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Order 41

Procedure Relating To Evidence

 

1.     Subject to the provisions of these Rules and of the Evidence Act, and any other enactment relating to evidence, any fact required to be proved at the trial of an action begun by writ the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court.

 

2.     (1)   The Court or a Judge in Chambers may at or before the trial of an action, order or direct that all or any of the evidence therein shall be given by affidavit

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(2)    An order or direction under this rule may be made or given on such terms as to the filing and giving of copies of the affidavits or proposed affidavits and as to the production of the deponents for cross-examination as the Court or Judge in Chambers may think fit but, subject to any such terms and to any subsequent order or direction of the Court or a Judge in Chambers, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.

 

3.     (1)    Without prejudice to rule 2 of this Order, the Court or a Judge in Chambers may, at or before the trial of an action, order or direct that evidence of any particular fact shall be given at the trial in such a manner as may be specified by the order or direction.

 

(2)    The power conferred by sub-rule (1) of this rule extends in particular to ordering or directing that evidence of any particular fact may be given at the trial -

 

(a) by statement on oath of information or belief; or

 

(b)    by the production of documents or entries in books; or

(c)    by copies of documents or entries in books; or

 

(d)    in the case of a fact which is of a matter of common knowledge, either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.

 

4.     The Court or a Judge in Chambers may, at or before the trial of an action order or direct that the number of medical or expert witnesses who may be called at the trial shall be limited as specified by the order or direction.

 

5.     Unless, at or before the trial, the Court or a Judge in Chambers for special reasons otherwise orders or directs, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least ten days before the commencement of the trial the parties other than the party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.

 

6.     In an action, of whatever nature, arising out of an accident on land due to a collision or apprehended collision -

 

(a)    no plan of the place where the accident happened other than a sketch plan, shall be receivable in evidence unless, at or before the trial, the Court or Judge in Chambers authorises the reception thereof;

 

(b)    unless, at or before the trial, the Court or Judge in Chambers otherwise orders or directs that oral expert evidence of an engineer sought to be called on account of his skill and knowledge as respects motor vehicles shall not be receivable unless a copy of report from him containing the substance of his evidence has been made available to all parties for inspection.

 

7.     The preceding provisions of this Order shall apply to trials of issues, references, inquiries and assessments of damages as they apply to the trial of action.

 

8.     Office copies of all writs, records, pleadings and documents filed in the Court shall be admissible in evidence in all causes and matters and between all persons or parties, to the same extent as the original is admissible.

 

9.     (1)   The Court or Judge in Chambers may, in any action where it appears necessary for the purpose of justice, make an order for the examination upon oath before the Court, or a Judge in Chambers and at any place, of any witness or person and may empower any party to any such action to give on deposition any evidence therein.

 

(2)    Any order under sub-rule (1) of this rule may be made on such terms (including, in particular, terms as to the giving of discovery before the examination takes place) as the Court or Judge in Chambers may think fit.

(3)   The Court or a Judge in Chambers may order the party who has applied for the appointment of an examiner to pay the fees and expenses of the examiner (without prejudice to any question as to the party by whom the costs of the examination should eventually be borne) but, where the examiner is a Government servant not entitled to receive fees, the fees shall be paid into revenue.

 

10.    An order for a commission to examine witnesses shall be in Form 60 in Appendix 6 to these Rules and the writ of commission shall be  in   Form 42 in Appendix 6 to these Rules with such variations as circumstances may require.

 

11.   (1)  If in any case the Court or a Judge in Chambers so orders, there shall be issued a request to examine witnesses in lieu of a commission.

 

(2)  Forms 61 and 62 in Appendix 6 to these Rules shall be used for such order and request respectively, with such variation as circumstances may require.

 

12.   Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country with which a Convention in that behalf has been or shall be made, the following procedure shall be adopted –

(a)    the party obtaining the order shall file in the Registry an undertaking in Form 63 in Appendix 6 to these Rules which Form may be varied as may be necessary to meet the circumstances of the particular case in which it is used.

 

(b)    The undertaking shall be accompanied by –

(i)    a request in Form 63 in Appendix 6 to these Rules, with such variation as may be directed in the order for the issue thereof, together with a translation of the request in the language of the country in which the same is to be executed,

 

(ii)    a copy of the interrogatories (if any) to accompany the request, and a translation thereof, and

 

(iii)    a copy of the cross-interrogatories (if any), and a translation thereof.

 

13.   Where an order is made for the examination of a witness or witnesses before the Nigerian Diplomatic Agent in any foreign country with which a Convention in that behalf has been or shall be made, such order shall be in Form 65 in Appendix 6 to these Rules which  Form of order may be varied as may be necessary to meet the circumstances of the particular case in which it is used.

 

14.   (1)   The Court or a Judge in Chambers may in any action at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court or Judge in Chambers may think fit to be produced.

 

(2)    No person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

 

15.   Any person willfully disobeying any order requiring his attendance for the purpose of being examined or producing any document shall be deemed guilty of contempt of court, and may be dealt with accordingly.

 

16.   Any person required to attend for the purpose of being examined or of producing any document, shall be entitled to payment for expenses and loss of time at a trial in Court.

 

17.   Where any witness or person is ordered to be examined before officer of the Court, or before any person appointed for that purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the court and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

 

18.   The examination shall take place in presence of the parties, their legal practitioner, or agents and the witnesses shall be subject to cross-examination and re-examination and where the parties, their legal practitioners or agents fail to attend, without good cause, the examination may be proceeded with in their absence.

 

19.   (1)   The depositions taken before an officer of the Court or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, not ordinarily by question and answer, but so as to represent as nearly as may be the statement of the witness and when completed shall be read over to the witness and signed by him in the presence of the parties or such of them as may think fit to attend.

 

(2)    If the witness refuses to sign the depositions, the examiner shall sign them.

 

(3)    The examiner may put down any particular question or answer if there appears any special reason for doing so and may put any question to the witness as to the meaning of any answer or as to any matter arising in the course of the examination.

 

(4)    Any question which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the legal practitioners or parties, and shall refer to the statement in the deposition, but he shall not have power to decide upon the materiality or relevancy of any question

 

20.   If any person duly summoned by subpoena to attend for examination refuses to attend, or if, having attended, he refuses to be sworn or to answer any lawful question, a certificate of the refusal, signed by the examiner, shall be filed at the Registry, and thereupon the party requiring the attendance of the witness may apply to the Court or a Judge in Chambers ex parte or on notice for an order directing the witness to attend, or to be sworn or to answer any question, as the case may be.

 

21.   If any witness objects to any question which may be put to him before an examiner, the question so put and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Registrar to be filed, and the validity of the objection shall be decided by the Court or a Judge in Chambers.

 

22.   In any case under the two last preceding rules, the Court or a Judge in Chambers shall have power to order the witness to pay any costs occasioned by his refusal or objection.

 

23.   When the examination of any witness before any examiner has been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the registry, and there filed.

 

24.   The person taking the examination of a witness under rule 23 of this Order may, and if need be shall, make a special report to the Court touching the examination and the conduct or absence of any witness or other person thereon, and the Court or a Judge in Chambers may direct such proceedings and make order upon the report as the Court or Judge in Chambers may think just.

 

25.   Except where these Rules otherwise provide or the Court or a Judge in Chambers direct, no deposition shall be given in evidence at the hearing or trial of the action without the consent of the party against whom the same may be offered, unless the Court or Judge in Chambers is satisfied that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity` to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to the certificate.

 

26.   Any officer of the Court or other person directed to take the examination of any witness or person or any person nominated or appointed to take the examination of any witness or person pursuant to the provisions of any Convention now made or which may hereafter be made with any foreign country, may administer oaths.

 

27.   Any party in any action may by subpoena ad testificandum or duces tecum require the attendance of any witness before an officer of the Court or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the action shall be bound on being served with the subpoena to attend before the officer or person for cross-examination.

 

28.   The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any action at any stage.

 

29.   The practice of the Court with respect to evidence at a trial when applied to evidence to be taken before an officer of the Court or other person in any action after the hearing or trial, shall be subject to any special directions which may be given in any action.

 

30.   No affidavit or deposition filed or made before issue joined in any action shall, without special leave of the Court or a Judge in Chambers, be received at the hearing or trial thereof, unless within 14 days after issue joined or within such longer time as may be allowed by special leave of the Court or a Judge in Chambers, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf.

 

31.   All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

 

32.   (1)   Where it is intended to issue out a subpoena, a praecipe for that purpose, in Form 84 in Appendix 6 to these Rules, containing the name or firm and the place of business or residence of the legal practitioner intending to issue out the same, and where the legal practitioner is an agent only, then also the name or firm and place of business or residence of the principal legal practitioner, shall in all cases be delivered and filed at the Registry.

 

(2)    No subpoena shall be issued unless all court fees have been paid (including fee for service) and unless sufficient conduct money on the prescribed scale is deposited to cover the first day’s attendance.

 

33.   A writ of subpoena shall be in one of Forms 39, 40 or 41 in Appendix 6 to these Rules, with such variations as circumstances may require.

 

34.   Where a subpoena is required for the attendance of a witness for the purpose of proceedings in Chambers, the subpoena shall issue from the registry upon a note from the Judge.

 

35.   In the interval between the issuing out and service of any subpoena, the party issuing out the same may correct any error in the names of parties or witnesses, and may have the writ re-sealed upon leaving a corrected praecipe of the subpoena marked with the words "altered and re-sealed", and signed with the name and address of the legal practitioner issuing out the same.

 

36.   (1)   A subpoena shall be served personally unless substituted service has been ordered by the Court or a Judge in Chambers in cases where a person evades serve.

 

(2)   The provisions of Order 13 of these Rules shall, so far as possible, apply to service and proof of service of a subpoena.

 

37.   Any subpoena shall remain in force form the date of issue until the conclusion of the trial of the action or matter in which it is issued.

 

38.   (1)   Any party desiring to give in evidence any deed or other instrument which shows upon the face of it that it has been duly executed, may deliver to the opposite party not less than four clear days before the return-day a notice in writing specifying the date, nature and party to the deed or instrument, and requiring the opposite party to admit that the same was executed as it purports to have been, saving all just exceptions as to its admissibility, validity and contents.

 

(2)    If at or before the hearing of the suit the party notified neglects or refuses to give the admission, the Court may adjourn the hearing in order to enable the party tendering the deed or instrument to obtain proof of the due execution thereof, and upon production of such proof the Court may order the costs of the proof to be paid by the party so neglecting or refusing where he be the successful party or not.

 

39.   Where any civil or criminal matter is pending before a court or tribunal of a foreign country, and it is made to appear to the Court by commission rogatoire, or letter of request, or other sufficient evidence that such court or tribunal is desirous of obtaining the testimony in relation to the matter of any witness or witnesses within the jurisdiction, the Court may, on the ex parte application of any person shown to be duly authorized to make the application on behalf of the foreign court or tribunal, and on production of the commission rogatoire, or letter of request, or such other evidence as the Court may require or consider sufficient, make such order or orders as may require or consider sufficient, make such order or orders as may be necessary to give effect to the intention of the commission rogatoire, or letter of request.

 

40.   (1)   On the application of any party to a legal proceeding, the Court may order that the party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of the proceeding.

 

(2)    An order under this rule may be made either with or without summoning the bank or any other party and shall be served on the bank three days before the same is to be obeyed, unless the Court otherwise directs.

 

Order 42

Judgment And Orders

 

 

1.     The decision or judgment in any suit shall be delivered in open Court, unless the Court otherwise directs for sufficient cause.

 

2.     If the Court reserves judgment at the hearing, parties to the suit shall be served with notice to attend and hear judgment, unless the Court at the hearing states the day on which judgment will be delivered, in which case there shall be no further notice.

 

3.     All parties shall be deemed to have notice of the decision or judgment if pronounced at the hearing, and all parties served with notice to attend and hear judgment shall be deemed to have notice of the judgment when pronounced.

 

4.     (1)    A minute of every judgment, whether final or interlocutory, shall be made, and every such minute shall be a decree of the Court, and  shall have the full force and effect of a formal decree.

 

(2)    A formal decree or order may be drawn up on the application of either party.

 

5.     (1)    If the defendant has been allowed to set-off any demand or counter-claim against the claim of the plaintiff, the judgment shall state what amount, if any, is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

 

(2)    The judgment of the Court, with respect to any sum awarded to the defendant, shall have the same effect, and be subject to the same rules, as if the sum had been claimed by the defendant in a separate suit against the plaintiff.

 

6.     A person directed by a decree or order to pay money or do any other act is bound to obey the decree or order without any demand for payment or performance, and if no time is therein expressed he is bound to do so immediately after the decree or order has been made (except as to costs the amount whereof may require to be ascertained by taxation), unless the Court enlarges the time by any subsequent order.

 

7.     The Court at the time of making any judgment or order or any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.

 

8.     (1)    When any judgment or order directs the payment of money, the Court may, for any sufficient reason, order that the amount shall be paid by installments, with or without interests.

 

(2)    The order may be made at the time of giving judgment or at any time afterwards and may be rescinded upon sufficient cause at any time.

 

9.     Every order, if and when drawn up, shall be dated the day of the week, month and year on which the same was made, unless the Court or a Judge in Chambers otherwise directs and shall take effect accordingly.

 

10.   (1)   Where an order has been made not embodying any special terms, not including any special directions, but simply enlarging time for taking any proceeding or doing any act, or giving leave for –

(a)     the issue of any writ other than a writ of attachment;

 

(b)     the amendment of any writ or pleadings;

 

(c)     the filing of any document; or

 

(d) any act to be done by an officer of the Court other that a legal practitioner,

 

        It shall not be necessary to draw up the order unless the Court or a Judge in Chambers otherwise directs, but the production of a note or memorandum of that order signed by a Judge shall be sufficient authority for the enlargement of time, issue, amendment, filing or other act.

 

(2)    A direction that cost of such order shall be costs in any cause or matter shall not be deemed a special direction within the meaning of this rule.

 

11.   (1)    Orders, other than final orders, shall not be entered after being drawn up but shall be filed and a note of the filing shall be made in a book kept for the purpose.

 

(2)     Every order so filed shall be deemed to be duly entered and the date of the filing shall be deemed the date of entry.

 

(3)     In the case of procedure orders drawn up in Chambers, no entry thereof shall be necessary before an attachment can be issued for disobedience thereof.

 

  Order 43

Writ  Of  Execution:  General

 

1.     In this Order, unless the context otherwise requires, "writ of execution" includes a writ of fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any further writ in aid of any of the aforementioned writs

 

2.     (1)    A writ of execution to enforce a judgment or order may not issue without the leave of the Court in the following cases, that is to say where -

 

(a)    six years or more have elapsed since the date of the judgment or order;

 

(b)   any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order;

 

(c)    the judgment or order is against the assets of a deceased person coming to the hands of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against the assets;

 

(d)    under the judgment or order any person is entitled to relief subject to the fulfillment of any condition which it is alleged has been fulfilled;

 

`(e)     any goods sought to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.

 

(2)    Sub-rule (1) of this rule is without prejudice to any enactment or rule by virtue of which a person is required to obtain the leave of the Court for the issue of a writ of execution or to proceed to execution on or otherwise to the enforcement of a judgment or order.

 

(3)    Where the Court grants leave, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such leave, the order shall cease to have effect, without prejudice, however, to the making of a fresh order.

 

3.     A writ of execution in aid of any other writ of execution shall not issue without the leave of the Court.

 

4.     (1)    An application for leave to issue a writ of execution may be made ex-parte unless the Court directs it to be made by summons.

 

(2)    Such an application shall be supported by an affidavit -

 

(a)    identifying the judgment or order to which the application relates and, if the judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date of the application;

 

(b)    stating, where the case falls within rule 2 (1)(a) of this Order, the reasons for the delay in enforcing the judgment or order;

 

(c)    stating, where the case falls within rule 2(1)(b) of this Order, the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

 

(d)   stating, where the case falls within rule 2(1)(c) or (d) of this Order, that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so;

 

(e)   giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it.

 

(3)    The Court hearing the application may grant leave in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in an action may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.

 

5.     (1)    Notwithstanding anything in rules 2 and 4 of this Order, an application for leave to issue a writ of sequestration shall be made to a judge by motion.

 

(2)    Subject to sub-rule (3) of this rule, the notice of motion, stating the grounds of the application, shall be served personally on the person against whose property it is sought to issue the writ.

 

(3)    The judge hearing an application for leave to issue a writ of sequestration may sit in private in any case in which there is an application to the Judge to sit in private, if the application were for an order.

 

6.     (1)    The issue of a writ of execution takes place on its being sealed by an officer of the appropriate office.

 

(2)    A praecipe for the issue of a writ shall be filed before the writ is issued.

 

(3)    The praecipe shall be signed by or on behalf of the solicitor of the person entitled to execution or if that person is acting in person, by that person.

 

(4)    No such writ shall be sealed unless at the time of the tender thereof for sealing -

 

(a)     the person tendering it produces -

 

(i)     the judgment or order on which the writ is to issue, or an office copy thereof,

 

(ii)     where the writ may not issue without the leave of the Court, the order granting the leave or evidence of the granting of it;

 

(b)   the officer authorized to seal it is satisfied that the period, if any, specified in the judgment or order for the payment of any money or the doing of any other act thereunder has expired.

 

(5)     Every writ of execution shall bear the date of the day on which it is issued.

 

(6)     In this rule "the appropriate office "means -

 

(a)     where the cause or matter in which execution is to issue is proceeding in a Division registry, that registry;

 

(b)     where that cause or matter is an admiralty cause or matter which is not proceeding in a registry, the admiralty registry;

 

(c)     in any other case, the Court registry.

 

7.     (1)    For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue.

 

(2)    Where a writ has not been wholly executed the Court may by order extend the validity of the writ from time to time for a period of 12 months at any time beginning with the day on which the order is made, if an application for extension is made to the Court before the day next following that on which the writ would otherwise expire or such later day, if any as the Court may allow.

 

 (3)   Before a writ, the validity of which had been extended under this rule is executed, either the writ shall be sealed with the seal of the office out of which it was issued showing the date on which the order extending its validity was made or the applicant for the order shall serve a notice sealed as aforesaid, on the sheriff to whom the writ is directed informing him of the making of the order and the date thereof.

 

(4)    The production of a writ of execution, or of the notice as is mentioned in sub-rule (3) of this rule purporting in either case can be sealed as mentioned in that sub-rule, shall be evidence that the validity of that writ, or, as the case may be, of the writ referred to in that notice, has been extended under this rule.

 

8.     (1)    Any party at whose instance a writ of execution was issued may serve a notice on the sheriff to whom the writ was directed requiring him, within such time as may be specified in the notice, to indorse on the writ a statement of the manner in which he has executed it and to send to that party a copy of the statement.

 

(2)    If a sheriff on whom such notice is served fails to comply with it, the party by whom it was served may apply to the Court for an order directing the sheriff to comply with the notice.

 

 

Order 44

Garnishee Proceedings

 

1.     (1)   Where a person (in this Order referred to as "the judgment creditor") has obtained a judgment or order for the payment by some other person (in this Order referred to as "the judgment debtor") of a sum of amount in value to at least N100, not being a judgment or order for the payment of money into Court, and any other person within the jurisdiction (in this Order referred to as "the garnishee") is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing  due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.

 

(2)    An order under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in sub-rule (1) or so much therefore as may be specified in the order, to answer the judgment or order mentioned in that and the costs of the garnishee proceedings.

 

(3)    An order under this rule shall not require a payment which would reduce below N5 the amount standing in the name of the judgment debtor in an account with a building society or a credit union.

 

2.     An application for an order under rule 1 of this Order shall be made ex-parte supported by an affidavit -

 

(a)    stating the name and last known address of the judgment debtor;

 

(b)    identifying the judgment or order to be enforced and stating the amount of the judgment or order and the amount remaining unpaid under it as (at) the time of the application;

 

(c)    stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or the grounds for his belief; and

 

(d)    stating, where the garnishee is a deposit-taking institution having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not known to the deponent.

 

 3. (1)     Unless the Court otherwise direct, an order under rule 1 of this Order to show cause shall be served -

 

(a)     on the garnishee personally, at least, 15 days before the day appointed thereby for the further consideration of the matter; and

 

(b)    on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the day appointed for the further consideration of the matter.

 

(2)    An order under rule 1 of this Order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified.

 

4.     (1)    Where on the further consideration of the matter, the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may make an order absolute under rule 1 of this Order against the garnishee.

 

(2)    An order absolute under rule 1 of this Order against the garnishee may be enforced in the same manner as any other order for the payment of money.

 

5.     Where on the further consideration of the matter, the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the Court may summarily determine the question at issue or order that any question necessary for determining the liability of the garnishee be tried, without, if it orders trial before a matter, the need for any consent by the parties.

 

6.     If in garnishee proceedings it is brought to the notice of the Court that some other person than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge upon it, the Court may order that  person to attend before the Court and state the nature of his claim with particulars thereof.

 

7.     Any payment made by a garnishee in compliance with an order absolute under this Order, and any execution levied against him in pursuance of such an order, shall be a valid discharge of liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or judgment or order from which they arose is reversed.

 

 

Order 45

Habeas Corpus Proceedings

 

1.     Where a person is alleged to be wrongfully detained, an application may be made for an order that he be produced in Court for the purpose of being released from detention.

 

2.     (1)    No application under rule 1 of this Order shall be made unless leave therefor has been granted in accordance with this rule.

 

(2)    Application for such leave shall be made ex parte to the Court and shall be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought and it shall also be supported by an affidavit verifying the facts relies on.

 

(3)    The affidavit verifying the facts relied on in making the application shall be made by the person detained, but where the person detained is unable owing to the detention to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person, which shall also state that the person detained is unable to make the affidavit himself.

 

(4)    The applicant shall file, in the Court, the application for leave not later than the day preceding the date of hearing, and shall at the same time lodge in the Court enough copies of the statement and affidavit for service on any party or parties as the court may order.

 

(5)    The Court or Judge in Chambers may, in granting leave, impose such terms as to giving security for costs as it or he thinks fit.

 

(6)    The Court or Judge in Chambers may -

 

(a)    make an order forthwith for the release of the person being detained, the provision of sub-rule (1) of this rule notwithstanding;

 

(b)    direct that an originating summons be issued in Form 2 of the Fundamental Rights (Enforcement Procedure) Rules or that the application be made by notice of motion in Form 3 of the Fundamental Rights (Enforcement Procedure) Rules; or

 

(c)    adjourn the ex parte application so that notice thereof may be given to the person against whom the order for the release of the person detained is sought.

 

(7)    The summons or notice of motion shall be served on the person against whom the order for the release of the person detained is sought and on such other persons as the Court or Judge in chambers may direct, and unless the Court or Judge in Chambers may direct, and, unless the Court or Judge in Chambers  otherwise directs, there shall be at least five clear days between the service of the summons or motion and the date named therein for the hearing of the application.

 

(8)    Every party to an application under rule 1 of this Order shall supply to every other party copies of the affidavits which he proposes to use at the hearing of the application.

 

3.     (1)    Without prejudice to rule 2(6) of this Order, the Court or Judge in Chambers hearing the application may, in its or his discretion, order that the person detained be produced in Court.

 

(2)    An order under sub-rule (1) of this shall be a sufficient warrant to any superintendent of a prison, police officer in charge of a police station, police officer or constable in charge of the person detained or any other person responsible for his detention, for the production in Court of the person detained.

 

(3)    Where an order is made for the production of a person detained, the Court or Judge in Chambers by whom the order is made shall give directions as to the Court or Judge before whom, and the date on which, the order is returnable.

 

4.     (1)    Subject to sub-rules (2) and (3) of this rule, an order for production of the person detained shall be served personally on the person to whom it is directed.

 

(2)     If it is not possible to serve the order personally or if it is directed to a police officer, or a prison superintendent or other public official, it shall be served by leaving it with any other person or official working in the office of the police officer or the prison or office of the superintendent or the office of the public official to whom the order is directed.

 

(3)    If the order is made against more than one person, the order shall be served in the manner provided by the rule on the person first named in the order and copies shall be served on each of the other persons in the same manner.

 

(4)    There shall be served with the order (in Form in the Fundamental Rights (Enforcement Procedure) Rules) for the production of the person detained a notice (in Form 5 in the Fundamental Rights (Enforcement Procedure) Rules stating the Court or Judge in Chambers before whom and the date on which the person detained is to be brought.

 

5.     (1)    The return to an order for the release of a person detained shall be endorsed on or annexed to the order and shall state all the causes or justifications of the detainer of the person detained.

 

(2)    The return may be amended or another return substituted therefor, by leave of the Court or Judge in Chambers before whom the order is returnable.

 

6.     (1)    When a return to the order has been made, the return shall first be read in open court and an oral application then made for discharging or remanding the person detained or amending or quashing the return, and where that person is brought up in Court in accordance with the order, his legal representative shall be heard first, then the legal representative for the State or for any other official or person detaining him.

 

(2)    The legal representative for the person detained will then be heard in reply.

 

7.     An order for the release of a person detained shall be made in clear and simple terms having regard to all the circumstances.

 

8.     (1)     An application for a writ of habeas corpus ad testificandum or of  habeas corpus as respondendum shall be made on affidavit.

 

(2)    An application for an order to bring up a prisoner, otherwise than by writ of habeas corpus, to give evidence in any cause or matter, civil or criminal, before any court, tribunal or justice, shall be made on affidavit.

 

9.     A writ of habeas corpus shall be in Form 85, 86 or 87 in Appendix 6 to these Rules, whichever is appropriate.

 

 

Order 46

Committal For Contempt Of Court

 

1.     (1)    The power of the Court to punish for contempt of court may be exercised by an order of committal.

 

2)     An order of committal may be made by the Court where contempt of court -

 

(a)     is committed in connection with -

 

(i)     any proceedings before the Court

 

(ii)     criminal proceedings,

 

(b)    is committed in the face of the Court, or consists of disobedience to an order of the Court or a breach of an undertaking to the Court; or

 

(c)    is committed otherwise than in connection with any proceedings.

 

2.     (1)    An application for an order of committal shall be made to the Court by motion on notice supported by an affidavit and shall state the grounds of the application.

 

(2)    The notice of motion, affidavit and grounds shall be served personally on the person sought to be committed but the Court may dispense with personal service where the justice of the case so demands.

  3.    Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order of committal of its own motion against a person guilty of contempt of court.

4.     (1)    Subject to sub-rule (2), the Court hearing an application for an order of committal may sit in private in the following, cases that is to say where -

(a) the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant or rights of access to an infant;

 

(b) the application arises out of proceedings relating to a person suffering or appearing to be suffering from mental disorder;

 

(c) the application arises out of proceedings in which a secret process, discovery or invention was in issue;

 

(d) it appears to the Court that in the interests of the administration of justice or for reasons of national security the application should be heard in private,

 

        but except as aforesaid, the application shall be heard in open court

 

(2)    If the Court hearing an application in private by virtue of sub-rule (1) of this rule decides to make an order of committal against the person sought to be committed, it shall in open court state -

 

(a)     the name of that person;

 

(b)     in general terms the nature of the contempt of court in respect of which the order of committal is being made; and

 

(c)     if he is being committed for a fixed period, the length of that period.

 

(3)    Except with the leave of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under rule 2 of this Order.

 

 

(4)    If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf he shall be entitled to do so.

 

5.     The foregoing provisions are without prejudice to the power of the Court to commit for contempt committed in the face of the Court.

 

6.     (1)    The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.

 

(2)    Where execution of an order of committal is suspended by an order under sub-rule (1) of this rule, the applicant for the order of committal shall, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that sub-rule.

 

7.     (1)    The Court may, on the application of any person committed to prison for any contempt of court, discharge him.

 

(2)    Where a person has been committed for failing to comply with a judgment or order requiring him to deliver any thing to some other person or deposit it in Court or elsewhere, and a writ of sequestration has also been issued to enforce that judgment or order, then, if the thing is in the custody or power of the person committed, the sheriff may take possession of it as if it were the property of that person and, without prejudice to the generality of sub-rule (1) of this rule, the Court may discharge the person committed and may give such directions for dealing with the thing taken by the sheriff as it thinks fit.

 

8.     Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of any enactment in like manner as if he had been guilty of contempt of Court to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.

 

9.     (1)    Every writ of attachment issued in a case to which this Order applies shall be made returnable before the Court.

 

(2)    If a return of non est inventus is made, one or more writs may be issued on the return of the previous writ.

 

 

Order 47

Application For  Judicial Review

 

1.     (1)    An application for -

 

(a)     an order of mandamus, prohibition or certiorari, or

 

(b)     an injunction restraining a person from acting in any office in which he is not entitled to act,

 

        shall be made by way of an application for judicial review in accordance with the provisions of this Order.

 

(2)    An application for a declaration or an injunction (not being an injunction mentioned in sub-rule (1) (b) of this rule) may be made by way of an application for judicial review and on such an application, the Court may grant the declaration or injunction claimed if it considers that having regard to -

 

(a)     the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;

 

(b)     the nature of the persons and bodies against whom relief may be granted by way of such an order; and

 

  (c)    all the circumstances of the case,

 

        it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

 

2.     On an application for judicial review, any relief mentioned in rule 1 (1) or (2) of this Order may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.

 

3.     (1)    No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule. 

 

(2)    An application for leave shall be made ex parte to the Court, except during  vacation when it may be made to a Judge in Chambers and shall be supported by -

 

(a)     a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

 

(b)     affidavit to be filed with the application, verifying the facts relied on.

 

(3)    The Applicant shall file the application not later than the day before the motion is heard and shall at the same time lodge copies of the statement and every affidavit in support.

 

(4)    The Court hearing an application for leave may allow applicant’s statement to be amended, whether by specifying different or additional grounds or relief or otherwise on such terms, if any, as it thinks fit.

 

(5)    The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

 

(6)    Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired

 

(7)    If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.

 

(8)    Where an application for leave is refused by a Judge in Chambers, the applicant may after the period of vacation make a fresh application on notice to the Court.

 

(9)    An application to a Judge in Court under sub-rule (8) of this rule shall be made within 10 days after the Judge’s refusal to give leave.

 

(10)  Where leave to apply for judicial review is granted, then -

 

(a)    if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

 

(b)    if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.

 

4.     (1)    Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which sub-rule (2) of this rule applies, the application for leave under rule 3 of this Order is made after the relevant period has expired, the Court may refuse to grant -

 

(a)     leave for the making of the application; or

 

(b)     any relief sought on the application,

 

        if in the opinion of the Court the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

 

(2)    In the case of an application for an order of certiorari to remove any judgrnent, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub-rule (1)of this rule is three months after the date of the proceeding.

 

(3)    Sub-rule (1) of this rule is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

 

5-     (1)    Subject to sub-rule (2) of this rule, when leave has been granted to make an application for judicial review, the application shall be made by originating motion, except during vacation when it may be made by originating summons to a Judge in chambers.

 

(2)    Where leave has been granted and the Court or Judge in chambers so directs, the application may be made by motion to a Judge sitting in open court or, by originating summons to a Judge in Chambers.

 

(3)    The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings in or before a Court and the object of the application is either to compel the Court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons shall also be served on the clerk or registrar of the Court and, where any objection to the conduct of the Judge is to be made, on the Judge

 

(4)    Unless the Court granting leave has otherwise directed, there shall be at least 10 days between the service of the notice of motion or summons and the day named therein for the hearing.

 

(5)    A motion shall be entered for hearing within 14 days after the grant of leave

 

(6)    An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons shall be filed before the motion or summons is entered for hearing and, if any person who ought to be served under this rule has not been served, the affidavit shall state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the motion or summons.

 

(7)    If on the hearing of the motion or summons the Court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person

 

6.     (1)    Copies of the statement in support of an application for leave under rule 3 of this Order shall be served with the notice of motion or summons and, subject to sub-rule (2) of this rule, no grounds shall be relied upon or any relief set out in the statement.

 

(2)    The Court may on the hearing of the motion or summons allow the applicant to amend his statement whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavit to be used if they deal with new matters arising out of an affidavit of any other party to the application

 

(3)    Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party

 

(4)    Each party to the application shall supply to every other party on demand and on payment of the proper Court charges copies of every affidavit which he proposes to use at the hearing including, in the case of the applicant, the affidavit in support of the application for leave under rule 3 of this Order

 

7.     On an application for judicial review, the Court may subject to sub-rule (2) of this rule, award damages to the applicant if-

 

(a)    he has included in the statement in support of his application for leave under rule 3 of this Order a claim for damages arising from any matter to which the application relates; and

 

(b)    the Court is satisfied that if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

 

8.     Unless the Court otherwise directs; any interlocutory application in proceedings on an application for judicial review may be made to any Judge notwithstanding that the application for judicial review has been made by motion and is to be heard by the Court.

 

9.     (1)    On the hearing of any motion or summons under rule 5 of this Order, any person who desires to be heard in opposition to the motion or summons and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons.

 

(2)    Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the motion or summons.

 

(3)    Where an order of certiorari is made in any such case as is referred to in sub-rule (2) of this rule, the order shall, subject to sub-rule (4), direct that the proceedings shall be quashed forthwith on their removal into the Court.

 

(4)    Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

 

(5)    Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.

 

10.   No action or proceeding shall be begun or prosecuted against any person in respect of anything done in obedience to an order of mandamus.

 

11.   Where there is more than one application pending against several persons in respect of the same matter, and on the same grounds, the Court may order the applications to be consolidated.

 

 

Order 48

Appeals And Applications Under The Trade Marks Act And Patents And Designs Act

A - General

 

1.     (1)    The rules under the general procedure rules shall apply with necessary modifications where there are no specific rules under this Order.

 

(2)    Every appeal or application to the Court under this Order shall be begun by originating motion.

 

(3)    Notice of the motion of the motion by which any appeal or application is made shall be served on the Registrar.

 

(4)    Where the Registrar refers to the Court an application made to him under Trade Marks Act or the Patents and Designs Act, as the case may be, unless within one month after receiving notification of the decision to refer, the applicant makes to that Court the application referred to it by the Registrar,, the applicant shall be deemed to have abandoned the application.

 

2.     (1)    Every notice of motion by which an appeal is brought shall state the grounds of the appeal and if the appeal is against a judgment, an order or any other decision of the Registrar, the notice shall state whether the appeal is against the whole or a part of the decision, and if against part only, shall specify the part.

 

(2)    The notice shall be served, and the appeal entered within 30 days after the date of the order, determination or other decision against which the appeal is brought.

 

(3)    The period specified in sub-rule (2) of this rule shall be calculated from the date in which notice of the decision, or, in a case where a statement of the grounds for a decision was given later than that notice, on which the statement was given to the appellant by the person who made the decision or by a person authorized in that behalf to do so.

 

(4)    The filing of an appeal under this Order shall not operate as a stay of proceedings on the judgment, determination or other decision against which the appeal is brought, unless the Court by which the appeal is to be heard so orders.

 

3.     Unless the Court otherwise directs, an appeal under this Order shall not be heard sooner then 21 days after service of notice of the motion by which the appeal is brought.

 

4.     (1)    The notice of the motion by which an appeal is brought may be amended by the appellant without leave, by supplementary notice served not less than 7 days before the day appointed for the fearing of the appeal, on each person on whom the notice to be amended was served.

 

(2)    Except with the leave of the Court hearing any such appeal, no grounds other than those stated in the notice of the motion by which the appeal is brought or any supplementary notice under sub-rule (1), may be relied upon by the appellant at the hearing; but the Court may amend the grounds so stated or make any other order, on such terms as it thinks just, to ensure the determination on the merits of the real question in controversy between the parties.

 

5.     (1)    Upon the first hearing of the motion the Court shall give directions as to the procedure of appeal.

 

(2)    The Court shall have power to receive further evidence on questions of fact, and the evidence may be given in such manner as the Court may direct either by oral examination in court, by affidavit, by deposition taken before an examiner or in any other manner.

 

(3)    The appellant shall apply to the Registrar for a signed copy of any note made to him of the proceedings and furnish the copy to the Court for the use of the Court; and in default of production of any such note, or if the note is incomplete, in addition to the note, the Court may hear and determine the appeal on any other evidence or statement of what occurred in those proceedings as appears to the Court to be sufficient.

 

(4)    That Court may give any judgment or decision or make any order which ought to have been given or made by the Registrar, and make such further or other order as the case may require or may remit the matter with the opinion of the Court for re-hearing and determination by the Registrar.

 

(5)    That Court may, in special circumstances, order such security to be given for the costs of the appeal as may be just.

 

(6)    The Court shall not allow an appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court, substantial wrong or miscarriage of Justice has been occasioned thereby.

 

(7)    Where an appeal is against the refusal of a trademark application by the Registrar, the Registrar shall appear or be represented and be heard in the proceedings on the appeal.

 

6.     (1)    The Registrar –

(a)     may at his option refer any application; or

 

(b)     shall refer any application where the issue refers to a question of law,

 

         to the Court for determination.

 

(2)    Any reference made under sub-rule (1) to the Court shall be made by originating motion and shall be served on every party to the proceedings to which the application relates.

 

(3)    The notice of motion shall state the grounds of the application, the question of law for determination, the contentions of the registrar and of other parties if any, on the question of law to which the reference relates and other relevant matters

 

(4)    Unless the Court otherwise directs, the motion shall not be heard sooner than 14 days after service of notice thereof on all parties concerned.

 

(5)    The Registrar shall appear or shall be represented and heard in proceedings of a matter referred to the Court.

 

B – Trade Marks

 

7.     (1)    Every action for infringement of a registered trade mark shall be commenced by a writ of summons as provided in Order 5 of these Rules.

 

(2)    Where in any proceedings a claim is made for relief for infringement of the right to the use of a registered trade mark, the party against whom the claim is made may, in his defence, put in issue the validity of the registration of that trade mark or make counter-claim for an order that the Register of Trade Marks be rectified by canceling or varying the relevant entry or both.

 

(3)    A party to any such proceedings who in his pleadings (whether a defence or counter-claim) disputes the validity of the registration of a registered trade mark shall serve along with the pleadings, particulars of the objections to the validity of the registration on which he relies in support of the allegation of invalidity.

 

(4)    A party to any such proceedings who counter claims for an order that the Register of Trade Marks be rectified shall serve on the Registrar of Trade Marks, a copy of the counter-claim together with a copy of the particulars mentioned in sub-rule (2); and the Registrar of Trade Marks shall take the part in the proceedings as he may think fit but may not serve a defence or other pleadings unless ordered to do so by the Court.

 

C – Patents and Designs

 

8.     (1)    An application for the nullification of a patent or a design, as the case may be, shall be by petition.

 

(2)    The Respondent to a petition shall serve an answer to the petition within 21 days after service of the petition on him.

 

(3)    A Petitioner shall serve along with his petition or other pleadings, particulars of the objections to the validity of the patent or design on which he relies.

 

(4)    The particulars given pursuant to sub-rule (3) of this rule shall state every ground on which the validity of the patent or design is questioned and shall include such particulars as shall clearly define every issue which it is intended to raise.

 

(5)    If the grounds stated in the particulars of objections include want of novelty or want of any inventive step, the particulars shall state the manner, time and place of every prior publication or user relied upon and, if prior user is alleged, shall –

(a)    specify the name of every person alleged to have made the user;

 

(b)    state whether the user is alleged to have continued until the priority date of the claim in question or of the invention, as may be appropriate, and, if not, the earliest and latest date on which the user is alleged to have taken place;

 

(c)    contain a description accompanied by drawings, if necessary, sufficient to identify the user; and

 

(d)    if the user relates to machinery or apparatus, state whether the machinery or apparatus is in existence and where it may be inspected.

 

(6)   Where in the case of an existing patent or design –

(a)    one of the grounds stated in the particulars of objections is that the invention, so far as claimed in any claim of the complete specification, is not useful; and

 

(b)    it is intended, in connection with the grounds stated in sub-rule 1 of this rule to rely on the fact that an example of the invention which is subject of any claim cannot be made to work, either at all or as described in the specification,

          the particulars shall state that fact and identify each such claim and shall also include particulars of each such example, specifying the respect in which it is alleged that it can not work or be made to work as described.

9.     (1)    Except with the leave of the Judge hearing any action or other proceedings relating to a patient or a design, no evidence shall be admissible in proof of any alleged infringement, or of any objection to the validity of the patent or design, if the infringement or objections was not raised in the particulars of infringement or objection , as the case may be.

(2)    In any action or other proceedings relating to a patent or a design, evidence which is not in accordance with a statement contained in the particulars of objection to the validity of the patent or design shall not be admissible in support of an objection unless the Judge hearing the proceedings, allows the evidence to be admitted.

 

(3)    If any machinery or apparatus alleged to have been used before the priority date mentioned in rule 8(5)(b) of this Order is in existence at the date of service of the particulars of objections, no evidence of its user before that date shall be admissible unless it is proved that the party relying on the user offered, where the machinery or apparatus is in his possession, inspection of it to the other parties to the proceedings or where it is not, used all reasonable endeavours to obtain inspection of it for those parties.

 

10.   (1)    Every action for infringement of a patent or a design shall be commenced by a writ of summons.

 

(2)    In an action for infringement of a patent or a design (whether or not any other relief is claimed) and in proceedings by petition for the revocation of a patent or design –

(a)    the plaintiff or petitioner shall within one month after service of a reply or answer or after the expiration on the period fixed for service thereof, take out a summons for directions as to the place and mode of trial returnable in not less than 21 days; and

 

(b)    if the plaintiff or petitioner does not take out a summons in accordance with paragraph (a) this sub-rule, the defendant or respondent, as the case may be may do so, and the summons may be heard in chambers or in Court as the Court thinks fit.

(3)     The Court hearing a summons under this rule may give directions for –

  (a)    the service of further pleadings or particulars;

 

(b)    the discovery of documents;

 

(c)    securing the making of admissions;

 

(d)    the service of interrogatories and of answers thereto;

 

(e)    the taking by affidavit, of evidence relating to matters requiring expert knowledge, and for the filing of such affidavits and the service of copies thereof on the other parties;

 

(f)     the service on the other parties, by any party desiring to submit experimental proof, of full and precise particulars of the experiments proposed and of the facts which be claims to be able to establish thereby;

 

(g)    the making of experiments, tests, inspections or reports;

 

(h)    the hearing, as a preliminary issue, of any question that may arise (including any question as to the construction of the specification or other documents),

 

        and otherwise as the Court thinks necessary or expedient for the purpose of defining and limiting the issues to be tried, restricting the number of witnesses to be called at the trial of any particular issue and otherwise securing that the case shall be disposed of, consistently with adequate hearing, in the most expeditious manner.

 

(4)    Where evidence is directed to be given by affidavit, the deponents shall attend at the trial for cross-examination unless, with the concurrence of the Court, the parties otherwise agree.

 

(5)    On the hearing of a summons under this rule the Court shall consider, if necessary of its own motion, whether an independent scientific adviser shall be appointed under rule 11 to assist the Court.

 

(6)    No action for infringement or petition for the revocation of a patent or design shall be set down for trial unless and until a summons under this rule in the action or proceedings, has been taken out and the directions given on the summons have been carried out or the time fixed by the Court for carrying them out has expired.

11.   (1)    In any proceedings under the Patents and Designs Act, the Court may at any time, and on or without the application of any party, appoint an independent scientific adviser to assist the Court by inquiring and reporting on any question of fact or of opinion not involving a question of law or construction as the Court may direct.

  (2)   The Court may nominate the scientific adviser and, where appropriate, settle any question or instructions to be submitter or given to him.

 

(3)    Where the Court appoints a scientific adviser to inquire and report under sub-rule (1) of this rule, Order 43 of these Rules shall apply in relation to his report as they apply in relation to a report made by a referee under that Order.

 

12.   In this Order, "Registrar" means the Registrar of Trade Marks or the Registrar of Patents and Designs, as the case may be.

 

Order 49

Appeals To The Court From Professional Bodies

 

1.     This Order shall apply to any appeal to the Court from decisions of provisions of any written law which confers the right to appeal to the Court against any such decisions.

 

2.     An appeal to the Court from a decision of any professional body other than those specified in this Order shall be by notice of motion.

 

3.     The evidence upon the hearing of the appeal shall be by affidavit except in so far as the Court at the hearing may direct oral evidence to be given.

 

4.     The notice of motion shall be served, before the expiration of six weeks after the date of the decision to which it relates, upon the professional body.

 

5.     The notice of motion shall state the grounds of appeals, and the date mentioned in the notice for the hearing of the appeal shall be not less than twenty-eight days after the service of the notice.

 

6.     (1)    The appellant shall within seven days after service on the professional body of the notice of motion, file with the Registrar a copy of the notice of motion, file with the Registrar a copy of the notice and an affidavit or affidavits setting out the reasons stated by the professional body for its decision and the facts upon which the appellant intends to rely at the hearing and thereupon the motion shall be set down for hearing.

 

(2)    If the notice of motion is not set down in accordance with this provision, the professional body may apply to the Court, upon notice to the appellant, for an order discharging the notice of motion and for the costs of the application.

 

7.     The appellant shall deliver forthwith to the professional body, a copy of any affidavit filed under rule 6 to this Order in support of the motion and any person intending to oppose the motion shall, four days at least before the hearing, deliver to the appellant a copy of any affidavit intended to be filed by him in opposition to the motion.

 

Order 50

Stay Of Execution Pending Appeal To The Court Of Appeal

 

1.    Where any application is made to the Court for a stay of execution of proceedings under any judgment or decision appealed from, such application shall be made by notice of motion supported by affidavit setting forth the grounds upon which a stay of execution or of proceedings is sought.

 

2.     (1)    The Court may make or refuse an order for a stay of execution or of proceedings.

 

(2)    An order for stay may be made subject to such conditions as shall appear just, including the deposit in Court of any money adjudged due to any party in the judgment appealed from.

 

3.     Where any application is made to the Court under this Order, a formal order shall be drawn up embodying the terms of the decision of the Court and bearing the date upon which the order is made.

 

 

Order 51

Sitting Of The Court And Vacation

 

1.     Subject to the provisions of the Act, the Court may, at its discretion, appoint any day or days and any place or places from time to time for the hearing of actions as circumstances require.

 

2.     (1)    The sittings of the Court for the hearing and determination of the rights and obligations of the parties shall be public

 

(2)    Subject to the provisions of the Constitution of the Federal Republic of Nigeria, the Court may, for special reasons, hear any particular action in the presence only of the parties, with their legal practitioners (if any) and the officers of Court.

 

3.     The several offices of the Court shall be open at such times as the Chief Judge shall direct.

 

4.     (1)    Subject to the directions of the Chief Judge, sittings of the Court for the dispatch of civil matters shall be held on every week-day except 

  (a)     on any public holiday;

 

(b)     during the week beginning with Easter Monday;

 

(c)     during the period beginning on Christmas eve and ending on 2nd January next following.

 

(2)    There shall be an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the Gazette appoint.

 

5.     (1)    Notwithstanding the provisions of rule 4 of this Order, any action may be heard by a Judge in Court during any of the periods mentioned in sub-rule (1)(b) or (C) of rule 4 of this Order (except on a Sunday or public holiday) or sub-rule (2) of this rule where the parties or their counsel agree with the trial Judge before the period of vacation to commence or continue the trial.

 

(2)    The Chief Judge may assign one or more Judges to be vacation Judge to attend to any urgent matters during the period of vacation.

 

6.     The time for filing and service of pleadings shall not run during the annual E4aster and Christmas vacations unless otherwise directed by the Court or a Judge in Chambers.

 

7.     No business shall be transacted in Chambers on Sundays and public holidays.

 

 

Order 52

Costs

A – Security for Costs

 

1.     (1)    Where on the application of the plaintiff or defendant, as the case may be, to the Court it appears to the Court either at the commencement or at any stage of the proceedings -

 

(a)    that the plaintiff or defendant is ordinarily resident out of jurisdiction; or

 

(b)    that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so; or

 

(c)    subject to sub-rule (2) of this rule, that the plaintiff’s address is not stated in writ of other originating process or is incorrectly stated therein; or

 

(d)    that the plaintiff or the defendant has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, 

 

        then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff or the defendant to give such security for the plaintiffs costs or defendant’s costs of the action or other proceedings as it thinks just.

 

(2)    The Court shall not require a plaintiff to give security by reason only of sub-rule (1) (c) of this rule if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.

 

(3)    The references in the foregoing rule to a plaintiff and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceeding in question, including a proceeding on a counter-claim.

 

2.     Where an order is made requiring any party to give security for costs, the security shall be given in such manner, at such time, and on such terms (if any), as the Court may direct.

 

 

B – Cost Between Party and Party

 

3.     In every suit the costs of the whole suit, and of each particular proceeding therein, and the costs of every proceeding in the Court, shall be in the discretion of the Court as regards the person by whom they are to be paid.

 

 4.     The Court shall not order the successful part in a suit to pay to the unsuccessful party the costs of the whole suit, although the Court may order the successful party, notwithstanding his success in the suit, to pay costs of any particular proceeding therein.

 

5.     The court may order any costs to be paid out of any fund or property to which a suit or proceedings relates.

 

6.     When the Court adjudges or orders any costs to be paid, the amount of the costs shall be, if practicable, summarily determined by the Court at the time of making the judgment or order, and named therein.

 

7.     In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in establishing his claim, defence or counter-claim, but the Court may take into account all the circumstances of the case.

 

8.     Where the Court orders costs to be paid or security to be given for costs by any party, the Court may, if it thinks fit, order all proceedings by or on behalf of the party in the same suit or proceedings, or connected therewith, to be stayed until the costs are paid or security given accordingly, but the order shall not supersede the use of any other lawful method of enforcing payment.

 

9.     When the Court deems it to be impracticable to determine summarily the amount of any costs which it has adjudged or ordered to be paid, all questions relating thereto may either be determined upon taxation by the Court itself or may be referred by the Court to a taxing master and be ascertained by him and approved by the Court.

 

10.     Upon any taxation of costs, the taxing master may, in determining the remuneration to be allowed, have regard, subject to any rule of Court, to the skill, labour and responsibility involved.

 

11.     In taxation of costs between party and party, nothing shall be allowed in respect of fees paid to the Court beyond what was necessary having regard to the amount recovered on judgment.

 

12.     If upon the taxation of any bill of costs more than one sixth is deduced from the amount claimed, the Court may either make no order as to the costs of the taxation or may order the party who filed the bill of costs to pay to the other party or parties the costs of taxation.

 

 

Order 53

Fees And Allowances

 

1.     (1)    subject to the provisions of any written law and of the foregoing Orders the fees ser out in Appendix 2 to these Rules shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in the Appendix.

 

(2)    The allowances set out in Appendix 4 to these Rules shall be payable to the various categories of witnesses mentioned therein by any person at whose instance they testify.

 

(3)    A witness who testifies at the instance of the Court acting on its own motion shall be paid out of public revenue.

 

2.     The regulations set out in Appendix 5 to these Rules shall be observed by all officers of Court concerned with the rendering of services and or collection of fees payable under the provisions of the foregoing Order.

 

 

Order 54

Miscellaneous Provisions

 

1.     Subject to particular rules, the Court may in all causes and matters make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not.

 

2.     (1)    Where no specific procedure is given in any of the enactment in Appendix 1 to the Rules, the rules and procedure in these Rules shall apply with necessary modification so as to comply with the subject matter the enactment in Appendix 1 to this rules deals with.

 

(2)    The Chief Judge may modify or add to the list of Rules set out in Appendix 1to these Rules.

 

3.     All fines, forfeitures, pecuniary penalties and costs ordered to be paid may be levied by distress, seizure and sale of both movable and immovable properties of the person making default in payment.

 

4.     In all cases in which the publication of any notice is required, the same may be made by advertisement in the Federal Gazette, unless otherwise provided in any particular case by any rule of Court or otherwise ordered by the Court.

 

5.     A document shall not be filed unless it has endorsed on it, the name and number of the case, the date of filing, and whether filed by plaintiff or defendant, and on being filed the endorsement shall be initialed by the Registrar.

 

6.     The fees set out in Appendix 3 to these Rules may be charged in respect of the duties of a notary public or of a notarial act and other duties therein mentioned.

 

7.     The Registries of the Court shall, subject to the directive of the Chief Judge, be opened to the public on every day in the year from 8 o’clock in the forenoon to 2 o’clock in the afternoon, except on Saturdays and Sundays or on any day declared as public holiday under any written law.

 

8.     Where a matter arise in respect of which no provisions or no adequate provisions are made in these Rules, the Court shall adopt such similar procedure in the Rules as will in its views do substantial justice between the parties concerned.

 

9.     (1)    These Rules shall not apply to any cause or matter part-heard on the date when these Rules come into operation.

 

(2)    Where an action is filled and no further step is taken other than the filling, other subsequent procedure shall be under this Rule.

 

(3)    In all other cases where causes or matters, are pending, the Court shall give such directions as may be necessary or expedient to ensure conformity with the requirements of these Rules

 

(4)    The Chief Judge may give practice directions, generally or in respect of a particular case, for carrying out any of the rules in these Rules.

 

10.   All writ of summons, originating summons and petitions shall be recorded in a permanent form by the Registrar as in Forms 1, 2, 3, or 4 in Appendix 6 to these Rules.

 

 

Appendixes

 

Appendix 1

 

1.    Fundamental Rights (Enforcement Procedure) Rules 1979

2.    Federal High Court (Tax Appeals) Rules 1992

3.    Admiralty Jurisdiction Procedure Rules 1993

4.    Companies Proceedings Rules 1992

5.    Companies Winding-Up Rules 2001

6.    Bankruptcy Rules 1990