Modes of commencement of action
Generally, the mode of commencement of an action is provided under the rules of the relevant court. It may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a particular subject matter. [1]
Proceedings which must be begun by writ are generally where a plaintiff claims reliefs or remedy for any civil wrong, or damages for breach.
Proceedings which may be begun by originating summons are where any person is seeking for the determination of any question of construction arising under an instrument and for a declaration of the rights of the persons interested. Properly used where facts are not contentious.
Proceedings may be commenced by originating motion or petition where the relevant Rules or any written law provide.
– Distinction between an originating summons and a writ of summons
…an originating summons is not the same as writ of summons. In the case of the former no pleadings are employed while in the case of the latter there are pleadings in the form of statement of claim, statement of defence, reply etc.[2]
– Effect of an originating summons that does not contain question(s) for determination
Generally, formulation of questions for determination is central to the validity of an originating summons especially where the rules provides for it like in the Federal High Court. It is essential that the particular question of construction between the parties be clearly identified in the body of the summons.[3] The questions for construction in the instrument in question is an integral part, a sine qua non, of the originating summons without which the originating summons is incurably defective and not merely irregular.[4]
– Whether the existence of a criminal action will be a bar to a subsequent institution of a civil suit against the same party
Some prohibited acts doubles as criminal or tortuous acts and are therefore not only prohibited and punishable by the criminal court but are also actionable as civil wrongs in the regular civil courts. An example is the crime of assault. The current position of the law is that a person can be on trial for both the criminal aspect and as well as the civil aspect at the same time. The remedies are also concurrent; while the defendant’s tort-feasor might be imprisoned for the crime committed, he could at the same time pay damages to the Plaintiff for the tort committed. A complainant can report a case to the police for prosecution and at the same time institute civil proceedings. In effect, the rule in Smith v Selwyn[5] that the criminal aspect of an act must be prosecuted before instituting a civil action is no more applicable in Nigeria.[6]
[1]Dawlang v C.O.P Enugu State and another (2017) LPELR-43449(CA) 26-28, paras E; Din v Attorney-General of the Federation (1986) 1 NWLR (Pt 17) 471; Obasanya v Babafemi (2000) 15 NWLR (Pt 689) 1; Nigerian Breweries Plc v Lagos State Internal Revenue Board (2002) 5 NWLR (Pt 759) 1; Alhaji Alubankudi v Attorney-General of the Federation(2002) 17 NWLR (Pt 796) 338; Hon. Muyiwa Inajoku & v Hon. Abraham Adeolu Adeleke (Speaker) and 29 others (2007) 4 NWLR (Pt 1025) ; Keyamo v House of Assembly, Lagos State (2002) 18 NWLR (Pt 799) 605; Famfa Oil Limited v Attorney-General of the Federation (2003) 18 NWLR (Pt 852) 453; Balogun v APC and another (2019) LPELR-46962(CA) 13-29 paras A-F.
[2] Re: Busfield, Whaley v. Busfield (1886) 32 Ch. D 123 CA. at 126 and Re Holloway, ex parte Pallister (1894) 2 Q.B. 163 (CA) 166 – 7; Director of SSS and another v Agbakoba (1999) LPELR-954(SC) 27 paras C-E.
[3]Olley v Tunji (2013) 10 NWLR (Pt 1362) 275 at 322 paras B-G; (2013) LPELR-283/2012.
[4]University of Jos and another v Aro (2019) LPELR-46926(CA) 17-21 paras D.
[5](1914) 3 KB 98.
[6]Abaver v Alaga (2018) LPELR-46566(CA) 9-14 paras C-A.