Before deciding to commence a legal action in court to enforce your right, here are some preliminary issues and factors that must be carefully considered before instituting a lawsuit in a Nigerian court. These factors are germane and part of the prerequisite for successful litigation.
1. Existence of a Reasonable Cause of Action
A cause of action is the fact or set of facts that give rise to a claim enforceable in Court. Before a person can validly institute an action in a court of law, there must be a cause of action because the Court cannot decide on a matter without a valid cause of action. A frivolous or unreasonable cause of action will not be successful, and the lawyer who filed such action may be liable to sanctions by the Court
2. Period of Limitation
The law sets the time for a cause of action to remain alive, and a suit cannot be instituted at the expiration of the time prescribed by law. Such laws are known as the statute of limitation. Where a statute provides the specific time to consider an action, failure to commence within that period will defeat the claim. The limitation period begins to count from when the cause of action arose.
The Limitation of Action Act 2004 (as amended) and the relevant States limitation Laws prescribe the specific periods within which legal actions are to be commenced or instituted from when the cause of action arose or occurred.
This is the period of time after the accrual of the cause of action within which legal proceedings can be brought before a court. When an action is commenced after the expiration of the required limitation period, the action is said to be statute-barred and dead and, therefore, will not be successful.
3. Condition Precedent
The law most times requires certain conditions to be satisfied before filing an action in Court. Such condition precedents may be by way of service of pre-action notice or satisfaction of other steps required by law before commencement of an action.
In a recovery of premise case, it is a condition precedent for the landlord to have served the tenant the statutory notice to quit. Also, the statutes establishing some statutory corporations provide pre-action notice to be given to such corporations before action is commenced against them in Court.
4. Locus Standi
This is a legal maxim that simply means a person’s capacity to sue. This determines whether the plaintiff has enough or sufficient interest in the matter brought before the Court. In determining whether a person has locus standi, such a person must be directly affected by the facts or series of facts in the issue. Once a plaintiff/claimant lacks the locus standi, the Court will strike out the action without considering the case’s merit.
The requirement of locus standi has been said to be one of the law’s attempts to keep out passers-by, strangers, busybodies and meddlesome interlopers. No one can adequately sue for the enforcement of a right apart from the person in whom a right is vested as his right, as such having the locus standi to sue. A person who makes a claim which belongs to another has no locus standi before the Court. The person approaching the Court to ventilate grievance or enforce his right must have the locus standi to sue and enforce his claim before the Court.
5. Pre-action counseling
A party is expected to seek legal advice on their case’s relative strength and weakness before deciding to sue. A Counsel must advise the client appropriately; pre-action counseling is the advice given to the client by the legal practitioner as to the strength and weaknesses of the case.
6. Cost of litigation
The cost of litigation is a very key consideration before embarking on litigation in Nigeria. The cost of litigation is not just limited to monetary cost but also time and relationship, the drain on finances, financial cost implication, and the time duration between commencement of proceedings and judgment.
Costs that may accrue in pursuing a case may include costs such as the lawyer’s professional fee, filing fees, and appearance fees where the lawyer charges the appearance fees separately for each court appearance and also not limited to out-of-pocket expenses to be incurred in actively pursuing the case. The cost of the intended litigation should be carefully considered. The plaintiff‘s counsel is expected to weigh the gain derived from the suit and its cost before instituting an action.
7. Exploration of Alternative Dispute Resolution
The judicial system in Nigeria has passed the era where the only form of dispute resolution is litigation. Today, parties are at liberty to explore all reasonable means to resolve disputes before going to Court. Alternative Dispute Resolution (also known as ADR) is the method by which parties to a dispute reach an amicable resolution without the need to resort to Court. Even when some matters get to Court, they are referred to ADR centers for amicable resolution in appropriate cases.
The applicability and suitability of ADR options must be considered before suing. The slow dispensation of justice and complexities associated with litigation birthed alternative dispute resolution mechanisms such as mediation, negotiation, arbitration, and conciliation. It is advisable to explore steps aimed at reconciliation and settlement before suing a party in Court.
8. Enforcement and realization of judgment
When a litigant approaches the Court, it is because he has a claim, right to enforce, or grievance to ventilate. The party wants to reap the benefits of his success at the trial. Parties must realize that it is a thing to get a judgment, and it is another thing entirely to reap the fruits of the judgment by the realization of the judgment. All the issues surrounding enforcement and realization of judgment should be considered before the commencement of an action.
9 Jurisdiction
Jurisdiction is a fundamental consideration. Jurisdiction determines the Court where the action will be filed. The Court, where a party intends to file an action, must have the power and legality to decide on the case. The main claim in an action must be within the jurisdiction of the Court in order for the Court to have the competence to adjudicate over a matter.
10. Immunity
Immunity means protection from any form of court proceedings. To avoid the case of striking out, the question of the defendant’s immunity has to be considered. The litigant must consider if the defendant has immunity from civil or criminal proceedings.
By virtue of the position some persons occupy, they cannot be sued during the occupation of such a position. This type of immunity extends to diplomats and their families and judges for acts done to discharge their judicial functions. Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides immunity for persons holding the office of President, Vice President, Governor, and Deputy Governor during their period of office.
Funmi Oderinde Esq., a Legal Associate at Citizens’ Gavel writes from Ibadan, Nigeria. She can be reached at funmi@gavel.ng.
Edited by Taiwo Makanjuola, Communications Associate, Citizens’ Gavel. She can be reached at taiwo@gavel.ng
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