1. PRE-TRIAL ISSUES AND PRE-TRIAL PROCEEDINGS Week 10

2. PRE-TRIAL ISSUES AND PRE-TRIAL PROCEEDINGS
Introduction
Striking out Pleadings
Discovery of Facts (Interrogatories) and Documents
Production and Inspection of Documents
Settlement of Issues
Pre-trial conference and scheduling

3. Striking Out Pleadings
An entire pleading or any part of it, filed by the plaintiff or defendant may be struck out by the court where –
it discloses no reasonable cause of action or defence to the action
it is frivolous or embarrassing or scandalous or vexatious
it is an abuse of court process.
In Abuja, striking out of pleadings may be done at any time, on the application of either party. Order 23 rule 20 High Court of the FCT Abuja (Civil Procedure) Rules 2004.
In Lagos, striking out of pleadings is done at the Case Management Conference. Order 15 rule 16 High Court of Lagos State (Civil Procedure) Rules 2012.
Note: There is no Case Management Conference in Abuja.

4. For pleadings or any part of it to be struck out, it must be on the application of either party.
The Court on such application may –
strike out the pleading
grant leave to amend the pleading or
proceed to enter judgment for plaintiff or defendant
make such order on terms and conditions as may be just. See O. 23 r. 20 Abuja.
Where the judge strikes out the pleading or grants leave to amend the costs shall be borne between counsel and client. O. 15 r. 16 Lagos.
In Lagos, where the claimant or defendant fails to attend the Case Management Conference/obey any Order, the Judge may dismiss the claim or enter judgment respectively. O. 25 r. 5 Lagos.
Such judgment may be set aside within 7 days upon an application made by the party against whom the judgment is given. O. 25 r. 7 Lagos.

5. Pleading Disclosing no Reasonable Cause of Action
This is one of the reasons for striking out pleadings. Where a pleading is incontestably bad, unsustainable and no one can understand what it seeks to establish, it is said to disclose no reasonable cause of action. See Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR (pt 798) 1; Tikatore Press Ltd. v. Umar (1968) 2 All NLR 107; Pan Atlantic Shipping & Transport Co. v. Rhein Mass (1997) 3 SCNJ 88/ [1997]3 NWLR (pt 493)248.
Frivolous, Embarrassing, Vexatious and Scandalous Pleadings
A pleading is frivolous where it is filed out of unseriousness, to waste or delay the time of the court.

6. Pleading that is an Abuse of the Process of Court
A pleading that is insulting & intended to annoy the other party is said to be vexatious. It is embarrassing & scandalous where it is intended to bring shame by exposing in details the shocking secrets of the other party which are not relevant to the case. Pleadings that are frivolous, embarrassing, vexatious and scandalous will be struck out by the court except relevant to the case. See Amobi v. Adogu 4 ECSLR 109.
Pleading that is an Abuse of the Process of Court
There is an abuse of the process of court where a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of suits on the same subject matter against opponents on the same issues. See African Reinsurance Corporation v. JDP Construction (Nig.) Ltd.(2003) WRN 1 / (2003) 13 NWLR (pt 838) 609; NV. Scheep v. MV. “S.Araz” (2000) 15 NWLR (pt 691) 622.

7. Interrogatories and Discovery of Documents
Another terminology for interrogatories is discovery of facts because the facts are extracted from the opponent by means of questions. A party is empowered by the Rules to cause the opponent to disclose certain facts by way of admission of facts in questions posed by the party to the opponent. More so, material documents in the opponent’s possession can be disclosed to a party for inspection.
In Abuja, interrogatories are delivered to the opposing party at any time within trial, after the close of pleadings. Leave of court is sought to deliver interrogatories in writing. See O. 30 r. 1 Abuja. In Lagos, interrogatories are delivered to the other party within 7 days of the close of pleadings and shall form part of the agenda for the Case Management Conference. O. 26 r. 1 Lagos. .

8. Interrogatories must relate to the questions or issues or subject matter before the court and must state clearly which interrogatories each party is required to answer. Where interrogatories do not relate to any question in the matter it shall be deemed irrelevant, even where admissible on the oral cross-examination of witnesses. O. 30 r. 1 Abuja.
In Abuja, the party seeking to discover facts applies for the leave of Court to deliver interrogatories in writing for the inspection of any party or parties. O. 30 r. 1 Abuja. There is no provision for leave in Lagos.
The application for leave is by way of Summons or Motion on Notice, filed and served on the party being interrogated at least 2 clear days before the hearing of it, of unless otherwise ordered by the court. A copy of the proposed Interrogatories must be attached to the application. O. 30 r. 2 Abuja.

9. The purpose of interrogatories is either to extract facts or to cause the other party to admit facts. See Famuyide v. Irving & Co. Ltd. (1992) 9 SCNJ 63 / [1992] 7 NWLR (pt 256) 639.
Interrogatories must not only be relevant but must also be admissible. Interrogatories is said to be inadmissible where it casts doubt on the credibility of the witness, where it borders on the evidence of the party being interrogated, where it borders on the contents of documents
In Abuja, interrogatories are as in Form 30. O. 30 r. 3. In Lagos, interrogatories are as in Form 19. O. 26 r. 2.
The party being interrogated answers by means of Affidavit. In Abuja, the Answer shall be filed within 5 days of the service of the Interrogatories as in Form 31. Order 30 rules 5(1) & 6 Abuja. In Lagos, the Answer shall be filed within 7 days of the service of the Interrogatories as in Form 20. Order 26 rules 5 & 6 Lagos. The court may extend the time.

10. Where the party that is being interrogated omits to answer or gives an insufficient answer, the party interrogating may apply to the Court or Judge-in-Chambers for an order requiring that party to answer or answer further. O. 30 r. 8(1) Abuja. In Lagos, the application is made to the Case Management Judge. O. 26 r. 7 Lagos. In Abuja, the Rules specifically stated that such answer or further answer may be made by affidavit or by viva voce examination. O. 30 r. 8(2) Abuja.
Discovery of Documents
A party may apply to Court or Judge-in-Chambers (in Abuja) or Case Management Judge (in Lagos) for an order directing the other party to make discovery on oath of documents that are in his possession, relating to any matter in question. O. 30 r. 9(1) Abuja; O. 26 r. 8(1) Lagos.
On such application, the Judge/Court may make an order generally or to specific documents or refuse to make the order if it is of the opinion that it is not necessary for disposing the action or for saving costs. O. 30 r. 9 (2) Abuja.

11. In Lagos, the discovery of documents must be served within 7 days of the close of pleadings and the party requested to discover, shall answer within 7 days of the request. O. 26 r. 8 (1) Lagos.
Answer to discovery of documents is by Affidavit and shall specify which documents he objects to produce, stating the grounds of his objection. In Abuja, answer to discovery of documents shall be in Form 32. See O. 30 r. 11 Abuja. In Lagos, it shall be in Form 21. O. 26 r. 8(3) Lagos.
An affidavit of discovery of documents shall be accompanied by copies of the documents referred to. O. 26 r. 8(2) Lagos.
In Abuja, the answer to discovery of documents may be a List of documents in lieu of affidavit, where so ordered by the court. The List of Document shall be in Form 32. O. 30 r. 12(2) Abuja.

12. Production of Documents
The Court or Judge-in-Chambers may at any time during the action, order any party to produce on oath, such documents in his possession relating to any matter in question. O. 30 r. 13 Abuja.
Inspection of Documents
A party who makes reference to a document in his pleading or affidavit, may be given notice by the other party to produce such document for inspection and the party requesting may take copies of the document. O. 30 r. 14(1) Abuja.
Notice to produce document stated in pleading or affidavit shall be in Form 33 in Abuja. O. 30 r. 15 Abuja.
In Abuja, the party to whom notice is given shall within 2 days of the receipt of the notice; if all the documents are listed in his affidavit or within 4 days if all the documents are not listed in his affidavit, give a time within 7 days that inspection may be made.

13. Inspection is made at the office of the legal practitioner of the party expected to produce, in respect of those documents he did not object to produce. However, If the documents expected to be produced are banker’s books/ other books of account/books in constant use for the purpose of trade or business, inspection shall be at their usual place of custody. O. 30 r. 16 Abuja.
The notice shall be in Form 34. O. 30 r. 16 Abuja.
Disobedience to an Order for interrogatories, discovery or inspection is contempt of court and the disobedient party is liable to committal or attachment. A legal practitioner on whom an order against any party for interrogatories, discovery or inspection is served and who neglects without reasonable excuse to give notice of it to his client, shall be liable to attachment in Lagos. In Abuja, he shall be liable to pay the costs occasioned. See O. 26 r. 11 & 12 Lagos; O. 30 r. 21 & 22 Abuja.
Answers to interrogatories may be used in evidence at the trial. O. 30 r. 23 Abuja; O. 26 r. 13 Lagos.

14. Settlement of Issues
Issues are said to be settled when the material questions in controversy between the parties are clearly defined by the court in conjunction with the parties.
In Abuja, the parties shall within 14 days of the close of pleadings, submit to the Registrar the material questions in controversy between them in the form of issues which shall be noted by the court and set down for trial. If a party fails to submit issues, the court may proceed to set down the matter for hearing based on the issues submitted by the other party. O. 33 r. 1 & 2 Abuja. The court shall give the parties notice to attend the settlement of issues where neither of them complies. O. 33 r. 3 Abuja.
In Lagos, within 7 days after the close of pleadings, issues of facts in dispute shall be defined and filed by each of the parties. Settlement of issues is done at the Case Management Conference. O. 27 r. 1 Lagos.

15. The essence of settlement of issues is to isolate the irrelevant issues so that the court can concentrate on the most important issues for determination.
It also helps the parties to restrict themselves to relevant evidence in proof of those issues that have been settled.
It saves costs and time.
After settlement of issues, all other facts not raised in the settlement are deemed admitted and that settlement of issues supersedes pleadings. See Maximum Insurance Co. Ltd. v. Owoniyi [1994] 3 NWLR (pt 331) 179.

16. Pre-trial Conference & Scheduling
This is now called Case Management Conference in Lagos. It is the proceedings in preparation for trial of a case and controlled by a Judge. Abuja rules do not provide for this.
The claimant shall apply for the issuance of a Case Management Conference Notice within 14 days after the close of pleadings as in Form 17.
The Judge shall upon this application, cause to be issued to the parties the Notice as in Form 17 and a Case Management Information Sheet as in Form 18 for –
the disposal of matters which can be dealt with on interlocutory application
giving such directions as to the future course of the action as appears best adapted to secure its just, expeditious and economical disposal
promoting amicable settlement or adoption of ADR. O. 25 r. 1 Lagos.

17. Where the claimant fails to apply for a Case Management Conference Notice, the defendant may do so or may apply for an order to dismiss the action. O. 25 r. 1(3) Lagos.
The CMC Judge shall consider and take appropriate action with respect to the agenda provided in O. 25 r. 2 which include inter alia the formulation and settlement of issues, amendments, further and better particulars, admission of facts, control of discovery, inspection and production of documents and settlement of documents to be admitted as exhibits at the trial.
The period stipulated for the completion of a CMC is 3 months unless extended by the court on the application of a party. CMC shall be held from day to day or adjourned only for the purpose of compliance with CMC Orders. O. 25 r. 3 Lagos.
At the end of a CMC, the Judge shall issue a Report which shall guide the subsequent course of the proceedings unless modified by the trial court. O. 25 r.4

18. If a claimant fails to attend the Case Management Conference or fails to obey a Scheduling Order or is substantially unprepared to participate in the Conference or fails to participate in good faith, the judge shall dismiss the claim. In the case of the defendant, judgment shall be entered against him. O. 25 r. 5 Lagos.
The judgment may be set aside upon an application made within 7 days of the judgment or such other period as the judge may allow.
The application to set aside the judgment shall be accompanied by an undertaking to participate effectively in the Case Management Conference. O. 25 r. 7 Lagos.

19. Thank you.