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Order 20

 

Arbitration

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

Reference to Referees

 

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

Receivers

 

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

Computation Of Time

 

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

The Undefended List

 

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

Pleadings

 

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 be

         sufficient 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

Amendment

 

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

Default Of Pleadings

 

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

 Interpleader

 

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.

 

8.     If a claimant, having been duly served with a summons calling on him to appear and maintain, or relinquish, his claim, does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply with any order made after his appearance, the Court or a Judge in Chambers may make an order declaring him, and all persons claiming under him, forever barred against the applicant and persons claiming under him; but the order shall not affect the rights of the claimants as between themselves.

 

9.     The Court or a Judge in Chambers may, in or for the purposes of any interpleader proceedings, make all such orders as to costs and all other matters as may be just and reasonable.

 

 

Order 30

Withdrawal And Discontinuance

 

1.     A party who has entered an appearance in an action may withdraw the appearance at any time with leave of the Court

 

2.     (1)    The plaintiff in an action may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time, not later that 14 days after service of the defence of him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.

 

(2)    A defendant may, without leave of the Court -

 

(a)     withdraw his defence or any part of it at any time;

 

(b)     discontinue a counter-claim, or withdraw any particular claim made by him therein, as against any or all of the parties against whom it is made, at any time not later that 14 days after service on him of a defence to the counter-claim or, if the counter-claim is made against two or more parties, of the defence to the counter-claim last served, by serving a notice to that effect on the plaintiff or other party concerned.

 

(3)    Where there are two or more defendants to an action, not all of whom served a defence on the plaintiff and the period fixed by or under this rule for service by any of those defendants of his defence expires after the latest date on which any other defendant serves his defence, sub-rule (1) of this rule shall have effect as if the reference therein to the service of the defence last served, were a reference to the expiration of the period.

 

(4)    Sub-rule (3) of this rule shall apply in relation to a counter-claim as it applies in relation to an action, with substitution for references to a defence, to the plaintiff and to sub-rule (1) of this rule, of references to a defence to counter-claim, to the defendant and to sub-rule (2) of this rule respectively.

 

(5)    If all the parties to an action consent, the action may be withdrawn without leave of the Court at any time before trial by producing to the Registrar a written consent to the action being withdrawn signed by all the parties, and the action shall thereafter be struck out.

 

3.     (1)    Except as provided by rule 2 of this Order, a party may not discontinue an action or counter-claim, or withdraw any particular claim made by him therein without leave of the Court, and the Court hearing an application for the grant of the leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.

 

(2)    An application for the grant of leave under this rule may be made by summons or motion on notice.

 

4.     Subject to any terms imposed by the Court in granting leave under rule 3 of this Order, the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to subsequent action for the same, or substantially the same, cause of action.

 

5.     Where a party has discontinued an action or counterclaim or withdrawn any particular claim made by him therein, and he is liable to pay costs to any other party of the action or counter-claim to the costs occasioned to any other party by the claim withdrawn, then if, before payment of those costs, he subsequently brings an action for the same or substantially the same cause of action, the court may order the proceedings in that action to be stayed until those costs are paid.

 

6.     A party who has taken out a summons or filed a motion in a pending cause or matter may not withdraw it without leave of the Court.

 

 

Order 31

Admissions

 

1.     Any party may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party.

 

2.     (1)   Any party may, by leave of Court obtained in a motion on notice, call upon any other party to admit any document or fact, saving just exceptions.

 

(2)    A notice containing a list and where possible true copies of the documents or as the case may be, a clear statement of each fact to be admitted shall be filed with the motion papers and served on the party being called upon to admit the same.

 

(3)    The Court, if it grants the leave, shall fix the terms and conditions thereof, including the time within which the admission is to be made.

 

(4)    If a party on whom a notice under sub-rule (2) of this rule is served desires to deny the existence or the authenticity of any fact or document therein specified, he shall, before the day fixed for hearing the motion, serve on the party by whom it was given, a notice stating that motion, serve on the party by whom it was given, a notice stating that he does not admit the facts or the authenticity of the documents and that he requires that the same be proved at the trial.

 

(5)    A party who fails to give a notice of non-admission in accordance with sub-rule (4) of this rule in relation to any fact or document shall be deemed to have admitted that fact or the authenticity of that document unless the Court otherwise orders.

 

3.     (1)    After pleadings shall have been settled and issues joined, the parties or their counsel will settle before the Chief Registrar all documents they with to use at the trial, and leave with him two copies of each set of documents.

 

(2)    No party will, without leave of the Court, be allowed to use at the trial any other document other than those already settled except those allowed under rules 2 (1) and (3) of this Order.

 

4.     (1)    Where admissions of fact are made by a party either by his pleadings or otherwise, any other party to the action may apply to the Court for such judgment or order as upon those admissions, he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment or make such order on the application as it thinks just.

 

(2)    An application for an order under this rule may be made by motion or summons.

 

5.     (1)    Subject to sub-rule (2) this rule and without prejudice to the right of a party to object to the admission in evidence of any document, a party on whom a list of documents is served in pursuance of the provisions of Order 33 of these Rules, shall, unless, the Court otherwise orders, be deemed to admit -

 

(a)    that any document described in the list as an original document is such a document and was printed, written, signed or executed as it purports respectively to have been; and

 

(b)    that any document described therein as a copy is a true copy.

 

(2)    The provisions of the sub-rule (1) of this rule shall not apply to a document the authenticity of which the party has denied in his pleadings.

 

(3)    If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection expires, whichever is the later, the party on whom the list is served, serves on the party whose list it is, a notice stating, in relation to any document specified therein, that he does not admit the authenticity of that document and requires it to be proved at the trial, he shall not be deemed to make any admissions in relation to that document under-rule (1) of this rule.

 

(4)    A party by whom a list of documents is served on any other party in pursuance of any provision of Order 33 of these Rules shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession, custody or power.

 

(5)    The foregoing provisions of this rule shall apply in relation to an affidavit made in compliance with an order under the provisions of Order 33 of these Rules as they apply in relation to a list of documents served in pursuance to any provision of that Order.

 

 

Order 32

Payment Into And Out Of Court

 

1.    (1)     In any action for a debt or damages the defendant may, at any time after he has entered appearance in the action pay into Court a sum of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where two or more causes of action are joined in the action a sum or sums of money in satisfaction of any or all of those causes of action.

 

(2)    On making any payment into Court under this rule, and on increasing any such payment already made, the defendant shall give notice thereof in Form 26 in Appendix 6 to these Rules to the plaintiff and every other defendant (if any), and within 7 days after receiving the notice, the plaintiff shall send the defendant a written acknowledgement of its receipt.

 

2.     (1)     Payment into Court, whether made in satisfaction of the plaintiff's claim generally or in satisfaction of some specific part thereof, operates, unless the defendant in his defence denies liability, as an admission of liability to the extent of the amount paid in, and no more, and for no other purpose.

(2)    When money is paid into Court with a defence denying liability, it shall be subject to the provisions of rule 5 of this Order.

  3.   Where the defendant pays money into Court, and the liability of the defendant in respect of the claim or cause of action in satisfaction of which the payment into Court is made is not denied in the defence, the plaintiff shall be at liberty to accept the same in full satisfaction and discharge of the cause of action in respect of which it is paid in, and in that ease the plaintiff may forthwith apply by motion for payment of the money to him and, on hearing the motion, the Court shall make such order as to stay of further proceedings in the suit, in whole or in part, and as to costs and other matters as seems just.

4.     If the plaintiff does not so apply, he shall be considered as insisting that he has sustained damages to a greater amount or (as the case may be) that the defendant was and is indebted to him in a greater amount, than the sum paid in and in that case the Court, in disposing of costs at the hearing, shall have regard to the fact of the payment into Court having been made and not accepted.

 

5.     When the liability of the defendant, in respect of claim or cause of action in satisfaction of which the payment into Court has been made, is denied in the pleading, the following rules shall apply -

 

(a)    the plaintiff may accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in, (whereupon all further proceedings in respect of the claim or cause of action except as to costs, shall be stayed), or the plaintiff may refuse to accept the money in satisfaction, in which case the money shall remain in Court subject to the provisions hereinafter mentioned.

 

(b)    if the plaintiff accepts the money so paid in he shall be entitled, with leave of the Court, to have the money paid out to him;

 

(c)    if the plaintiff does not accept the sum so paid in, but proceeds with the action in respect of the claim of cause of action or any part thereof, the money shall remain in Court;

 

(d)    if the plaintiff proceeds with the action in respect of the claim or cause of action or any part thereof, and succeeds, the amount paid in shall be applied, so far as is necessary, in satisfaction of the plaintiff's claim, and the balance (if any) shall, under Court order, be repaid to the defendant; and

 

(e)    if the defendant succeeds in respect of the claim or cause of action, the whole amount shall, under Court order, be repaid to him;

 

6.-   (1)    Where any money is required to be paid into or deposited in Court, the Court may, if it thinks it expedient, order that the money be paid into a savings account at a reputable commercial bank.

 

(2)    The payment shall be done by Registrar and any interest payable by the bank shall accrue pro tanto to the benefit of the party who, at the end of the action, is entitled to the money originally paid into Court.

 

7.     A plaintiff may, in answer to a counter-claim, pay money into Court in satisfaction thereof subject to the like conditions as to costs and otherwise as upon payment into Court by a defendant.

 

8.     Money paid into Court pursuant to rule 1 or 7 of this Order or under an order of the Court or a Judge shall not be paid out except in pursuance of an Order of the Court or a Judge in Chambers.

9.     (1)    Where a person entitled to a fund in Court, or a share of the fund, dies intestate and the Court is satisfied that no grant of administration has been made and that the assets of his estate do not exceed two thousand naira in value including the value of the fund or share, it may order that the fund or share shall be paid, transferred or delivered to the person who, being a widower, widow, child, father, mother, brother or sister of the deceased, would be the prior right to a grant of administration of the estate of the deceased.

  (2)   "Fund in Court" in this rule includes money paid into a bank account under rule 6 of this Order.

 

Order 33

Discovery And Inspection Of Documents

 

1.   (1)     After the close of pleadings in any cause or matter any party by leave of Court or Judge in Chambers may deliver interrogatories in writing for the examination of any other party or parties, and those interrogatories when delivered shall state clearly which of the interrogatories each of the parties is required to answer.

     (2)     Interrogatories which do not relate to any matter in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness

2.   (1)     A copy of the interrogatories proposed to be delivered shall be filed and served with the summons or notice of application for leave to deliver them at least two clear days before the hearing thereof (unless in any case the Court or Judge in Chambers thinks it fit to dispense with this requirement)

       (2)     In deciding upon the application, the court or Judge in Chambers shall take into account any offer which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to any matter in question and leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the action saving costs.

3.     Interrogatories shall be in Form 29 in Appendix 6 to these Rules with such variations as circumstances may require.

 

4.     If a party to an action is a body corporate of a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of an officer or other persons any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of the corporation, company, or body, and an order may be made accordingly.

 

5.     (1)     Interrogatories shall be answered by affidavit to be filed within 10 days, or within such other time as the Court or a Judge in Chambers may allow.

 

(2)     Two copies of the affidavit shall be supplies to the Registrar;

 

6.     An affidavit in answer to interrogatories shall be in Form 30 in Appendix 6 to these Rules with such variations as circumstances may require.

 

7.     Any objections to answering any interrogatory on the ground that it is scandalous or irrelevant, or not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground may be taken in the affidavit in answer.

 

8.     (1)     If any person interrogated omits to answer, or answer insufficiently, the party interrogating may apply to the Court or Judge in Chambers for an order requiring him to answer, or to answer further, as the case may be.

 

(2)    An order may be made requiring him to answer or answer further either by affidavit or by viva voce examination, as the Court or Judge in Chambers may direct.

 

9.     (1)    Any party may, without filing an affidavit, apply to the Court or a Judge in Chambers, for an order directing any other party to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in issue.

 

(2)    On the hearing of the application, the Court or Judge in Chambers may either refuse or adjourn the hearing, if satisfied that the discovery is not necessary or make such order, either generally or limited to certain classes of documents, as may, in its or his discretion, be thought fit.

 

(3)    Discovery shall not be ordered when and so far as the Court or Judge in Chambers is of opinion that it is not necessary either for disposing fairly of the action or for saving costs.

 

10.  (1)    Where in any action arising on a marine insurance policy, an application for discovery of documents is made by the insurer, the following provisions shall apply -

 

(a)    on the hearing of the application, the Court or Judge in Chambers may, subject as provided in sub-rule (2) of this rule, make and order in accordance with rule 9 of this Order;

 

(b)    where in any case the Court or Judge in Chambers is satisfied, either on the original application or on a subsequent application, that it is necessary or expedient, having regard to the circumstances of the case, to make an order, for the production of ship's papers, the Court or Judge in Chambers may make the order as in Form 66 in Appendix 6 to these Rules;

 

(c)    in making an order under this rule the Court or Judge in Chambers may impose such terms and conditions as staying proceedings or otherwise as the Court or Judge in Chambers in its or his absolute discretion thinks just.

 

(2)   Rule 13 of this Order shall not apply  to any application made under this rule.

 

11.   The affidavit to be made by any person against whom an order for discovery of documents has been made under rule 9 of this Order or under sub-rule (a) or (b) of rule 10 of this order shall specify which, if any of the documents therein mentioned he objects to produce, and it shall, except in the case of an order made under sub-rule (b) of rule 10 of this Order be as in Form 31 in Appendix 6 to these Rules with such variations as circumstances may require.

 

12.   (1)   On the hearing of any application for discovery of documents the Court or Judge in Chambers in lieu of ordering an affidavit of documents to be filed may order that the party from whom discovery is sought delivers to the opposite party from whom discovery is sought delivers to the opposite party a list of the documents which are or have been in his possession, custody or power, relating to the matters in question.

 

(2)    The list shall, as nearly as may be, follow the form of the affidavit as in Form 31 in the appendix to these Rules.

 

(3)    The ordering of the list shall not preclude the Court or Judge in Chambers form afterwards ordering the party to make and file and affidavit of documents:

 

13.   The Court or a Judge in Chambers may at any time during the pendency of an action, order the production by any party, upon oath, of such of the documents in his possession or power, relating to any matter in question in the action as the Court or Judge in Chambers shall think right, and the Court may deal with the document, when produced, in such manner as appears just.

 

14.   (1)    Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party in whose pleadings or affidavits reference is made to any document to produce the document for the inspection of the party giving the notice, or of his legal practitioner, and to permit him or them to take copies thereof.

  (2)   Any party not complying with the notice shall not afterwards be at liberty to put any such document in evidence on his behalf in that action, unless he shall satisfy the Court or a Judge in Chambers that the document related only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court or Judge in Chambers deems sufficient for not complying with the notice, in which case the Court or Judge in Chambers may allow the same to be put in evidence on such terms as to costs and otherwise as the Court or Judge in Chambers may think fit.

15.   Notice to any party to produce any documents referred to in his pleadings or affidavit shall be in Form 22 in Appendix 6 to these Rules with such variations as circumstances may require.

 

16.   (1)   The party to whom notice is given under rule 14 of this Order shall, within 2 days from the receipt of the notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 11 of this Order, or if any of the documents referred to in that notice have not been set forth by him in any such affidavit, then within 4 days from the receipt of such notice, deliver to the party giving the same a notice stating a time witting 7 days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his legal practitioner, or in the case of banker's books or other books of accounts, or books in constant use for the purpose of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground.

 

  (2)  The notice shall be in Form 33 in Appendix 6 to these Rules with such variations as circumstances may require.

 

17.     (1)  If the party served with notice under rule 14 of this Order omits to notify a time for inspection, or objects to give inspection, or offers inspection elsewhere than at the office of his legal practitioner, the Court or a Judge in Chambers may, on the application of the party desiring it, make an order for inspection in such place and in such manner as the Courts or Judge in Chambers may think fit.

 

(2)    The order shall not be made when and so far as the Court or Judge in Chambers is of opinion that it is not necessary either for disposing fairly of the action or for saving costs.

 

(3)    Any application to inspect documents, except such as are referred to in pleadings, particulars of affidavit of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party.

 

18.   (1)    Where inspection of any business books is applied for, the Court or a Judge in Chambers may, if it or he thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and the affidavit shall state whether or not there are in the original books any and what erasures, interlineations, or alterations.

 

(2)    Notwithstanding that such copy has been supplied, the Court or Judge in Chambers may order inspection of the book from which the copy was made.

 

(3)    Where, on an application for an order for inspection, privilege is claimed for a document, it shall be lawful for the Court or a Judge in Chambers to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

 

(4)    The Court or a Judge in Chambers may on the application of any party to an action at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any particular document of documents of any class or classes of documents, specified or indicated in the application, is or are, or has or have at any time been, in his possession, custody or power, when he parted with the same and what has become of it.

 

(5)    Application for the order shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has or has at some time had in his possession, custody or power the particular document or documents, or the class or classes of documents specified or indicated in the application and that they relate to the matters in question in the action, or to some or one of them.

 

19.   If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof the Court or a Judge in Chambers may, is satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

 

20.   (1)    If any party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall be liable to committal.

 

(2)    The party shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court or a Judge in Chambers for an order to that effect and an order may be made accordingly.

 

21.   (1)    Service of an order for interrogatories or discovery or inspection made against any party or his legal practitioner shall be sufficient service to found an application for an attachment for disobedience to the order.

 

(2)    The party against whom the application for attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

 

22.   A legal practitioner upon whom an order against any party for interrogatories or discovery or inspection is served under rule 21, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to pay the costs occasioned thereby.

 

23   (1)     Any party may, at the trial of a cause, matter or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer.

 

(2)    In such case the Judge may look at the whole of the answers, and if he is of opinion that any others of them are so connected with those put in that those put in ought not to be used without them, he may direct them to be put in.

 

24.   In any action against or by a sheriff in respect of any matters connected with the execution of his office, the Court or a Judge in Chambers may, on the application of any party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned.

 

25.   This Order shall apply to infant plaintiffs and defendants, and to their next friends and guardians ad litem

 

26.   Any order made under the provisions of this Order (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court or a Judge in Chambers made or given at or before trial.

 

 

Order 34

Interlocutory Injunction and Interim Preservation of Property

 

1.     (1)    An application for the grant of an injunction may be made by a party to an action before or after the trial of the action, whether or not a claim for injunction was included in that party's action.

 

(2)    Where the applicant is the plaintiff and the case is one of urgency, the application may be made ex-parte on affidavit but, except as aforesaid, the application shall be made by motion on notice or summons.

(3)    The plaintiff may not make such an application before the issue of the process by which the action is to be begun, except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the process and serve the process together with the ex-parte order obtained on the defendant and such other terms, as the Court thinks fit.

 

2.    (1)     On the application of any party to an action, the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the action or as to which any question may arise therein or for the inspection of any such property in the possession of a party to the action.

 

(2)    For the purpose of enabling any order under sub-rule (1) of this rule to be carried out, the Court may by the order authorise any person to enter upon any land or building in the possession of any party to the action.

 

(3)    Where the right of any party to a specific fund is in dispute in an action, the Court may on the application of the party, order the fund to be paid into Court or otherwise secured.

 

(4)    An order under this rule may be made on such terms, as the Court may think just.

 

(5)    An application for an order under this rule shall be made by summons or motion on notice.

 

(6)    Unless the Court otherwise directs, an application by the defendant for such an order may not be made before he enters an appearance.

 

3.    (1)     Where it considers it necessary or expedient for the purpose of obtaining full information or evidence in any action, the Court may, on the application of a party and on such terms, as it thinks just, by order authorise or require any sample to be taken of any property which is the subject matter of the action or as to which any question may arise therein, any observation to be made on the property or any experiment to be tried on or with the property.

 

(2)    For the purpose of enabling any order under sub-rule (1) to be carried out, the Court may by the order authorise any person to enter any land or building in the possession of any party.

 

(3)    Sub-rules (5) and (6) of rule 2 of this Order shall apply in relation to an application for an order under this rule as they apply in relation to an application for an order under that rule.

 

4.     (1)    The Court may, on the application of any party, make an order for the sale by such person, in such manner and on such terms as may be specified in the order, of any property (other than land) which is the subject matter of the action or as to which any question arises therein and which is of a perishable nature or likely to deteriorate if kept or which for any other reason it is desirable to sell forthwith.

 

(2)    Su-rules (5) and (6) of rule 2 of this Order shall apply in relation to an application for an order under this rule as they apply in relation to an application for an order under that rule.

 

5.     (1)    Where on the hearing of an application made before the trial of a cause or matter, for an injunction or appointment of a receiver or an order under rule 2, 3, or 4 of this Order, or it appears to the Court that the matter in dispute can be better dealt with by an early trial than by considering the whole merit thereof for the purposes of the application, the Court may make an order accordingly or may make such order as respects the period before trial as the justice of the case requires.

 

(2)     Where the court makes an order for early trial, it shall by the order determine the place and mode of the trial.

 

6.     Where the plaintiff or the defendant by way of counterclaim, claims the recovery of specific property (other than land) and the party from whom recovery is sought does not dispute the title of the party making the claim but claims to be entitled to retain the property by virtue of a lien or otherwise as security for any sum of money, the court, at any time after the claim to be so entitled appears from the pleadings or by affidavit or otherwise to its satisfaction, may order that the party seeking to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the security is claimed and such further sum if any for interests and costs as the Court may direct and that, upon the payment being made, the property claimed be given up to the party claiming it, but subject to the provisions of any law relating to exchange control. 

 

7.     Where an application is made under any of the foregoing provisions of this Order, the court may give directions as to the further proceedings in the action.

 

8.     Where any real or personal property forms the subject matter of any proceedings, and the Court is satisfied that it will be more than sufficient to answer all the claims thereon for which provision ought to be made in the proceedings, the Court may at any time allow the whole or part of the income of the property to be paid, during such period as it may direct, to any or all of the parties who have an interest therein or may direct that any part of the personal property be transferred or delivered to any or all such parties.

 

 

Order 35

Transfer And Consolidation

 

1.     A cause or matter, may before evidence is taken and at the request of either party to the suit be transferred by a Judge before whom the cause or matter is proceeded to another Court of the same Division.

 

2.     A cause or matter may at any stage of the proceedings be reassigned to another Judge of the same Division or of any other Division by the Chief Judge whether or not the cause or matter is being heard before him

 

3.     If for any reason a Judge hearing a cause or matter, and who has taken any step in the proceedings considers it necessary either at his own opinion or upon application of any party to the proceedings, to have the cause or matter transferred to another Court, the Judge shall refer the cause or matter to the Chief Judge for such necessary action as the Chief Judge may think expedient.

 

4.     Where a Judge retires or is transferred to another Division and having part-heard a cause or matter which is been reheard de novo by another Judge, the evidence already given before the retired Judge or the Judge being transferred out of the Division can be read at the re-hearing without the witness who had given it being recalled, if the witness is dead or cannot be found but the onus of establishing that the witness is dead or cannot be found shall lie on the party that wishes to use the evidence.

 

 

Order 36

Settlement And Trial Of Issues

A - Settlement of Issues

 

1.     At any time before or at the hearing, the Court may, if it thinks fir, on the application of any party or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce the question into writing and settle them in the form of issues which when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.

 

2.     The Court may, if it thinks fit, direct the parties to prepare the issues and the issues shall be settled by the Court.

 

3.     The issues may be settled without any previous notice at any stage of the proceedings, at which all the parties are actually present, or at the hearing..

 

4.     If otherwise, notice shall be given to the parties to attend the settlement of the issues.

 

5.     At any time before the decision of the case, if it appears to the Court necessary for the purpose of determining the real question or controversy between the parties, the Court may amend the issues or frame additional issues on such terms as to it shall deem fit.

 

B - Trial of Questions and Issues

 

6.     (1)    The Court may order any question or issue arising in a cause or matter, whether of fact or of law, or partly of fact and partly of law, and whether raised by the pleadings or on disagreement as to document that should be put in evidence or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

 

(2)    An order under his rule may be made on application by a party or by the Court or a Judge in Chambers on its or his own motion.

 

(3)    Application by any party for the order shall be by motion on notice stating the question or issue sought to be tried.

 

7.     If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter, or make such other order or give such judgment therein as may be just.

 

8.     This order shall be subject to the provisions of these Rules and any written law binding on the Court regarding transfer of cases.

 

Order 37

Assessor

 

1.     Where an Assessor sits with a Judge during a trial he shall only discuss with or advise the Judge on the issue he was co-opted for.

 

2.     The Assessor shall not write any opinion in form of judgment or order and shall not dissent or concur with the judgment or order the Judge has given.

 

3.     An Assessor shall in advising  the Court limit himself to the issue in which he is an expert on and on which account he was appointed to sit with the court.

 

4.     The Judge is not bound to accept and act on the opinion or advice of the Assessor.

 

5.     The Assessor shall subscribe to judicial oath of secrecy before the Judge or another Judge before resuming his duty.

 

 

Order 38

Trial Proceedings In General

A - Setting Down for Hearing

 

1.     The plaintiff shall within fifteen days of the close of pleadings apply to the Registrar for the case to be set down for trial.

 

2.     An application for setting down shall be in writing and shall contain the following information -

 

(a)     that the pleadings in the case have closed;

 

(b)     that all documentary evidence, other than those settled by the Court, have been settled;

 

(c)     that all interrogatories have been completed; and

 

(d)     the number of witnesses the plaintiff intends to call, and the probable length of time the case is expected to take.

 

3.     If the plaintiff fails to make an application under rule 1 of this Order, the defendant may, within fifteen days after the expiration of the time limited for the plaintiff to make his application, apply to the Registrar for the case to be set down for trial and in that event the provisions of rule 2 of this Order shall apply mutatis mutandis to his application.

 

4.-    (1)    If neither the plaintiff nor the defendant makes an application under these Rules, the Registrar shall certify that fact to the Court or Judge in Chambers after the time limited for both parties to make the application

 

(2)    The Court or Judge in Chambers upon receipt of the certificate of the Registrar shall cause the case to be listed for striking out and the parties to the case shall be so notified.

 

 

5.-    (1)    Upon the case coming up for striking out, the Court or the Judge shall strike it out unless good cause is shown why the case should proceed to hearing.

 

(2)    A plaintiff who does not want his case to be struck out under sub-rule (1) of this rule shall file in Court within three days of the service upon him of the notice of striking out, an affidavit containing the reasons for his failure to comply with rule 1 of this Order.

 

B - Attendance of Parties at Hearing

 

6.     (1)    In every cause or matter pending before the Court, in case it appears to the satisfaction of Court that any party who may not be represented by legal practitioner is prevented by some good or sufficient cause from attending the Court in person, the Court may in its discretion permit any master, servant, clerk or member of the family of that plaintiff or defendant, or officer of the plaintiff or defendant company, who satisfies the Court that he has authority in that behalf, to appear in Court for that party.

 

(2)    If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the direction of a Judge.

 

7.     If, when a trial is called on, the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.

 

8.     If, when a trial is called on the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, he may prove such counter-claim, so far as the burden of proof lies upon him but if the defendant admits the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared.

 

9.     Any judgment obtained where one party does not appears at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the Court may allow for good cause shown.

 

10.   The Judge may, if he thinks it expedient for the interest of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he may think fit.

 

C - Proceedings At The Hearing

 

11.   The trial Judge shall, at or after trial, direct judgment to be entered as he thinks right, and no motion for judgment shall be necessary in order to obtain the judgment.

 

12.   Trial with assessors shall, where permitted under written law, take place in such a manner and upon such terms as the Court decides. 

 

13.   The order of proceeding at the trial of a case where pleadings have been filed shall be as prescribed in the following rules.

 

14.   The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the Court may determine, shall begin.

 

15.   (1)     The party beginning shall produce his evidence and examine his witnesses.

 

(2)    When the party beginning has concluded his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read) and if answered in the negative, he shall be entitled to sum up the evidence already given, and comment thereon, but if answered in the affirmative, he shall wait for his general reply.

 

16.   When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.

 

17.   If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by statement of the other party of his intention to call evidence.

 

18.    The case on both sides shall then be considered closed.

 

19.   If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.

 

20.   Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the Court, and the party beginning shall be entitled to the general reply.

 

21.    Documentary evidence shall be put in and read, or taken as read by consent.

 

22.    (1)  The Court clerk shall take charge of every document or object put in as an exhibit during the trial of action and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in (or where more convenient, the witness by whom the exhibit is put in ) and with a number, so that all the exhibits put in by a party are numbered in one consecutive series.

 

(2)    The Court clerk shall cause a list of all the exhibits in the action to be made.

 

(3)    The list of exhibits when completed shall be attached to the pleadings and shall form part of the record of the action.

 

(4)    For the purpose of this rules, a bundle of documents may be treated and counted as one exhibit.

 

(5)    In this rule a witness by whom an exhibit is put in  includes a witness in the course of whose evidence the exhibit is put in.

 

23.   (1)   Where a document or object is tendered as an exhibit and is rejected by the Court, it shall be marked "Rejected", and shall be retained along with accepted exhibits.

 

(2)    Where more exhibits than one are rejected in the same action, they shall be numbered serially.

 

(3)    If the case goes on appeal, a list of the exhibits shall be transmitted to the appeal court.

 

24.   (1)    An exhibit shall not be released, after the trial, to the party who has put it in unless the period during which notice of appeal to the Court of Appeal may be given has elapsed without such notice having been given, and then only if the Judge who presided over the trial (or, in his absence, another Judge) grants leave to release such exhibits on being satisfied –

(a)     that there shall be no appeal;

 

(b)     that the exhibit shall kept duly marked and labeled and shall be produced, if required, at the hearing of an appeal in the Court of Appeal (if any such appeal is lodges), or

 

(c)     that the release of the exhibit shall not in any way prejudice any other party.

 

(2)    After a notice of appeal to the Court of Appeal has been filed, an exhibit produced at the trial shall not be released by the Court unless leave to release the exhibit is granted by the Court of Appeal.

 

25.   (1)    Any party may apply for, and on payment of the prescribed fee obtain, an office copy of the list of exhibits for the purpose of an appeal to the Court of Appeal.

 

(2)    Where there is an appeal to the Court of Appeal, an office copy of the list of exhibits shall be included among the documents supplied to that Court for the purpose of the appeal.

 

26.   (1)    In cases where written pleadings have not been filed the parties or either of them are incapable of understanding their effect with sufficient accuracy, the proceeding at the hearing shall be varied by the Court so far as may be necessary.

 

(2)    In particular, the statement of the defendant in defence where he does not admit the whole cause of action, shall be heard immediately after the plaintiff has concluded the statement of his claim and of the grounds thereof, and before any witness is examined, unless in any case the Court otherwise directs.

 

27.   The Judge may in all cases disallow any question put in cross-examination which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the action.

 

 

Order 39

Proceedings In Forma Pauperis

 

1.     The provision of this Order shall remain in force until statutory provisions are made for legal aid in connection with civil proceedings before the Court and thereupon shall cease to have effect.

 

2.     The Court or a Judge in Chambers may admit a person to sue or defend in forma pauperis, except in bankruptcy proceedings, if satisfied that his means do not permit him to employ legal aid in the prosecution of his case and that he has reasonable ground for suing or defending as the case may be.

 

3.     (1)   The application shall, if the Court or a Judge in Chambers so directs, be accompanied by an affidavit signed and sworn by the applicant himself stating that the applicant satisfied the requirements of rule 2 of this Order as to his means, and setting forth all the material facts on which he relies in his desire to sue or defend, distinguishing between those which are within his personal knowledge and those which he bases on information and belief, and in the latter case, setting forth the sources of his information and belief.

 

(2)    If the application is, in the opinion of the Court or a Judge in Chambers, worthy of consideration it shall be referred to a legal practitioner willing to act, and unless the legal practitioner certifies that in his opinion the applicant has good cause of action or good ground of defence, as the case may be, the application shall be refused.

 

4.     Court fees payable by a person admitted to sue or defend in forma pauperis may be remitted either in whole or in part as the Court or a Judge in Chambers may seem right and a person so admitted to sue or defend shall not, unless the Court otherwise orders, be liable to pay or be entitled to receive any costs.

 

5.     On granting the application, the Court or a Judge in Chambers may assign to the applicant any legal practitioner willing to be so assigned, and any legal practitioner so assigned shall not be discharged by the applicant except with leave of the Court or of a Judge in Chambers.

 

6.     (1)    Neither the legal practitioner whose opinion is sought nor the legal practitioner assigned to the applicant or any other person shall, except by leave of the Court or of a Judge in Chambers, take or agree to take or seek to obtain any payment whatsoever from the applicant or any other person in connection with the application or  the action taken or defended thereunder.

 

(2)    If the applicant pays or agrees to pay money to any person whatsoever in connection with his application or the action taken or defended thereunder, his application shall be refused or, if already granted, the order granting it shall be rescinded.

 

(3)    If the legal practitioner assigned to the applicant discovers that the applicant is possessed of means beyond those stated in the affidavit, if any, he shall at once report the matter in writing to the Registrar.

 

7.     (1)    The Court or a Judge in Chambers may at any time revoke the order granting the application, and thereupon the applicant shall not be entitled to the benefit of this provision in any proceedings to which the application relates unless otherwise ordered.

 

(2)    Neither the applicant nor the legal practitioner assigned to him shall discontinue, settle or compromise the action without the leave of the Court or of a Judge in Chambers.

 

8.     The Court may order payment to be made to the legal practitioner assigned out of any money recovered by the applicant or may charge in favour of the legal practitioner assigned, upon any property recovered by the applicant, such sum as in all the circumstances may seem fit.

 

9.     Every writ, notice or application on behalf of the applicant, except an application for the discharge of his legal practitioner, shall be signed by his legal practitioner who shall take care that no application or notice is made or given without reasonable cause.

 

10.     No person shall be permitted to appeal in forma pauperis except by leave of the trial or the appellate court, and then only on grounds of law; but if so permitted the provisions of this Order shall apply mutatis mutandis to all proceedings on the appeal.

 

 

Order 40

Originating Summons Proceedings

 

1.     A person claiming to be interested under a deed, will, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

 

2.     A person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply be originating summons for the determination of the question of construction and for a declaration as to the right claimed.

 

3.     The Court or Judge in Chambers may direct such persons to be served with the summons as it or he may think fit.

 

4.     The application shall be supported by such evidence as the Court or a Judge in Chambers may require.

 

5.     The Court or Judge in Chambers shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on originating summons.

 

6.     The Court by which an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this rule against a defendant who does not appear at the hearing, the order may be varied or revoked by a subsequent order of the Court on such terms as the Court thinks just.

 

7.     Where in an action begun by originating summons an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party was served and is in default of appearance.

 

8.     (1)    A defendant to an action begun by originating summons who has entered an appearance to the summons and who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter (wherever and however arising) may make a counter-claim in the action in respect of that matter instead of bringing a separate action.

 

(2)    A defendant who wishes to make a counter-claim under this rule shall at the first or any resumed hearing of the originating summons by the Court but, in any case, at as early a stage in the proceedings as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the Court under sum-rule (3) of this rule the claim shall be made in such manner as the Court may direct.

 

(3)    If it appears on the application of the plaintiff against whom a counter-claim is made under this rule that the subject matter of the counter-claim ought for any reason to be disposed of by a separate action, the Court may order the counter-claim to be struck out or may order it to be tried separately or make such other order as may be expedient.