Nigeria: Commencement Of Civil Actions, Front Loading etc.

Last Updated: 31 October 2008
Article by Dolapo Akinrele

Delivered At The Conference On The Revision Of The Civil Procedure Rules Of Lagos State – 19th – 21st February 2002

1. Introduction

It would be difficult to describe the present system of Rules and structure of courts without referring, albeit concisely, to the historical basis and philosophical underpinnings of the machinery of justice. Indeed the functions of our courts and the basis for reform of their rules can only be understood when put in some historical context.

The Woolf Reforms which culminated in the new Rules of the Supreme Court of England 1998 represented a comprehensive re-appraisal and incorporation of many past endeavours which remained unimplemented or at best partially implemented.

It is certainly from these reforms that our present proposals draw their inspiration. Nevertheless we must be careful to fashion our reforms to suit our peculiar circumstances while drawing on the experience and lessons of other Commonwealth jurisdictions in which the common law system of adjudication is in use.

2. Comparative Background

The principles which underpin the Woolf reforms and the Practice Notes recently implemented in Australia, particularly, the District court of New South Wales on the subject of case management of Civil actions are much akin to the ones that underpin our own proposals for reform. Namely, that the civil justice system must be just in results delivered, fair and seen to be so. It must ensure an equal opportunity for litigants to state their cases and answer their opponents. The procedure and cost should be proportionate to the nature of the issues involved - It must have the attributes of speed, be understandable to those who use it, effective, organised and adequately resourced.

Since the fundamental reformation of the structure and functions of English Courts under the Judicature Acts of 1873-75, 60 reports on Civil procedure and re-organisation of civil courts have been procured in England. The Civil Justice Review Report of 1988 and the Report of the Joint Independent Working Committee, set up by the General Council of the Bar and Law Society of England in 1992 have sought to implement reforms to the Rules of English courts. The latter stated that the philosophy of litigation should primarily be to encourage early settlement of disputes. Litigants and their lawyers need to have imposed on them, an obligation to prosecute and defend their proceedings with efficiency and dispatch. Procedures should be simple and easily comprehensible to both layman and lawyer alike.

On 24th Jan 1995 the Lord Chief Justice of England issued a Practice Direction (1995) 1WLR 262 – setting out new requirements in the preparation and control of cases. He said, "We have over the year been too ready to allow those who are litigating to dictate the pace at which cases proceed".

3. Procedural Problems

Much akin to our own rules and system, there is no clear judicial responsibility for managing individual cases. Without effective judicial control, the adversarial process has encouraged an adversarial culture, which has degenerated into an environment in which the process is too often seen as a battlefield where no rules apply. In this environment, questions of delay, expense, compromise and fairness are of low priority. Expense becomes disproportionate and unpredictable. Delay is frequently unreasonable.

Litigation is reduced purely to adversarial tactics and where their worst excesses are not controlled, substantive and meritorious issues and claims are wholly sacrificed. The powers of the courts have fallen behind the more sophisticated and aggressive tactics of some litigators. Interlocutory hearings increasingly represent tactical skirmishes, aimed at delaying rather than enhancing the progress of the case.

The "cards on the table" or "full and candid disclosure" principle is not fully met by mere filing of pleadings. Furthermore, the discovery process is often left unpursued due to an indolent plaintiff or recalcitrant Defendant

and if pursued, the procedure remains unmonitored and unenforced so that it creates further delay and cost. The inevitable result of the foregoing is to discourage settlement.

Empirical study in major commonwealth jurisdiction have shown that settlement occur at too late a stage in the proceedings to be meaningful, such settlements more often than not, arising out of frustration. The benefits to the parties of fair settlements and the courts, through the avoidance of over listing of suits borne out of an early settlement are thus lost.

4. Proposals For Reform

Successive attempts at reform which focus on procedural changes alone have failed to overcome the problem. There must be a fundamental shift in the responsibility for the management of civil litigation from litigants and their legal advisers to the courts.

This philosophy must mean that litigants, once they commence proceedings no longer have sole and unfettered control over the way in which they take the case forward.

The views of the Woolf Report and indeed, the preface to these proposals by the Hon. Attorney General of Lagos State & Commissioner for Justice converge in this regard where the judicial case management of civil actions is strongly urged.

Indeed prior to the Woolf reforms in the Civil Justice Review report of 1988 in England it was strongly recommended that there be greater judicial control of case progress.

It is proposed that careful attention be given to the example of the district court of New South Wales in Australia, Practice Note No. 33 on case management of Civil actions which took effect from 1st January 2002 and is applicable to Construction list, Commercial list, Defamation and Family relationship actions. The four types of actions aforementioned are called specialist list actions and will be directly managed by the judge from time of commencement or from the time of entry into the list under the existing rules.

The objective of this Practice Note is that 90% of civil actions be completed within 12 months of commencement and 100% within 2 years. Disposal of actions within the court's timeframes requires that action be expeditiously prepared by the parties. Actions must thus not be commenced until they are ready to meet the requirements of the timetable as to preparation and hearing. If compliance with a requirement is not possible due to the Statute of Limitations or other special consideration, the court may, on the application of a party, vary this requirement.

Plaintiff's solicitors must accept that there is no rest period after commencement of an action, and in general, preparations for trial must be well underway before commencement.

Legal practitioners must advise their clients, in writing at the time of commencing an action or filing a defence of the court's insistence on actions being ready when the system so requires, that the court will dismiss actions or strike out a defence where parties do not meet time standards, timetables or comply with court orders and that problems such as Plaintiffs failing to notify their solicitors of a change of address or failing to attend promptly upon medical appointments can lead to the action being dismissed.

Applications for adjournments are made by Notice of Motion and Affidavit in support at the earliest opportunity and must be made before the day of hearing and heard before a list judge. Applications for adjournments will not be entertained on the day of hearing.

In cases, which cannot proceed on the day of hearing, the defaulting party will be asked to show cause why his claim or defence should not be dismissed or struck out. Costs orders, payable within a nominated time can be made against a party or alternatively against a legal practitioner who may be called upon to show cause, why he should not personally pay the costs.

The challenge thus facing the proposers of the reforms encapsulated in this document compiled by the Lagos State Ministry of Justice is how to preserve the best features of the present adversarial system while giving a more interventionist role to the courts. We must not erode the fundamental tenets of the common law system in favour of the inquisitorial procedure of civil law systems such that the transparency and impartiality of the arbiter can be called into question.

Under the current English rules Part 7 deals with commencement of procedures and Part 16 deals with contents of the documents required for commencement.

The fundamental shift in Part 16 is that a "Statement of claim" now restyled, as "Statement of case" must be verified by a statement of truth. A defence must provide a comprehensive response to the Particulars of claim, as a simple denial will not suffice.

In part 7 the user-friendly term, "Claim Form" has replaced the terms Writ and Summons. A person who wishes to make a claim no longer issues a High Court writ or county court summons, but instead issues a Claim Form. The Statements of case should enable the court and the parties identify and define the real issues is dispute. In particular they should enable the court to allocate the case to the appropriate track, to give appropriate case management directions.

Likewise, with the proposed rules, the amendments recommended put this onus on the plaintiff. The recommendations have been implemented in the Federal High Court and are now recommended in the context of order 3 R1. by the combined recommendation of Human Rights law service and National Institute of Advanced Legal studies. Save for the recommendation that the Judicial/statutory authorities be included in the list of front loaded documents by a plaintiff in commencing action. I have great difficulty in criticizing the proposals for reform in the context of commencement of actions. Likewise order 7Rule 1 on the subject of widening the scope of persons who may serve processes of court is equally acceptable to me.

Finally, it is important to ensure that these processes and documents do not become unduly technical, particularly the witness statements, which in other jurisdictions have grown from being simple written records of the witnesses' evidence to being very complex documents, drafted on the witnesses' behalf by counsel.

Distinguished Chairman, Lords of Appeal, Honourable High Court Judges, Honourable Attorney Generals, members of the Inner and Outer Bar, Ladies and Gentlemen. I thank you for listening. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions