Initiating a civil proceeding in the subordinate court

When starting any form of legal proceeding there will always be a reason when anything that is done or left undone or have failed to comply with the requirements, in such cases the failure shall be categorized as an irregularity. If this happens then the person will usually take the next step by issuing a “Letter of Demand” to the other party so that they aware of the irregularity.

A “Letter of Demand” in this case is a formal letter to the other party to demand of them a payment of a certain sum or to comply with requirements within a specific period. The limited time that the other party has to comply with is usually between 7 or 14 days. If they for whatever reason fail to comply with the instructions that have been provided to them in the letter then a civil proceeding will taken against the other party.

Anyone can carry a civil proceeding in Court either by hiring a solicitor or they can even represent themselves. If you do not have legal knowledge, then it is best recommended that you acquire the services of a solicitor as you task will be greatly simplified. All you will need to do is provide them with instructions and supporting documents so that they can do their job. In return your solicitor will represent you in court and they will be the ones that will file the relevant documents with the court.

However corporate bodies are not allowed to carry out any of such proceedings unless it is done on behalf by the solicitor. Civil proceedings will begin with summons.

Initiating summons under the Subordinate Court

Summons are filed under Form 1 (Summons – General Title), besides the original and the sealed copy of the summons the copy must then be appended with 2 copies of notice of appearance in Form 2 (Notice of Appearance – Monetary Claims) or Form 3 (Notice of Appearance – Immovable Property) or wherever it is appropriate. Make sure that you know which form is for which, as mentioned earlier Form 2 is for monetary claims while Form 3 is used for immovable property claims.

The summons must then have the endorsement of the statement of claim, where it will set out the material facts that will give rise to the action or remedy that is being sought after as well as the claims which will include the costs. If your statement of claim is quite lengthy then it would be impractical to endorse the entire claim on the summons, however you can still continue with it on a separate piece of paper that can be attached together on the summons.

If you are acting by order or on behalf of a person that is residing outside the territories then the summons must endorsed with a statement of the fact and should also include the address of the resident. Before the actual summons can be issued it must then be endorsed, so for example if you are being represented by a solicitor then it must have your address as well as the solicitor’s name and the firm’s address within the jurisdiction. If you are suing in person then your occupation and the address of your place of residence must be included, however if for some reason your place of residence does not fall within the jurisdiction or if you do not have a place of residence then you must then include an address that is within the jurisdiction so that the documents can be delivered to you. The address that you use for the services of the summons can be where you are represented by a solicitor and the address of the solicitor that have endorsed the summons. If you are suing in person then the address must fall in the jurisdiction of where you have gotten the summons endorsed.

After you have finished completing and have endorsed Form 1 (Summons), either you or your solicitor must present the summons for sealing at the Registrar of the Court. The copies must include the original form as well as the other ones that will be served to the defendant. After receiving all the copies, the Registrar will then assign a serial number to the summons, sign, seal, and date the summons where it will be prepared to be issued. You should take note that a summons is only valid for 12 months only and this starts on the date when it was issued. The Court can however extend the validity of the summons from time to time but it can not exceed the 12 month grace period.

What you should do after the summons are issued

After the a summons have been issued it will then be ready for service either personally to each defendant or you can choose to send by registered post to the defendant’s last known address. If you opt to personally deliver the summons to the defendant then you would need to leave the copy of the summons with them and if requested then you would also need to show them the sealed copy of the summons.

If the defendant is represented by a solicitor then the solicitor’s endorsement is required on the summons stating that the defendant has already received the summons on behalf of the defendant. The summons would then be deemed as being served to the defendant on the date that the endorsement was made.

The summons must be served to the defendant within 14 days before the hearing date of the summons. However if for some reason the summons is not served to the defendant yet the defendant appears for the court hearing on the specified date and does not object to the hearing of the summon then the summons can also be considered as duly served to them on the date on which they have appeared in court.

If you serve the service of the summons after 4pm on any weekday except the day before the weekends, then the summons would be deemed to have been served on the following day. If the summons is served after 12pm on the day before the weekend then the summons will be considered to be in effect on the day after the weekends.

If the defendant is a member of the armed force then the summons may be served to the commanding officer or the adjutant of their unit who then shall transmit the summons to the defendant. If the defendant is currently serving time in prison, the summons can be served to the officer in charge of the prison so that they can transmit the information to the prisoner.

If you choose to serve the summons in person to the defendant then an affidavit of service of the summons must be made in Form 9 (Affidavit of Service). Whether you or your solicitor is serving the summons, either of you must state to whom the summons are being served to, the day of the week and date, where it is being served and how, basically the information that you provide must be accurate.

However the summons are not served are not served personally by you or by your solicitor, then the person that is serving the summons must put in an application using Form 7 (Endorsement of Service). Or if the summons is served by a process server of the Court, then the Registrar of the Court must put in an application in Form 8 (Notice of Service) so that you or your solicitor is informed of the matter.

If the defendant is a corporate body then you can serve the summons either by serving it to the chairman, president, secretary, treasurer or other similar officers. Or you can leave it at the registered office of the corporate body, sending to that particular corporate body using registered post, or if there is more than one office located in the country then you can send it the company’s headquarters

 

Author: alexis

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