Order 3 — FORM AND COMMENCEMENT OF ACTION

Subject to the provisions of these Rules or any applicable law requiring any proceedings to be begun otherwise than by writ, a writ of summons shall be the form of commencing all civil proceedings to wit:

(a) Where a claimant claims any relief or remedy for any civil wrong; or

(b) Damages for breach of duty, whether contractual, tortuous, statutory or otherwise; or

(c) Damages for personal injury to or wrongful death of any person, or in respect of damage or injury to any person, or property; or

(d) Where the claim is based on or includes an allegation of fraud; or

(e) Where an interested person claims a declaration.

(1) All civil proceedings commenced by writ of summons shall be accompanied by:

(a) statement of claim;

(b) copies of every document to be relied on at the trial, other than any book or treatise, to be relied on; provided that dispute survey plans need not be filed at the commencement of the suit, but shall be filed within such time as may be ordered by the Court upon any application made under rule 3 of this order;

(c) list of non-documentary exhibits;

(d) list of witnesses to be called at the trial;

(e) written statements on oath of the witnesses; provided that the statement on oath of a witness requiring subpoena from the Court need not be filed at the commencement of the suit, but shall be filed and served at least 7 working days before he testifies;

(f) pre-action Counselling and ADR Statement (Form 01).

(2) Where a claimant fails to comply with Rules 2 (1) above, his originating process shall not be accepted for filing by the Registry.

(3) Notwithstanding the provision of order 3, Rule 2(1) (f) above, the settlement of cases through ADR will not deny Counsel a proportion of the agreed fees not exceeding thirty-five per cent.

In land matters, a Claimant may file a motion on notice along with the Originating Process, for leave to enter the land in dispute for the purpose of making dispute survey plan for the suit.

Notwithstanding Rule 2 of this order:

(1) Where before commencement of a suit, a person reasonably perceives that the subject matter of an intended suit is in danger of being alienated, wasted or damaged, such an intending Claimant may apply for injunction before the suit is commenced to restrain the act being complained of.

(2) The application shall be by motion on notice, or in appropriate case by motion ex-parte supported by an affidavit and a written address.

(3) Any order made under Rule 4(1) above shall stand discharged if the applicant fails to file the substantive suit within 14 days of filing the application.

(4) A motion for injunction filed pursuant to Rule 4(1) of this order shall be merged with the substantive suit when filed, and the motion shall thenceforth, as far as is practicable, be treated as if it were filed after the commencement of the substantive suit.

Except in cases for which different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.

A writ of summons to be served out of Nigeria shall be in Form 2 with such modifications or variations as circumstances may require.

Any person claiming to be interested under a deed, Will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of Construction and for a declaration as to the right claimed.

A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such Orders as he deems fit.

(1) An originating summons shall be in the Forms 4, 5 or 6 to these Rules, with such variations as circumstances may require. It shall be prepared by the Claimant or his Legal Practitioner and filed in the Registry. It shall be sealed and signed and shall be deemed to be issued.

(2) An originating summons shall be accompanied by:

(a) an affidavit setting out the facts relied upon;

(b) copies of all documentary exhibits to be relied upon;

(c) written address in support of the application;

(d) pre-action Counselling and ADR Statement.

(3) The person filing the originating summons shall leave at the Registry, sufficient number of copies thereof together with the documents in sub-rule (2) above for the use of the Court and for service on the Defendant(s).

All Originating Processes shall upon acceptance for filing by the Registry, be screened for suitability for ADR and referred to the Abia Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Abia State.

A suit may be commenced by Originating Motion where:

(a) It is so expressly provided by these rules;

(b) It is so expressly provided by any written law in force in the State.

Subject to the provision of the Sheriffs and Civil Process Act, a writ of summons or other originating process issued by the court for service in Nigeria outside Abia State shall be endorsed by the Registrar of the Court with the following notice:

“This summons (or Motion as the case may be) is to be served out of Abia State of Nigeria and in the …………………………………. State.”

(1) The Registrar shall indicate the date of presentation for filing on every originating process presented to him, and shall arrange for its service where same is required.

(2) An originating process shall not be altered after it is sealed except upon application to a Judge.

1. All Originating Processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Abia Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Abia State.

(1) Where the defendant is challenging the jurisdiction of the court to entertain the suit, he may apply to the court for an order striking out the suit or setting aside the proceedings.

(2) The preliminary objection shall be by motion on notice and filed with a counter-affidavit to the main suit.

(3) On the hearing date, the preliminary objection may be heard by the court, and after hearing the application, may make an order:

(a) striking out the suit for want of jurisdiction, or

(b) setting aside the service of the originating process, or

(c) in appropriate cases, reserving its ruling to the end of the case where the court considers it expedient and in its view, will do substantial justice.

(4) Where the court does not decline Jurisdiction, it shall proceed to hear and determine the substantive suit.