Dear Young Lawyer or not-so-young-lawyer, how are you doing today? Do you have processes to respond to and you don’t seem to know where to begin from? May I extend a hand of assistance? Oh! Thank you for accepting my offer. That’s great. I’m confident, it’s going to be a pleasant ride, so hop in on the train while I set the engine in motion.
Now, we begin.
When served with any court process, the first step is to ascertain the nature of the process. This will help in three ways:
- It will guide your next line of action;
- It will aid your draft of the appropriate process in response; and
- It will aid your assessment of the processes for any preliminary issues that could terminate the matter even before it gets to hearing, assuming it’s a full-fledged suit.
I’ll give an example. Let’s say you’re served with a writ of summons and statement of claim. There’re a number of preliminary issues to be on the look- out for as you read through the processes. You may want to consider whether:
- the writ was served within its lifespan as prescribed by the rules of court of the relevant jurisdiction;
- the writ is properly endorsed for service outside jurisdiction (if that’s applicable);
- the parties on the face of the process are juristic persons;
- the action is brought within or out of the limitation period (if the cause of action is one to be instituted within a specific time frame;
- the court in which the suit is instituted has jurisdiction or not;
- there’re conditions precedent to be made (such as a pre-action notice if a government institution is sued) and whether such have been satisfied; and a number of other issues.
You should get the picture by now. Thereafter, you’ll consider whether to enter appearance for your client and whether such appearance will be unconditional, conditional or under protest. And then, you proceed to draft your response as befitting of the process served on you. Remember to make your general traverse at the commencement of the draft of your Statement of Defence. Do you intend to rely on electronically generated evidence? Ensure to satisfy the requirement of the Evidence Act by filing a Statement of Compliance with Section 84 of the Evidence Act. You could also state that in your Statement of Defence. Ensure in your draft to respond to every material fact raised by the other party and go ahead to state the case of your client.
How about if you’re served with a motion and an affidavit? In that case you’ll need to peruse the motion to ensure that it’s correctly signed by a lawyer and not in the name of a law firm. You’ll also want to check whether the content of the affidavit is not in contravention of Section 115 of the Evidence Act. Of course, you’ll be responding with a counter affidavit. So, what’ll be the content of the counter affidavit?
- Your oppositions to the facts contained in the affidavit;
- Facts that have not been put forward in the affidavit (I must warn that this could be tricky as there could be some danger in putting up these facts. You could put up those facts and give the opponent opportunity to explain more through a Further Affidavit. So you may need to really think through whether or not you want to state new facts in your counter affidavit).
I think this is enough for the now. We’ll continue on another episode where we’ll consider another interesting topic.
Written by Queen Ukpo ESQ