CIVIL LITIGATION WEEK 5 LESSON PLAN

CIVIL LITIGATION WEEK 5 LESSON PLAN

Topic

Preliminary Consideration before Commencement of Action & Commencement of Actions in the Magistrate Court

Contents

1.      Preliminary consideration before commencing an action or defending an action viz:  limitation periods, pre-action notices/conditions precedent,  locus standi, the appropriate venue for an action, cause of action, exhaustion of available remedies and their effect on the jurisdiction of a court; litigation costs, availability of alternative dispute resolution method and pre-action counselling.

2.      Reflections on the lessons on a) interviewing and counselling skills/ethics b)letter writing/duty to client/accountability, cost and charges under Law in Practice

3.      Ethical issues involved in instituting frivolous actions, abuse of court process and failure to advice on ADR options

4.      Commencement of action in the Magistrate

Reading Materials

            Rules of Court

1.      Civil Procedure Rules of the High Courts of Lagos State and FCT Abuja;

2.      Civil Procedure/Litigation textbooks;

2. Evidence Act;

3. Magistrate Court Law of Lagos State;

4. Magistrates Courts Rules of Lagos State

5. Rules of Professional Conduct, 2007

Cases to examine

The students areexpected to be familiar with thefollowing relevant cases.

A-G Federation v A-G Abia state (2001)11 NWLR (pt. 725) 689; Ibrahim v Osim (1988) 3 NWLR (pt. 82) 257; Thomas v Olufosoye (1986) 1 NWLR (pt. 18) 669; Mobil Producing (Nig) Unltd v LASEPA (2002) 18 NWLR (pt. 798) 1; Katsina Local Authority v Makudawa (1971) 7 NSCC 119; Amadi v NNPC (2005) 10 NWLR (pt. 674) 76; Aribisala v Ogunyemi (2005) 6 NWLR (pt. 921) 212; Nicholas v Generak Manager Nigerian Railways Ltd (1938) 14 NLR 87; Iron Products Ltd v SAC (1992) 4 NWLR (pt. 238) 734 and Alao v Omoniyi (1966) NMLR 161

                                      

Outcomes

At the end of this lesson students would be able to:

1.      Discuss and explain the following that need to be considered before commencing or defending an action- limitation periods, pre-action notices/conditions precedent,  locus standi, the appropriate venue for an action, cause of action, exhaustion of available remedies and their effect on the jurisdiction of a court; litigation costs, availability of alternative dispute resolution method and pre-action counselling;

2.      Explain the relevance and relationship of the lessons in content 2 with outcome 1.

3.      Identify preliminary issues in given cases.

4.      Explain the general principles and procedure for commencing actions in the      Magistrate Court of Lagos State.

5.      Prepare a plaint and particulars of claim for filing in Magistrate Court of Lagos State.

Activities

1.      Students are required to read in advance the topics and Case Studies 1, 2, and 3 (as modified by tutors) and identify in writing the preliminary issues in the case studies.

2.      Ethical issues involved in a) instituting frivolous actions, b) abuse of court process and c) failure to advice on ADR options

3.      Prepare a plaint and particulars of claim for filing in the relevant Court using modified Case Study 1, 2, and 3 below.

     

TASKS

1.      Students are required to read in advance the topics.

2.      Draw up a list of preliminary issues to be considered before commencing the actions in any given case.

3.      Prepare a Writ/plaint and claim/particulars of claim for filing in the relevant Courts using case studies below.

4.      Identify preliminary issue/s you will consider in each case study

5.      Draw up a list of ethical issues involved in

a)                  Instituting frivolous actions

b)                  Abuse of court process

c)                  Failure to advice on ADR

6.      Prepare for all the tasks as members of any group could be called to make presentation on any of the tasks.

NOTE:

All groups are to prepare all the tasks as members of any group may be called upon to make presentation on any of the tasks in class.

Electronic copies of the prepared tasks are to be submitted to the Lecturers on line latest by 10 pm on Monday, 15th December, 2014 whilst the hard copies must be submitted to the Lecturers in class by 9 am on Tuesday the 16th December, 2014.

Case Study 1:

In March, 2004, the Plaintiff, Mrs. Kayuba Ada, entered into a contract in Lagos with Agricultural Bank PLC to supply five hundred tons of Cashew nut worth N10,000,000:00 (Ten million Naira) only to the Bank for onward exportation to Malaysia. The term of the contract is that down payment of N3,000,000:00 will be made before the exportation and that the balance will be paid when the goods reaches its destination. Subsequent to this, Mrs Ada received the sum of N3,000,000:00 and supplied the goods to its destination in Malaysia.

Since then, Agricultural Bank has refused to pay Mrs Ada the balance sum despite letters of repeated demands sent. However, on 1st June, 2008 Agricultural Bank wrote a letter to Mrs Ada of its decision not to pay the balance because the goods supplied were inferior to the standard requested for. Mrs Ada has now instructed you to commence proceedings against Agricultural Bank claiming the balance of N7,000,000:00, N2,000,000:00 special damages and N700,000:00 as general damages.

Case Study 2

City links Transport Company limited is a thriving transport company with a fleet of buses and has its registered office at No. 1 Oniru Road, Suru-Lere Area, Lagos. Mr. Darlington Okoye (a.k.a. Osama) is one of the drivers of the company. On the 14th of February, 2005, Dr. Henry Obama, a Consultant Physician at the Gnenral Hospital Hospital, Ikeja, was travelling, form Ikoyi to Ikeja in his brand new Mercedes Benz ML 340 jeep car with Registration Number ABJ 999 IKJ, which he bought for Eight Million Naira (N8,000.000. 00) only. On getting to Yaba Junction of the Third-Mainland Bridge, Dr. Henry Obama who was then driving at a speed of 120 KM per hour noticed a motor cycle rider attempting to cross the road and applied his break to avoid hitting him. Immediately, Dr. Henry Obama was hit from behind by a bus belonging to City Links Transport Company Limited and driven by Mr. Danlington Okoye (a.k.a Osama).

Dr. Henry Obama’s car was badly damaged as a result of the accident. In fact, it was a write-off. Dr. Henry Obama also sustained serious injuries and had to be rushed to the Lagos State University Teaching Hospital, (LUTH), Idi-Araba, Lagos, where he received treatment and was discharged after one week. The treatment, in all, cost him one Hundred Thousand Naira (N100,000.00) only, for which the hospital issued him a bill and a receipt.

Dr. Henry Obama has now instructed you to commence an action for negligence against Mr. Darlington Okoye (a.k.a Osama) and City Links Transport Company Limited claiming general damages to the tune of Five Hundred Thousand Naira (N500,000.00) only, and  special damages of Eight Million and One Hundred Thousand Naira (N8,100,000.00) only for his damaged car and treatment.

Case Study 3

Crown Kitchen Ltd sued K & T Ltd at the Ikeja High Court Lagos seeking a declaration that the contract between them and the partnership entered into by the parties was still valid and subsisting. Crown Kitchen also sought an order of perpetual injunction restraining K & T Ltd from converting 20 vehicles to its sole use and sought an order directing a division of the vehicles among the parties.

Crown Kitchen Ltd also sought for payment of the sum of N2.17 million being proceeds of a contract performed by the parties from March 1995 to December 1997. The agreement between the parties had been entered into in Ikeja, although the actual performance of the contract was intended to be in Ikoyi, Lagos where K & T had its offices. A clause in the contract Agreement stipulated that the parties shall submit to conciliation before resorting to litigation.

Crown Kitchen Ltd heard that cases are dealt with faster at the magistrate court because it is a court of summary jurisdiction. But Okonkwo & Co., their counsel filed an originating summons at the Ikeja High Court. On being served with the originating summons, K & T entered a conditional appearance and subsequently filed a preliminary objection contending that the Ikeja High Court lacked jurisdiction.

ANSWERS TO THE TASK ON PROFESSIONAL ETHICS AND SKILLS

NIGERIAN LAW SCHOOL

LAGOS CAMPUS

2015/2016 (NOVEMBER) SESSION

ANSWERS TO THE TASK ON PROFESSIONAL ETHICS AND SKILLS

(WEEK 4) GROUP 2

QUESTION 1

A legal practitioner employed in the public service of the federation or state is generally  prohibited from private practice. In that regard, Manilla Manitoba’s employment with the Ministry of Defence prevents him from offering legal services to any other class of the society, except in a situation where such services is rendered on humanitarian grounds and without a fee involved. This position is emphasized in the  S 1(2) and S 1(3) Regulated and other professions (private Practice Prohibition) Act. Manilla Manitoba’s action is however a breach of paragraph 2(b) of code of Conduct for Public Officers, 5^th Schedule Part 1 of the 1999 constitution as amended.

QUESTION 2

By virtue of Rule 1 (a) and (b) Senior Advocates of Nigeria (Privileges and Functions) Rules 2011 the privileges of a Senior Advocate of Nigeria include but not limited to;

i. the right to sit at the inner bar or front row where there is no inner bar. This is provided for in S.6(1) (b) of the LPA.

ii. a right to mention his case or motion in which he is appearing or any other cause or matter which is on the list for mention.

(a)    The objection of the prosecuting state counsel is a valid one because a Senior Advocate of Nigeria cannot appear before an inferior court of which the Magistrate court is one. In the case of Registered Trustees of ECWA v Ijesha (1999), 13NWLR, Part 635, it was held that a Senior Advocate of Nigeria cannot appear before or settle any document before any inferior court.

(b)   The restriction that a Senior Advocate cannot appear at a Magistrate Court does not affect the junior counsel from his firm as long as he is not holding brief for the senior advocate but appearing as a counsel on behalf of the accused.

QUESTION 3

(A) In support of the objection raised, Rule 17(5) provides that a lawyer shall not appear as counsel for a client in a legal proceeding in which the lawyer himself is a party.

And against the objection raised, there is no exception to the rule in 17(5) above.

(B)  Assuming it was a civil matter, our answer will not be different.

QUESTION 4

(a)    Since the job description of Alhaji Kunyama Karshi in the commission is not that of a law officer but he is there as a Public Relation Officer, he cannot appear as a counsel for the Independent Corrupt Practices Commission. Rule 8 (1) Rules of Professional Conduct provides that a lawyer whilst a servant or in a salaried employment of any kind, shall not appear as advocate in a court or judicial tribunal for his employer except where the lawyer is employed as a legal officer in a Government department.

(b)   The conduct of Alhaji Kunyama Karshi does not amount to impersonation of a legal practitioner because S 24 of the Legal Practitioners’ Act defines a legal practitioner as a person entitled in accordance with the provisions of the Act to practice as a Barrister or as a Barrister and Solicitor either generally or for the purposes if any particular office or proceedings and by virtue of this provision, he is a legal practitioner and his holding the position as a PRO does not deprive him of being a legal practitioner.

QUESTION 5

By the actions and conducts of Agboro Ojadike we can rightfully infer that he willfully pretends to be a legal practitioner where he is not. Section 22 (1) (c) of the Legal Practitioners’ Act prohibits any person other than a legal practitioner from willfully taking or using any name, title, addition or description falsely implying or otherwise pretends that he is a legal practitioner or is qualified or recognized by law to act as a legal practitioner.

Conducts that amount to impersonating a lawyer in Nigeria include if a person:

(i)                 Practices or holds himself out to practice as a legal practitioner; or

(ii)               Takes or uses the title of a legal practitioner;

(iii)             from willfully taking or using any name, title, addition or description falsely implying or otherwise pretends that he is a legal practitioner or is qualified or recognized by law to act as a legal practitioner;

(iv)             Prepares for or in expectation of a reward, any instrument relating to immovable property or relating to or with a view to the grant of probate or letters of administration or relating to or with a view to proceedings in any court of record in Nigeria, is guilty of an offence.

QUESTION 6

(a)    S 292 (2) Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria. Furthermore, Rule 6 (3) Rules of Professional Conduct provides that a judicial officer who has retired shall not practice as an advocate in any court of law or judicial tribunal in Nigeria , (5) further states that a judicial officer who has retired may continue to use the word “Justice” as part of his name

(b)   Mr. Julian Alabama cannot successfully handle the matter above

(c)    The answer will be different because magistrates do not suffer restrictions applicable to judicial officers. Rule 6

(d)   He cannot defend himself fully robed however he can only defend himself in a suit as a party to the suit. See Hon. Justice Atake v. Afejuko (1994) 12 SCNJ 1 

ANSWERS TO THE TASK ON CORPORATE LAW PRACTICE

NIGERIAN LAW SCHOOL

LAGOS CAMPUS

2015/2016 (NOVEMBER) SESSION

ANSWERS TO THE TASK ON CORPORATE LAW PRACTICE

(WEEK 4) GROUP 2

QUESTION 1

a)      The legal practitioner will require the following details:

·         Particulars of the Directors.

·         Information as to the type of the company.

·         The particulars of the objects/business of the company.

·         Address of the registered office.

·         Minimum Authorized Capital of the company.

·         Information of the particulars of the subscribers.

·         Restriction (if there’s any) of the powers of the company.

·         Special provisions on corporate governance and management issues that are to be provided in the Articles of Association.

·         The Share structure of the company.

·         The particulars of the company secretary.

·         Proposed name of company.

b)      The reasons why “China Weaving Manufacturing Company Limited” was not approved by the Corporate Affairs Commission (CAC), are namely:

·         The company having a name which has the word ’China’ included therein, is capable of falsely leading the public to believe that it is associated with the Peoples’ republic of China. This is expressly provided in Section 30 of the Companies and Allied Matters Act, CAP C 20 LFN 2004,(also restated emphatically in section 579 of CAMA) which expressly prohibits companies to have the name of a national within their proposed company names.

·         Also, where a name conflicts with, or is likely to conflict with an existing trademark or business name in Nigeria, it will not be registered under the Corporate Affairs Commission (CAC) -Section 36 (1)(e).

c)      The major steps to be taken to incorporate a company are:

·         Taking instructions and advising the clients on the choice of suitable business or non-business organization to form or register;

·         Conducting searches for the reservation of the name;

·         Preparing registration documents and statutory forms;

·         Stamping of two copies of incorporation documents –memorandum and articles of association–  and also statements of Authorized share capital (form CAC2) for Ltd Plc. and unlimited companies;

·         Filing of the incorporation documents at the CAC;

·         Obtaining the certificate of incorporation; and

·         Registration of the company.

d)      The National Office for Technology Acquisition and Promotion (NOTAP), has the main objective of monitoring on a continuous basis, the transfer of foreign technology into Nigeria. They examine the quality of the imported technology with a view to determine its price, check abuses and discard the use of obsolete technology. NOTAP ensures there is a proper registration of the proposed technology to be transferred. Therefore, in the establishment of the Weaving factory, NOTAP would make sure that it is indeed, foreign technology that has never existed in Nigeria, and also, that it is of good quality and of a reasonable price.

e)      In the event that the company is unable to go into manufacturing of digital weaving equipment after three years of incorporation, it will fall in violation of section 525 of CAMA, and therefore, be susceptible to have its name struck off the register and dissolved.

QUESTION 2

a)      Generally, Section 21 of the Companies and Allied Matters Act (CAMA) provides for three types of companies, which could either be a private or public company [section 21 (2) CAMA]. These are:

i.                    Companies Limited by Shares;

ii.                  Companies Limited by Guarantee; and

iii.                Unlimited Companies.

b)      The following include the differences between a Company Limited by Shares and that Limited by Guarantee. They are:

·         The consent of the Attorney General of Federation must be obtained before incorporation. This is not needed for companies limited by shares.

·         The main aim of a Company Limited by Shares is to make profit for the shareholders. However, companies limited by guarantee can only do very little business and are also, not allowed to share any profit with the members. Money distributed to them should be used solely towards the attainment of its objectives.

·         There is no requirement or a share capital in a Company Limited by Guarantee. The members merely undertake to contribute the subscribed amount (in form CAC2) in the event of its winding up, of a sum not less than N10,000. Companies Limited by Shares must have an authorized share capital of not less than N10,000.

·         The Memorandum of Association of a company Limited by Guarantee must have a special clause as to the transfer of its assets and liabilities to organizations of similar objects in the event of winding up. This is contrary to the winding up of a company limited by shares which can be at the instance of either the directors, creditors or court order.

c)      I would advise him to form a Limited Liability Company because, it is suitable for small to medium size business organizations, and also, requires a relatively small startup capital.

d)      The documents required or stamping, include:

i.                    Statement of authorized Share capital and allotment of shares (form CAC2).

ii.                  Memorandum and Article of Association of the company.

e)      Corporate Affairs Commission (CAC) may refuse to register a company under the provision of Section 36, in the following circumstances, if:

i.                    the Memorandum and Articles of Association do not comply with the provisions of the CAMA;

ii.                  the business which the company is to carry on, or the objects for which it is formed are illegal;

iii.                any of the subscribers to the Memorandum is incompetent or disqualified in accordance with Section 20 of the CAMA;

iv.                 there is non-compliance with the requirement of any other law as to registration and incorporation of a company;

v.                   the proposed name conflicts with or is likely to conflict with an existing trade mark or business name registered in Nigeria.

QUESTION 3

1.      i)          We need to seek clarification as to the object(s) of the business.

ii)                  There is need to seek further clarification as to the particulars of the subscribers thereto, in this case, as to the occupation and address of the other subscribers (Bala and Mariam).

iii)                To also seek clarification about whether it is going to be a Public or Private Limited Company.

iv)                The capacity of the parties.

2.      The name “Wadata & Sons Limited” can be registered, and is available for registration at the Corporate Affairs Commission (CAC) subject to the availability of the name. Section 30 (1)(d) of the CAMA makes it possible for the company to use a name which infringes on a ‘trademark or business name’ so far as the consent of the owner of the trademark or business name is duly obtained. In this instance, the owner of the business name so wishes to use the name, and this consequently, poses no threat.

3.      The following are the advantages of a Private Company over Public Companies:

·         It has no restriction on the age of the Director unlike Public companies, where it is 70 years and below. He would therefore, not be a director if he incorporated a public company.

·         There is no requirement for a private company to have a professional as a company secretary, unlike the public company.

·         Public companies must publish notices of its Annual General Meetings in a newspaper for its members.

·         Private companies are not obligated to hold statutory meetings, unlike public companies which must hold a statutory meeting within 6 months of incorporation.

·         The capital needed to start a private company is not as much as that compared with the public company.

·         Limited companies are ideal for family businesses.

4.      Documents necessary for incorporation are provided in Section 35 of the CAMA. They include:

i.                    Memorandum and Articles of Association complying with the provisions of the CAMA.

ii.                  The notice of the address of the registered office of the company and the head office (if different from the registered office) –Form CAC3.

iii.                A statement in the prescribed form containing the list and particulars together with the consent of the persons who are to be the first directors of the company (FORM CAC7).

iv.                 Statement of share capital and Return of Allotment (FORM CAC2).

v.                   Declaration of compliance with the requirement of CAMA which must be completed by a legal practitioner and sworn to at the High Court Registry (FORM CAC4).

vi.                 Any other documents required by the commission to satisfy the requirements of any law relating to the formation of a company.

B)         Form of Return of Allotment would be included in the list of documents required for incorporation reasons being to ascertain the liability of shareholders of the company.

5.         The following clauses will be inserted in the Articles of Association to give Alhaji Aminu Wada some control over the company,

·         Appointment as Life Director, which means he will not be subjected to the rule of rotation of directors under Section 259 CAMA.

·         Substantial shareholding, the preferred subscriber may need to have majority shares in the capital of the company to give him due advantage during voting on key issues at the General Meeting.

·         He could be appointed as Chairman/CEO so he can be the alter ego of the company. he will take part in key decision making and preside over the company’s meetings (both Board and General Meeting). He also has a right to cast a vote in the event of inequality of votes during voting in resolutions.

·         Pre-emptive right upon transfer of shares. This will ensure that in the event of any shareholders transferring their shares, such shares should first of all be offered to the existing members.

·         Compulsory signatory to all accounts.

·         Power to appoint other directors.

·         Creation of classes of shares with preferential rights.