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Order 20
A - Reference to Arbitrator
1. In any case in which a matter is referred to one or more arbitrators under the provisions of the Federal High Court Act the arbitrators shall be nominated by the parties in such manner as may be agreed upon between them.
2. If the parties cannot agree with respect to the nomination, or if the persons nominated refuse to act, and the parties are desirous that the nomination be made by the Court, the Court shall appoint the arbitrators.
3. The court shall by an order under its seal refer to the arbitrators the matters in difference in the suit which they may be required to determine, and shall fix a time for the delivery of the award, and the time so fixed shall be stated in the order.
4. If the reference be to two or more arbitrators, provision shall be made in the order for a difference of opinion among them, by the appointment of an umpire, or by declaring that the decision shall be with the majority, or by empowering the arbitrators to appoint an umpire, or otherwise as may be agreed between the parties, or if they cannot agree, as the Court may determine.
5. When a reference to arbitration is made by an order of court, the same process to the parties and witnesses, whom the arbitrators or umpire may desire to have examined, shall issue as in ordinary suits and persons not attending in compliance with such process, or making any other default, or refusing to give evidence, or being guilty of any contempt of the arbitrators or umpire during the investigations of the suit, shall be subject to the like disadvantages, penalties, and punishments, by order of the Court on the representation of the arbitrators or umpire, as they would incur for the same offences in suits tried before the Court.
6. (1) When the arbitrators are not able to complete the award within the period specified in the order from want of the necessary evidence or information, or other good and sufficient cause, the Court may, from time to time, enlarge the period for delivery of the award, if it thinks it proper.
(2) In any case in which an umpire is appointed, it shall be lawful for him to enter on the reference in Iieu of the arbitrators, if they have allowed their time, or their extended time, to expire without making an award or have delivered to the Court, or to the umpire, a notice in writing stating that they cannot agreed.
(3) An award shall not be liable to be set aside only by reason of its not having been completed within the period allowed by the court, unless on proof that the delay in completing the award arose from misconduct of the arbitrators or umpire, or unless the award shall have been made after the issue of an order by the Court superseding the arbitration and recalling the suit.
7. (1) If, in any case of reference to arbitration by an order of Court, the arbitrators or umpire dies, or refuses or become incapable to act, it shall be lawful for the court to appoint a new arbitrator or arbitrators or umpire in the place of the person or persons so dying or refusing or becoming incapable to act.
(2) Where the arbitrators are empowered by the terms of the order or reference to appoint an umpire, and do not appoint an umpire, any of the parties may serve the arbitrators with a written notice to appoint an umpire and if within seven days after the notice is served, no umpire is appointed, it shall be lawful for the court upon the application of the party having served such notice as aforesaid and upon proof to its satisfaction of such notice having been served, to appoint an umpire.
(3) In any case of appointment under this rule, the arbitrators or umpire so appointed shall have the like power to act in the reference as if their names had been inserted in the original order of reference.
8. (1) The award shall contain a conclusive finding, and may not find on the contingency of any matter of fact being afterwards substantiated or deposed to.
(2) The award shall comprehend a finding on each of the several matters referred.
9. It shall be lawful for the arbitrators or umpire upon any reference by an order of Court, if they think fit, and if it is not provided to the contrary, to state their award as to the whole or any part thereof in the form of a special case for the opinion of the Court.
10. The court may, on the application of either party, modify or correct an award where it appears that a part of the award is upon matters not referred to the arbitrators, (provided that, that part can be separated from the other part, and does not affect the decision on the matter referred), or where the award is imperfect in form, or contains any obvious error which can be amended without affecting the decision.
11. The Court may also on the application, make such order as it thinks just, respecting the costs of the arbitration, if any question arises about the costs or their amount, and the award contains no sufficient provision concerning them.
12. In any of the following cases the Court shall have power to remit the award, or any of the matters referred to arbitration, for reconsideration by the arbitrators or umpire, upon such terns as it thinks proper -
(a) if the award has left undetermined some of the matter referred to arbitration;
(b) If it has determined matters not referred to arbitration;
(c) if the award is so indefinite as to be incapable of execution;
(d) if an object to the legality of the award is apparent upon the face of the award.
13. (1) No award shall be liable to be set aside except on the ground of perverseness or misconduct of the arbitrators or umpire
(2) Any application to set aside on award shall be within fifteen days after the publication thereof.
14. If no application is made to set aside the award, or to remit it or any of the matters referred, for reconsideration, or if the Court has refused any such application, either party may file the award in Court, and the award shall thereupon have the same force and effect for all purposes as a judgment.
B - Arbitration Proceedings
15. Every application in this rule to the Court under the Arbitration and Conciliation Act -
(a) to revoke an arbitration agreement under section 2 thereof;
(b) to appoint an arbitrator under section 7(3) thereof;
(c) to stay proceedings under section 5 thereof;
(d) to remove an arbitrator or umpire under section 30 thereof;
(e) to direct an arbitrator or umpire to state the reasons for an award under section 26 thereof;
(f) to ask that a case on trial which is the subject of an arbitration agreement be referred to an arbitration under section 4 thereof;
(g) to set aside an award under section 29 thereof;
(h) for declaration that an award is not binding on a party to the award on the ground that it was made without jurisdiction or because the arbitrator misconducted himself or that the proceedings was arbitrary or that the award has been improperly procured under section 30 thereof;
(i) generally to determine any question of law arising in the course of or concerning any arbitration agreement or proceedings referred to the Court;
(j) to subpoena a witness to attend under section 23 thereof,
shall be made by originating motion.
16. The application in respect of rule 1 of this |Order must be made on notice and within 21 days after the award or the proceedings has been made or commenced.
C - Enforcement of arbitration Awards
17. (1) An application to enforce an award on an arbitration agreement in the same manner as a judgment or order may be made ex-parte, but the Court hearing the application may order it to be made on notice.
(2) The supporting affidavit shall -
(a) exhibit the arbitration agreement and the original award or in either case certified copies of each (b) state the name, as usual or last known place of abode or business of the applicant and the person against whom it is sought to enforce the award;
(c) state as the case may require either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.
D - Registration of Foreign Arbitration Award
18. When an award is made in proceedings on an arbitration in a foreign territory to which the Foreign Judgment (Reciprocal Enforcement) Act extends, if the award was in pursuance of the law in force in the place where it was made it shall become enforceable in the same manner as a judgment given by a Court in that place and the proceeding of the Foreign Judgments (Reciprocal Enforcement) Act shall apply in relation to the award as it applies in relation to a judgment given by that Court.
Order 21
1. (1) In any case in which a matter is referred to a referee under the provisions of the Federal High Court Act, the Court shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry
(2) The instructions shall specify whether the referee is merely to transit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation.
2. The Court may at any stage of the proceedings direct any such necessary inquiries or accounts to be made or taken notwithstanding that it appears that there is some special or further relief sought for, or some special issues to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.
3 . (1) The referee may, subject to the order of the Court, hold the inquiry at, or adjourn it to, any place which he may deem most expedient, and have any inspection or view which he may deem expedient, for the disposal of the controversy before him.
(2) The referee shall, as far as practicable, proceed with the inquiry from day to day.
4. Subject to any order to be made by the Court ordering the inquiry, evidence shall be taken at any inquiry before a referee, and the attendance of witnesses to give evidence before a referee may be enforced by the Court in the manner as the attendance may be enforced before the Court and every such inquiry shall be conducted in the same manner as nearly as circumstances will admit, as trials before a judge of the Court, but not so as to make the tribunal of the referee a public court or justice.
5. Subject to any order of Court, the referee shall have the same authority in the conduct of any inquiry as a Judge of the Court when presiding at any trial.
6. Nothing in these provisions contained authorises any referee to commit any person to prison or to enforce any order by attachment or otherwise, but the Court may, in respect of matters before a referee, make any order of attachment or committal it may consider necessary.
7. (1) The report made by a referee in pursuance of a reference under these Rules shall be made to the Court and notice thereof served on the parties to the reference.
(2) A referee may in his report submit any question arising therein for the decision of the Court or make a special statement of facts from which the Court may draw such inferences as it thinks fit.
(3) On the receipt of a referee's report, the Court may -
(a) adopt the report in whole or in part;
(b) vary the report;
(c) require an explanation from the referee;
(d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee; or
(e) decide the question or issue originally referred to him on the evidence taken before him, either with or without additional evidence.
4. When the report of the referee has been made, an application to vary the report or remit the whole or any part of the question or issue originally referred may be make on the hearing by the Court to the further consideration of the cause or matters, after giving not less than four days notice thereof, and any other application with respect to the report may be made on the hearing without notice.
5. Where on a reference under this Order the Court or a Judge in Chambers orders that the further consideration of the cause or matter in question shall not stand adjourned until the receipt of the referee's report, the order may contain directions with respect to the proceedings on the receipt of the report and the foregoing provisions of the rule shall have effect subject to any such directions.
Order 22
1 . (1) An application for the appointment of a receiver may be made by motion on notice.
(2) An application for an injunction ancillary or incidental to an order appointing a receiver may be joined with the application for the order.
(3) Where the applicant wishes to apply for the immediate grant of such an injunction, he may do so ex parte on affidavit in an appropriate case.
(4) The Court hearing an application under sub-rule (3) of this rule may grant an injunction restraining the party beneficially entitled to to any interest in the property of which a receiver is sought from assigning, charging or otherwise dealing with that property pending the hearing of a summons for the appointment of a receiver and may require such a summons, returnable on such date as the Court may direct, to be issued.
2 . (1) Where a judgment is given, or an order is made, directing the appointment of a receiver, then, unless the judgment or order otherwise directs, a person shall not be appointed a receiver in accordance with the judgment or order until he has given security as in Form 45 in appendix 6 to these Rules, in accordance with this rule.
(2) Where, by virtue of sub-rule (1) of this rule, or any judgment or order appointing a person named therein to be a receiver, a person is required to give security in accordance with this rule, he shall give security as in Form 46 in Appendix 6 to these Rules, as may be approved by the Court duly to account for what he receives as a receiver and to deal with it as the Court directs.
(3) Unless the Court otherwise directs, the security shall be by guarantee or, if the amount for which the security is to be given does not exceed two thousand naira, by an undertaking.
(4) The guarantee or undertaking shall be filed in the Court Registry.
3. A person appointed a receiver shall be allowed such proper remuneration, if any, as may be fixed by the Court
4. (1) A receiver shall submit accounts as in Form 44 in Appendix 6 to these Rules, to the Court at such intervals or on such dates as the Court may direct in order that they may be passed.
(2) Unless the Court otherwise directs, each account submitted by a receive shall be accompanied by an affidavit as in Form 44 in Appendix 6 to these Rules, verifying it.
(3) The receiver's account and affidavit (if any) shall be left at the Registrar's office, and the plaintiff or party having the conduct of the cause or matter shall thereupon obtain an appointment for the purpose of passing the account.
(4) The passing of a receiver's account shall be certified by the Registrar.
5. The days on which a receiver shall pay into Court the amount shown by his account as due from him, or such part thereof as the Court may certify as proper to be paid in by him, shall be fixed by the Court.
6. (1) Where a receiver fails to attend for the passing or any account of his, or fails to submit any accounts, make any affidavit or do any other thing which he is required to submit, make or do, he and any or all of the parties to the cause or matter in which he was appointed may be required to attend in Chambers to show cause for the failure, and the Court may either in Chambers or after adjournment into court, give such directions as it thinks proper including if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs.
(2) Without prejudice to sub-rule (1) of this rule, where a receiver fails to attend for the passing of any account or fails to pay into Court on the date fixed by the Court any sum shown by his account as due from him, the Court may disallow any remuneration claimed by the receiver in any subsequent account and may, where he has failed to pay any such sum into Court, charge him with interest at the rate of ten per centrum per annum on that sum while in his possession as a receiver.
Order 23
1. Where by any written law or special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and the time is not limited by hours, the following rules shall apply -
(a) the limited time does not include the day of the happening of the event, but commences at the beginning of the day next following that day;
(b) the act or proceeding shall be done or taken at least on the last day of the limited time;
(c) where the time limited is less than five days, public holiday, Saturday or Sunday shall be reckoned as part of the time;
(d) when the time expires on a public holiday, Saturday or Sunday the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being a public holiday, Saturday or Sunday.
2. The parties may not by consent enlarge or abridge any of the times fixed by the provision of these Rules for taking any step, filing any document, or giving any notice.
3. (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these provisions, or by any judgment, order or directions, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in sub-rule (1) of this rule although the application for extension is not made until after the expiration of that period.
4. (1) Where a year or more has elapsed since the last proceeding in a cause or matter, the party who desires to proceed shall give to every other party not less than 30 days notice of his intention to proceed.
(2) A summons on which no order was made shall not be regarded as a proceeding for the purposes of this provisions.
5. Application to set aside or remit an award may be made at any time within six weeks after the award has been made and published to the parties but the Court or Judge in Chambers may by order extend the time either before or after it has elapsed.
Order 24
1. Whenever application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in deponent's belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the "Undefended List", and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
3 . (1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List and the Court may order pleading, or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) of this Order, or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally.
5. Nothing herein shall preclude the Court from hearing or requiring oral evidence, if it so thinks fit, at any stage of the proceedings under rule 4 of this Order.
Order 25 Proceedings In Lieu Of Demurrer
1. No demurrer shall be allowed.
2 . (1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties, or by order of the Court or a Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the Court or a Judge in Chambers the decision of the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge in Chambers may thereupon dismiss the action or make such other order therein as may be just.
4. The Court or a Judge in Chambers may order any pleading to be struck out on the ground that it discloses no reasonable cause of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.
5. No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.
Order 26
1. Unless the Court gives leave to the contrary or a statement of claim is endorsed on the writ, the plaintiff shall serve a statement of claim together with copies of documentary evidence therein mentioned on the defendant, or, if there are two or more defendants, on each defendant, and shall do so either when the writ, or notice of the writ, is served on that defendant unless the Court or Judge in Chambers otherwise orders.
2. (1) Subject to sub-rule (2) of this rule, a defendant who enters an appearance in, and intends to defend, an action shall, unless the Court gives leave to the contrary, serve a defence which must include any preliminary objection he wishes to raise to the plaintiff's action together with copies of documentary evidence therein mentioned on the plaintiff at the time he files his memorandum of appearance.
(2) If a summons under Order 24 rule 1 of these Rules is served on a defendant, sub-rule (1) of this shall not have effect in relation to him unless by the order of Court made on a motion on notice he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 14 days after the making of the order or within such other period as may be specified in the order
3. (1) A plaintiff on whom a defendant serves a defence shall serve a reply on that defendant within 14 days of service of the defence on him if it is needed for compliance with rule 6 of this Order and, if no reply is served, rule 10 of this Order shall apply
(2) A plaintiff on whom a defendant serves s a counter-claim as in Form 25 in Appendix 6 to these Rules, shall, if he intends to defend it, serve on that defendant within 14 days a defence to counter-claim
(3) Where a plaintiff serves both a reply and a defence to counter-claim on any defendant, he shall include them in the same document.
(4) A reply to any defence shall be served by the plaintiff before the expiration of 15 days after the service on him of that defence, and a defence to a counter-claim shall be served by the plaintiff before the expiration of 15 days after the service on him of the counter-claim to which it relates
4. (1) Every pleading shall contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, and numbered consecutively
(2) Dates, sums and numbers shall be expressed in figures but may also be expressed in words
(3) Pleadings shall be signed by a legal practitioner, or by the party if he sues or defends in prison
(4) The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement
5. In all cases in which the party pleading relies on any mis-representation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings
6 . (1) A party shall plead specifically any matter (for example, performance, release, any relevant statue of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.
(2) Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or the defendant shall be implied in his pleading.
(3) Without prejudice to sub-rule (1) of this rule, a defendant in an action for the recovery of land shall plead specifically every ground of defence on which he relies and a plea that he is in possession of the land by himself or his tenant is not sufficient.
7. (1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just.
(2) Before applying for particulars by summons or notice, a party may apply for them by letter and the costs of the letter and of any particulars delivered pursuant to the delivery of the letter shall be allowable on taxation.
(3) In dealing with the costs of any application for particulars by summons or notice, the provisions of this rule shall be taken into consideration by the Court or Judge in Chambers.
(4) Particulars of a claim shall not be ordered under this rule to be filed before defence unless the Court or Judge in Chambers is of the opinion that they are necessary or desirable to enable the defendant to plead or ought for any other special reason to be so delivered.
8 (1) The party at whose instance particulars have been filed under a Judge's order shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars upon him that he had initially.
(2) Except as provided in this rule, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings or give any extension of time.
9. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of, the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not adjudged a lunatic.
10. (1) If there is no reply to a defence, there is an implied joinder of issue on that defence.
( 2) Subject to sub-rule (3) of this rule -
(a) there is at the close of the pleadings an implied joinder of issue on the pleadings last served; and
(b) a party may in his pleading expressly join issue on the last preceding pleading.
(3) There shall be no joinder of issue, implied or expressed, on a statement of claim or counter-claim.
(4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case, the express joinder of issue operates as a denial of every other such allegation.
11. No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
12 . (1) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.
(2) The same rule shall apply where the defendant relies upon several distinct grounds of set-off or counter-claim founded upon separate and distinct facts.
(3) Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief and the same rule shall apply to any counter-claim made or relief claimed by the defendant in his defence.
13. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether any given allegation is true or otherwise.
14. (1) When a party denies all allegation of fact he shall not do so evasively but shall answer the point of substance.
(2) When a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.
15. The defence shall admit such material allegations in the statement of claim, as the defendant knows to be true, or desires to be taken as established without proof thereof.
16. Where any defendant seeks to rely upon any fact as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim as the case may be, and the particulars of such set-off or counter-claim shall be given.
17. The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where the defence is such as, in the opinion of the court, ought to have been expressly set up by the defence, or is, in the opinion of the Court, ought to have been expressly set up by the defence, or is inconsistent with the statements thereof, or is, in the opinion of the Court, likely to the plaintiff by surprise or to raise new issues not fairly arising out of the pleadings, as they stand, and such as the plaintiff ought not to be then called upon to meet
18. The Court, if it considers that the statement of claim and the defence filed in any suit insufficiently disclose and fix the real issues between the parties, may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue
19. Where the Court is of opinion that any allegations of fact, denied or not admitted by any pleading, ought to have been admitted, the Court shall make such order as may be just with respect to costs
20. The Court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case may be, or on the ground that it is embarrassing, or scandalous or vexatious, or an abuse of the process of the Court; and the Court may either give or leave to amend the pleading, or may proceed to give judgment for the plaintiff or the defendant, as the case may be, or may make such other order, and upon such terms and conditions, as may seem just
21. When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of the contract, promise, or agreement, whether with reference to any statue or otherwise
22. Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.
23 . Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall besufficient to allege it as a fact without setting out the circumstances from which it is inferred
24. Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege the notice as a fact, unless the form or the precise terms of the notice or the circumstances from which the notice is inferred, is material
25. (1) Whenever any contract or any relation between any persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege the contract or relation as a fact, and to refer generally to those letters, conversations, or circumstances without setting them out in detail
(2) If as in sub-rule (1) of this rule, the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from those circumstances, he may state them in the alternative
26. Neither party needs in any pleadings allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (such as consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim)
27. No technical objection shall be raised to any pleading on the ground of any alleged want of form
28. In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars but in any case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same need not be alleged in the pleadings.
29. Where in any action a defence of tender before action is pleaded, the defendant shall pay into Court in accordance with rule 1 of Order 31 of these Rules the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into Court has been made
30. Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiff's claim, whether or not it is also added as a counter-claim
31. (1) Where in any action a set-off or counter-claim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for the balance, or otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case
(2) Sub-rule (1) of this rule shall apply mutatis mutandis where the balance is in favour of the plaintiff
32 (1) The pleadings in an action are deemed to be closed-
(a) at the expiration of 15 days after service of the reply or, if there is no reply but only a defence to counter-claim, after service of the defence to counter-claim; or
(b) if neither a reply nor a defence to counter-claim is served, at the expiration of 15 days after service of the defence
(2) The pleadings in an action are deemed to be closed at the time provided by sub-rule (1) of this rule, notwithstanding that any request or order for particulars has been made but has not been complied with at that time
Order 27
1. The Court or a Judge in Chambers may at any time, and on such terms as to costs or otherwise as the Court or Judge in Chambers may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings
2. The Court or a Judge in Chambers may, at any stage of the proceedings allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all the amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties
3. Application for leave to amend may be made by either party to the Court or a Judge in Chambers at the trial of the action, and the amendment may be allowed upon such terms as to costs or otherwise as may be just
4. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, the order to amend shall, on the expiration of such limited time as aforesaid, or of the fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a Judge in Chambers
5. Whenever any indorsement or pleading is amended, the Court or the Judge in Chambers, as the case may be, may order that a copy of the document as amended be filed in the Registry and served on all parties to the action
6. Whenever any indorsement or pleading is amended, the indorsement or pleading shall be marked with the date of the order, if any, under which it is so amended, and of the day on which the amendment is made, in the following manner -
"Amended ……………………………day of ……………………….., pursuant to order of ………………………………….. dated the ………………………day of ………………………."
7. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a Judge in Chambers on motion or summons without an appeal
Order 28
1. If the plaintiff, being bound by these Rules or an order of Court or a Judge in Chambers to file a statement of claim, does not file it within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge in Chambers to dismiss the action with costs for want of prosecution; and on hearing of the application the Court or Judge in Chambers may, if no statement on claim has been filed, order the action to be dismissed accordingly or may make such other order on such terms as the Court or judge in Chambers thinks just.
2. If the plaintiff's claim is only for a debt or liquidated demand, and the defendant does not, within the time allowed by these Rules of an order of Court of Judge in Chambers for that purpose, file a defence, the plaintiff may, at the expiration of the time, apply for final judgment for the amount claimed, with costs.
3. When in any action for a debt or liquidated demand there are several defendants, and one of them makes default as mentioned in rule 2 of this Order the plaintiff may have final judgment entered against the defendant so making default, and issue execution upon that judgment without prejudice to his right to proceed with his action against the other defendants.
4. Where the plaintiff's claim against a defendant is for unliquidated damages only, then, if that defendant makes defaults in pleading, the plaintiff may, after expiration of the period fixed as aforesaid, for service of defence, have judgment entered against that defendant for damages to be assessed by the Court and costs, and may proceed with the action against the other defendants, if any.
5. Where the plaintiff's claim against the defendant relates to the detention of goods only, then, if that defendant makes default in pleading, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, have entered either -
(a) judgment against that defendant for the delivery of the goods or their value to be assessed by the Court and costs; or
(b) judgment for the value of the goods to be assessed by the Court and costs, and
in either case, he may proceed with the action against the defendants, if any.
6. Where the plaintiff makes against a defendant two or more of the claims mentioned in rules 2 to 5 of this Order and no other claim, then, if the defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for services of the defence, have entered against that defendant, such judgment in respect of each such claim as he would be entitled to under those rules if they were the only claims made, and proceed with the action against the other defendants, if any.
7.- (1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5 of this Order and defendant or all the defendant (where there are more than one ) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, apply to the court for judgment, and on the hearing of the application the court shall give such judgment as the plaintiff appears entitled to on his statement of claim.
(2) Where the plaintiff makes such a claim as is mentioned in sub-rule (1) of this rule against more that one defendants, then if one of the defendants makes default as mentioned in that sub-rule, the plaintiff may -
(a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that sub-rule for judgment against that defendant, and proceed with the action against the other defendant; or
(b) set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment against the other defendants.
(3) an application under sub-rule (1) of this rule shall be summons or motion on notice.
8. A defendant who counter-claims against a plaintiff shall be treated for the purposes of rules 2 to 7 of this Order, as if he were a plaintiff who had made against a defendant the claim made in the counter-claim and, accordingly, where the plaintiff or any other person against whom the counter-claim is made fails to serve a defence to the counter-claim, those rules shall apply as if the counter-claim were a statement of claim, the defence to the counter-claim a defence and the parties making the counter-claim and against whom it is made were plaintiffs and defendants respectively, and as if references to the period fixed by or under these Rules for service of the defence were references to the period so fixed for service of the defence to counter-claim
9. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.
10. In this Order, a party makes default in pleading when he fails to file and serve his statement of claim or defence, as the case may be on the opposite party within the time fixed for doing so by these Rules or by the order of the Court or a Judge in Chambers.
Order 29
1. (1) Where -
(a) a person is under a liability in respect of a debt or in respect of any money, goods or chattels and he is, or expects to be sued for or in respect of the debt or money or those goods or chattels by two or more persons making adverse claims thereto; or
(b) claim is made to any money, goods or chattels taken or intended to be taken by a sheriff in execution under any process, or to the proceeds or value of any such goods or chattels by a person other that the person against whom the process in issued,
the person under liability as mentioned in sub-rule (1)(a) of this rule or, as the case may be, the sheriff, may apply to the Court for relief by way of interpleader.
(2) Reference in this Order to sheriff shall be construed as including references to any other officer charged with the execution of process by or under the authority of the Court.
2. (1) Any person making a claim to or in respect of any money, goods or chattels taken or intended to be taken under process of the Court or to the proceeds or value of any such goods or chattels, shall give notice of his claim to the sheriff charged with the execution of the process and shall include in his notice a statement of his address, and that address shall be his address for service.
(2) On receipt of a claim made under this rule, the sheriff shall forthwith give notice thereof to the execution creditor and the execution creditor shall, within 7 days after receiving the notice, give notice to the sheriff informing him whether he admits or disputes the claim.
(3) An execution creditor who gives notice in accordance with this provision admitting the claim shall only be liable to the sheriff for any fees and expenses incurred by the sheriff before the receipt of that notice.
(4) Where -
(a) the sheriff receives a notice from an execution creditor under sub-rule (2) of this rule, disputing a claim, or the execution creditor fails, within the period mentioned in that sub-rule to give the required notice; and
(b) the claim made under this rule is not withdrawn,
the sheriff may apply to the Court under this order.
5. A sheriff who receives a notice for an execution creditor under sub-rule (2) of this rule admitting a claim made under this provision, shall withdraw from possession of the money, goods or chattels claimed and may apply to the Court for relief under this provision of the following kind, that is to say, an order restraining the bringing of an action against him for or in respect of his having taken possession of that money or those goods or chattels.
3.- (1) An application for relief under this Order shall be made by originating summons unless made in a pending action in which case it shall be made by motion in the action.
(2) Where the applicant is a sheriff who has withdrawn from possession of money, goods or chattels taken in execution and who is applying for relief under rule 2(5) of this Order, the summons shall be served on any person who made a claim under rule 2(1) of this Order, to or in respect of that money, or those goods or chattels, and that person may attend the hearing of the application.
(3) No appearance need be entered to an originating summons under this provision.
4. The applicant shall satisfy the Court or a Judge in Chambers by affidavit or otherwise or otherwise that -
(a) the applicant claims no interest in the subject matter in dispute, other than for charges or costs; and
(b) the applicant does not collude with any of the claimants; and
(c) the applicant is willing to pay or transfer the subject matter into Court or to dispose of it as the Court or Judge in Chambers may direct.
5. Where the applicant is a defendant, application for relief may be made at any time after service of the writ of summons.
6. If the application is made by a defendant, in an action, the Court or a Judge in Chamber may stay all further proceedings in the action.
7. If the claimants appear in pursuance of the summons, the Court or a Judge in Chambers may order either that any claimant be made a defendant in any action already commenced in respect of the subject matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the later case may direct which of the claimants is to be plaintiff, and which the defendant.
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