6 Things You Should Consider Before Going to Court. Before you go to court, there are several issues that you must consider or risk losing the case or having your matter struck out by the court. This are the things I will explain in this article.
First of all, I would like to explain common legal terms which will be used in this article.
- Claimant: this is the person suing for his rights to be enforced
- Defendant: the person being sued, who is infringing on the rights of another
- The court: the judge
- Locus standi: the right of a person to bring an action before the court
Before storming a court room, there are some preliminary or pre-action consideration that must be checked.
1. Cause of action:
Cause of action refers to the facts or series of facts which give rise to a claim, or a relief in any matter. It is the issue that brings the parties to court.
It could also be defined as the question as to the civil rights and obligations of the party founding the action to be determined by the Court for one person in favor of another.
Before commencing a suit on behalf of a client, a Lawyer should first determine whether there is a cause of action in law in favor of the claimant and not just sentiments, otherwise such action risks being struck out by the court.
Again, the cause of action should not just arise, it must be in relation to the particular party seeking to commence the action, otherwise the action may be challenged on the basis of locus standi, which I have earlier explained.
Cause of action can be a breach of contract, declaration of title to land etc.
Jurisdiction is the power or competence of courts to hear and determine issues brought before it for adjudication.
It is the legal capacity of a court to hear and determine judicial proceedings and the authority which the Court has to decide a matter before it or to take cognizance of matters presented to it.
Simply put, it is the power of the court to entertain a matter and give a judgment within the ambits of the law. Jurisdiction is a very important issue in commencement of an action .I will give some examples of jurisdiction and what courts have what jurisdiction.
▪ Matters concerning narcotic drugs, trafficking, production, use, possession –federal high court of a state.
▪ Divorce – state high court.
▪ Election matters – election tribunal.
▪ Rent under ten million naira- magistrate court
▪ Traffic offences- magistrate court
▪ Murder – state high court
▪ Economic and financial crimes – federal high court
▪ Stealing, theft – magistrate court.
▪ Employment and industrial issues- national industrial court
All offences that carry a death sentence or life imprisonment must be tried by a high court of a state.
All suits against a federal government agency must be tried in the federal high court.
However, there are some matters that both the federal high court and high court of a state have concurrent jurisdiction, for example, matters of enforcement of fundamental human right.
A legal practitioner must take this into consideration before commencing any action on behalf of his client.
3. Limitation of actions
There are limitation laws in different states in Nigeria .these laws simply put a limit on the time within which a person can bring an action before a court. Accordingly, the following are limitation periods prescribed by the limitations laws:
a) Action founded on simple contract – 6 years
b) Action for damages for negligence – 3 years
c) Action for damages for slander – 3 years
d) Action by state authority to recover land – 20 years in Abuja and 12 years in Lagos
e) Actions for judicial review – 3 months
f) Actions against public officers – 3 months.
4. Alternative dispute resolution
This is also a prerequisite before an action can be brought.
This was put in place to ensure that parties try to reach an amicable settlement and where it is impossible, an action may then arise in the court.
There are four broad types of alternative dispute resolution; negotiation, arbitration, conciliation and mediation. Negotiation involves the parties to the suit or their lawyers negotiating on their behalf.
Mediation involves the presence of a third party called the mediator who listens to both sides and comes up with a solution, mediation is very similar to conciliation.
Arbitration on the other hand, involves an arbitrator or panel of arbitrators who attempt to settle the matter between the parties.
I always advocate for alternative dispute resolution, because the judicial system in Nigeria is very slow and it may a very long time to solve the problem.
In addition to this, it is advisable to use alternative dispute resolution to preserve the friendship and family bonds.
5. LOCUS STANDI
This is the legal capacity of a person to institute proceedings before a Court of law. It is the interest giving rise to a right to redress or remedy or a right to enforcement.
If a person does not have an interest in the outcome of a subject matter or the interest is not peculiar to him, that is, it is of a general nature available to the generality of the people, then he has no locus standi.
Where a party has no locus standi and he commences an action, such an action is liable to be struck out because it is incompetent and the Court will not have any jurisdiction to entertain the cause.
• The enforcement of the judgement if awarded in the favor of the claimant. Will be judgement be impossible to enforce by the court?
• Pre-action notice
Some companies require a notice informing them of your intention to sue before actually suing them, that notice is a pre-action notice.
6. Pre-action counselling
A lawyer is to inform his client on the advantages and disadvantages of his suit.
In Abuja, a lawyer is required to fill a pre-action counselling form with his client, showing that the lawyer has intimated his client with the necessary merits and demerits of his case.
Carefully consider these things before pursuing a case that may never see the light of day in court and yet will cost you money and time.
From the Same Author: How to Lawfully Eject a Stubborn Tenant from your House
If you need a pre-action counselling, just contact us. We have able lawyers who can best advice and handle your case.
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