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S.I. 8 of 2000

Constitution of the Federal Republic of Nigeria

Federal High Court (Civil Procedure) Rules 2000

 

 

 

Commencement: 1st May 2000

 

 

In exercise of the powers conferred on me by section 254 of the Constitution of the Federal Republic of Nigeria 1999 and all powers enabling me in that behalf, I, Mahmud Babatunde Belgore, Chief Judge of the Federal High Court hereby make the following Rules:

 

 

Order 1

Citation, application, etc.

 

1.    (1)     Any reference in these Rules to anything done under these Rules includes a reference to the thing done before the commencement of these Rules under any corresponding law or Rules of Court ceasing to have effect on the commencement of these Rules.

 

       (2)     Except where the context otherwise requires, any reference in these Rules to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment.

 

2.  The Federal High Court (Civil Procedure) Rules 1999 contained in the Schedule to the Federal High Court (Civil Procedure Rules) Decree

     1999 are hereby revoked.

 

3.     (1)     In these Rules, unless the context otherwise requires-

 

"Act" means the Federal High Court Act;

 

"Attorney-General" means the Attorney-General of the Federation;

 

"Chief Judge" means the Chief Judge of the Federal High Court;

 

"Court" means the Federal High Court;

 

"legal practitioner" means a Law Officer, a State Counsel or a Legal Practitioner entitled to practice before the Court;

 

"pleading" does not include a petition, summons or preliminary act;

 

"Registry" means the Registry of the Federal High Court in Lagos or other Divisions;

 

"return date" means the day endorsed on a writ for the first appearance of the parties before the Court or any other day the Court may appoint or direct and in the case of Order 23 of these Rules, where a writ is marked "Undefended List", it means the day fixed for hearing.

 

(2)    Any word other than those defined in subsection (1) of this section shall have the same meaning as is assigned to it in the Federal High Court Act.

 

4. These Rules may be cited as the Federal High Court (Civil Procedure Rules) 2000 and shall come into force on 1st May 2000.

 

Order 2

Form and Commencement of action

 

1.  Subject to the provision of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition, or

     any other method required by other rules of court governing any special subject matter as provided in those rules

 

2.    (1)     Subject to the provisions of any enactment or of these Rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, proceedings in which a claim-

 

(a)     is made by a plaintiff for any relief or remedy for civil wrong;

 

(b)     made by the plaintiff is based on an allegation of fraud;

 

(c)    is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a law or independently of any contract or any such provision) or where the damages claimed consist of or includes damages in respect of death of any person or in respect of injuries to any person or in respect of damage to any property;

 

(d)    is made by the plaintiff in respect of the infringement of a patent, trade mark, copyright, intellectual or any other proprietary interest of whatever kind;

 

(e)     for a declaration is made by an interested person,

 

shall be begun by writ.

 

(2)     Proceedings may be begun by originating summons where-

 

(a)    the sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or

 

(b)    there is unlikely to be any substantial dispute of fact.

 

(3)     Proceedings may be begun by originating motion or petition where by these Rules or under any written law the proceedings in question are required or authorized to be so begun, but not otherwise.

 

3.     The Forms in Appendix 6 to these Rules or Forms to the like effect, may be used in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.

 

 

Order 3

Effect of Non-compliance

 

1.    (1)     Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings,     there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.

 

(2)    The court may on the ground that there has been such a failure as mentioned in sub-rule (1) of this rule and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

 

2.     (1)    An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings with leave of court by any interlocutory application, but the application may be raised in defence.

 

(2)    Any application under sub-rule (1) of this rule may be made by summons or motion on notice, and the grounds or objection shall be stated in the summons or motion on notice.

 

Order 4

Particulars of claim

 

1.     The court may, on the application of the defendant, or on its own motion, order further or better particulars to be supplied by the plaintiff.

 

2.     Subject to any amendment granted by the court, the plaintiff shall not, at the hearing, obtain judgment for any sum exceeding that stated in the particulars, except for subsequent interests and the costs of suit, notwithstanding that the sum claimed in the writ for debt or damages exceeds the sum stated in the particulars.

 

3.     (1)     Where a party seeks, in addition to or without any order for the payment of money -

 

(a)  to obtain as against any person, any general or special declaration of his rights under contract or instrument; or

 

(b)  to set aside any contract, or to have any bond, bill, note, or instrument in writing delivered up to be cancelled; or

 

(c)  to restrain any defendant by injunction; or

 

(d)   to have an account taken between himself and any other party, and in such other cases as the nature of the circumstances makes it necessary or expedient, the plaintiff or defendant may, in the writ of summons or in any pleading, refer to and briefly describe any documents on the contents of which he intends to rely, and annex copies of such documents to the writ or pleading, or may state any reason for not annexing copies which he may have to allege.

 

(2)    The party shall allow the opposite party to inspect any such documents as are in his possession or power, otherwise those documents shall not be admitted.

 

(3)    Parties shall settle between themselves or before the Registrar or a Judge in chambers in a Division of the court where there is no legally qualified Registrar and where the settlement is before the Registrar, the Registrar shall pass the documents to a Judge in Chambers, but any document not before the registrar or the judge in chamber shall not be admitted unless the court thinks otherwise.

 

4.     (1)     Particulars of claim shall not be amended except by leave of the court , and the court may, on any application for leave to amend, grant the application if it appears to the court that the defendant shall not be prejudiced by the amendment; otherwise the court may refuse leave to grant the application.

 

(2)     Leave to amend shall be granted, where appropriate, on such terms as to notice, postponement of trial or costs, as justice may require.

 

3.     Any variance between the items contained in the particulars, and the items proved at the hearing, may be amended at the hearing, either at once or on such terms as to notice, adjournment, or costs, as justice may require.

 

Order 5

Causes of Action

 

1.     (1)     Subject to rule 3 of this Order, a plaintiff may in one action claim relief against the same defendant in respect of two or more causes of action -

 

(a)     if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity, in respect of all the causes of action; or

 

(b)     if the plaintiff claims, or the defendant is alleged to be liable, in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of the other or others; or

 

(c)     with leave of court.

 

(2)     An application for leave under this shall be made ex-parte by motion before the writ or originating summons, as the case may be, is issued and the affidavit in support of the motion shall state the grounds of the application.

 

2.     (1)     Subject to sub-rule (2) of this rule, a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in the action in respect of any matter (whenever and however arising) may, instead off bringing a separate action, make a counter-claim in respect of that matter; and where he does so he shall add the counter-claim to his defence.

 

(2)    Sub-rule 1 of this rule shall apply in relation to a counter-claim as if the counter-claim were a separate action and as if the person making the counter-claim were a plaintiff and the person against whom it is made a defendant.

 

(3)    A counter-claim may be proceed with notwithstanding that judgment is given for the plaintiff in his action, or that the action is stayed, discontinued or dismissed.

 

3.     (1)    If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counter-claim, or if two or more plaintiffs or defendant are parties to the same action, and it appears to the court that the joinder of such causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials or make such other order as may be expedient.

 

(2)    If it appears on the application of any party against whom a counter-claim is made, that the subject matter of the counter-claim ought for any reason to be disposed of by a separate action, the court may order it to be tried separately or make such other order as may be expedient.

 

4.     (1)    Where two or more causes or matters are pending in the court and it appears to the court that -

 

 (a)    some question of law or fact arises in both or all of them; or

 

 (b)   the rights to relief claimed therein are in respect of or arise out of the same or similar transaction or series of transactions; or

 

 (c)  the interest of justice of the trial so demands,

         the Court may order that the causes or matters be consolidated on such terms as it thinks just and the court shall give such directions as may be necessary with respect to the hearing of the causes or matters so consolidated.

 

   (2)     An order to consolidate may be made where two or more causes or matters are pending between -

 

(a)     the same plaintiffs and the same defendants; or

 

(b)     the same plaintiffs and deferent defendants; or

 

(c)     different plaintiffs and different defendants.

 

    (3)     Application for consolidation may be made by summons or notice for directions in chambers, or they may be made by motion in Court on notice.

 

Order 6

Writ of Summons

 

1.        (1)    A writ of summons shall be issued by the Registrar, other officer of the Court empowered to issue summons, on application.

 

  (2)   The application shall ordinarily be made in writing by the plaintiff's solicitor by completing Form 1 in Appendix 6 to these Rules,  but the Registrar or other officer empowered to do so may, where the applicant for a writ of summons is illiterate, or has no solicitor, dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.

 

2.       The writ of summons shall -

 

(a)     contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained; and

 

(b)     state briefly and clearly -

 

(i) the subject matter of the claim, and the relief sought , and

 

(ii) the date of the writ, and place (called the return-place) of hearing.

 

3.      An alteration of a writ without the leave of the Court shall render the writ void.

 

4.     A plaintiff may unite in the same suit several causes of action, but the Court may if it thinks that the causes of action, or some of them, cannot be conveniently tried together, order separate trials or make such other order as may be necessary or expedient for the separate disposal thereof, and may make such order as to adjournment and costs as justice requires.

 

5.     For the purposes of service of a writ of summons or for serving any other processes relating to an action in the Court, the whole Federation is within the jurisdiction of the Court.

 

6.      (1)   Every writ shall be in Form 1, 2, 3, or 4 in Appendix 6 to these Rules or forms to the like effect in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.

 

(2)    In proceedings for which forms are not provided or prescribed by these Rules or by any subsequent Rules or orders of Court, the Registrar may, subject to the approval of the Chief Judge, from time to time, frame the forms required.

 

7.     The sealing of any writ or process shall not be necessary in addition to the signature of the Registrar or a Judge in Chambers except in cases where sealing may be expressly directed by these Rules or any written law or Rule of Court, or by any prescribed Form.

 

8.     Before a writ is issued it shall be accompanied -

 

(a)     by a statement of claim;

 

(b)     copies of documents mentioned in the statement of claim to be used in evidence

 

(c)    where the claim made by the plaintiff is for a debt or a liquidated demand only, by a statement of amount claimed in respect of the debt or demand, and for costs.

 

9.     (1)     Before a writ is issued it shall be endorsed -

 

(a) where the plaintiff sues in a representative capacity; with a statement of the capacity in which he sues;

 

(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.

 

(2)    Before a writ is issued in an action brought by a plaintiff who in bringing it, is acting by order or on behalf of a person resident outside the jurisdiction, it shall be endorsed with a statement of that fact and with the address of the person so resident.

 

10.   (1)   Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff's address and the Legal Practitioners name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.

 

(2)    Where the plaintiff sues in person, the writ shall be endorsed with -

 

(a)    the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent;

 

(b)    his occupation; and

 

 (c)   an address for service.

 

11.   (1)    One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid.

 

(2)    Without prejudice to the generality of the provisions of sub-rule (1) of this rule, a writ for service within the jurisdiction may be issued as a concurrent writ with one which, or notice of which, is to be served out of the jurisdiction; and a writ which or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction.

 

(3)    A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the purpose for which the writ is issued.

 

12.   (1)    No writ which, or notice of which, is to be served out of the jurisdiction shall be served without leave of the Court.

 

(2)    If any claim made by a writ is one which by virtue of an enactment the Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the foregoing provisions shall not apply to the writ.

 

13.     Issue of a writ takes place upon its being signed by a Judge in Chambers 

14.   (1)    For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for twelve months beginning with the date of its issue, and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

  (2)     Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.

 

(3)    B efore a writ, the validity of which has been extended under this rule, is served, it shall be marked with an official stamp showing the period for which the validity of the writ has been so extended.

 

(4)    Where the validity of a writ is extended by order made under this rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served, so as to extend the validity of that other writ until the expiration of the period specified in the order.

 

 

Order 7

Originating Summons

 

1.     The provisions of this order shall apply to all originating summonses subject, to any special provisions relating to originating summonses under any enactment or law.

 

2.     (1)    Every originating summons shall be in Forms 53, 54, 55, 56 or 57 in Appendix 6 to these Rules, whichever is appropriate.

(2)   The party taking out an originating summons (other than an ex parte summons) shall be described as plaintiff and the party against whom it is taken out shall be described as defendant.

3.     Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or, as the case may be, concise statement of the relief or remedy claimed in the proceeding begun by the originating summons with sufficient particulars to identify the causes or causes of action in respect of which the plaintiff claims that relief or remedy.

 

4.     (1)     Before an originating summons is issued it shall be endorsed -

 

(a)     where a plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;

 

(b)     where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.

 

(2)    Before an originating summons is issued in an action brought by a plaintiff who, in bringing it is acting by order or on behalf of a person resident outside the jurisdiction, it shall be endorsed with a statement of that fact and the address of the person so resident.

 

5.     (1)    Where a plaintiff sues by a legal practitioner, the originating summons shall be endorsed with the plaintiff's address and the legal practitioner's name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.

 

(2)     Where the plaintiff sues in person, the originating summons shall be endorsed with -

 

(a)    the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent;

 

(b)    his occupation; and

 

(c)    an address for service.

 

6.     (1)    An originating summons for service within the jurisdiction may be issued and marked as a concurrent originating summons with one for service out of the jurisdiction; and an originating summons for service of jurisdiction may be issued and marked as a concurrent originating summons with one for service within the jurisdiction.

 

7.      (1)   No originating summons which, or notice of which, is to be served out of the jurisdiction shall be issued without leave of the Court.

 

         (2)   If any claim made by an originating summons is one which by virtue of an enactment the court has power to hear and determine, notwithstanding that the person against whom the claim is made is not within the jurisdiction of the court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the provisions of this rule shall not apply to the summons.

 

8.      An originating summons is issued upon its being signed by a Judge in Chambers.

 

9.      (1)   For the purpose of service, an originating summons (other than a concurrent one) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent originating summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the issue of the concurrent summons.

 

(2)    Where an originating summons has not been served on a defendant, the Court may by order extend the validity of the summons from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.

 

(3)    Before an originating summons, the validity of which has been extended under this provision is served, it shall be marked with an official stamp showing the period for which the validity of the summons has been so extended.

 

(4)    Where the validity of an originating summons is extended by order made under this rule, the order shall operate in relation to any summons (whether original or concurrent) issued in the same action which has not been served, so as to extend the validity of that other summons until the expiration of the period specified in the order.

 

10. Rules 2 (1) and 3 of this Order shall, so far as applicable, apply to an ex parte originating summons; but, save as foresaid, the foregoing provisions of this order shall not apply to ex parte originating summonses.

 

 

Order 8

Petition: General Provisions

 

1.     This Order shall apply to petitions by which civil proceedings in the Court are begun, subject, in the case of petitions of any particular class, to any special provisions relating to petitions of that class made by or under any Decree or other enactment.

 

2.      (1)   Every petition shall include a concise statement of the nature of the claim made or relief or remedy required in the proceedings begun thereby.

 

(2)    Every petition shall include at the end thereof a statement of the names of the persons, if any, required to be served therewith or, if no person is required to be served a statement to that effect.

 

(3)    Where a person brings a petition by a legal practitioner, the petition shall be endorsed with that person's address and the legal practitioner's name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.

 

(4)    Where a person brings a petition in person, the petition shall be endorsed with -

 

(a)     the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent;

 

(b)     his occupation; and

 

(c)     an address for service.

 

3.     A petition shall be presented in the Court Registry.

 

4.     (1)     A day and time for the hearing of a petition which is required to be heard shall be fixed by the Judge.

 

(2)     Unless the Court otherwise directs, a petition which is required to be served on any person shall be served on him not less than seven days before the day fixed for the hearing of the petition.

 

5.     No application in any pending cause or matter may be made by petition.

 

 

Order 9

Interlocutory Applications

 

A - Motions Generally

 

1.     Subject to these Rules, interlocutory applications may be made at any stage of an action.

 

2.     (1)    Where by these Rules an application is authorized to be made to the Court or to a Judge in Chambers, such application may be made by motion.

 

(2)    The Registrar shall make up, for each day on which there are any motions to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving, and the terms of the order sought by him.

 

3.     Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely, and no affidavit shall be used at the hearing unless it is duly filed.

 

4.     Where service of a motion is required by these Rules or directed by the Court or Judge, the motion shall be served together with all affidavit on which the party moving intends to rely.

 

5.     A motion may be heard at any time while the Court is sitting.

 

6.     The hearing of any motion may from time to time be adjourned upon such terms as the Court may deem fit.

 

7.     (1)    No motion shall be made without previous notice to the parties affected thereby.

 

(2)    Notwithstanding sub-rule (1) of this rule, the Court may, if satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damage or serious mischief to the party moving, make an order ex parte upon such terms as to costs or otherwise and subject to rule 12 of this Order and such understandings, if any, as the justice of the case demands.

 

 

B - Ex parte Motions

 

8.     A motion ex parte shall be supported by affidavit which, in addition to the requirements of rule 3 of this Order, shall state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving.

 

9.     Any party moving the Court ex parte may support his motion by argument addressed to the Court on the facts put in evidence, and no party to the suit or proceedings, although present, other than the party moving, shall be entitled to be then heard.

 

10.   Where a motion is made ex parte, the Court may make or refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may direct the motion to be made on notice to the parties to be affected thereby.

 

11.   Where an order is made on a motion ex parte, any party affected by it may, within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.

 

12.  (1)     No order made on a motion ex parte shall last for more than 14 days after the party affected by the order has applied for the order to be varied or discharged or last for another 14 days after application to vary or discharge it had been concluded.

 

(2)     If a motion to vary or discharge an ex parte order is not taken with 14 days of its being filed, the ex parte order shall automatically lapse.

 

 

C - Orders to show Cause

 

13.   An order to show cause shall specify a day when cause is to be shown, to be called the return-day to the order, which shall ordinarily be not less than three days after service.

 

14.   A person served with an order to show cause may, before the return-day, produce evidence to contradict the evidence used in obtaining the order, or setting forth other facts on which he relies to induce the Court to discharge or vary such order.

 

15.   On the return-day, if the person served does not appear and it appears to the Court that the service on all proper parties has not been duly effected, the Court may enlarge the time and direct further service or make such other order as seems just.

 

16.   If the person served appears, or the Court is satisfied that service has been duly effected, the Court may proceed with the matter.

 

17.   The Court may either discharge the order or make the same absolute, or adjourn the consideration thereof, or permit further evidence to be produced in support of or against the order, and may modify the terms of the order so as to meet the merits of the case.

 

D - Notice of Motion

 

18.   Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a motion and the day named in the notice for hearing the motion.

 

19.   Notice of motion may, with leave of the Court, be served by any person, notwithstanding that such person is not an officer of the Court.

 

20.   Where a party acts by a solicitor, service of notice of motion on the solicitor shall be deemed good service on that party.

 

21.   There shall be served along with the notice of motion a copy of any affidavit on which the party moving intends to rely at the hearing of the motion.

 

22.   If at the hearing of any motion, the Court is of opinion that any person, to whom notice has not been given, ought to have or to have had such notice, the Court may either dismiss the motion, or adjourn the hearing thereof in order that the notice may be given, upon such terms as to the Court may deemed fit.

 

23.     The plaintiff may, by leave of the Court, cause any notice of motion to be served upon any defendant with the writ of summons.

 

 

E - Evidence in Interlocutory Proceedings.

 

24.     Oral evidence shall not be heard in support of any motion unless by leave of the Court.

 

25.   The Court may, in addition to or in lieu of affidavits if it thinks it expedient, examine any witness viva voce, or receive documents in evidence, and may summon any person to attend to produce documents before it, or to be examined or cross-examined before it in like manner as at the hearing of a suit.

 

26.   Such notice as the Court in each case, according to the circumstances, considers reasonable, shall be given to the persons summoned and to such persons (parties to the cause or matter or otherwise interested) as the Court considers are entitled to inspect the documents to be produced, or to examine the person summoned, or to be present at his examination, as the case may be.

 

27.   The evidence of a witness on any such examination shall be taken in like manner as nearly as may be as at the hearing of a suit.

 

28.   Upon the hearing of any motion the Court may, on such terms as to cost and adjournment as it may deem fit, allow any additional affidavit to be used, after the affidavit has been duly filed and served on the opposite side.

 

 

Order 10

Affidavit

 

1.     Upon any motion, petition or summons, evidence may be given by an affidavit, but the Court or a Judge in Chambers may, on the application of either party, order the attendance for cross-examination of the person making the affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence unless by special leave of the Court or a Judge in Chambers.

 

2.     Every affidavit shall be titled in the cause or matter in which it is sworn, but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff and first defendant respectively, and indicate that there are other plaintiffs or defendants, as the case may be.

 

3.     The Court or a Judge in Chambers may receive any affidavit sworn to for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

 

4.     Where a special time is limited for filling affidavit, no affidavit filed after that time shall be used, unless by leave of the Court or a Judge in Chambers.

 

5.     Except by leave of the Court or a Judge in Chambers, no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for and produced or filed at the time of making the motion.

 

6.     A party intending to use any affidavit in support of an application made by him in chambers shall give notice to the other parties concerned in that behalf.

 

7.     All affidavits, which have been previously made and read in Court upon any proceeding in a cause or matter, may be used before the Judge in Chambers.

 

8.     Every alteration in an account verified by affidavit to be left at Chambers shall be marked with the initials of the commissioner before whom the affidavit is sworn, and the alterations shall not be made by erasure.

 

9.     Accounts, extracts from registers, particulars of creditors, debts, and other documents referred to by affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits.

 

10.   Every certificate on an exhibit referred to in an affidavit signed by the commissioner before whom the affidavit is sworn shall be marked with the short title of the cause or matter.

 

11.    Sections 77 to 89 of the Evidence Act, which set out provisions governing affidavits, shall apply as if they were part of these Rules.

 

12.    A document purporting to have affixed or impressed thereon or subscribe thereto the seal or signature of a Court, Judge, Notary Public or person having authority to administer oath in any part of the Commonwealth outside Nigeria in testimony of an affidavit being taken before it or him in that part shall be admitted in evidence without proof of the seal or signature of that Court, Judge, Notary Public or person.

 

 

Order 11

Place of instituting and of trial of Suits

 

1.     (1)     Subject to the provisions of any law with respect to transfer of suits or to specific subject matters, the place for the trial of any suit or matter shall be as provided in this Order.

 

(2)     All suits or actions relating to taxation of companies and of other bodies established or carrying on business in Nigeria and of all other persons subject to Federal taxation shall be commenced and determined in the Judicial Division of the Court in which the headquarters or the principal office of the company or body is situate and in the case of a person subject to Federal taxation, where the person resides or carries on substantial part of his business.

 

(3)     All actions for recovery of revenue, penalties and forfeitures, and also all actions against public officers, shall be commenced and tried in the Judicial Division of the Court in which the cause of action arose.

 

(4)     All suits for specific performance, or upon the breach of any contract, shall be commenced and determined in the Judicial Division of the Court in which the contract is supposed to have been performed or in which the defendant resides or carries on substantial part of his business.

 

(5)     All suits and actions under the Customs and Excise Tariff, Etc. Decree 1995 or under the Admiralty Jurisdiction Decree 1991 shall be commenced and determined in the jurisdiction of the Division of the Court in which the breach of the law, or contract took place or in which the port or boarder where the breach took place is situate.

 

(6)     All suits and actions in respect of diplomatic, consular or foreign trade representation shall be commenced and determined in the Division of the Court in which the diplomatic, consular or foreign trade is carried out.

 

(7)     All suits and actions in respect of citizenship, naturalisation and aliens, repatriation of persons who are not citizens of Nigeria, passports and visas shall be commenced and determined in the Division of the Court in which the persons resides.

 

(8)     All suits and actions relating to copyright, patents, designs, trade marks and merchandise marks shall be commenced and determined in the Division in which the defendant resides.

 

(9)     All other suits shall be commenced and determined in the Judicial Division in which the defendant resides or carries on substantial part of his business or in which the cause of action arose.

 

2.     If there are more defendants than one resident in different Judicial Divisions, the suit may be commenced in any one of those Judicial Divisions, subject, however, to any order which the Court may, upon the application of any of the parties, or on its own motion, think fit to make with a view to the most convenient arrangement for the trial of the suit.

 

3.     Where a suit is commenced in any other Judicial Division of the Court than that in which it ought to have been commenced, it may, notwithstanding, be tried in the Judicial Division in which it has been commenced, unless the Court otherwise directs or the defendant pleads specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in the cause.

 

4.     No proceedings which have been taken before the plea in objection shall be in any way affected thereby, but the Judge shall order the cause be transferred to the Judicial Division to which it is proved to his satisfaction, to belong, or, failing such proof, order that it be retained and proceed in the Court in which it has been commenced, and the order shall not be subject to appeal.

 

 

ORDER 12

Parties

 

A - General

 

1.  (1)       All persons may be joined in one action as plaintiffs in whom any right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.

 

(2)     If, upon the application of a defendant, it appears that the joinder may embarrass any of the parties or delay the trial of the action, the court or a Judge in Chambers may order separate trial, or make such other order as may be expedient in the circumstances.

 

2.     Where an action is commenced in the name of the wrong person, whether juristic or non-juristic as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge in Chambers, may, if satisfied that it was commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person whether juristic or non-juristic to be substituted or added as plaintiff upon such terms as may be just.

 

3.     All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative and judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.

 

4.     Where in an action a person, whether juristic or non-juristic, has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, the defendant may obtain the benefit thereof by establishing his set-off or counter-claim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of the plaintiff or any proceeding consequent thereon.

 

5.     (1)    If it appears to the Court, at or before the hearing of a suit, that all the persons may be entitled to or who claim some share or interest in the subject matter of the suit, or whom may likely to be effected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future day, to be fixed by the Court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be.

 

(2)    Where the Court directs persons to be made plaintiffs or defendants as in sub-rule (1) of this rule, the Court shall issue a notice to such persons which shall be served in the manner provided by these rules for the service of a writ of summons or in such other manner as the Court thinks fit to direct; and on proof of the due service of such notice, the person served, whether he appears or not, shall be bound by all proceedings in the cause but that a person so served, and failing to appear within the time limited by the notice for his appearance, may at any time before judgment in the suit, apply to the Court for leave to appear, and such leave may be given upon such terms (if any) as the Court thinks fit.

 

(3)    The Court may, at any stage of the proceeding and on such terms as appear to the Court to be just, order that the name or names of any party or parties whether as plaintiffs or defendants, improperly joined, be struck out.

 

6.     Where a person has a joint and several demand against more persons than one, either as principals or sureties, it is not necessary for him to bring before the court as parties to a suit concerning that demand all persons liable or more of the persons serially or jointly and severally liable.

 

7.     (1)     If the plaintiff sues, or any defendant counter-claims in any representative capacity, it shall be so expressed on the writ.  

 

(2)    The Court may order any of the persons represented to be made parties either in lieu of, or in addition to the previously existing parties.

 

8.     Where more persons than one have the same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf of all parties so interested.

 

9.     Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose and any party to an action may in such case apply to the Court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Court may direct.

 

10.   Infants may sue as plaintiffs by their next friend and may defend by guardians appointed for that purpose.

 

11.   Lunatics and persons of unsound mind may respectively sue as plaintiffs by their committees or next friend, and may in like manner defend any action by their committees or guardians appointed for that purpose.

 

12.   (1)    An infant shall not enter an appearance except by his guardian ad litem.

 

(2)  No order for the appointment of a guardian shall be necessary if the legal practitioner applying to enter such appearance makes and files an affidavit in Form 14 in Appendix 6 to these Rules with such variations as circumstances may require.

 

(3)    This provision shall also apply in case where an infant is served with a petition or notice of motion, or a summons, in any matter.

 

13.   Before the name of a person is used in any action as next friend of an infant or other party, or as relator, that person shall sign a written authority for that purpose, and the authority shall be filed in the Registry.

 

14. (1)     Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons but the Court or a Judge in Chambers may at any stage of the proceedings, order any such persons to be made parties either in addition to or in lieu of the previously existing parties.

 

(2)    Sub-rule (1) of this rule shall also apply to trustees, executors and administrators sued in proceedings to enforce a security by foreclosure or otherwise.

 

15.   Where a defendant is added or substituted, the writ of summons shall be amended accordingly and the plaintiff shall, unless otherwise ordered by the Court or a Judge in Chambers, file an amended writ and cause the new defendant to be served in the proceedings shall be continued as if the new defendant had originally been made a defendant.

 

16.   An application to add or strike out or substitute a plaintiff or defendant may be made to the Court or Judge in Chambers at any time before trial by motion or summons or in a summary manner at the trial of the action.

 

17.   (1)   Where in any action a defendant claims as against any person not already a party to the action (in this section called "the third party") that -

 

(a)   he is entitled to contribution or indemnity; or

 

(b)    he is entitled to any relief or remedy relating to, or connected with the original subject matter of the action and substantially the same as one relief or remedy claimed by the plaintiff; or

 

(c)    any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but also as between the plaintiff and the defendant and the third party or between any or either of them,

 

          the court or a Judge in Chambers may give leave to the defendant to issue and serve a third party notice.

 

(2)     The Court or a Judge in Chambers may give leave to issue and serve a third party notice on ex-parte application supported by affidavit, or, where the Court or Judge in Chambers directs a summons to the plaintiff to be issued, upon the hearing of the summons but that leave shall not be granted in cases where action was begun and an order for pleading made before the date of the commencement of this rule.

 

18.   (1)     The notice shall -

 

(a)    state the nature and grounds of the claim or the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed;

 

(b)     be in accordance with Form 23 or Form 24 in Appendix 6 to these Rules with such variations as circumstances may require; and

 

(c)     be sealed and served on the third party in the same manner as a writ of summons is sealed and served.

 

(2)    The notice shall, unless otherwise ordered by the Court or by a Judge in Chambers, be served within the time limited for delivering the defence, or, where the notice is served by a defendant to a counter-claim, the reply and with it also shall be served a copy of the writ of summons or originating summons and of any pleadings filed in the action.

 

19.   The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

 

20.   The third party may enter an appearance in the action within eight days from service or within such further time as may be directed by the Court or Judge in Chambers as specified in the notice (where the third party is served in Nigeria outside the jurisdiction of the Court, the period for entering appearance shall be at least thirty days) but a third party failing to appear within that time may apply to the Court or Judge in Chambers for leave to appear, and the leave may be given upon such terms, if any, as the Court or Judge in Chambers thinks fit.

 

21.   If a third party duly served with a third party notice does not enter an appearance or makes default in filing any pleading which he has been ordered to file, he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment given in the action, whether by consent or otherwise, and by any decision therein or any question specified in the action, and when contribution or indemnity or other relief for remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of the contribution or indemnity or other relief or remedy.

 

22.  (1)     Where a third party makes default in entering an appearance or filing any pleading which he had been ordered to file and the defendant giving the notice suffers judgment by default, the defendant shall be entitled at any time, after satisfaction of the Judgment against himself, or before the satisfaction by leave of the Court or a Judge in Chambers -

 

(a)    Judge in Chambers shall direct.

        to enter judgment against the third party to the extent of any contribution or indemnity claimed in the third party notice, or by leave of the Court or a Judge in Chambers,

 

(b)    to enter such judgment in respect of any other relief or remedy claimed as the Court or a

 

(2)    It shall be lawful for the Court or a Judge in Chambers to set aside or vary the judgement against the third party upon such terms as  may seem just.

 

23.   (1)    If the third party enters an appearance, the defendant giving notice may, after notice of the intended application has been served upon the plaintiff, the third party, and on any other defendant, apply to the Court or a Judge in Chambers for directions, and the Court or Judge in Chambers may -

 

(a)    where the liability of the third party to the defendant giving the notice is established on the hearing of the application, order such judgement as the nature of the case may require to be entered against the third party in favour of the defendant giving the notice; or

 

(b)    if satisfied that there is a question or issue properly to be tried as between the plaintiff and the defendant and the third party or between any or either of them as to the liability of the defendant to the plaintiff or as to the liability of the third party to make any contribution or indemnity claimed, in whole or in part, or as to any other relief or remedy claimed in the notice by the defendant or that a question or issue stated in the notice should be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third party or any or either of them, order that question or issue to be tried in such manner as the Court or Judge in Chambers may direct; or

 

(c )   dismiss the application.

 

(2)   Any directions given pursuant to this rule may be given either before or after any judgement has been entered in favour of the plaintiff against the defendant in the action, and may be varied from time to time and may be rescinded.

 

(3)    The third party proceedings may at any time be set aside by the Court or a Judge in Chambers.

 

24.   The Court or a Judge in Chambers upon the hearing of the application for directions may, if it appears desirable to do so, give the third party liberty to defend the action either alone or jointly with the original defendant upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, pleading or documents to be filed, or amendments to be made, and give such directions as to the Court or Judge in Chambers may appear proper for having the question and the rights and the liabilities of the parties most conveniently determined and enforced, and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or judgement in the action.

 

25.   (1)   Where the action is tried, the Judge who tries the action may, at or after the trial, enter such judgement as the nature of the case may require for or against the defendant giving the notice or against or for the third party, and may grant to the defendant or to the third party, any relief or remedy which might properly have been granted if the third party had been made a defendant to an action duly instituted against him by the defendant but execution shall not be issued without leave of the Court or of a Judge in Chambers until after satisfaction by the defendant of the judgement against him.

 

(2)    Where the action is decided otherwise than by trial, the Court or a Judge in Chambers may, on application by motion or summons, make such order as the nature of the case may require, and, where the plaintiff has recovered judgement, may cause such judgement as may be entered for or against the defendant giving notice or against or for the third party.

 

26.   Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were a firm name and, so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.

 

27.   If it appears on oath or affidavit to the satisfaction of the Court that the defendant has a bona fide counter-claim against the plaintiff which can be conveniently tried by the Court, it shall be lawful for the Court in its discretion to stay proceedings in the suit instituted by the plaintiff until he provides such security to comply with the orders and judgment of the Court with respect to such counter-claim as the court thinks fit.

 

28.   Where by these Rules an act may be done by any party in an action that act may be done either by the party in person, or by his legal practitioner, or by his agent (unless an agent is expressly debarred under these Rules or any written law in force in any part of Nigeria).

 

 

B - Alteration of parties

 

29.   (1)    Where after the institution of a suit a change or transmission of interest or liability occurs in relation to any party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the Court an order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings.

 

(2)    A person served with an order made pursuant to sub-rule (1) of this rule may, within such time as the Court in the order directs, apply to the court to discharge or vary the order.

 

30.   The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives.

 

31.   If there are two or more plaintiffs or defendants, and one of them dies, and if the cause of action survives the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.

 

32. (1)     If there are two or more plaintiffs and one of them dies, and if the cause of action does not survive to the surviving plaintiff or plaintiffs alone, but survives to them and the legal representative of the deceased plaintiff jointly, the Court may, on the application of the legal representative of the deceased plaintiff, enter the name of the legal representative in the suit in the place of the deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and the legal representative of the deceased plaintiff.

 

(2)    If no application is made to the Court by any person claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and the legal representative of the deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by the judgment given in the suit, in the manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs, unless the Court otherwise to directs.

 

33.  (1)     In case of the death of a sole plaintiff, or sole surviving plaintiff, the Court may, on the application of the legal representative of the deceased sole plaintiff, enter the name of the legal representative in the place of the plaintiff in the suit, and the suit shall thereupon proceed.

 

(2)   If no such application is made to the Court within what it may consider a reasonable time by any person claiming to be the legal representative of the deceased sole plaintiff or sole surviving plaintiff, it shall be competent for the Court to make an order that the suit shall abate, and award to the defendant the reasonable costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased sole plaintiff or surviving plaintiff.

 

(3)    The court may, if it thinks proper, on the application of the defendant and upon such terms as to costs as may seem just, make such order for bringing in the legal representative of thee deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit in order to come to a final determination of the matters in dispute, as may appear just and proper in the circumstances of the case.

 

34.   If any dispute arises as to who is the legal representative of a deceased plaintiff, the Court may either stay the suit until the fact has been duly determined in another suit, or decide at or before the hearing of the suit who shall be admitted to be the legal representative for the purpose of prosecuting that suit.

35. (1)     If there are two or more defendants, when one of them dies the cause of action survives but does not survive against the surviving defendant or defendants alone. 

(2)   In the case of the death of a sole defendant, or sole surviving defendant, where the action survives, the plaintiff may make an application to the Court, specifying the name, description and place of abode of any person who the plaintiff alleges to be the legal representative of the defendant and whom he desires to be made the defendant in his stead

 

(3)    The Court shall thereupon enter the name of the legal representative in the suit in the place of the defendant, and issue an order to him to appear on a day to be therein mentioned to defend the suit and the case shall thereupon proceed in the same manner as if the legal representative had originally been made a defendant, and had been a party to the former proceedings in the suit.

 

36.  (1)     The bankruptcy of the plaintiff, in any suit which the assignee or trustee might maintain for the benefit of the creditors, shall not be valid objection to the continuance of the suit, unless the assignee or trustee, declines to continue the suit, or neglects or refuses to give security for the costs thereof, within such reasonable time as the Court may order.

 

(2)    If the assignee or trustee neglects or refuses to continue the suit and to give the security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy of the plaintiff as a reason for abating the suit.

 

37.   Where any cause or matter becomes abated or in the case of any such change of interest as is by these Rules provided for, the legal practitioner for the plaintiff or person having the conduct of the cause or matter, as the case may be, shall certify the fact to the registrar who shall cause an entry thereof to be made in the Cause Book opposite to the name of such cause or matter.

 

 

C - Change of Counsel of parties.

 

38(1)     A party to any cause or matter who sues or defends by a Counsel, may change his legal practitioner without an order for that purpose but, unless and until notice of the change is filed and copies of the notice are served on every other party to the cause or matter and on the former legal practitioner, the former legal representative shall be considered the legal practitioner of the party until the final conclusion of the cause or matter

 

(2)     A copy of the notice endorsed with an affidavit stating that the notice has been duly filed in the registry shall also be filed.

 

(3)     The party giving the notice may perform the duties prescribed by this order in person or by his new legal representative.

 

39.  (1)     Where a legal practitioner who has acted for a party in a cause or matter ceases so to act and the party has not given notice of change in accordance with sub-rule (1) of rule 38 of this Order, the legal practitioner may apply to the Court for an order declaring that the legal representative has ceased to be the one acting for the party in the cause or matter and the Court may make an order accordingly.

 

(2)    An order under sub-rule (1) of this rule shall not be made until the legal practitioner serves on every party to the cause or matter a copy of the notice otherwise he shall be considered the legal practitioner of the party till the final conclusion of the cause or matter.

 

(3)    An application for an order under this rule shall be made by originating motion supported by an affidavit stating the grounds of the application

 

(4)    An order made under this rule shall not affect the rights of the legal representative and the party for whom he acted for as between themselves.

 

40.   After an order is made under rule 38 or 39 of this Order, the address of the party shall be his last known address or where the party is a body corporate, its registered or principal office for the purpose of the service on him of any document not required to be served personally.

 

 

Order 13

Service Of Process

 

A - Service Within Jurisdiction

 

1.     Service of writs of summons, notices, petitions, pleading, orders, summonses, warrants and all other proceedings, documents or written communication of which service is required, shall be made by -

 

(a)     the sheriff or a deputy sheriff, bailiff, officer of the Court; or

 

(b)    a person appointed therefor (either especially or generally) by the Court or by a Judge in Chambers, unless another mode of service is prescribed by these Rules; or

 

(c)    a solicitor filing the document who must give a written undertaking at the time of filing the document to the registrar receiving the document that his Chambers shall serve the document on the other party or his solicitor and that he would file with the registrar a proof of the service signed by the other party or his solicitor; or

 

(d)   the Court or a Judge in Chambers by such other method of service as the Court or Judge in Chambers may otherwise direct.

 

2.     Save as otherwise prescribed by any of these Rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof.

 

3.     No service of a writ of summons or other process on the defendant shall be necessary when the defendant by his legal practitioner undertakes in writing to accept service.

 

4.     (1)    The Court may in any civil case, for reasons which seems to it sufficient, appoint any process to be executed by a special bailiff, who for the time being shall have the privileges and liabilities of an officer of Court.

 

(2)    The expenses of the special bailiff shall be defrayed by the party on whose application he is appointed unless the Court in any case sees any reason to vary this rule.

 

5.     Where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either -

 

(a)    by delivery of the document to an adult person at the usual or last known place of abode or business of the person to be served; or

 

(b)   by delivery of the document to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served;

 

(c)    by advertisement in the Federal Government Official Gazette, or in some newspaper circulating within the jurisdiction; or

 

(d)    by notice put up at the principal Court-House of, or some other place of public resort in, the Judicial Division wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode, or of business, of the person to be served; or

 

(e)    by service where a party is represented by a legal practitioner, of notices, pleadings, petitions, orders, summonses, warrants and all other proceedings, documents or written communications on the legal practitioner or his clerk.

 

6.     When a party to be served is in the service of any Ministry or non-Ministerial Department of Government or of a Local Government, the Court may transmit the document to be served and a copy thereof to the most senior officer of the Department of Government in the Judicial Division or place where the party to be served works or resides or to the Local Government in whose service the party to be served is, and such officer, or Local Government shall cause the same to be served on the proper party, accordingly.

 

7.     Where partners are sued in the name of the partnership the writ or other document shall be served upon any one or more of the partners, or at the principal place within the Judicial Division of the business of the partnership, upon any person in that place having at the time of the service the control or management of the business and such service shall be deemed good service upon the partnership.

 

8.     When the suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing that corporation or company or under which the company is registered, as the case may be, by giving the writ or document to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company.

 

9.     Where the person on whom service is to be effected is living or serving on board of any ship, it shall be sufficient to deliver the writ or other document to the person on board who is at the time of the service apparently in charge of that ship.

 

10.   Where the person on whom service is to be effected is a prisoner in a prison or a lunatic in any asylum, it shall be sufficient service to deliver the writ or other document at the prison or asylum to the superintendent or person appearing to be the head officer in charge of the prison or asylum.

 

11.   Where an infant is a party to an action, service on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is, shall, unless the court or Judge in Chambers otherwise orders, be deemed good personal service on the infant but that the court or judge may order that service made or to be made on an infant personally shall be deemed good service.

 

12.   Where service is to be made upon a person residing out of, but carrying on business within, the jurisdiction in his own name or under the name of a firm through an authorised agent, and the proceeding is limited to a cause of action which arose within the jurisdiction, the writ or other document may be served by giving it to the agent, and the service shall be equivalent to personal service.

 

 

B - Service out of Jurisdiction

 

13.   Service out of jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a Judge in Chambers whenever -

 

(a)     the whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits); or

 

(b)    any act, deed, will, contract, obligation, or liability affecting land or hereditament situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action; or

 

(c)    any relief is sought against any person domiciled, or ordinarily resident, within the jurisdiction; or

 

(d)    the action is one brought against the defendant to enforce, rescind, dissolve, annul or otherwise effect a contract or to recover damages or other relief for or in respect of a breach of a contract-

 

(i)     made within the jurisdiction, or

 

(ii)    made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or

 

(iii)   by its terms or by implication to be governed by the law in force in the jurisdiction or is brought against the defendant in respect of a breach committed within the jurisdiction of a contract wherever made, even though the breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

 

(e)     the action is founded on tort or other civil wrong committed within the jurisdiction; or

 

(f )   any injunction is sought as to any thing to be done within the jurisdiction or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or

 

(g)   any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within the jurisdiction; or

 

(h)   the action is by a mortgagee or mortgagor in relation to a mortgage of property situate within the jurisdiction and seeks relief of the nature or kind of the following that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under paragraph (d) of this rule) any personal judgment order for payment of any moneys due under the mortgage; or

 

(I)      the action is one brought under the Civil Aviation Act or any regulations made in pursuance of the Act or any law relating to carriage by air.

 

14.  (1)     Every application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country the defendant is or probably may be found, , and the grounds upon which application is made.

 

(2)    No such leave shall be granted unless it is made sufficiently to appear to the Court or a Judge in Chambers that the cause is a proper one for service out of jurisdiction under these Rules.

 

15.   Any order giving leave to effect service or give notice shall limit a time after such service or notice within which the defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given, and on whether the air mail is available to the defendant.

 

16.   Where leave is given under the foregoing provisions to serve notice of the writ of summons out of jurisdiction, the notice shall be served in the manner in which writs of summons are served.

 

17. (1)     Service out of the jurisdiction may be allowed by the Court or a Judge in chambers of the following processes or of notices thereof, that is to say -

 

(a)    an originating summons, where the proceedings begun by an originating summons might have been begun by a writ of summons under these Rules;

 

(b)    any originating summons, petition, notice of motion or other originating proceedings -

 

(i)     in relation to an infant or lunatic or person of unsound mind, or

 

(ii)    under any law or enactment under which proceedings can be commenced otherwise than by writ of summons, or

 

(iii)   under any rule of court whereunder proceedings can be commenced otherwise than by writ of summons;

 

(c)    without prejudice to the generality of paragraph (b) of this sub-rule, any summons, order or notice in any interpleader proceedings or for the appointment of an arbitrator or umpire or to remit, set aside, or enforce an award in an arbitration held or to be held within the jurisdiction;

 

(d)   any summons, order or notice in any proceedings duly instituted whether by writ of summons or other such originating process as aforesaid.

 

(2)    The provisions of rules 14, 15 and 16 of this Order shall apply mutatis mutandis to service under this rule.

 

18.   (1)   Where leave is given to serve a writ of summons or a notice of writ of summons in any foreign country other than a country with which a convention in that behalf has been made, the following procedure may be adopted -

 

(a)    the document to be served shall be sealed with the seal of the Court for use out of the jurisdiction, and shall be transmitted to the permanent Secretary to the Ministry of Justice by the Chief Registrar on the direction of the Chief Judge, together with a copy thereof translated into the language of the country in which service is to be effected and with a request for transmission to the Minister responsible for foreign affairs for the further transmission of the same to the Government of the country in which leave to serve the document has been given and the request shall be as in Form 7 in Appendix 6 to these Rules with such variations as circumstances may require;

 

(b)   the party requesting a copy of a document for service under this section shall, at the time of requesting the same, file a praecipe as in Form 8 in Appendix 6 to these Rules;

 

(c)    an official certificate, or declaration upon oath or otherwise, transmitted through the diplomatic channel by the Government or Court of a foreign country to which this provision applies, to the Court, shall, provided that it certifies or declares the document to have been personally served, or to have been duly served upon the defendant in accordance with the law of that foreign country, or words to that effect, be deemed to be sufficient proof of service, and shall be filed on record as, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf;

 

(d)    Where an official certificate or declaration transmitted to the Court in the manner provided in paragraph (c) of this sub-rule certifies or declares that efforts to serve document have been without effect, the Court or a Judge may, upon the ex parte application of the plaintiff, order substituted service of the document, and the document and a copy of it and the order shall be sealed and transmitted to the permanent Secretary to the Minister of Justice in manner aforesaid together with a request in Form 9 of Appendix 6 to these Rules, with such variations as circumstances may require.

 

(2)     Nothing herein contained shall in any way prejudice or affect any practice or power of the Court under which when lands, funds, chooses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

 

19   (1)     Where, for the purpose of an action under the Civil Aviation Act and the Convention therein set out, leave is given to serve a notice of writ of summons upon a high contracting party to the convention other than Nigeria, the provisions of this Order shall apply.

 

(2)    The notice shall specify the time for entering an appearance as limited in pursuance of rule 15 of this Order.

 

(3)    The notice shall be sealed with the seal of the Court for service out of jurisdiction, and shall be transmitted to the Ministry of Justice, together with a copy thereof transmitted into the language of the country of the defendant, and with a request for transmission to the Minister responsible for matters relating to foreign affairs for further transmission of the same to the Government of that country.

 

(4)    The request shall be in Form 10 in Appendix 6 to these Rules, with such variations as circumstances may require.

 

(5)    The party bespeaking a copy of a document for service under this rule shall at the time of bespeaking the document file a praecipe in Form 9 in Appendix 6 to these Rules.

 

(6)    An official certificate from the Minister responsible for matters relating to foreign affairs transmitted by the Ministry of Justice or otherwise to the Court certifying that the notice was delivered on a specified date to the Government of the country of the defendant shall be deemed to be sufficient proof of service and shall be filed as record of and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.

 

(7)    After entry of appearance by the defendant, or, if no appearance is entered after expiry of the time limited for appearance, the action may proceed to judgment in all respects as if the defendant had for the purposes of the action waived all privileges and submitted to the jurisdiction of the Court.

 

(8)    Where it is desired to serve or deliver a summons, order or notice in the proceedings on the defendant out of the jurisdiction, the provisions of this rule shall apply with such variation as circumstances may require.

 

20.   Where leave is given in a civil cause or matter or where leave is not required, and it is desired to serve any writ of summons, originating summons, notice, or other document in any foreign country with which a Convention in that behalf has been or shall be made, the following procedure shall, subject to any special provisions contained in the Convention, be adopted-

 

(a)    the party bespeaking the service shall file in the registry a request in Form 8 or Form 54 in Appendix 6 to these Rules, which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used and the request shall state the medium through which it is desired that the service shall be effected, that is, whether -

 

(i)     directly through the diplomatic channels, or

 

(ii)    through the foreign judicial authority,

 

        and shall be accompanied by the original documents and a translation thereof in the language of the country in which service is to be effected, certified by or on behalf of the person making the request and a copy of each for every person to be served and any convention may require (unless the service is required to be made on a Nigerian subject directly through the diplomatic channels in which case the translation and copies thereof need not accompany the request unless the Convention expressly requires that they should do so);

 

(b)    the document to be served shall be sealed with the seal of the Court for use out of the jurisdiction and shall be forwarded by the Registrar to the Permanent Secretary for Foreign Affairs for transmission to the foreign country;

 

(c)    an official certificate, transmitted through the diplomatic channel by the foreign judicial authority or by a Nigerian diplomatic agent to the Court, establishing the fact and the date of the service of the document, shall be deemed to be sufficient proof of such service, and shall be filed as record of, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.

 

21.    Rule 20 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Court and which is not expressly excluded by the Convention made with that foreign country.

 

22.   The Court or Judge, in giving leave to serve a document out of the jurisdiction under these Rules, may in an appropriate case direct that the air mail service shall be used by the party effecting service.

 

23.   Where, in any civil cause or matter pending before a court or tribunal in any foreign country with which a convention in that behalf has been or shall be made, a request for service of any document on a person within the jurisdiction is received by the Chief Judge from the consular or other authority of the country, the following procedure shall, subject to any special provisions contained in the Convention, be adopted -

 

(a)    the service shall be effected by the delivery of the original or a copy of the document, as indicated in the request and the copy of the translation, to the party or person to be served in person by an officer of the court, unless the Court or a Judge in Chambers thinks fit otherwise to direct;

 

(b)    no court fees shall be charged in respect of the service but the particulars of charges of the officer employed to effect service shall be submitted to the Chief Registrar of the Court who shall certify the amount properly payable in respect thereof;

 

(c)    the Chief Judge shall transmit to the consular or other authority making the request, a certificate establishing the fact and the date of the service in person, or indicating the reason for which it has not been possible to effect it, and at the same time shall notify to the said consular or other authority the amount of the charges certified under paragraph (b) of this rule.

 

24.   Upon the application of the Attorney-General of the Federation, the Court or a Judge in Chambers may make all such orders for substituted service or otherwise as may be necessary to give effect to rules 13 to 22 of this Order.

 

25.   Any order giving leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall limit a time after the service within which the defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served, and the Court may receive an affidavit or statutory declaration of such service having been effected as prima facie evidence thereof.

 

 

C - General Provisions

 

26.   Where the officer of court or person charged with the service of any writ or document on any person is prevented by the violence or threats of such person, or any person in concern with him, from personally serving the writ or documents, it shall be sufficient to inform the person to be served of the nature of the writ or document as near that person as practicable.

 

27.   In all cases where service of any writ or document has been effected by a bailiff or other officer of Court, an affidavit of service sworn to by the bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service.

 

28.   The costs of and incidental to the execution of any process in a suit shall be paid in the first place by the party requiring the execution, and the sheriff shall not (except by order of the Court) be bound to serve or execute any process unless the fees and reasonable expenses thereof shall have been previously paid or tendered to him.

 

29.   Service shall not be made on a Sunday or public holiday, unless the Court directs otherwise by order endorsed on the document to be served.

 

30.   A book shall be kept at every Court for recording service or process, in such form as the Chief Judge may direct, in which shall be entered by the officer serving the process, or by the registrar, the names of the plaintiff or complaint and the defendant, the particular Court issuing the process, the method, whether personal or otherwise, of the service, and the manner in which the person serving ascertained that he served the process on the right person, and where any process is not duly served, then the cause of failure shall be stated and every entry in the book or an office copy of any entry shall be prima facie evidence of the several matters therein stated.

 

31.     In this order "Out of Jurisdiction" means out of the Federal Republic of Nigeria.

 

 

Order 14

Appearance

 

1.    (1)     A defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereinafter prescribed.

 

(2)    A defendant shall enter an appearance by delivering to the Registrar, the requisite documents, that is to say, a memorandum of appearance in Form 11, or where leave was obtained before appearance, a notice in Form 12 in Appendix 6 to these Rules and a statement of defence to the action together with copies of documentary evidence therein mentioned.

 

(3)    The memorandum or notice shall be accompanied, where the defendant is an infant, by an affidavit sworn to by his legal practitioner and the consent of his guardian as in Form 14 in Appendix 6 to these Rules, with such variations as the circumstances may require, and a copy thereof.

 

(4)    All the documents shall be signed by the legal practitioner by whom the defendant appears or, if the defendant appears in person, by the defendant.

 

(5)    On receipt of the requisite documents, the Registrar shall in all cases enter the appearance in the cause Book and stamp the copies of the memorandum of appearance with the official stamp showing the date on which he received those documents, and deliver one sealed copy thereof to the plaintiff or, as the case may be, his legal practitioner.

 

2.     (1)    A defendant appearing in person shall state in the memorandum of appearance an address for service, which shall be within the jurisdiction.

 

(2)    Where a defendant appears by a legal practitioner, the legal practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be `within the jurisdiction, and where any legal practitioner is only the agent of another legal practitioner, he shall also insert the name and place of business of the principal legal practitioner.

 

3.     (1)    If the memorandum does not contain an address for service, it shall not be accepted.

 

(2)    If any address for service is illusory or fictitious or misleading, the appearance may be set aside by the Court or a Judge in Chambers or on the application of the plaintiff.

 

4.      If two or more defendants in the same action shall appear by the same legal practitioner and at the same time, the names of all the defendants so appearing may be inserted in one memorandum.

 

5.     (1)     A defendant may appear at any time before judgment.

 

(2)    Where a defendant appears at any time after the time limited by the writ for appearance, he shall not, unless the Court or a Judge in Chambers shall otherwise orders for any purpose, than if he had appeared according to the writ or other originating process.

 

 

Order 15

Default Of Appearance

 

1.     Where a writ of summons is endorsed for a liquidated demand, whether specially or otherwise, and the defendant fails, or all the defendants, if more than one, fail, to appear thereto, the plaintiff may have entered in his favour, final judgment for any sum not exceeding the sum endorsed on the writ, together with interest at the rate specified (if any), or (if no rate is specified) at the rate of six per cent per annum, to the date of the judgment, and costs.

 

2.     Where the writ of summons is endorsed for a liquidated demand, whether specially or otherwise, and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may have final judgment entered, as in rule (1) of this Order, against those that have not appeared, and may issue execution upon the judgment without prejudice to his right to proceed with the action against those who have appeared.

 

3.     If an appearance is entered but the defence is limited to part only, the plaintiff may have judgment entered for him for the undefended part of his claim, and the rest of the claim may be proceeded with in the normal way.

4.     (1)     In any case to which rules 1, 2, and 3 of this Order apply, in which the defendant fails, or all the defendants, if more than one, fail to appear, but in which by reason of payment, satisfaction, abatement of nuisance, or for any other reason it is necessary for the plaintiff to proceed with the action, the plaintiff may, by leave of the Court or a Judge in Chambers to be obtained on summons in Chambers, have judgment entered for costs.

  (2)  The summons under sub-rule (1) of this rule shall be filed and shall be served in the manner in which service of the writ has been effected or in such other manner as the Court or a Judge in Chambers may direct.

5.     In all actions not specifically provided for in this Order, if the defendant fails to enter appearance within the stipulated time, the plaintiff may apply for the case to be set down for hearing, and upon the hearing, the Court may give any judgment that the plaintiff appears to be entitled to on the facts.

 

6.     Where judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court or a Judge in Chambers to set aside or vary the judgment upon such terms as may be just.

 

7.     Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff or applicant may apply to the Court or a Judge in Chambers for an appointment for the hearing of the summons and upon a certificate that no appearance has been entered, the Court or Judge in Chambers shall appoint a time for the hearing of the summons, upon such conditions (if any) as it or he may think fit.

 

8.     (1)    Where no appearance has been entered to a writ of summons for a defendant who is an infant or a person of unsound mind not adjudged a lunatic, the plaintiff shall, before further proceeding with action against the defendant, apply to the Court or a Judge in Chambers for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the action.

 

(2)    No order pursuant to rule 1 of this Order shall be made unless it appears that application was, after the expiration of the time allowed for appearance, and at least six clear days before the day named in the notice for hearing the application, served upon or left at the dwelling-house of the person with whom or under whose care the defendant was at the time of serving such writ of summons, and also (in the case of the defendant being an infant not residing with or under the care of his father or guardian) served upon or left at the dwelling-house of the father or guardian (if any) of the infant, unless the Court or Judge in Chambers at the time of hearing the application first dispenses with the last-mentioned service.

 

 

Order 16

Arrest Of Absconding Defendant

 

1.     If in any suit for an amount or value of one thousand naira or upwards the defendant is about to leave the jurisdiction of the Court, or has disposed of or removed from the jurisdiction, his property, or any part thereof, or is about to do so, the plaintiff may, either at the institution of the suit or at any time thereafter until final judgment, make an application to the Court that security be taken for the appearance of the defendant to answer and satisfy any judgment that may be passed against him in the suit.

 

2.     If the Court, after making such investigation as it may consider necessary, is of the opinion that there is probable cause for believing that the defendant is about to leave the jurisdiction of the Court, or that he has disposed of or removed from the jurisdiction, his property, or any part thereof, or is about to do so, and that in either case by reason thereof the execution of any decree which may be made against him is likely to be obstructed or delayed, it shall be lawful for the Court to issue a warrant to bring the defendant before the Court, that he may show cause why he should not give good and sufficient bail for his appearance.

 

3.     If the defendant fails to show such cause, the Court shall order him to give bail for his appearance at any time when called upon while the suit is pending and until execution or satisfaction of any judgment that may be passed, against him in the suit, or to give bail for the satisfaction of such judgment and the surety or sureties shall undertake in default of such appearance or satisfaction to pay any sum of money that may be adjudged against the defendant in the suit, with costs.

 

4.     Where a defendant offers, in lieu of bail for his appearance, to deposit a sum of money, or other valuable property, sufficient to answer the claim against him with costs of the suit, the Court may accept the deposit.

 

5.     (1)    In the event of the defendant neither furnishing security nor offering a sufficient deposit, he may be committed to custody until the decision of the suit, or if judgment be given against the defendant, until the execution of the decree, if the Court so orders but the Court may at any time, upon reasonable cause being shown and upon such terms as to security or otherwise as may seem just, release the defendant.

 

(2)    The application may be made to the Court in any Judicial Division in which the defendant may be, and the Court may issue the warrant for detaining and bringing the defendant before the Court where the suit is pending, and may make such further order as shall seem just.

 

(3)    In case the warrant is issued by a different Court from that in which the suit is pending, the Court shall, on the request of either of the parties, transmit the application and the evidence therein to the Court in which the suit is pending, and the sufficient security for the appearance of the defendant in that Court, or send him there in custody of an officer of Court, and the Court in which the suit is pending shall thereupon inquire into and proceed with the application in accordance with the foregoing provisions, in such manner as shall seem just.

 

6.     (1)    The expenses incurred for the subsistence in prison of the person so arrested shall be paid by the plaintiff in the action in advance, and the amount so disbursed may be recovered by the plaintiff in the suit, unless the Court otherwise orders.

 

(2)    The Court may release the person so imprisoned on failure by the plaintiff to pay the subsistence money, or in case of serious illness, order his removal to hospital.

 

 

Order 17

Interim Attachment Of Property

 

1.     (1)     Where -

 

(a)    the defendant in any suit with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove any such property from the jurisdiction; or

 

(b)    in any suit founded on contract or for detinue or trover in which the cause of action arose within the jurisdiction -

 

(i)     the defendant is absent from the jurisdiction, or there is a probable cause to believe that he is concealing himself to evade service; and

 

(ii)    the defendant is beneficially entitled to any property in the State in the custody or under the control of any other person in the State, or such person is indebted to the defendant

 

        then, in either such case, the plaintiff may apply to the Court either at the time of the institution of the suit or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfill any decree that may be made against him in the suit, and on his failing to give the security, or pending the giving of such security, to direct that any property movable or immovable belonging to the defendant shall be attached until the further order of the Court.

 

2.     The application for attachment shall contain a specification of property required to be attached, and the estimated value thereof so far as the plaintiff can reasonably ascertain the same, and the plaintiff shall, at the time of making the application, declare that to the best of his information and belief the defendant is about to dispose of or remove his property with such intent as aforesaid.

 

3.     (1)    If the Court after making such investigation as it may consider necessary, is satisfied that the defendant is about to dispose of or remove his property with intent to obstruct or delay the execution of the decree, it shall be lawful for the Court to order the defendant, within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the order or produce and place at the disposal of the Court when required, the said property, or the value of the same or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security.

 

(2)    Pending the defendant's compliance with the order, the Court may by warrant direct the attachment until further order of the whole, or any portion, of the property specified in the application.

 

4.     (1)    If the defendant fails to show such cause, or to furnish the required security within the time fixed by the Court, the Court may direct that the property specified in the application if not already attached, or such portion thereof as shall be sufficient to fulfil the decree, shall be attached until further order.

 

 (2)   If the defendant shows such cause, or furnishes the required security, and the property specified in the application or any portion of it, shall have been attached, the Court shall order the attachment to be withdrawn.

 

5.     The attachment shall not affect the rights of persons not parties to the suit, and in the event of any claim being preferred to the property attached before judgment, such claim shall be investigated in the manner prescribed for the investigation of claims to property attached in execution of a decree.

 

6.     In all cases of attachment before judgment, the Court shall at any time remove the attachment, on the defendant furnishing security as above required, together with security for the costs of the attachment, or upon an order for a non-suit or striking the matter.

 

7.   (1)     The application may be made to the Court in the Judicial Division where the defendant resides or in case of urgency, where the property proposed to be attached is situate and the Court may make such order as shall seem just.

 

 (2)   In case an order for the attachment of property is issued by a different Court from that in which the suit is pending, that Court shall, on the request of either of the parties, transmit the application and evidence therein to the Court in which the suit is so pending, retaining the property in the meantime under attachment or taking sufficient security for its value and the Court in which the suit is pending shall thereupon inquire into and proceed with the application in accordance with the foregoing provisions, in such manner as shall seem just.

 

 

Order 18

Needless Detention Of Chattels Or Ship And Reparation For It

 

1.     Where a Court on an application of a party, makes an order to hold to bail, or of sale, injunction or attachment or any warrant to stop the clearance of, or to arrest any chattel or ship upon any condition and -

 

(a)     it later appears to the Court that an order made by it was applied for on insufficient grounds; or

 

(b)    the suit in which the application was made is dismissed or judgment is given against the applicant by default or otherwise and it appears to the Court that there was no probable ground for instituting such a suit,

        

       the Court may on application of the defendant made at any time before the expiration of three months from the termination of the suit, award the defendant an amount of compensation not larger than one that could be awarded for damages in any suit.

 

2      (1)     The provisions of  Rule 1 of this Order shall not take away any right of action under admiralty action

 

(2)    Any compensation awarded under the admiralty action shall be taken into consideration in awarding any damages under Rule 1 of this Order

 

 

Order 19

Accounts And Inquiries

 

1      (1)    Where a writ is endorsed with a claim of an account or a claim which necessarily involves taking an account, the plaintiff may, at any time, after the defendant has entered an appearance or after the time limited for appearing, apply for an order for an account under this rule.

 

(2)     An application, under this rule shall be made by summons and supported by affidavit or other evidence.

 

(3)    On the hearing of the application, the Court may, unless satisfied by the defendant, by affidavit or otherwise, that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.

 

2.     (1)    The court may, on application made by summons at any stage of the proceedings in a cause or matter, direct any necessary accounts or inquiries to be taken or made.

 

(2)    Every direction for the taking of an account or the making of an inquiry shall be numbered in the judgment or so that, as far as may, be each distinct account and inquiry may be designated by a number.

 

3.     (1)    Where the Court orders an account to be taken, it may by the same or subsequent order give directions with regard to the manner in which the account is to be taken or vouched.

 

         (2)   Without prejudice to the generality of sub-rule (1) of this rule, the Court may direct that in taking the account, the relevant books of account shall be evidence of the matters contained therein with liberty to the parties interested to take such objections thereto as they think fit.

 

4.      (1)   Where an account has been ordered to be taken, the accounting party shall make out his account and, unless the court otherwise directs, verify it by an affidavit to which the account shall be exhibited.

 

(2)     The items on each side of the account shall be numbered consecutively.

 

(3)    Unless the order for the taking of the account otherwise directs, the accounting party shall lodge the account with the Court and shall at the same time notify the other parties that he has done so and of the filing of any affidavit verifying the account and of any supporting affidavit.

5.     Any party who seeks to charge an accounting party with an amount beyond that which he has by his account admitted to have received or who alleges that any item in his account is erroneous in respect of amount or in any other respect shall give him notice thereof stating, so far as he is able, the amount sought to be charged with brief particulars thereof or, as the case may be, the grounds for alleging that the item is erroneous.

 

6.      (1)   If it appears to the Court that there is undue delay in the prosecution of any accounts, or inquiries, or in any other proceedings under any judgment or order, the Court may require to explain the delay and may then make such order for staying the proceedings or for expediting them or for the conduct thereof and for costs as the circumstances require.,

 

(2)    The Court may direct any party or legal practitioner to take over the conduct of proceedings in question and to carry out any directions made by an order under this rule and make such order as it thinks fit as to the payment of legal practitioner's costs.

 

7.     Where some of the persons entitled to share in a fund are ascertained, and difficulty or delay has occurred or is likely to occur in ascertaining the other persons so entitled, the Court may order or allow immediate payment of their shares to the persons ascertained without reserving any part of the shares to meet the subsequent costs of ascertaining those other persons.