Constitution of Nigeria

Court of Appeal
High Courts

Home Page

Law Reporting

Laws of the Federation of Nigeria
Legal Education
Q&A
Supreme Court
Jobs at Nigeria-law

 

 

Order VII

Pleadings

 

 

Part 1

Answers

 

 

1.     (1)            The respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, may, by filing an answer-

 

(a)            deny a fact alleged in the petition

 

(b)            state that he does not know and cannot admit the truth of a fact alleged in the petition

 

(c)            allege a fact ; or

 

(d)            admit the truth of a fact,

 

                 being a fact material to proceedings, instituted by the petition, to which he is a party or in which he is entitled to intervene under sub-section (2) of section 65 of the Act or under Order IX of these Rules.

 

(2)            Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to 'he court that it should dismiss the proceedings, he shall, in an answer filed for the purpose, ask the court to dismiss the proceedings.

 

(3)            Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to the court that, if it makes an order in favour of the petitioner, that order should be different from the order sought by the petitioner, he shall, in an answer filed for the purpose, set out particulars of the order that, in his submission, me court should make if it makes an order in favour of the petitioner.

 

(4)            An answer shall be in accordance with Form 15 and shall be filed with the time limited by the notice of petition or notice of proceedings addressed to the person filing the answer.

 

(5)            Where an answer to a petition contains an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, the answer shall state the address and occupation, so far as known to the respondent, of that person.

 

(6)            where the address, at the date of the answer, of a person referred to in sub-rule (5) of this rule is not known to the party filing the answer, the answer shall state that the address is not known to that party and also state the last address (if any) of the person known to that party.

 

2.     (1)            This rule applies to an answer by which a respondent to a petition institutes proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause". in section 114 (1) of the Act.

 

(2)            An answer to which this rule applies shall state that the respondent is, within the meaning of the Act, domiciled or resident, as the case may be in Nigeria, and, if the respondent relies, for the purpose of establishing his domicile or residence in Nigeria, on any facts other than facts included in the petition, the answer shall state those other facts.

 

(3)            The facts, but not the evidence by which the facts are to be proved, upon which the court ~vill be asked to make the decree sought in proceedings instituted by an answer to which this rule applies shall be stated in the answer in as concise a form as the nature of the case allows.

 

(4)            An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in paragraphs (a) to (g), inclusive, of section 15 (2) of the Act shall contain-

 

(a)            a statement that the respondent has not connived at that ground ; and

 

(b)            a denial that he has condoned that ground, or a statement of all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived.

 

(5)            An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings, the respondent has not been guilty of collusion with intent to cause a perversion of justice.

 

(6)            The provisions of rules 8, 12,13, 14, 15, 17 and 26 of this Order, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of dissolution of marriage or of restitution of conjugal rights, as if-

 

(a)            references to a petition were references to an answer

 

(b)            references to a petitioner were references to the respondent to a petition ; and

 

(c)            references to the respondent were references to the petitioner.

 

(7)            The provisions of rules 8, 14,19, 20 and 21 of this Order, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of nullity of marriage, as if-

 

(a)            references to a petition were references to an answer;

 

(b)            references to a petitioner were references to the respondent to a petition;

 

(c)            references to the respondent were references to the petitioner ; and

 

(d)            references to a petition for a decree of dissolution of marriage Were references to a petition for a decree of nullity of a voidable marriage.

 

(8)            The provisions of rules 8, 12, 13, and 17 of this Order, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of judicial separation, as if-

 

(a)            references to a petition were references to an answer

 

(b)            references to a petitioner were references to the respondent to a petition;

 

(c)            references to the respondent were references to the petitioner ; and

 

(d)            references to a petition for a decree of dissolution of marriage were references to an answer by which the respondent to a petition is seeking a decree of judicial separation.

 

(9)            An answer to which this rule applies shall be in accordance with Form

 

3.     (1)            A respondent or co-respondent to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined shall file an answer under protest. in accordance with Form 16, objecting to the jurisdiction of that court.

 

(2)            An answer under protest shall state the grounds on which the respondent or co-respondent objects to the jurisdiction of the court.

 

(3)            Where an answer under protest has been duly served, the party filing the answer may, within fourteen days after the day on which the answer is filed, file an application to the court for directions as to the time and place at which the objection is to be determined by the court.

 

(4)            It is not necessary for an application referred to in sub-rule (3) of this rule to be supported by an affidavit.

 

(5)            Upon the hearing of an application referred to in sub-rule (3) of this rule, the court may also give directions as to whether disputed questions of fact are to be determined upon evidence given orally or upon evidence given by affidavit.

 

(6)            where the party filing an answer under protest does not file the application referred to in sub-rule (3) of this rule within the time limited by that sub-rule, the party shall be deemed to have waived the objection.

 

(7)            A petitioner in proceedings shall not, after an answer under protest has been filed and service of the answer has been effected on him, continue the proceedings against the party who filed the answer unless the court has overruled the objection to its jurisdiction or the party filing the answer under protest has waived the objection.

 

(8)            where a court has overruled an objection to its jurisdiction, the party who filed the answer under protest may, within such time as the court allows, file a further answer to the petition.

 

 

Part 2

Replies and Rejoinders

 

 

4.     (1)            Where an answer to a petition contains any allegation of fact, the petitioner may, by filing a reply-

 

(a)            deny a fact alleged in the answer

 

(b)            state that he does not know and cannot admit the truth of a fact alleged in the answer;

 

(c)            allege an additional fact that has become relevant to proceedings to which the reply relates by reason of some fact alleged in the answer; or

 

(d)            admit the truth of a fact alleged in the answer.

 

(2)            A parry cited or a person named in an answer may, by filing a reply-

 

(a)            deny a fact alleged in the answer;

 

(b)            state that he does not know and cannot admit the truth of a fact alleged in the answer;

 

(c)            allege a fact ; or

 

(d)            admit the truth of a fact alleged in the answer,

 

                 being a fact material to proceedings, instituted by the answer, to which he is a party or in which he is entitled to intervene under sub-section (2) of section 32 of the Act or under Order IX of these Rules.

 

(3)            where proceedings have been instituted by an answer to a petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that it should dismiss the proceedings, he shall, in a reply filed for the purpose, ask the court to dismiss the proceedings.

 

(4)            where proceedings have been instituted by an answer to a petition and the petitioner, a parry cited or a person named in the answer desires to submit to the court that, if it makes an order in favour of the parry who filed the answer, that order should be different from the order sought by that party, he shall, in a reply filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of that party.

 

(5)            A reply shall be in accordance with Form 17.

 

(6)            The time limited for filing a reply to an answer is-

 

(a)            in the case of a reply by the petitioner-fourteen days after service of the answer on the petitioner ; and

 

(b)            in the case of a reply by a party cited or a person named in the answer-the time so limited in the notice of proceedings served on the party cited or person named in relation to the answer.

 

5.     (1)            A petitioner who desires to have the jurisdiction of the court to hear any proceedings instituted by an answer to the petition determined, or a party cited in an answer to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined, shall file a reply under protest, in accordance with Form 18, objecting to the jurisdiction of that court.

 

(2)            A reply under protest shall set forth the grounds on which the petitioner or party cited objects to the jurisdiction of the court.

 

(3)            Sub-rules (3) to (8), inclusive, of rule 3 of this Order apply in relation to a reply under protest as if-

 

(a)             references to an answer under protest were references to a reply under protest

 

(b)            the reference in sub-rule (7) of that rule to a petitioner in proceedings was a reference to a petitioner or respondent in proceedings ; and

 

(c)            the reference in 8ub-rule (8) of that rule to a further answer to the petitioner was a reference to a further reply to the answer.

 

6.     (1)            Where a reply contains any allegation of fact, the party who filed the answer in relation to which the reply was pleaded may by filing a rejoinder-

 

(a)            deny a fact alleged in the reply

 

(b)            state that he does not know and cannot admit the truth of a fact alleged in the reply

 

(c)            allege an additional fact that has become relevant to proceedings to which the rejoinder relates by reason of some fact alleged in the reply ; or

 

(d)            admit the truth of fact alleged in the reply.

 

(2)            The time limited for filing a rejoinder by a party is fourteen days after service of the reply on the party.

 

7.     (1)            Where a rejoinder or further rejoinder (in this rule called "the pleading") contains any allegation of fact, the party who filed the reply, or further rejoinder in relation to which the pleading was pleaded may, by filing a further rejoinder-

 

(a)           deny a fact alleged in the pleading

 

(b)           state that he does not know and cannot admit the truth of a fact alleged in the pleading

 

(c)            allege an additional fact that has become relevant to proceedings to which the further rejoinder relates by reason of some fact alleged in the pleading ; or

 

(d)           admit the truth of a fact alleged in the pleading.

 

(2)            The time limited for filing a further rejoinder by a party is fourteen days after service on the party of the pleading to which it is pleaded.

 

 

Part 3

Pleadings Generally

 

 

8             In this Part, unless the contrary intention appears, "pleading" means an answer, reply, rejoinder or further rejoinder.

 

9.             Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings files a pleading in answer to that pleading and does not, in the pleading so filed-

 

(i)             deny the fact, either expressly or by necessary implication; or

 

(ii)            state that he does not know and cannot admit the truth of the fact;

 

(iii)           admit the truth of the fact,

 

                the person shall be deemed to have admitted the truth of the fact for the purposes of the proceedings

 

10.   (1)            A pleading shall hear date the day on which it is filed.

 

(2)            Where a pleading is settled by counsel, the name of the counsel shall be written on the pleading.

 

(3)            A pleading shall be signed--

 

(a)            if the party filing the pleading is represented by a legal practitioner-by the legal practitioner personally ; or

 

(b)            if the party filing the pleading is not represented by a legal practitioner-by the party.

 

11.   (1)           The party filing a pleading shall, by an affidavit written on his pleading and sworn within twenty-one days before his pleading is filed-

 

(a)            verify the facts stated in his pleading of which he has personal knowledge ; and

 

(b)            depose as to his belief in the truth of every other fact stated in his pleading.

 

(2)            Sub-rules (2) and (3) of rule 10 of Order V of these Rules apply in relation to an affidavit verifying a pleading as if references to a petition and a petitioner were references to a pleading and a party filing a pleading, respectively.

 

(3)            Where the party filing a pleading states in the pleading that he does not know and cannot admit the truth of a particular fact, the party shall; in his affidavit verifying the pleading, state that he does not know and cannot admit the truth of the fact.

 

12.   (1)            A party who files a pleading for the purpose of proceedings shall cause service of a copy of the pleading to be effected, in a manner referred to in paragraph (c) of rule 1 of Order Vi of these Rules, on each other party to the proceedings who has, at the day on which the pleading is filed, an address for service for the purpose of the proceedings.

 

(2)            For the purpose of the last preceding sub-rule, a copy of a pleading shall be so served on the day on which the pleading is filed or on the next following day.

 

(3)            Where a party files an address for service for the purpose of proceedings on or after the day on which a pleading is filed, the party who filed the pleading shall, upon request made by that first-mentioned party, cause service of a copy of the pleading to be effected in a manner referred to in paragraph (c) of rule 1 of Order VI of these Rules on that first-mentioned party on the day on which the request is made or on the next following day.

 

(4)            This rule does not apply in relation to service of an answer to a petition.

 

 

Part 4

Discontinuance

 

13.   (1)            Subject to the next succeeding sub-rule, a party to proceedings on whose behalf a pleading has been filed may withdraw the pleading by filing a notice in accordance with Form 19 and causing service of a copy of the notice to be effected, in a manner referred to in paragraph (c) of rule I of Order VI of these Rules, on each other party to the proceedings who has an address for service for the purpose of the proceedings.

 

(2)            Where an order pending the disposal of proceedings institute by a petition is in force, the petition shall not be withdrawn under sub-rule (1) of this rule except by leave of the court.

 

(3)            Where a petitioner withdraws his petition, the proceedings instituted by the petition1 and any proceedings instituted in relation to those proceedings, are discontinued but the discontinuance of those proceedings does not affect the continuance of

 

(a)            any proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" instituted by the respondent to the petition by answer to the petition ; or

 

(b)            any proceedings of a kind referred to in paragraph (c) or (d) of that definition that are in relation to proceedings instituted by that answer.

 

(4)            Where a party to proceedings withdraws a pleading other than a petition, the proceedings, other than any proceedings instituted by that pleading, may be continued as if the party had never filed the pleading.

 

(5)            Where a party to proceedings withdraws a pleading any other party to the proceedings who has filed a pleading for the purpose of the proceedings may make application to the court in which the proceedings are or were pending for an order as to the costs occasioned by the pleading and the withdrawal.

 

 

Order VIII

Amendment of Pleadings, supplementary Petitions and Supplementary Answers

 

 

Part 1

Amendment of Pleadings

 

 

1.     (1)            Subject to this rule, all such amendments may be made to a that may be pleading as are made in accordance with the succeeding provisions of this Part and are necessary for the purpose of determining the real questions in controversy between the parties.

 

(2)            An amendment shall not be made to a petition or answer if the amendment would have the effect of instituting proceedings of a kind referred to in paragraph (c) of the definition of "matrimonial cause

 

(3)            The provisions of sub-rule (2) of this rule do not apply to an amendment to a petition that has not been served on a party to the proceedings or on a person named in the petition.

 

(4)            A party to a marriage shall not, by amending a pleading filed by him in connexion with proceedings, seek a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" upon a ground arising after the date on which the pleading was filed.

 

2.             A petition may be amended by the petitioner if it has not been served on a party to the proceedings or on a person named in the petition.

 

3.     (1)            Subject to sub-rule (2) of this rule, where a pleading filed on behalf after a party to proceedings has been served on another party to the proceedings, or on a person on whom service of the pleading is required by these Rules to be effected although the person is not a party to the proceedings, the pleading may be amended by the party who filed it-

 

(a)            if it has not been amended after having been so served-without the leave 9f the court or a registrar ; or

 

(b)            if it has been amended on a previous occasion after having been so served-by leave of the court or a registrar.

 

(2)            Except by leave of the court, a pleading in any proceedings shall not be amended after-

 

(a)            a compulsory conference relating to the proceedings has been held for the purpose of Part 6 of Order XI of these Rules ; or

 

(b)            the proceedings have been set down for trial.

 

(3)            The court may give leave in circumstances referred to in sub-rule (2) of this rule subject to such terms and conditions (if any) as the court thinks fit.

 

(4)            Where a pleading has been amended without the leave of the court the court may, on application by the party by whom the pleading was so amended, by order

 

(a)            dispense with service of the amended pleading on a person, whether or not the person is a party to the proceedings

 

(b)            specify the manner in which service of the amended pleading may be effected on a person ; and

 

(c)            specify the time, after service of the amended pleading on a person, within which the person may, if he so desire~

 

(i)            amend a pleading already filed by him in reply to the pleading ; or

 

(ii)           file a pleading in reply to the amended pleading, as the case requires.

 

(5)            Where a court gives leave to amend a pleading, the court may also make any order that it or he could have made upon application under sub-rule (4) of this rule if the pleading had been amended without leave.

 

(6)            Where the court gives a party leave to amend a pleading, the party may cause the pleading to be amended accordingly within fourteen days after the leave was given.

 

(7)            An application to a court under sub-rule (4) of this rule may be made exparte.

 

4.     (1)            Subject to sub-rule (4) of this rule, an amendment shall not be made to a pleading so as to alter a fact alleged in the pleading or to include an additional fact in the pleading unless the party on whose behalf the pleading was filed has filed an affidavit-

 

(a)            verifying the altered fact or additional fact, as the case may be ; or

 

(b)            deposing as to Iris belief in the truth of the altered fact or additional fact, as the case may be.

 

(2)            An amendment shall not be made to a petition or answer so as to allege additional facts that constitute a ground for a decree of dissolution of marriage or of judicial separation specified in any of paragraphs (a) to (g) inclusive of section 15 (2) of the Act and to seek such a decree on that ground, unless the party who filed the petition or answer has filed an affidavit in which the party-

 

(a)            denies that he has connived at that ground

 

(b)            denies that he has condoned that ground or states all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived ; and

 

(c)            states that, in bringing the proceedings for the decree on that ground, he has not been guilty of collusion with intent to cause a perversion of justice.

 

(3)            A party shall be deemed to have complied with the requirements of the preceding provisions of this rule if the matters required by those provisions to be included in an affidavit are included in an affidavit by the party in support of an application for leave to amend the pleading.

 

(4)            Where the court grants leave under rule 3 of this Order to amend a pleading, the court may also dispense with the need for compliance with sub-rule (1) of this rule.

 

 

5.     (1)            Subject to this rule, where application is made for leave to amend a pleading filed for the purpose of proceedings, the applicant shall cause service of the application to be effected on each other party to the proceedings who has an address for service for the purpose of the proceedings.

 

(2)            Sub-rule (1) of this rule does not apply to an application that is made to the court upon the trial of the proceedings for the purpose of which the pleading was filed.

 

(3)            An application to amend a pleading may be made ex parte if no party, other than the party who filed the pleading, has an address for service.

 

6.     (1)            A pleading shall be amended by writing the alterations or additions on the pleading in red ink or in such other manner as will distinguish the alterations or additions from the original pleading or from any previous amendment.

 

(2)            Where a pleading is amended by a party by leave of a court the legal practitioner for the party or, if the party is not represented by a legal practitioner, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which leave to amend the pleading was given and the date on which the amendment is made to the pleading, in accordance with the following form

 

"Amended     this ............ day of ................. 20 ......,   in pursuance of leave granted by the on the ............  day of ........... 20 .......  "

 

(3)            Where a pleading is amended by a party without the leave of a court, the legal practitioner for the party or, if the party is not represented by a legal practitioner, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which the amendment is made to the pleading, in accordance with the following form :-

 

"Amended     this ............ day of ................. 20 ......,   in pursuance of rule 2 or 3 (1) (a) of Order VII I"

 

(4)            A solicitor or party writing on a pleading the particulars required by sub-rule 3 of this rule shall sign his name immediately under those particulars and shall forthwith inform the registrar of the nature of the amendments made by him to the pleading.

 

(5)            Where the amendments made to a pleading are so numerous or of such a nature that the pleading is difficult or inconvenient to read or where the making of amendments to a pleading in the manner provided by sub-rule (1) of this rule would make the pleading difficult or inconvenient to read, the party making the amendments-

 

(a)            if the court so requests-shall ; or

 

(b)            in any other case-may,

 

                file a copy of the pleading as amended,

 

(6)            Compliance with sub-rule (1) of this rule is not necessary if, before a party writes the alterations or additions on the pleading in accordance with that sub-rule, the party files a copy of the pleading as amended, but every copy of the pleading as amended shall bear the notation referred to in sub-rule (2) or (3), as the case may be, of this rule.

 

7.     (1)            Where a pleading is amended before service of the pleading has been effected on a person on whom service of the pleading is, by these Rules, required to be effected, service on the person of the pleading other-wise than as so amended is not due service for the purpose of these Rules.

 

(2)            Subject to these Rules and to any order made under sub-rules (4) and (5) of rule 3 of this Order, where a pleading is amended after service of the pleading has been effected on a person, service of the amended pleading on the person shall be effected-

 

(a)            if the person has an address for service-by serving, in the manner referred to in paragraph (c) of rule Order VI rule 1 of these Rules, a copy of the amended pleading on the person on the day on which the pleading is amended or on the next following day ; or

 

(b)            in any other case-by serving, in a manner referred to in paragraph (a) or (6) of rule 1 of Order VI, a copy of the amended pleading on the person as soon as practicable after the amendment is made.

 

(3)            Where a petition is amended by adding an allegation that the respondent has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the petition has been effected, or where an answer is amended by adding an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the answer has been effected, service of a sealed copy of the amended petition or amended answer shall be effected on the person in a manner referred to in paragraph (a) or (6) of rule I of Order VI.

 

(4)            These Rules apply in relation to service of a sealed copy of an amended petition or an amended answer on a person referred to in sub-rule (3) of this rule in like manner as they apply in relation to service of a sealed copy of a petition or answer on the person.

 

8.             Where a pleading has been amended, a person on whom service of a copy of the amended pleading has been effected shall not file a pleading in reply to the first-mentioned pleading but may file a pleading in reply to the amended pleading and, for the purposes of these rules, the time limited for filing a pleading in reply to the amended pleading commences from the day on which service of the amended pleading was effected on the person.

 

9.     (1)            Where a pleading is amended after a pleading (in this rule called "the subsequent pleading") has been filed in reply to that pleading, the party who filed the subsequent pleading may, within ten days after the day on which service of the amended pleading was effected on him or within such other time as is specified in an order under sub-rules (4) and (5) of rule 3 of this Order, amend the subsequent pleading in such manner as he considers desirable.

 

(2)            An amendment of the subsequent pleading in accordance with sub-rule (1) of this rule may be made without the leave of the court or a registrar and does not count as an amendment for the purposes of sub-rule (1) of rule 3 of this Order but the other provisions of this apply to and in relation to the amendment.

 

 

Part 2

Supplementary Petitions and Supplementary Answers

 

 

10.   (1)            Where a ground upon which a petitioner or respondent may seek a decree of dissolution of marriage or judicial separation arises after the petition was filed by the petitioner or an answer was filed by the respondent, as the case may be, the petitioner may, by filing a supplementary petition or the respondent may, by filing a supplementary answer, as the case may be, seek appropriate relief of a kind referred to in paragraph (a) of the definition of "matrimonial cause'3.

 

(2)            A supplementary petition shall be in accordance with Form 20.

 

(3)            A supplementary answer shall be in accordance with Form 21.

 

11.   (1)            In a supplementary petition, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary petition shall be stated in as concise a form as the nature of the case allows.

 

(2)            A supplementary petition shall state the address and occupation, so far as known to the petitioner, of any person specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy.

 

(3)            Where the address, at the date of the supplementary petition, of a person referred to in sub-rule (2) of this rule is not known to the petitioner the supplementary petition shall state that the address is not known to the petitioner and also state the last address (if any) of the person known to the petitioner.

 

(4)            Subject to sub-rule (6) of this rule, the provision of sub-rules (2) and (3) of rule 6 and of rules 9, 10,12,14, 15 and 17 of Order V of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of dissolution of marriage as if references in those provisions to a petition were references to a supplementary petition.

 

(5)            Subject to sub-rule (6) of this rule the provisions of sub-rules (2) and (3) of rule 6 and of rules 9, 10,12 and 17 of Order V of these Rules, in so far as they are applicable to the circumstances of the particular case apply to and in relation to a supplementary petition for a decree of judicial separation as if, in those provisions, references to a petition were references to a supplementary petition and references to a petition for a decree of dissolution of marriage were references to a supplementary petition for a decree of judicial separation.

 

(6)            It is not necessary to include in a supplementary petition any matter that is included in the petition.

 

(7) In this rule, "the petition" means the petition instituting the proceedings in relation to which the supplementary petition is filed.

 

12.   (1)            In a supplementary answer, the facts, but not the which the facts are to be proved, upon which the court will make the decree sought by the supplementary answer shall be concise a form as the nature of the case allows.

 

(2)            A supplementary answer shall state the address and occupation, so far as known to the respondent, of any person specified in the supplementary answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.

 

(3)            where the address, at the date of the supplementary answer, of a person referred to in sub-rule (2) of this rule is not known to the respondent, the supplementary answer shall state that the address is not known to the respondent and also state the last address (if any) of the person known to the respondent.

 

(4)            Subject to sub-rule (6) of this rule, the provisions of sub-rules (2) and (3) of rule 6 and of rules 9,10,12,14, 15 and 17 of Order V of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent is seeking a decree of dissolution of marriage as if-

 

(a)            references to a petition were references to a supplementary answer;

 

(b)            references to a petitioner were references to the respondent to the petition ; and

 

(c)            references to the respondent were references to the petitioner.

 

(5)            Subject to sub-rule (6) of this rule, the provisions of sub-rules (2) and (3) of rule 6, and of rules 9, 10, 12 and 17 of Order V of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation as if-

 

(a)            references to a petition were references to a supplementary answer

 

(b)            references to a petitioner were references to the respondent to the petition;

 

(c)            references to the respondent were references to the petitioner ; and

 

(d)            references to a petition for a decree of dissolution of marriage were references to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation.

 

(6)            It is not necessary to include in a supplementary answer any matter that is included in the answer or the petition.

 

(7)            In this rule, "the answer" means the answer in the proceedings in relation to which the supplementary answer is filed and "the petition" means the petition in relation to which the answer is filed.

 

13.   (1)            A supplementary petition instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to kg) inclusive, of 15 (2) of the Act or alleging facts relied on as constituting such a ground shall contain-

 

(a)            a statement that the petitioner has not connived at that ground ; and

 

(b)            a denial that he has condoned that ground, or a statement of all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived.

 

(2)            A supplementary petition instituting proceedings for a decree of dissolution of marriage or of judicial separation or alleging facts relied on as constituting a ground for the making of such a decree shall contain a statement that, in bringing the proceedings or alleging the facts, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.

 

(3)            The provisions of sub-rule (2) of this rule apply in relation to a supplementary answer in like manner as they apply in relation to a supplementary petition and as if-

 

(a) references to the petitioner were references to the respondent ; and

 

(b) references to a supplementary petition were references to a supplementary answer.

 

 

14.   (1)            Where a petitioner seeks-

 

(a)            an award of damages under section 31 of the Act against a person specified in a supplementary petition as a person with whom the respondent is alleged to have committed adultery ; or

 

(b)            an order as to costs related to proceedings for the decree sought by a supplementary petition.

 

                 the supplementary petition shall set out particulars of the award (including the amount of damages) or order sought.

 

(2)            Where a respondent seeks-

 

(a)            an award of damages under section 31 of the Act against a person with whom the petitioner is alleged to have committed adultery ; or

 

(b)            an order as to costs related to proceedings for the decree sought by a supplementary answer,

 

                 the supplementary answer shall set out particulars of the award (including the amount of damages) or order sought.

 

15.   (1)            Service of a supplementary petition shall, unless dispensed with, be effected on-

 

(a)            the respondent;

 

(b)            each person (if any) specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy ; and

 

(c)            any other person who, being a party to the proceedings instituted by the petition, has an address for service for the purpose of those proceedings.

 

(2)            Service of a supplementary petition shall be effected on a person who has an address for service by serving a sealed copy of the supplementary petition on the person in the manner referred to in paragraph (c) of rule I of Order VI of these Rules

 

(3)            Service of a supplementary petition shall be effected on a person who does not have an address for service-

 

(a)            by serving on the person, in the manner referred to in paragraph (a) of rule I of Order VI of these Rules-

 

(i)             a sealed copy of the supplementary petition ; and

 

(ii)             a notice of petition or a notice of proceedings, as the case requires, in relation to the supplementary petition ; or

 

(b)            by serving on the person in the manner referred to in paragraph (b) of rule 1 of Order VI of these Rules-

 

(i)             a sealed copy of the supplementary petition

 

(ii)            a notice of petition or a notice of proceedings, as the case requires, in relation to the supplementary petition

 

(iii)           a form, in accordance with Form 11, for acknowledging service of the supplementary petition ; and

 

(iv)          an envelope, being, in the case of service effected in Nigeria, a stamped envelope, having written on it the name of the petitioner or his solicitor and the address for service of the petitioner.

 

(4)            The preceding provisions of ~his rule apply in relation to a supplementary answer as if-

 

(a)            references to a supplementary petition were references to a supplementary answer

 

(b)            references to the respondent were references to the petitioner;

 

(c)            references to the petitioner were references to the respondent ; and

 

(d)            references to a notice of petition or a notice of proceedings, as the case requires, were references to a notice of proceedings.

 

16.   (1)            The time limited for filing of an answer to a Supplementary petition is-

 

(a)            in the case of a person on whom a notice of petition or notice of proceedings is served with the sealed copy of the supplementary petition-the time specified in that notice for the filing of an answer; and

 

(b)            in the case of any other person on whom service of a supplementary petition is effected~fourteen days after service of the supplementary petition on the person.

 

(2)            The time limited for the filing of a reply to a supplementary answer is-

 

(a)            in the case of a person on whom a notice of proceedings is served with the sealed copy of the supplementary answer-the time specified in that notice for the filing of a reply ; and

 

(b)            in the case of any other person on whom service of a supplementary answer is effected-fourteen days after service of the supplementary answer on the person.

 

17.           For the purpose of Order VII, a supplementary petition shall be deemed to be a petition, and a supplementary answer shall be deemed to be an answer to a petition.

 

 

Order IX

Parties

 

 

Part I

General

 

1.             Subject to the Act, to these Rules, and to any order made by a court, upon the trial of proceedings, a person named in the title to a document instituting proceedings, is not a party to the proceedings or application unless he is affected by the proceedings or application notwithstanding that he may be a party to related proceedings by reason of which he is so named.

 

2.             Where a person is entitled to intervene in proceedings under sub-section (2) of section 32 of the Act the person may intervene in the proceedings by filing, within the time limited for doing so-

 

(a)            if the allegation by reason of which he is entitled to intervene is contained in a petition or Supplementary petition-an answer to the petition or supplementary petition ; or

 

(b)            if that allegation is contained in an answer or a supplementary answer-a reply to the answer or supplementary answer,

 

3.     (1)            Where the petitioner alleges, in a petition for a decree of dissolution of marriage or of judicial separation, that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition, the suit shall not be set down for trial unless the court has made an order dispensing with the naming of the person.

 

(2)            The petitioner shall make application for an order under sub-rule (1) of this rule after service of the petition has been effected on the respondent or after such service has been dispensed with.

 

(3)            The affidavit in support of an application for an order under sub-rule (1) of this rule shall state particulars of any enquiries made by the petitioner for the purpose of ascertaining the name of the person.

 

(4)            Service of an application for an order under sub-rule (1) of this rule shall be effected on the respondent unless the court has dispensed with service of the petition on the respondent.

 

(5)            In this rule "suit" has the same meaning as in Order XI of these Rules.

 

(6)            The provisions of sub-rules (1) to (5) of this rule apply to and in relation to proceedings in which the respondent alleges, in an answer to a petition, that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer as if-

 

(a)            references to the petitioner were references to the respondent;

 

(b)            references to the petition were references to the answer ; and

 

(c)            references to the respondent were references to the petitioner.

 

(7)            Where the respondent has alleged in his answer to a petition that the petitioner has committed adultery or sodomy with or on a person whose name was unknown to the respondent at the time of filing the answer, the court may, on the application of the petitioner, and upon being satisfied that it is proper so to do, approve the suit being set down for trial notwithstanding that sub-rules (1) to (6) of this rule have not been complied with.

 

4.     (1)            Where a petitioner who has, in a petition for a decree of dissolution of marriage or of judicial separation, alleged that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition becomes aware of the name of the person at any time before the making of the decree in the proceedings, the petitioner shall amend the petition accordingly.

 

(2)            Where a petition is amended in pursuance of sub-rule (1) of this rule-

 

(a)            service of the amended petition shall be effected on the respondent and on the person to whom the amendment relates ; and

 

(b)            if the petitioner alleges in the petition that the respondent committed adultery with that person, that person becomes, subject to this Part, a party to the proceedings for a decree of dissolution of marriage or of judicial separation.

 

(3)            Where a respondent who has, in an answer to a petition, alleged that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer becomes aware of the name of the person at any time before the making of the decree in the proceedings in relation to which the answer was filed, the respondent shall amend the answer accordingly.

 

(4)            Where an answer is amended in pursuance of sub-rule (3) of this rule-

 

(a)            service of the amended answer shall be effected on the petitioner and on the person to whom the amendment relates; and

 

(b)            if the respondent alleges in the answer that the petitioner committed adultery with that person, that person becomes1 subject to this Part, a party to any proceedings for a decree of dissolution of marriage or of judicial separation instituted by the petition or answer.

 

(5)            These Rules apply in relation to the service of an amended petition or an amended answer on the person to whom the amendment relates in like manner as they apply to the service of a petition or answer on a person.

 

(6)            An amendment of a petition or answer in pursuance of this rule-

 

(a)            may be made without the leave of a court ; and

 

(b)            does not count as an amendment for the purpose of sub-rule (1) of rule 3 of Order VIII of these Rules.

 

(7)            Where a petition or answer is amended in pursuance of this rule, service of the amended petition or amended answer shall be effected on the respondent or petitioner, as the case may be, but need not be effected on any other person on whom service of the petition or answer, as the case may be, has been effected before it was so amended.

 

(8)            Subject to this rule, the provisions of Part I of Order VIII apply to and in relation to an amendment made in pursuance of this rule.

 

5.     (1)            Nothing in sub-section (1) of section 32 of the Decree requires a deceased person to be made a party to proceedings.

 

(2)            Where, in proceedings for a decree of dissolution of marriage or of judicial separation, a co-respondent, party cited or party named dies after the institution of the proceedings or the filing of the answer, as the case may be, but before the making of a decree in the proceedings, the petitioner shall amend the petition, or the respondent shall amend the answer, by alleging in the petition or answer the death of the person and the date on which he died.

 

(3)            Where a petition or answer is amended in pursuance of sub-rule (2) of this rule to allege the death of a person who is, at the date of the amendment, a party to the proceedings, the person alleged to have died ceases to be a party to the proceedings and the title to the proceedings and record of the proceedings shall be deemed to have been amended accordingly.

 

(4)            An amendment of a petition or answer in pursuance of this rule-

 

(a)            may be made without the leave of the court ; and

 

(b)            does not count as an amendment for the purposes of sub-rule (I) of rule 3 of Order VIII of these Rules,

 

                 and the provisions of Part 1 of Order VIII do not apply to or in relation to the amendment.

 

(5)            A petitioner who amends a petition, or a respondent who amends an answer, in accordance with the provisions of this rule shall, as soon as possible after the amendment is made, inform the registrar of the nature of the amendment made by him to the petition or answer and also give notice of the amendment, including a copy of each amended paragraph or new paragraph in the petition or answer, to each party to the proceedings who has an address for service for the purpose of the proceedings

 

(6)            Proceedings do not abate upon the death of a cu-respondent, party cited or party named but the court shall not make a finding of adultery or sodomy, as the case may be, against such a party who has died.

 

6.     (1)            Where-

 

(a)            in a petition for a decree of dissolution of marriage or of judicial separation-the respondent ; or

 

(b)            in an answer to such a petition or in an answer by which proceedings for such a decree are instituted-the petitioner is alleged to have committed adultery with a specified person who, at the date of the petition or answer, is under the age of fourteen years, whether or not such a decree is sought on the ground of the adultery, the person shall not be made a party to the proceedings except in accordance with sub-rule (2) of this rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.

 

(2)            A person under the age of fourteen years with whom a petitioner or respondent is alleged to have committed adultery may intervene in the proceedings by filing, within the time limited for doing so-

 

(a)            if the allegation is contained in a petition-an answer to the petition; or

 

(b)            if the allegation is contained in an answer-a reply to the answer, and shall then be deemed to have become a party to the proceedings

 

(3)            In this rule-

 

                "answer" includes supplementary answer;

 

            "petition" includes supplementary petition.

 

7.     (1)            Where-

 

(a)            in a petition instituting proceedings for a decree of dissolution of marriage or of judicial separation-tile respondent

 

(b)            in an answer to a petition instituting proceedings for such a decree-the petitioner ; or

 

(c)            in an answer instituting proceedings for such a decree-the petitioner, is alleged to have committed adultery, whether or not such a decree is sought on the ground of the adultery, with a person (in this rule referred to as "the infant") who, at the date of the petition or answer, as the case may be, is under the age of twenty-one years and is, if the respondent or petitioner is a male person, a descendant or sister of, or a female child adopted by, the respondent or petitioner, as the case may be, or, if the respondent or petitioner is a female person, a descendant or brother of, or a male child adopted by, the respondent or petitioner, as the case may be, this rule applies to those proceedings.

 

(2)            Where this rule applies to proceedings, the infant shall not be made a party to the proceedings except in accordance with this rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.

 

(3)            Where this rule applies to proceedings by reason of the fact that referred to in sub-rule (1) of this rule is included in a petition, shall, before service of the petition on any person, make the court for leave to serve the petition notwithstanding is not a party to the proceedings.

 

(4)            Where this rule applies to proceedings by reason of the fact that an allegation referred to in sub-rule (1) of this rule is included in an answer, the respondent shall, before service of the answer on any person, make application to the court for leave to serve the answer notwithstanding that the infant is not a party to the proceedings.

 

(5)            An application referred to in sub-rule (3) or (4) of this rule may be made ex parte.

 

(6)            Upon application made to a court under sub-rule (3) or (4) of this rule, the court shall

 

(a)            if it is satisfied that it is in the interest of the infant that he should not be a party to the proceedings-by order, grant to the respondent leave to serve the petition, or grant to the respondent leave to serve the answer, as the case may be, notwithstanding that the infant is not a party to the proceedings ; or

 

(b)            if it is not so satisfied by order, direct that the infant shall he made a party to the proceedings.

 

(7)            Where a court makes an order under sub-rule (6) of this rule, the court may also, by order, specify an adult person on whom service of the petition or answer may be effected, and, for the purpose of sub-rule (1) of rule 11 of Order VI of these Rules, service of the petition or answer on the person so specified shall be deemed to be service on a person referred to in paragraph (6) of that sub-rule.

 

(8)            Where, in proceedings to which this rule applies, a court has granted leave to serve a petition or answer notwithstanding that the infant is not a party to the proceedings, tile infant may intervene in the proceedings by filing, within the time limited for doing so after service of the petition or answer on the infant, an answer to the petition or a reply to the answer as the case requires.

 

(9)            Where a court has directed that the infant shall become a party to the proceedings, the petitioner shall amend the title of the petition or the respondent shall amend the title of the answer, accordingly, and the infant shall then be deemed to have been made a party to the proceedings.

 

(10)          For the purpose of sub-rule (1) of this rule, it is immaterial whether the relationship is of the whole blood or half-blood, or whether it is traced through or to any person of illegitimate birth.

 

(11)                In this rule-

 

                    "answer includes supplementary answer

 

                    "petition" includes supplementary petition.

 

8.     (1)           Where an infant desires to institute proceedings in a matrimonial cause, a person may, on behalf of the infant, institute the proceedings.

 

(2)            Proceedings referred to in rule (1) of this rule shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person instituting them has been elected or appointed to be the guardian ad (item of the infant for the purpose of the proceedings-

 

(a)            in the case of proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause"-before service of the petition has been effected on any person

 

(b)            in the case of proceedings, being an application for leave to institute proceedings for such a decree-before the hearing of that application ; or

 

(c)            in any other case-before service of the application instituting the proceedings has been effected on any person.

 

9.     (1)            Subject to sub-rule (4) of this rule, where the respondent (if a co-respondent in proceedings instituted by a petition, or a person named in a petition, is an infant, a guardian ad 'item may, on behalf of the infant, file an answer to the petition or, if he does not desire to file an answer but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.

 

(2)            Subject to sub-rule (4) of this rule, where a party cited in proceedings, or a person named in an answer, is an infant, a guardian ad 'item may, on behalf of the infant, file a reply to the answer or, if he does not desire to file a reply but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.

 

(3)            A guardian ad (item of an infant who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the infant as the guardian thinks fit and the infant might have taken if he had been of full age.

 

(4)            Where a co-respondent, party cited or person named is an infant, it is not necessary for a guardian ad 'item to be elected or appointed in order that the infant may file an answer or reply or take any other action in relation to the proceedings, but the infant may file the answer or take the action either by his solicitor or in person.

 

10.           A guardian ad (item may apply for leave to intervene, and may intervene, under Part III of the Act in proceedings on behalf of an infant.

 

11.   (1)            Where, upon the trial of a suit, it appears to the court that a child of the marriage in relation to whom section 57 of the Act applies or a child alleged by one of the parties to the suit to be such a child of the marriage ought to be separately represented, the court may adjourn the trial of the suit in order that a guardian ad 'item of the child may be appointed for the purpose of the child being so represented.

 

(2)            Where the trial of a suit has been adjourned under sub-rule (1) of this rule, a guardian ad 'item of the child may be appointed under rule 22 of this Order whether or not the child desires to intervene in the proceedings.

 

(3)            Subject to sub-rule (4) of this rule a person Who becomes the guardian ad litem of a child for the purposes of this rule shall serve notice of the fact on each party to the suit who has an address for service for the purposes of the suit.

 

(4)            Where an order appointing a person to be the guardian ad litem of a child for the purposes of this rule is made upon the application of a party to the suit, it is not necessary for the notice required by sub-rule (3) of this rule to be served on that party

 

(5)            A notice under sub-rule (3) of this rule shall-

 

(a)            set out the address for service of the child for the purposes of the suit; and

 

(b)            shall be served on each party on whom it is required to be served on the day on which the person becomes the guardian ad litem or on the next following day.

 

(6)            Where a child for whom a guardian ad litem has been appointed for the purposes of this rule does not desire to intervene in the suit or is refused leave to intervene in the suit, the child is nevertheless entitled to be represented at the further hearing of the suit by counsel or solicitor who may cross-examine witnesses and address the court but is not entitled to adduce evidence.

 

(7)            The court may, upon or at any time after adjourning the trial of a suit under sub-rule (1) of this rule, give directions concerning the continuation of the trial of the suit, including directions concerning the giving of notice to the guardian ad litem of the child of the date on which and place at which the trial of the suit will be continued, and the trial of the suit shall not be continued except in accordance with directions so given.

 

(8)            Rule 27 of this Order applies in relation to a solicitor who is a guardian ad litem of a child for the purposes of this rule as if the child were a party to the suit

 

(9)            In this rule, "suit" has the same meaning as in Order XI of these Rules.

 

12.   (1)           Where an infant is a party to proceedings, references in these Rules to an affidavit of the party shall, notwithstanding that a guardian ad litem of the infant has been elected or appointed, be read as references to an affidavit sworn by the infant.

 

(2)            The court may, in a panicular case, order that an affidavit required by or under these Rules to be sworn by a party to proceedings who is an infant be sworn by the guardian ad litem of the infant.

 

 

Part 3

Persons of Unsound mind

 

 

13.           In this Part, "committee" means committee of the person.

 

14.   (1)            Proceedings in a matrimonial cause may be instituted on behalf of a person of unsound mind-

 

(a)            if there is a committee of the person of unsound mind who is able and willing to act for the person of unsound mind in connection with the proceedings-by that committee

 

(b)            if the Attorney-General or an authorized person files a consent under rule 20 of this Order of these Rules-by the Attorney-General or the authorized person or

 

(c)            in any other case-by a person intending to apply for appointment as guardian ad litem.

 

(2)            Where proceedings referred to in sub-rule (1) of this rule are instituted by a committee of a person of unsound mind, tile committee shall be deemed, for the purpose of this Part, to be the guardian ad/item of the person of unsound mind for the purpose of the proceedings.

 

(3)            Where proceedings referred to in sub-rule (1) of this rule are instituted by a person referred to in paragraph (c) of that sub-rule1 the proceedings shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person has been appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings-

 

(a)            in the case of proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" before service of the petition has been effected on any person

 

(b)            in the case of proceedings, being an application for leave to institute proceedings for such a decree-before the hearing of that application ; or

 

(c)            in any other case-before service of the application instituting the proceedings has been effected on any person.

 

15.   (1)            Where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file an answer to the petition or, if he does not desire to file an answer but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.

 

(2)            Where a party cited in proceedings, or a person named in an answer, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file a reply to the answer or, if he does not desire to file a reply but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.

 

(3)            A committee of a person of unsound mind or a guardian ad litem of a person of unsound mind who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the person as the committee or guardian thinks fit and the person might have taken if he had not been of unsound mind.

 

16.           A committee or guardian ad litern of a person of unsound mind may apply for leave to intervene, and may intervene, under Part III of the Act in proceedings on behalf of the person of unsound mind.

 

17.   (1)           Where a person of unsound mind is a party to proceedings, references in these Rules to an affidavit of the party shall be read as references to an affidavit sworn by the guardian ad litern of the party, or by the person who is deemed, for the purpose of this Order, to be the guardian ad/item of the party, as the case may be.

 

(2)            The court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by the guardian ad litem of a party to proceedings who is a person of unsound mind be sworn by the party.

 

 

Part 4

Guardians ad litem

 

 

18.   (1)            Subject to sub-rule (2) of this rule, an infant may, by signing an election in accordance with Form 22, elect his father, mother or legal guardian to be his guardian ad 1item for the purpose of proceedings.

 

(2)            An election referred to in sub-rule(1) of this rule is not effective until it filed.

 

(3)            An election referred to in sub-rule (1) of this rule shall have written on the consent of the father, mother or legal guardian, as the case may be, to act as guardian ad litem of the infant for the purpose of the proceedings.

 

19.   (1)            Where an infant desires some person other than his father, mother or legal guardian to he his guardian ad litem for the purpose of the proceedings-

 

(a)            the infant may consent, in writing, to the person being appointed to l)e his guardian ad litem for the purpose of the proceedings ; and

 

(b)            when the infant has done so, that person may make application to the court to be appointed the guardian ad litem of the infant for that purpose.

 

(2)           There shall be filed in support of an application for appointment as guardian ad litem of an infant

 

(a)            an affidavit by the applicant setting forth the reasons why the infant did not elect his father, mother or legal guardian to be his guardian ad litem; and

 

(b)            an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the infant.

 

(3)            The consent referred to in paragraph (a) of sub-rule (1) of this rule shall he annexed to the affidavit of the applicant in support of the application, arid the signature appearing on that consent shall be verified as the signature of the infant by the affidavit of a person (who may be the applicant conversant with the signature of the infant.

 

(4)            An application under this rule may, be made ex parte.

 

(5)            Where upon application made under this rule, the court is satisfied that the applicant is a fit and proper person to act as the guardian ad litem of the infant in the proceedings or proposed proceedings and that it is desirable that he be appointed so to act, the court shall appoint the applicant accordingly.

 

20.   (1)            Where the Attorney-General or an authorized person signs a consent, in accordance with Form 23, to act as the guardian ad litem of a party to proceedings or proposed proceedings who-

 

(a)            is detained iii an institution where persons may, iii accordance with law, be confined for unsoundness of mind

 

(b)            is receiving treatment as a voluntary patient ill such an institution ; or

 

(c)            has been a patient in such an institution and, not having been discharged from the institution, is absent from the institution,

 

                the consent may be filed and the Attorney-General or authorized person, as the case may be, then becomes the guardian ad litem of the person for the purpose of the proceedings or proposed proceedings.

 

(2)            A person desiring to intervene in proceedings shall be deemed, for the purpose of sub-rule (1) of this rule, to be a party to the proceedings notwithstanding that the person has not intervened in the proceedings.

 

(3)            The Attorney-General may, by writing under his hand, appoint a person (including a corporation sole) to be an authorized person for the purposes of this rule either generally or in respect of a particular person of unsound mind.

 

(4)            Notice of an appointment, not being an appointment in respect of a particular person of unsound mind, under sub-rule (3) of this rule shall be published in the Gazette.

 

21.   (1)            Where-

 

(a)            a party to proceedings is a person of unsound mind

 

(b)            the Attorney-General or an authorized person has not filed a consent under rule 20 of this rule to act as the guardian ad litem of the party for the purpose of the proceedings; and

 

(c)            there is no committee of the party who is able and willing to act for the party,

 

                a fit and proper person may apply to a court to be appointed the guardian ad 'item of the party for that purpose.

 

(2)            In sub-rule (1) of this rule, a reference to a party to proceedings shall be read as including a reference to a person desiring to intervene in the proceedings.

 

(3)            Except where the application is made in pursuance of rule 23 of this Order, there shall be filed in support of an application under this rule an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the person of unsound mind.

 

(4)            An application under this rule may be made ex parte.

 

(5)            Where, upon application made under this rule, the court is satisfied that the applicant is a fit and proper person to be appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings and that it is desirable that he be appointed so to act, the court shall appoint the applicant accordingly.

 

(6)            In this rule, "committee" means committee of the person.

 

22.   (1)            Where a person who is a party to proceedings or who desires to intervene in proceedings is an infant or a person of unsound mind, the court may, at any stage of the proceedings, if the court considers it advisable so to do, appoint a fit and proper person who consents to act as guardian ad litem of the person to be the guardian ad litem of the person for the purposes of the proceedings.

 

(2)            An appointment under this rule may be made by the court upon application by another party to the proceedings or a person who consents to act as the guardian ad liter" of the person or without any application being made.

 

(3)            An application under this rule may be made ex parte.

 

(4)            Where an application has been made to the court under this rule, the court may adjourn the hearing of the application and direct that the application be served on such persons (if any) as the court thinks fit.

 

23.           A corporation sole authorized under the law of a State to be appointed, or to act as, the guardian ad litem or next friend of a person of unsound mind may make application under either of the last two preceding rules to be appointed, and may be appointed, to be the guardian ad litem of a person of unsound mind for the purpose of proceedings.

 

24.           An order appointing a person to be the guardian ad litem of a party to proceedings or a person who desires to intervene in proceedings shall, unless the person appointed to be a guardian ad litem is the person on whose application the order was made, be served on the person appointed on the day on which it is made or on the next following day.

 

25.           The court may, subject to such conditions as the court thinks fit, remove a person from the office of guardian ad litem of an infant or person of unsound mind if-

 

(a)            the person makes application to retire from the office ; or

 

(b)            the court considers that it is desirable that the person should be removed from the office.

 

26.   (1)            Subject to sub-rule (4) of this rule, a person who becomes the guardian ad litem of the respondent or a co-respondent in proceedings instituted by a petition, or of a person named in a petition1 shall serve notice of the fact on the petitioner.

 

(2)            Subject to sub-rule (4) of this rule, a person who becomes the guardian ad litem of a party cited in proceedings, or of a person named in an answer, shall serve notice of the fact on the petitioner and the respondent.

 

(3)            Notice that a person has become a guardian ad litem shall be served on the day on which the person becomes the guardian ad litem or on the next following day.

 

(4)            Where an order appointing a person to be a guardian ad litem is made upon the application of a party to proceedings, it is not necessary for the notice required by sub-rule (1) or (2) of this rule to be served on that party.

 

27.           Where a legal practitioner is the guardian ad litem of a party to proceedings, neither that legal practitioner nor a partner of that legal practitioner shall act in the proceedings as the legal practitioner for the party.

 

 

Order X

Default In Pleading

 

 

1.     (1)            Where a pleading is filed on behalf of a party to proceedings after the time limited for the filing of the pleading has expired, any other party to the proceedings may, subject to these Rules continue the proceedings as if the pleading had not been filed unless-

 

(a)            the party filing the pleading in answer to which the first-mentioned pleading was filed consented to, or waived objection to, the late filing of the pleading ; or

 

(b)            a court otherwise orders.

 

(2)            Consent to the filing of a pleading after the expiration of the time limited for the filing of the pleading shall be given in writing and signed-

 

(a)            if the party giving the consent is represented by a legal practitioner-by that legal practitioner ; or

 

(b)            if the party is not so represented-by the party.

 

(3)            Where an answer to a petition is filed, with the consent of the petitioner or in pursuance of an order of the court, after the proceedings instituted by the petition have been set down for trial, unless the court orders other-wise-

 

(a)            the setting down of the proceedings is void and of no effect ; and

 

(b)            the proceedings may be continued as though they had not been set down for trial.

 

 

2.     (1)            Where-

 

(a)            the respondent to a petition is an infant or person of unsound mind;

 

(b)            service of the petition has been duly effected on the respondent and

 

(c)             an answer has not been duly filed by or on behalf of the respondent, the petitioner shall not continue the proceedings instituted by the petition, or institute in relation to those proceedings any proceedings of a kind referred to in paragraph (c) or (d) of the definition of "matrimonial cause", unless-

 

(d)            a person has become the guardian ad litem of the respondent for the purpose of the proceedings ; and

 

(e)            the time limited for the filing of an answer by the guardian ad litem has expired.

 

(2)            Where-

 

(a)            an infant or person of unsound mind is specified in a petition as a person with or on whom the respondent has committed adultery, rape or sodomy

 

(b)            service of the petition has been duly effected on the person so specified and

 

(c)            an answer has not been duly filed by or on behalf of the person so specified,

 

                the petitioner shall not continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause' instituted by the petition unless-

 

(d)            a person has become the guardian ad keen: of the person so specified for the purpose of the proceedings; and

 

(e)            the time limited for the filing of an answer by the guardian ad litem has expired.

 

(3)            Where-

 

(a)            an infant or person of unsound mind is specified in an answer to a petition as a person with or on whom the petitioner has committed adultery, rape or sodomy;

 

(b)            service of the answer has been duly effected on the person so specified; and

 

(c)            a reply has not been duly filed by or on behalf of the person so specified,

 

                neither the petitioner nor the respondent shall continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause,, instituted by the petition, or proceedings (if any) for such a decree instituted by the answer, unless-

 

(d)            a person has become the guardian ad 'item of the person for the purpose of the proceedings ; and

 

(c)            the time limited for the filing of a reply by the guardian ad 'item has expired.

 

(4)            where the person so specified in a petition or an answer is an infant (not being a person of unsound mind), the court may grant leave to the petitioner or respondent, as the case may be, to continue the proceedings and, where leave is so granted, the petitioner or respondent, as the case may be, may continue the proceedings notwithstanding the provisions of the proceeding sub-rules (2) and (3) of this rule.

 

(5)            A petitioner or respondent shall not be deemed to continue proceedings for the purpose of any of the proceeding sub-rules of this rule by reason of 90hi&-

 

(a)            making application for the appointment of a person to be the guardian ad 'item of the infant or person of unsound mind for the purpose of those proceedings ; or

 

(b)            amending or making application for leave to amend the petition or answer by omitting the allegations contained in the petition or answer relating to the infant or person of unsound mind ; or

 

(c)            making application for leave, under the sub-rule (4) of this rule, to continue the proceedings notwithstanding the provisions of sub-rules (2) and (3) of this rule.

 

(6)            In this Pile

 

                "answer" includes a supplementary answer;

 

                "petition" includes a supplementary petition.

 

3.             Where a person becomes the guardian ad litem of an infant or person of unsound mind who is the respondent, a co-respondent or a party cited in proceedings, or desires to intervene in proceedings, the guardian ad litem, has the like time, after he becomes the guardian ad litem, for filing an answer or reply, as the case requires, for the purpose of the proceedings as the infant or person of unsound mind had after service on him of the petition or answer in the proceedings.