respondent's brief of argument 802 • Effect of failure to specifically answer the issues raised in the appellant's brief 803 • Writing the respondent's brief: The four alternative strategies 803 . Reply brief 804 . Form and content of reply brief of argument 805 . Effect where reply brief exceeds fifteen pages 806 . Effect of failure to file a reply brief 807 • Oral arguments 807 . Accelerated hearing in exceptional circumstances when filing of briefs may be waived 808 . Joint and several briefs 809 SECTION 15 (1): Cross-Appeal and Respondent's Notice 813 Cross appeal 814 Sample cross appeal draft 815 • Respondent's notice 817 . Time within which to serve respondent's notice 820 • A respondent's notice must be based on the pleadings before the trial court 820 . Respondent's notice to be limited by grounds 821 SECTION 15 (J): Virtual Hearing 825 . Constitutional issues 825 • Conditions for Video Recording of Evidence 826 SECTION 15 (K): Preliminary Objection to Appeal 827 . When affidavit is mandatory in preliminary objection 830 liii#54. Whether preliminary objection on ground of jurisdiction must be done by application of the rules of court 830 . Preliminary objection can be raised and argued in the respondent's brief argument 831 . Leave is required to argue a preliminary objection incorporated in the brief of argument 832 • Failure to seek leave from the court where preliminary objection is argued in the respondent's brief 832 . Effect where preliminary objection is not moved 832 . How preliminary objection raising defence on merits should be treated 833 SECTION 15 (L): Withdrawal of Appeal 834 • Conditions for unilateral withdrawal of appeal 835 Elements of waiver of service of the applicants' notice of withdrawal of the appeal 836 • Withdrawal of appeal by consent 836 • Effect of withdrawal of appeal by consent or without consent 837 . Appeal by respondent after withdrawal 838 • What applicant seeking relisting of withdrawn and dismissed appeal must show to succeed 838 838 • . 839 Proper time to withdraw appeal because of out court settlement Whether Counsel has authority to compromise on a matter Whether authority of counsel includes entering into agreement or compromise with opposing party even where client dissented 840 Notification of death of party to an appeal and substitution thereof 841 SECTION 16 (A): Judgement Enforcement PART 1 842 When judgement takes effect and need to enforce specific reliefs in a judgement 843 Obtaining a certified true copy of judgement 844 Parties to execution of judgement 844 Whether bailiff an agent of judgement creditor and non-joinder as party to action for setting aside execution of judgement fatal liv 845#55. An in personam or in rem judgement 845 . Execution of judgement against representatives and estate of deceased person 845 • Determining party entitled or liable to execution 846 . Execution against a firm or any other person as a partner 846 . Leave to issue execution where party is entitled to relief subject to the fulfilment of a condition 847 • Refund of balance of money paid for the subsistence of a judgement debtor 847 • Filing of documents and applications 848 . Enforcement of interlocutory order and judgement by default 848 . Cross judgements between the same parties for the payment of money 849 • Stay execution of the judgement where proceeding is pending against the holder of a previous judgement 849 • When a person becomes liable as security for the performance of a judgement 849 • Procedure where process cannot be carried into effect without causing trouble 850 • Liabilities of bailiff and party prosecuting the judgement and costs incurred on execution 850 SECTION 16 (B): Judgement Enforcement 851 PART 2 Issue of process Application to issue a process of execution 852 Process may be issued concurrently for execution 853 . Writs of execution 853 • Application for the writs 854 . Application for a writ of attachment and sale against the immovable property of the judgement debtor to be made to a High Court 854 Time for execution of process and lifespan of unexecuted process 855 lv#56SECTION 16 (C): Enforcement of Money Judgements 856 PART 1 GARNISHEE PROCEEDINGS Procedure for garnishee proceedings 857 . Application for the order and effect when a motion for a stay of execution has been filed 858 Service of order to show cause 859 . Claims of third party 859 . What constitute judgement debtor's credit in his bank and debt attachable in garnishee proceedings 859 . . A garnishee order absolute, enforcement and discharge of garnishee 860 Conditions court will consider in determining whether garnishee proceeding is valid 861 Condition precedent to attachment of money in the custody or under the control of a public officer in his official capacity 861 SECTION 16 (D): Enforcement of Money Judgements PART 2 863 JUDGEMENT SUMMONS • Where a judgement summons is pending 864 judgement debtor's traveling expenses and time within which to appear 864 • Where a judgement summons is sent for service to another court 865 • Endorsement on writ of interim attachment 865 . Execution of process to arrest an absconding defendant and judgement summons in foreign court 866 . Where judgement debtor disputes amount in default 866 . Application for transfer of proceedings subsequent to judgement 867 SECTION 16 (E): Enforcement of Money Judgements 868 PART 3 Writ of Fieri Facias . Executing the writ of Fifa lvi 868#57. Notification and inventory after attachment and effect of alienation without leave of the court of the property attached 870 . Where judgement debtor disputes amount alleged to be remaining due under a judgement 870 • When the property attached shall consist of immovable property 871 • When judgement debtor is absent from jurisdiction and public sale of his immovable property is objectionable 871 Procedure before sale 872 . Advertising, place and time for sale of immovable property under a writ of execution 872 . Disposal of proceeds of property sold under a writ of execution 873 • Time for sale of property attached 874 • Immovable property in lawful occupation of third parties 874 . Judgement debtor may pay the amount to be levied under the writ 875 • Where the property sold shall consist of shares in any public company or corporation 875 . Where the property sold shall consist of negotiable securities 875 Levying execution and setting aside a writ of attachment or execution 876 SECTION 16 (F): Interpleader Proceedings 877 Procedure for interpleader action 878 Affidavit can be used to show a claimant's interest in an attached property 879 Burden of proof in interpleader proceedings 880 • When trial court can summarily determine interpleader actions 880 • Claims to goods taken in execution 881 Mode of application 881 . Matters to be proved and staying of action 882 Order upon summons 882 • Failure of claimant to appear 882 • Where a person not being a party in a proceeding obtains an order or claims an interest in attached property 883 lvii#58SECTION 16 (G): Interim Attachment of Property and Arrest of Absconding Defendant Under the Federal High Court Rules 883 • Application for attachment 884 . Order for defendant to show cause and effect where defendant fails to show cause 884 • Right of the third party not to be affected 885 . Court proceedings may be taken 885 . Arrest of absconding defendant 886 • • Bail for appearance or satisfaction Deposit in lieu of bail 886 886 • Committal in default of security . Cost of subsistence of person arrested 887 887 SECTION 16 (H): Registration and Enforcement of Foreign Judgement 887 • Registration of foreign judgements 889 • Procedure for applying to set aside foreign judgement registered in Nigeria 890 . Power of registering court on application to set aside registration Cases in which registered judgement must or may be set aside Nature of jurisdiction exercised by court entertaining application for registration of foreign judgement 890 891 893 . Law applicable to registration and enforcement of foreign judgements in Nigeria 895 Grounds upon which foreign judgements will not be registered in Nigeria 896 . When registering Court can set aside a foreign judgement 898 SECTION 16 (1): Committal for Contempt of Court 898 . Types of contempt 900 . Ingredients of contempt of court and onus of proof in committal proceedings 900 • Power of court to punish for contempt 901 lviii#59. Which judge can enforce order of injunction by contempt proceedings 902 . Application for an order of committal 903 . Hearing an application for an order of committal in private 903 • When a party in contempt of court can be heard 904 Power to suspend execution of committal order 905 . • Discharge of person committed No committal where payment is impossible 905 905 lix#60Abbreviations Sheriffs and Civil Process Act - S&CPA Judgement (Enforcement) Rules - JER Federal High Court (Civil Procedure) Rules - FHCR Federal Capital Territory, Abuja (Civil Procedure) Rules - HCAR High Court of Lagos State (Civil Procedure) Rules - HCLR Supreme Court Rules - SCR Court of Appeal Rule - CAR lx