By S.O. GIWA ESQ.

As an electric current passes through a wire so as the use of ubiquitous process christened ‘PARTICULARS OF CLAIM’ or ‘CLAIM’ in commencing civil proceedings in Magistrate Courts keeps passing from one lawyer to another without an exemption of new wigs.

This ubiquitous practice of commencing civil proceedings with a process usually christened ‘PARTICULARS OF CLAIM’ or ‘CLAIM’ by many legal practitioners in the Magistrate Courts in some jurisdictions is now a stock-in-trade of many lawyers including new wigs.

Scouting for the legal source of the use of the said process christened ‘PARTICULARS OF CLAIM’ or ‘CLAIM’ calls for reading through Magistrates’ Courts (Civil Procedure) Rules in force in some States like Ogun, Osun, Oyo and Lagos States and the reading of the Magistrate’s Court (Civil Procedure) Rules of the aforementioned States evinced that there is no provision in all the Magistrate’s Courts (Civil Procedure) Rules as legal basis for the use of the process titled as Particulars of Claim as originating process in Magistrate’s Court.

Not finding any provision in the Rules which provide for the use of the process christened Particulars of Claim in Magistrate’s Court in Ogun and Oyo States as a form of commencing civil proceedings in Magistrate’s Court makes the writer to interview some lawyers who do file Particulars of Claim in initiating civil proceedings in Magistrate’s Court in one of the jurisdictions in focus

Responses from the lawyers interviewed confirm the writer’s hypothesis that filing of such process in initiating civil proceedings in Magistrate’s Court is founded on use of precedent in drafting processes and failure of many lawyers to find out if such process is provided for as originating process in Magistrate’s Court. Thus, many users of particulars of Claim as originating process in civil action in Magistrate’s Court only use the process because they see many lawyers especially their seniors using same from time immemorial without any effort being made to find out if such process is the process provided for by the Rules of Court.

One then continues to ask oneself a question: ‘Is the use of the said process christened ‘PARTICULARS OF CLAIM’ or ‘CLAIM’ a provision of Magistrate’s Court (Civil Procedure) Rules in those jurisdictions in focus?

In finding answer to the poser above, the writer had recourse to Magistrate’s Court (Civil Procedure) Rules in force in Oyo, Ogun, Osun and Lagos States.

Recourse to Lagos State Magistrate’s Court (Civil Procedure) Rules in force evinced the provision of Order 2 rule 6 (1) hereunder reproduced thus:

‘Any person (hereinafter called –the plaintiff) desirous of instituting civil proceedings by action commenced by Plaint shall deliver to the registrar of the court for filing, a praecipe in the Form 1 in Appendix 1 together with the particulars of his claim. The particulars shall be signed by the plaintiff or, where the plaintiff sues by legal practitioner, by the legal practitioner, who shall also give the address at which he will accept service of documents on behalf of the plaintiff’ The underlines are ours for emphasis.

It is clear as crystal that the above provision only provides for the use of ‘particulars of claim’ as an additional process to be filed together with a plaint, an originating process, in initiating civil proceedings in Magistrate’s Court in that State.

The particulars of claim which the above provision provided for as accompaniment of a plaint is akin to statement of claim, an accompaniment of a writ of summons, an originating process for civil proceedings in High Court. The said particulars of claim is a document setting out the case of the plaintiff and specifying the facts relied upon.

It is the writer’s observation that most lawyers who do file such process ‘Particulars of Claim’ to initiate civil proceedings in Magistrate’s Court find it difficult to distinct claim from a relief though the term ‘claim’ interchangeably used to mean relief depending on its usage or contextual meaning.

It is the writer’s stand that the claim in the context of ‘particulars of claim’ transcends stating reliefs which are the redress or benefit that a party asks of a court and the term ‘claim’ in the context of particulars is the aggregate of operative facts giving rise to a right enforceable by a court. It is the plaintiff’s short, plain statement about the crash between the plaintiff and intended defendant to be sued.

It is thus wrong for a party to only state reliefs on a document called particulars of claim and think he or she has furnished the court with facts which give rise to his enforceable right.

It is further clear that from the above quoted provision that the civil proceedings in Magistrate Court is to be begun by a plaint and not particulars of claim or claim which many legal practitioners used to file in initiating civil proceedings in Magistrate Courts in Oyo and Ogun States in focus.

It is fundamentally important to clear the air that the Magistrate’s Courts (Civil Procedure) Rules in force in Oyo, Ogun and Osun States have no provision for filing particulars of claim together with a plaint in initiating civil proceedings in the Magistrate Courts in the above mentioned jurisdictions and filing a process christened Particulars of Claim is alien and unknown to operative Magistrates’ Court (Civil Procedure) Rules in those States in focus.

The provision on form and commencement of civil proceedings in the Magistrate Courts in Oyo, Ogun and Osun States is under order 2 rule 1 of the Magistrates’ Court (Civil Procedure) Rules of respective States and the said provision under order 2 rule 1 goes thus:

‘On the application of any person desirous of instituting civil proceedings and on payment of the prescribed fees, the registrar shall enter in a book to be kept for this purpose in his office and called a plaint, stating the names and last known places of abode of the parties and the substance of the action intended to be brought, and every one of such plaints shall be numbered in every year, according to the order in which it shall be entered, and the registrar shall deliver to the applicant a plaint note.’  

It is no gainsaying that from the above quoted provision which is the same provision in Magistrate’s Courts (Civil Procedure) Rules in Ogun and Oyo States it is clear that for civil proceedings to be commenced in the Magistrate’s Court such proceedings must be by a plaint and a plaint is a statement in writing which contains the names of parties, last known places of abode of the parties and the substance of the action intended to be brought.

Besides, the procedures involved in instituting civil proceedings in the Magistrate Courts which range from application to the issuance of a plaint note deductible from the above quoted provision are hereunder outlined:

  • The plaintiff shall apply for a plaint note with payment of prescribed fees
  • The Registrar shall then enter the names of the parties, last known places of abode of the parties and the substance of the action intended to be brought in a book called a plaint
  • The Registrar shall thereafter number the plaint according to the order in which it shall be entered
  • The Registrar would then issue the applicant a plaint note.

It is noteworthy that the court has power to decline jurisdiction and refuse to entertain a plaint which on the face of it discloses no cause of action or is in respect of a matter not within the jurisdiction of the court, or where the complainant fails to state his address. This is the provision of Order 2 rule 2(1) of the Magistrate’s Courts (Civil Procedure) Rules of the aforementioned States in focus and the provision reads:

‘The court shall refuse to entertain a plaint where such plaint, on the face of it, discloses no cause of action, or is in respect of a matter not within the jurisdiction of the court, or where the complainant fails to state his address, and the registrar shall enter such refusal together with the grounds thereof in the Civil Cause Book.’

Flowing from the foregoing is the indisputable fact that civil proceedings in Magistrate Courts in those States in focus is by a plaint and not a self-made process christened ‘Particulars of Claim’.

It is important to say further as part of the procedures involved in instituting civil action in Magistrate Courts that after a plaint has been entered, a summons shall be issued in the prescribed form directed to the defendant requiring him to appear at a certain time before the court to answer to the plaint and not a self-made process christened particulars of claim which many lawyers do file in commencing civil proceedings in Magistrate Courts. This is the provision of Order 3 rule 1 of the Magistrates’ Courts (Civil Procedure) Rules in force in those States in focus and the provision reads:

‘After a plaint has been entered, the magistrate or (if the magistrate so directs) the registrar shall issue a summons in the prescribed form directed to the defendant requiring him to appear at a certain time, being not less than seven-days from the date of service of such summons, and at a certain place, before the court to answer to the plaint.’    

Fortifying reading of the plaint to the defendant on the day of hearing is the clear provision of Order 9 rule 4(1) of the Magistrates’ Courts (Civil Procedure) Rules of those States in focus and reads thus:

‘If on the day of hearing both parties appear the plaint shall be read to the defendant, and the magistrate shall require him to make his answer or defence thereto, and, on such defence or answer being made, the magistrate shall immediately record the same and shall, except where the court considers it necessary to order otherwise, proceed in summary way to hear and determine the cause, without further pleading or formal joinder of issue.’

Cumulative reading of all the above quoted provisions and other relevant provisions on the issuance and service of required processes in initiating civil proceedings in Magistrate Courts in those aforementioned States in focus fortify the writer’s stand that the required originating processes for the commencement of civil proceedings in Magistrate Courts are Plaint and Summons not self-made process christened ‘Particulars of claim.’

It is hornbook law that where a statute and rules of court have provided for the method of doing anything, it must be done in accordance with the express provision of the statute or rules. Unless such a law or rules of court are altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever. This is the position of law in the case of Mobil Producing (Nig.) Unltd. Vs. Johnson (2018)14 NWLR (Part 1639) 329@ 359 paras. A-B

It is the writer’s firm stand that any action initiated by ‘Particulars of Claim’ by a party is not known to law or Magistrate’s Courts (Civil Procedure) Rules in force in those States in focus and once an action is not initiated by due process of law that is, the form and procedure provided by the said Magistrate’s Courts (Civil Procedure) Rules, such action is incompetent and thereby oust the court of its jurisdiction.

It is the writer’s further stand that any civil action tried or determined on that self-made process christened ‘Particulars of claim’ which the law or rules of court does not provide for as an originating process is a nullity no matter how well such proceedings is conducted. Fortifying the writer’s submission is the case of Alhaji Salihu Abbas v. Augustine S. Tera (2003) 2 NWLR (Part 1338) 284@292 paragraphs F-G wherein it was held that where a claim is not initiated by due process of law, the claim is incompetent and where the incompetent claim is heard by a court, the proceedings before that court are a nullity.

To avert wasting energy and precious time in entertaining civil action which is begun by a self-made process christened ‘Particulars of Claim’ in the Magistrate Courts, lawyers who are fond of filing the said self-made process ‘Particulars of Claim’ are hereby advised to follow the practice and procedure provided for in the Rules of Court.

It is the writer’s further advice to the new wigs and colleagues of the writer’s that the sound knowledge given during the course of studies of law in University and Law School be put into use in practice and where there exist any grey area, asking colleague of one’s or senior is not a crime because no one knows it all.

It is the writer’s recommendation that any process that is to be used for civil proceedings must be verified, scrutinized and once it is found that such process is not provided for by the Rules of court, such process should be discountenanced with as doing that would put a halt to initiating civil proceedings before the court by unknown process ‘Particulars of Claim’ which many lawyers are fond of using.

Finally, it is to be borne in mind by our Magistrates that courts are duty bound to verify and scrutinize all processes filed before them to ensure strict compliance with relevant laws before taking action on any process. This advice is premised on decision of Honourable Justice Zainab Adamu Bulkachuwa J.C.A, as he then was, in the case of Alhaji Salihu Abbas v. Augustine S. Tera (2003) 2 NWLR (Part 1338) 284@292 paragraphs F-G and decision of His Lordship Joseph Shagbaor Ikyegh J.C.A in the case of Osasuyi Vs. Mudashiru (2015) 4 NWLR (Part 1449) 201 @ 218 paragraphs B-D

The writer hereby and humbly urges the court and legal practitioners to be ready and sensitive enough not to allow or do anything that will run afoul of the law and Rules of the court.

BY S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner)                        [email protected] 08035224192