Talking Law With Ivie Omoregie: Consider These 6 Factors Before You Commence Legal Action

I often get a lot of people reaching out to me about various aspects of contract law. A lot of these complaints border around dishonored contracts; one party has failed or refused to do something to which he/she had initially agreed, thus causing the other party losses, for which they feel deserving of compensation.

In previous articles I discussed the importance of having a contract to begin with, and also alternate dispute resolution options, where parties are willing to explore amicable resolution of their dispute.

In many instances cases are struck out of court based on technicalities, forcing parties to re-file their applications. As you can imagine, this can be time consuming, tedious and expensive.

This article talks about the key factors to be considered before the commencement of a court action.

Cause of Action
These are various factors that make up the core ingredients of an enforceable claim. Often referred to as “reasonable cause of action”, it is imperative for the Claimant to understand and be able to establish the legal basis for which they believe they have a valid claim. This, when taken independently of any defence or mitigating circumstance, should have a strong chance of success at trail. It is imperative that the cause of action is one known to law, and that all criteria for it have been met.

Limitation periods
There are several instances where an action may be deemed as barred by operation of a statute. In instances where a claim is statute barred, the Claimant will have been deemed to have “slept on their rights”. Thus, even where they have a valid and strong claim, they will be denied the ability to bring an action in any court. For the purpose of limitation periods, time begins to run from the date of the breach, or rather the moment the cause of action has arisen. Even where parties wish to explore an amicable resolution of the matter, it is always advisable for a Claimant who wishes to bring a claim, to first file at the relevant court. Even where the court orders a “stays of proceedings pending amicable resolution of the matter”, the Claimant would have successfully avoided being caught in this exception.

The following are some limitation periods to note: –

• Land disputes (between private citizens) – 12 years
• Land disputes (between the state and a private citizen) – 20 years
• Actions against Public Officers – 3 months
• Damages for negligence – 3 years
• Damages for a simple contract – 6 years
• Damages for slander, nuisance, breach of duty of care – 3 years

Locus Standi
This refers to the Claimant’s legal capacity to bring a claim in the first instance. By law, it is only the person who has a vested personal right, who can validly bring an action for the protection of that right. The Claimant must be able to show that they have the legal capacity to maintain their claim.

It is for the Claimant to prove the facts establishing his right to bring the action. Where the Claimant cannot establish a valid locus standi, the courts will be compelled to strike out the case, without bothering to go into the merits of the case.

Jurisdiction
This refers to the legal capacity of the court, in which the application has been brought to hear and determine the application. The ability of a court to hear proceedings must be initiated by due process. The applicant must have fulfilled all necessary steps that enable the court to hear the proceedings.

The issue of jurisdiction may be raised at any point during the proceedings. Even after final judgment has been given, the issue of jurisdiction will still successfully invalidate the ruling of the court, as there is a legal presumption that “nothing can be built on nothing”.

Condition Precedent
These are conditions that, by law, are required to have been satisfied before the action may be validly filed in court. The most popular condition precedent is the successful service of a pre-action notice.

Where the Claimant has not successfully satisfied the condition precedent then no court will have jurisdiction to entertain the matter. Again this will mean the matter being struck out, without the court going into the substantive merits of the claim.

Financial Viability
Although not specifically catered for in any rule of law, one thing I always stress to clients is the financial viability of litigation. This is especially the case when dealing with small and micro businesses.

Litigation in Nigeria can be a very costly and timely affair. In most instances, when someone initiates litigation the aim is to have a monetary compensation. However, it is not everyone you ‘drag’ to court, who has the ability to pay any sums that may be eventually awarded. In matters where the Defendant clearly does not have the ability to pay any damages, if they were to be awarded, I always advise clients to explore other means of amicable resolution of their issues, rather than resorting to wasting their money and their time, and most importantly wasting the court’s time.