In my not-so-many years of practice, I have seen a number of cases dismissed or struck out because of some “minor” errors. One would think that as Legal Practitioners we should hardly commit these errors. Yet I have seen cases handled by Junior Counsel, Counsel and Senior Counsel being dismissed or struck out because of some of the errors in the areas I refer to as the “Litigation Trinity”. The Litigation Trinity: Cause of Action, Parties, Process/Procedure.  The Litigation Trinity is the basis of every action in court. You miss a leg of the Trinity and be sure to find your action thrown out. In a football match, the ability of a soccer player to kick and pass the ball on the field of play is the least of his worries. However, it is the control, accuracy and directions of the passes that determine the outcome of the football match. A football team that does not master the “Trinity of Football” – control, accuracy, and direction- is sure to lose the game no matter the percentage of possession or the number of kicks. So it is in the field of litigation. No matter your suave, your advocacy or writing skills, a lawyer who fails to master the Litigation Trinity is bound to lose the case.

When we sit in our offices as lawyers, every instruction or brief should be evaluated to ensure that it passes the test of the Litigation Trinity.

Three critical questions we are to ask ourselves before commencing an action in court are as follows:

• Does my client have a cause of action?
• Who is the proper party to sue and to be sued?
• What is the proper process/procedure to commence the action?

Does my client have a cause of action?

The first question every litigation lawyer must answer is whether the client has a cause of action. In other words, what is the legal and factual basis for commencing an action in court? The law and the facts must be at a crossroads and not cross-purpose. In this regard the following questions can assist you in arriving at the right decision: Has the client suffered any wrong (directly or indirectly)? Does the law recognize the said wrong? Has the law provided a remedy or potential remedy for the said wrong suffered? Also, one must consider if the cause of action is justiciable before commencing an action against a person.

Who is the proper party to sue and to be sued?

Establishing a cause of action is not enough to succeed. You must also determine whether you are the right person with the capacity to sue and whether you are suing the proper person. A client may establish a cause of action but may not be the proper person to commence the action. You must establish that your client has the right capacity to sue in law.

• Should your client sue in his/her name, or must he/she sue in a representative capacity?

The second question to be answered is who the proper person is to be sued.

• Who is ultimately answerable for the wrong my client has suffered?
• Should the person be sued as a natural person or a non-natural person?

In some instances, a party may be sued as a nominal defendant. Some entities may be trading under a name and style that are not registered or recognized legal entities.

For instance, an entity may trade under the name XYZ, it is widely known, but that may not be the registered name of the entity. Also, an entity may have changed its name in the course of its business dealings which might not be well known. With the exception of some sole proprietorships, the registration of an entity gives it legal capacity to sue and be sued. As such it is critical that before you commence an action against an artificial legal person you take time to confirm if, indeed, the entity you are suing does exists as a legal person. A simple search at the Companies Registry will save you time, cost, and embarrassment in court. You must also confirm if you can sue your potential defendant in the personal capacity or representative capacity depending on the claims of your client. The ultimate question you must always answer is who are the necessary parties to the suit.

What is the proper process/procedure to commence the action?

After establishing your cause of action, the proper persons to sue and to be sued the next step to consider is how to commence the suit. As the popular saying goes, the court is a court of procedure. Therefore, do not joke about the rules on procedure governing how the action should be commenced. In recent times, the courts have allowed some procedural infractions in the name of the court doing substantial justice. However, the court is likely not to allow procedural infractions when it comes to the commencement of an action. It is trite that the three main processes that commence an action are Writ of Summons, Originating Motion and Petition. Thus, it is essential that you confirm from the Rules Book and statutes if you have chosen the proper procedure to commence the action.

Related to the process or procedure is the proper reliefs for your action. The reliefs are what you want the court to specifically do for your client at the end of the action. In a court action, the procedure you adopt to commence the action will determine the nature of the reliefs endorsed.

Now you know, believe in the Trinity and it will be your sure saviour in a litigation action. Over the years, I have found two reasons that are likely to trip the litigation lawyer.

• One is overconfidence based on a false sense of experience.
• The second is acting in haste without attention to detail based on what I call “the Juicy Brief Syndrome”.

Once in the life of every lawyer, there comes a brief with so juicy legal fees that you are so much in a hurry to commence the action that you fail to pay critical attention to the Litigation Trinity. I leave you with one piece of counsel, seek ye first the Litigation Trinity and the success of litigation will be yours.  

As a Legal Practitioner, no matter your number of years at the Bar or your stock of experience in litigation practice, it is always good to conduct simple fundamental research on the Litigation Trinity before you proceed to court. No matter how straightforward the case is, always cross-check your Rules Book and relevant statutes to ensure your fundamentals are good. NEVER FORGET TO ALWAYS GO BACK TO THE BASICS.