Samuel Okolie: Procedure for debt recovery under small claims court
Ubi Jus Ibi Remedium it is a Latin Maxim which states that, for every wrong the Law provide a remedy. It is based on this premise that individuals whose right has been trampled upon goes to court to ventilate their grievances and seek a judicial remedy for their plight.
However, a major clog for individuals or litigant who seek judicial relief for their plight has been the delay in our justice system, a delay that has caused dissatisfaction and great pain to litigant, denying the litigant the quick relief they so eagerly sought. A situation described succinctly by WILLIAM EWART GLADSTONE when he said “justice delayed is justice denied”, WILLIAM PENN put it more poignantly when he declared that “justice delayed is injustice”.
It is with a view to put an end to this quagmire in our justice system, that his Lordship, HONOURABLE JUSTICE OPEYEMI OKE, the chief judge of Lagos State in the exercise of the powers conferred on him by section 274 of the 1999 constitution (as amended), HIGH COURT LAW CH.H5 Vol 4, Laws of Lagos State 2015, and Section 90 (1) (2) (a) of the Magistrate Court Laws of Lagos State 2009, issued a practice direction leading to the establishment of small claim court. It is submitted, that with the practice direction leading to the establishment of small claim court, HONOURABLE JUSTICE OPEYEMI OKE has provided a lasting panacea and elixir to remedy the malady of the age-long axiomatic expression that justice delayed is justice denied. To my Lord, the Chief Judge of Lagos state, No longer will justice be delayed rather justice will be served carte du juor to all those who come to the judicial dining table seeking for judicial relief. The relevant articles of the small claim procedure will be discussed below.
THE OBJECTIVE: This is provided for in Article 1 of the small claim procedure; which is to the effect that the small claim Court is to provide easy access to an informal, inexpensive and speedy resolution of simple debt recovery dispute in magistrate Court. In Lucid terms, the objective, of the small claim Court is to make the process of debt recovery less complex and less technical. As individuals who seek to recover debt can easily do so via the court, without been inured with the complexity and technicality associated with Litigation. A simple analogy will suffice here; If Mr. A goes into a transaction with Mr. B, say for example to procure some goods for Mr. A, or to procure visa, or to buy a car, or to build a house, or for any other transaction or business, and Mr. A provided or availed to Mr. B an amount not exceeding five million naira (N5,000,000) for the transaction or business, and owing to no fault of Mr. A, Mr. B is unable to fulfill the terms of the agreement or transactions and unwilling to give Mr. A back his money, Mr. A can resort to the small claim court to recover his money and get judgment within two months of instituting the action in the small claim court. It should be pointed out that, the fact that Mr. A has gone to the small claim court, it does not stop or “estop” Mr. A to take criminal actions against Mr. B, If the action of Mr. B is fraudulent.
COMMENCEMENT OF ACTION: An action may be commenced in the small claim court where;
The claimant or one of the claimant resides or carries on business in Lagos State; The Defendant or one of the Defendant resides or carries a business in Lagos State; The cause of action arose wholly or in part in Lagos State.
Thus a person is competent to institute an action in the small claim if any of the aforementioned takes place: This is provided for in ARTICLE 2
MAXIMUM AMOUNT NOT EXCEEDING FIVE MILLION NAIRA (N5,000,000):
Simply put the claim is for liquidated monetary demand in sum not exceeding N5,000,000 (five million naira) excluding interest and cost. What this implies is that the amount of money that falls within the purview or jurisdiction of the small claim court must not exceed five million naira (N5,000,000), however this does not include the interest accrued in the actual money been indebted to the claimant – for instance if the actual money been indebted to the claimant is five million naira (N5,000,000) but when the interest, cost and expensive is added, the total amount will be more than five million naira (N5,000,000), then the matter can still fall under the jurisdiction of the small claim court. This is provided for in ARTICLE 2 (D) of the small claim procedure rules 2018.
ISSURANCE OF LETTER OF DEMAND: The claimant must first serve on the defendant, a letter of demand, requesting for his money within seven (7) days of the service of the letter. The letter of demand must be in FORM S.C.A.I. This is provided for in ARTICLE 2 (1) (e) of small claim procedure rules
PAYMENT OF FILLING FEES AND ASSIGNMENT OF SMALL CLAIMS FILE: This is provided for in Article 3 and 4 of the small claim civil procedure Rules. Once the claim is qualified for the small claim Court the Litigant is expected to pay the appropriate filling fees which is less expensive, in contrast with the regular Court and upon payment of the appropriate filling fees and marking of the claim, the Assistant Chief Registrar shall within 24 hours forward the case file to the administrative magistrate for assignment to a magistrate of a small Court.
SERVICE OF SUMMONS: The Summon shall be served by the sheriff of the small claim Court within seven (7) days of the filing at the small claim court, upon service, the sheriff of the small claim shall fill an affidavit of service in form SCA 6 within 2 days of service. However, where the sheriff of the small claim court is unable to serve the defendant within two days, he shall file an affidavit of non–service as in form SCA 4, after the expiration of the time allowed for service in this situation, the claimant shall apply for an order of substituted service on the defendant by filling and filing form SCA 7. This is provided for in Article 5.
FILLING OF DEFENCE, ADMISSION AND COUNTER CLAIM: Upon service of summons the defendant shall file his defence, admission or counter claim within seven (7) days by completing form SCA 5 as Appropriate. Where a defendant fails to file an answer to the claim, such defendant may be held to have admitted the claim.
Okolie is a Lagos-based legal practitioner and human rights advocate. He can be reached through the following 08066756987 & email@example.com