Beginning the Defence: General Considerations for Defense Counsel

It is not disputed that in every case, the Court aims at doing justice to all the parties. And each party is before the Court with his legal team to help the Court achieve justice. Yet strangely, what is justice to the Claimant (or petitioner) would not be what the Defendant (or respondent) would regard as justice in the self-same case and arising from the same set of facts.

Strange? Well, welcome to litigation in our adversarial system. On the Lawyer’s part, litigation demands strategy/tactic, oratorical ability, knowledge of law, guts (together with the gut feeling) and some would argue or add theatrics. Whether the list I have just reeled out would be generally accepted or not is debatable but the point is that in the end, justice is to be arrived at on the basis of what each party can prove with credible and cogent evidence.

In commencing the defence of a claim, the first instinctive step is to access the Claimant’s case vis a vis the Defendant’s story (or side of the facts). This would often help determine what course of action should be taken in prosecuting or protecting the Defendant’s interest. In other words, should the defendant ‘fight the baseless, vexatious and scandalous claim of the Claimant’, should he counter claim as well or simply call the Claimant to the round table, whisper words of peace and thus escape the whole litigation process. The Defendant’s (or Client’s) goal should also be considered and should ideally guide the Lawyer’s professional response to the suit.

Accessing the Claimant’s Case #

The immediate consideration here is – are there any preliminary considerations or issues that could terminate the Claimant’s case in limine or totally? [Ex Nihilo Nihil Fit – out of nothing, nothing is produced[1]] Finding the preliminary issues, considerations or points of law that could terminate the Claimant’s case in limine, would require reviewing the Claimant’s processes and entire case with a fine comb. After all, remember its litigation and our system is adversarial. While reviewing the processes, the issues/considerations that Defense Counsel should search for could range from procedural missteps to jurisdictional flaws.

Case Law Quote:

It is now well settled in law that it is the Claimant’s case that vests jurisdiction on the Court. A valid Writ of Summons is sine qua non to the assumption of the requisite jurisdiction by a Court to entertain or adjudicate over a matter commenced by that process. I refer to Adeyemi v. Opeyori (1976) 9-10 SC 31 at 49, 51-52; and Kasikwu Farms Limited v. A.G of Bendel State (1986) 1 NWLR (Pt. 19) 695 at 703-704. The Court will not look at a defendant’s processes to determine whether it has jurisdiction. –

Supreme Court in SKY POWER EXPRESS AIRWAYS LTD v. UBA, PLC & ANOR (2022) LPELR-56590(SC)

It is noteworthy that the prevailing judicial spirit dwelling in the bosom of our Judges is to do substantial justice and forgive technicalities as mere irregularities. On this ground, procedural missteps when raised by a Defence Counsel may not evoke stringent judicial responses (that is it may not successfully terminate the case in limine). In most Rules of Court, this saving disposition (or willingness to ignore procedural flaws) seems well enshrined. For example -by Order 5 of the Delta State Civil Procedure Rules 2009, procedural flaws (things not done at the time of beginning the action or at any stage in the course of the proceedings) may be treated as irregularities and if so treated do not nullify the proceedings.

Thus, by the rules of most High Courts, where a procedural misstep is timely observed, a Defendant could apply to have the step set aside as being an irregularity before he (the Defendant) takes any step in the proceedings – See Order 7 Rule 2 of the Lagos Rules, Order 5 of the Delta State Rules etc. However, it is necessary to take particular note of what the applicable High Court Rule says. This is because there are subtle differences in the provisions relating to non-compliance with the rules (that is procedural missteps). For example Order 7 Rule 1(1) of the Lagos Rules clearly states that any action filed without complying with Order 5 Rule 1(2) – which deals with documents to accompany a writ of summons and Order 5 Rule 5 – which deals with originating summons; will nullify the action.

An example of a procedural misstep that a Defendant could rely on to temporarily nip the progress of the proceedings, is where the action is one arising from or relating to a contract and the contract has an arbitration clause. The law is that the Defendant can file a motion praying for a stay of the proceedings and a referral of the suit to arbitration. Where the Defendant fails to do this and takes any step in the proceedings it would be deemed that he has waived his right to insist on arbitration. It is conceded that the just mentioned example does not terminate the Claimant’s case in limine – but it could lead to a quicker resolution of the dispute via the mechanism of arbitration.

Generally, the Courts tend to be more accommodating of procedural missteps as the current judicial posture is the drive towards attaining substantial justice. In fact, by some rules of Court, failure in carrying out any steps in relation to time, place, manner or form at the point of beginning the action would be considered as an irregularity – Please see Order 5 of the Delta State Civil procedure Rules 2009, Order 7(1)(2) of the Lagos State Civil Procedure Rules 2019. But as mentioned earlier, due reference should be made to the applicable rule of Court to determine which procedural misstep would rightly be considered as an irregularity. It is noteworthy that the Courts’ accommodation of missteps as irregularities do not apply across board to salvage all missteps made at the point of beginning the action – please see Order 7(1)(1) and (3) of the Lagos State Rules. This is because some missteps are more fundamental than others and rightly fall into the class of jurisdictional flaws and these jurisdictional flaws go to the root of the suit.

One example of a procedural irregularity that is more in the class of jurisdictional flaw is commencing an action using the wrong mode of commencement. See the cases of Emenike Mbanugo & Co v FBN Plc 22856 (CA) Okon & Ors v Ansa (2018) LPELR 44304 (CA) . The Lagos Rules contains a provision that seems likely able to save a party who commences an action by a wrong mode or originating process – See Order 7 Rule 1 (3) of the Lagos Rules. Please note also that there is an exception for contentious matters begun by originating summons; the Court has the power to convert the originating summons to writ of summons and order that pleadings be filed see Olumide V. Ogunbanwo (2017) LPELR-50110(CA), Anatogu V. Anatogu (1997) 9 NWLR (PT.519) PG. 49 AT 70; and Jev. V. Iyortyom (2014) 14 NWLR (PT. 1428) AT 575 SC.

Another example of a misstep that amounts to a jurisdictional flaw/issue is the failure to sign the writ of summons or other originating process. The Law is largely settled that an Unsigned writ is void and cannot be remedied by an amendment. The cases of Mainasara v. FBN (2021) LPELR-56612(SC), Nzom & Anor v. Jinadu (1987) 2 SC 205, SAMI v. APC & ORS (2019) LPELR-48045(CA) are relevant here.

As a practice observation, unless the procedural misstep is one that could be fatal to the suit when set aside, applying to set aside any and every procedural misstep may only turn out to be a time-wasting exercise.

On procedural missteps that amount to jurisdictional flaws/issues, more examples exist – the Claimant may have filed the suit before a Court that does not have the requisite jurisdiction to entertain the matter (note the exception here where some Courts have powers to transfer matters to the appropriate Courts that have jurisdiction over the matter concerned – Section 22(2) of the Federal High Court Act), he may have failed to comply with a condition precedent, he may have served a void process on the Defendant due to failure to comply with Section 97 and 98 of the Sherriff and Civil Processes Act [see the Supreme Court judgment in PDP V INEC ~compare with; Obasanjo Farms Nig. Ltd V Tijjani Ado Muhammad (2016) LPELR – 40199 (CA) ], the suit may amount to an abuse of Court process, it may be statute barred or due to the facts, the doctrine of estoppel may apply.

In all, what is intended at this point of beginning the Defense – sometimes even before the Defendant’s story or facts are heard by the lawyer – is that the lawyer accesses the Claim with this nagging question in mind; is the Claimant’s case doomed to indeed fail despite its merits (assuming there is any)? Or put differently, is it dead on arrival? Can it stand (in law) as it is even though it is not defended at all? A quick example that comes to mind are cases that are caught up by the statute of limitations – no matter their merit, they arrive the halls of justice dead and without capacity to activate the jurisdiction of the Court. A defense lawyer that spots such a matter that is affected by the statute of limitation invariably saves his client time and the entire gamut of litigation in some cases. Another example of a jurisdictional flaw that could sweep the Claimant’s case off its feet is the simple matter of the writ of summons being unsigned. Yes, such a simple issue could cause a humpty dumpty fall to Mr. Claimant. The authority of Ivieliokhe v. British High Commission (2021) LPELR-56597(CA) P 11 Paras C – E is very instructive on this point. In Mainasara v. FBN (2021) LPELR-56612(SC), the Supreme Court held inter-alia that; “The law is settled that an unsigned Writ of Summons is out-rightly void and not even a subsequent amended writ could cure such fundamental defect. Such a writ is void and remains void and nothing can be added to it. See Nzom & Anor v. Jinadu (1987) 2 SC 205”. See also; Keystone Bank Ltd. V. J.O.A. & S. (Nig.) Ltd. (2015) 1 NWLR (PT. 1439) 98 (SC); Orok V. Eta (2021) 12 NWLR (PT. 1790) 350 (P. 375, PARA. E) (CA). Okafor v. Nweke [2007] 10 NWLR (Part 1043) 521 at 531 para–H is the locus classicus on the position of law relating to writs signed in the name of law firms; In First Bank of Nigeria Plc & Anor v. Maiwada (2013) 5 NWLR (Pt. 1348) 444, the Supreme Court was invited to overrule the decision in Okafor v. Nweke (Supra), but the Court unanimously refused to depart from the decision in Okafor v. Nweke. On this issue of the validity of a writ that is signed by a law firm; see the Supreme Court authority of Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC) P 18 – 19 Paras B – C, which also affirms the position that an originating process signed by a law firm is incompetent and liable to be struck out.

Addendum – In most cases, the mere fact that a claim is undefended does not automatically mean that the Claimant would be entitled to or indeed have a full sail to victory. If the claim seeks declaratory reliefs, the law is now settled that the absence of a defence (and even an admission) does not discharge the Claimant’s duty to lead credible evidence in proof of this claims. Also, in the Supreme Court decision of Balogun v U.B.A. Ltd (1992) 6 NWLR (Pt 247) 336, the Court held inter alia that in some cases a defendant who offers no evidence could still have judgment in his favor if the Plaintiff is unable to prove an essential element of his claim; this position was equally relied upon by the Court of Appeal in Igbinovia v UBTH (Supra).

The preliminary issue/consideration found in step a above could or would then form the basis for the filing of a preliminary objection to the Claimant’s case. This depends on the Defense lawyer’s intended strategy. If the preliminary issue borders on jurisdiction, it might be best to wait till the end of the suit to raise it at the point of final addresses – so that it constitutes an additional basis upon which the Claimant’s case could be dismissed. In most cases, Counsel have adopted the approach of raising the jurisdictional flaw on appeal and on this basis, the suit is upturned in its entirety. Consequently, assuming the Claimant did a beautiful job of proving his case, the jurisdictional flaw would then be the Achilles’ heel that disrupts his entire good labor in the suit.

[1] In respect of appeals, a defective notice of appeal has been held as being incapable of an amendment. Thus, if the notice of appeal is defective, any proceedings taken on the defective notice becomes nu and void as the court would lack jurisdiction to hear such an appeal began by a defective notice of appeal. In other words, Ex nihilo Nihil fit – You cannot put something (appeal proceedings) on nothing (defective notice of appeal) and expect it to stand. It would crumble.  The Nigeria Army v Samuel (2013) LPELR 20931 SC, Nwaigwe v Okeke (2008) LPELR 2095 SC – only a valid notice of appeal can be amended. A defective/invalid notice of appeal is non-existent in the eyes of the law.

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