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Order XI

Preparation for Trial

 

Part 1

Preliminary

 

 

1.             In this Order-

 

                "defended suit" means-

 

(a)            a suit for the purposes of which an answer has been duly filed; or

 

(b)            a suit that includes proceedings instituted by application to the court under sub-rule (2) or (3) of rule 1 of Order III of these Rules, if a party has duly filed an affidavit in reply to the affidavit filed in support of that application;

 

                suit" means the proceedings instituted by a petition and includes any proceedings-

 

(a)            instituted by a supplementary petition filed in relation to that petition;

 

(b)            instituted by an answer or supplementary answer to that petition or to a supplementary petition so filed ; or

 

(c)            ordered by the court under rule 38 of this Order of these Rules, or deemed by Order XIV rule 3 or 25 of these Rules, to have been consolidated with any proceedings so instituted, but does not include proceedings for an order pending the disposal of other proceedings,

 

                "undefended suit" means a suit other than a defended suit.

 

2.             Where a person of unsound mind is a party to proceedings, this Part applies as if references to the party were references to the guardian ad litem of the party.

 

3.     (1)            Subject to this rule, in a defended suit, the pleadings are complete for the purposes of this Order when the pleadings between the petitioner and respondent are complete.

 

(2)            Where, in a defended suit, a person has been specified in a pleading as a person with or on whom the petitioner or the respondent is alleged to have committed adultery, rape or sodomy, the pleadings are not complete for the purposes of this Order unless the pleadings between the petitioner and the respondent (as the case may be) and the person so specified are complete.

 

(3)            Where a petitioner in a defended suit has filed a supplementary petition, the pleadings are not complete for the purposes of this Order unless the pleadings in relation to the petition are complete and, in addition, the pleadings in relation to the supplementary petition are complete.

 

(4)            For the purposes of this rule, the pleadings between two parties to suit are complete-

 

(a)            if a pleading filed on behalf of one of those parties in reply to a pleading filed on behalf of the other party does not contain any allegations of fact

 

(b)            if the time limited for the filing, on behalf of one of those parties, of a pleading in reply to a pleading filed on behalf of the other party has expired and the pleading in reply has not been filed ; or

 

(c)            if a court has dispensed with service of a pleading, being the petition or answer in the proceedings, on one of those parties.

 

(5)            For the purposes of sub-rule (4) of this rule a person on whom a petitioner or respondent is alleged to have committed rape or sodomy but who has not intervened in the suit shall be deemed to be a party to the suit.

 

Part 2

Particulars, Discovery and inspection of Documents

 

 

4.     (1)            A person on whom service of a pleading has been effected, being a person who is a party to the proceedings for the purpose of which the pleading was filed or who is entitled to intervene in the proceedings under sub-section (2) of section 32 of the Act or under rule 6 or 7 of Order IX of these Rules, may serve on the party on whose behalf the pleading was filed a request to give further particulars of an allegation in the pleading.

 

(2)            A party on whom a request under sub-rule (1) of this rule is served shall, within ten days after service of the request on him, give to the person who served the request-

 

(a)            the further particulars of the allegation requested or the grounds on which he objects to giving, or is unable to give, the further particulars ; or

 

(b)            such further particulars of the allegation as he is willing and able to give and the grounds on which he objects to giving, or is unable to give, any other particulars of the allegation.

 

(3)            The court may, upon application made by a person who has served a request under sub-rule (1) of this rule for further particulars of an allegation in a pleading or who is entitled to serve such a request, order the party on whose behalf the pleading was filed to give further particulars of an allegation in the pleading within a time specified in the order, and may further order-

 

(a)            that the party shall not continue the proceedings until the further particulars are given or the court otherwise orders ; or

 

(b)            that, if further particulars of the allegation are not given within the time so specified, the allegation be struck out of the pleading.

 

(4)            Further particulars of an allegation in a pleading shall be given by a party, whether in pursuance of a request or of an order, by filing an affidavit to which a document containing the further particulars is annexed, being an affidavit by which the party-

 

(a)            verifies the facts contained in the further particulars of which he has personal knowledge ; and

 

(b)            deposes as to his belief in the truth of every other fact contained in the further particulars,

 

                and by serving a copy of that affidavit on the person who requested the particulars or to whom the particulars were ordered to be given, as the case may be.

 

(5)            Where further particulars are given in pursuance of a request, a copy of the request shall be annexed to the affidavit filed in pursuance of sub-rule (4) of this rule.

 

(6)            Where the court makes an order under sub-rule (3) of this rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied-

 

(a)            that the application was made in a case of urgency ; or

 

(b)            that the applicant had served on the party on whose behalf the pleading was filed a request under sub-rule (1) of this rule and that that party-

 

(i)             failed to comply with the provisions of sub-rule (2) of this rule ; or

 

(ii)            complied with those provisions by stating that he objected to giving, or was unable to give, some or all of the further particulars requested.

 

5.     (1)            A party to proceedings who has filed a pleading for the purposes of the proceedings may-

 

(a)            after the pleadings in the proceedings have been completed and before the proceedings have been set down for trial ; or

 

(b)           by leave of the court, after the proceedings have been set down for trial,

 

                serve on another party to the proceedings a request to make discovery on oath of the documents that are, or have been, in his possession, custody or power relating to any matter in question in the proceedings.

 

(2)            For the purposes of sub-rule (1) of this rule, a person who has intervened in proceedings under Part III of the Act shall be deemed to be a party to the proceedings who has filed a pleading for the purpose of the proceedings.

.

(3)            A request under this rule shall be in accordance with Form 24.

 

(4)            A party to proceedings on whom a request under this rule has been served shall make discovery of documents by filing an affidavit of discovery, and serving a copy of the affidavit on the parry who made the request, within ten days after service of the request on him.

 

(5)            Where the court, upon application made by a party to proceedings, is satisfied that-

 

(a)            the party has duly served, or is entitled to serve, a request under this rule ; or

 

(b)            the application was made in a case of urgency and in such circum-stances that the party would require leave to serve a request under this rule but had not applied for such leave,

 

                 the court may make such order for the filing of an affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceedings.

 

(6)            Where the court makes an order under sub-rule (5) of this rule the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied-

 

(a)            that the application was made in a case of urgency ; or

 

(b)            that the applicant had served a request under this rule on the party ordered to make discovery and that that party refused or failed to comply with the provisions of sub-rule (4) of this rule.

 

(7)            Where an order has been made requiring a person to file an affidavit of discovery, the person shall, within ten days of the date of the order or within such other time as the court orders, file the affidavit and serve a copy of the affidavit on the applicant for the order.

 

6.     (1)            Subject to any order made under the last preceding rule of this discovery. Order in a particular case, a party's affidavit of discovery shall-

 

(a)            specify the documents relating to matters in question in the proceedings that are in the possession, custody or power of the party;

 

(b)            specify the documents relating to matters in question in the proceedings that are not but have been in the possession, custody or power of the party and state, to the best of the knowledge and belief of the party; whether they are still in existence and, if so, who has possession of them;

 

(c)            specify the documents that he objects to produce upon the ground that the documents are-

 

(i)             professional communications of a confidential character made to the party by his legal practitioner, or made by the party to his legal practitioner, for the purpose of giving him legal advice

 

(ii)            cases for the opinion of legal practitioner, instructions to legal practitioner or opinions of legal practitioner prepared and given in anticipation of or during the progress of the proceedings

 

(iii)           letters or copies of letters from the party to his legal practitioner, from the legal practitioner to the party or from his legal practitioner to another person in anticipation of or during the progress of the proceedings ; or

 

(iv)           drafts or memoranda made by the counsel or solicitor to the party for the purpose of the proceedings;

 

(d)            specify the documents that he objects to produce on any other ground and the ground on which he so objects; and

 

(e)            state that he has not at the time of swearing the affidavit and has never had in his possession, custody or power, or in the possession, custody or power of a legal practitioner agent or other person on his behalf-

 

(i)             any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing that relates to matters in question in the proceedings or in which an entry relating to such a matter has been made ; or

 

(ii)            a copy of or extract from any such deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing,

 

                that is not specified in the affidavit.

 

(2)            In an affidavit of discovery it is not necessary to specify each letter from a person to another person, but it is sufficient to specify the number of letters from the person to the other person and the dates of the first such letter and last such letter, respectively.

 

(3)            Where the specifying in an affidavit of discovery of documents in respect of which privilege is claimed would derogate from the privilege attaching to documents, it is not necessary to specify each of the documents in the affidavit but it is sufficient if-

 

(a)            the documents are tied in a bundle that is marked as an exhibit to the affidavit and are referred to in the affidavit as the documents in that bundle;

 

(b)            the number of documents in that bundle is stated in the affidavit; and

 

(c)            the documents in that bundle are numbered consecutively and each of those documents is initiated by the person before whom the affidavit is sworn.

 

(4)            An affidavit of discovery shall be in accordance with Form 25.

 

7.     (1)            The court may, upon application made by a party to proceedings, order another party to make discovery, on oath, whether a document, or a document included in a class of documents, specified in the order is or has been in the possession, custody or power of the party and, if the document is not but has been in the possession, custody or power of the party, when the party parted with the document and to whom he gave the document.

 

(2)            An order shall not be made under sub-rule (1) of this rule unless the applicant for the order has, in an affidavit filed in support of the application, deposed that he believes that the party has, or has had, the document, or a document included in the class of documents, in his possession, custody or power and that the document relates to a matter in question in the proceedings, and has set forth in the affidavit the grounds on which he so believes.

 

(3)            An order may be made under sub-rule (1) of this rule whether or not an affidavit of discovery has been filed by the party to whom the order is directed and whether or not that party has been requested or ordered under rule 5 of this Order to file such an affidavit.

 

8.             Where-

 

(a)            a party to proceedings has filed an affidavit of discovery;

 

(b)           a document relating to matters in question in the proceedings was, or the time the party swore the affidavit, in the possession, custody or power of the party or such a document was not at that time, but had been in the possession, custody or power of the party ; and

 

(c)            the document was not specified or referred to in that affidavit of discovery or in another affidavit of discovery filed by the party in pursuance of an order of the court,

 

                    the party is not entitled, except by leave of ~e court, to put the document or a copy of the document in evidence, or to furnish or cause to furnished evidence of the document, at the trial of the proceedings.

 

9.     (1)            Subject to sub-rule (2) of this rule a party to proceedings may, by notice in writing to another party, request the other party to procedure, for inspection by the party giving the notice, a document specified in the notice, being a document that is referred to in a pleading or affidavit tiled on behalf of that other party or in further particulars given by that party in pursuance of a request or order under rule 4 of this Order.

 

(2)            A document referred to in an affidavit of discovery filed behalf of a party shall not be specified in a notice given to the party under sub- rule (1) of this rule if, in the affidavit, the party

 

(a)            objected to producing the document on a ground stated in the affidavit ; or

 

(b)            stated that the document was not in his possession, custody or power.

 

(3)            A party to whom a notice under sub-rule (1) of this rule has been given shall, within four days after receipt of the notice, specify in writing to the party who gave the notice-

 

(a)            the ground on which he objects to the production of document specified in the notice ; or

 

(b)            the time and place at which he will produce the document for inspection.

 

(4)            A document produced for inspection in pursuance of a notice under sub-rule (1) of this rule may be inspected and copied by the party in writing it is produced or by his legal practitioner.

 

(5)            Where a party to proceedings to whom a notice to produce a document has been given tinder sub-rule (1) of this rule fails to produce the document for inspection and copying, the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to he furnished evidence of the document, at die trial of the proceedings.

 

10.   (1)            The court may, upon application made by a party to proceedings who has duly served a request tinder the last preceding rule or who is entitled to serve such a request, order another parry to the proceedings to produce, at such time and place as the court thinks fit and specifies in the order, a document that was specified or could be specified in such a request.

 

(2)           Where the court makes an order for the production of a document by a party under sub-rule (1) of this rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied that-

 

(a)            the application was made in a case of urgency ; or

 

(b)            the applicant had requested the party to produce the document under sub-rule (1) of this rule and the party-

 

(i)             did not comply with sub-rule (3) of that rule

 

(ii)            objected to produce the document

 

(iii)           specified a nine for the production of the document that was more than ten days after the making of the request

 

(iv)           did not specify a place at which he would produce the document-

 

(A)           that, in the case of a document, he4ng a hook in constant use for the purposes of trade or business, is the place at which the book is usually kept or;

 

(B)           that, in the case of any other document, is the office of the legal practitioner (if any) representing the applicant or is a place that is reasonably near the entire premises or;

 

(v)           did not produce the document at the time and place specified.

 

1l.   (1)            Where a court is satisfied that a document relevant to a matter in question in proceedings is in the possession, custody or power of a party rite proceedings and that the party is not excused by law from producing the document for inspection by another party, the court may order the first-mentioned party to produce the document, at a tune and place specified in the order, for inspection by that other party.

 

(2)            An order under sub-rule (1) of this rule shall not be made in respect of a document that could be specified in a notice under rule 9 of this Order.

 

12.   (1)            Instead of ordering a party to proceedings to produce a book used for the purposes of trade or business, a court may order the party to furnish a copy of an entry in the hook verified as a true copy of the entry by the affidavit of a person who has compared the copy with the entry of which it purports to be a copy.

 

(2)            Where an entry in a book contains an erasure, alteration or interlineation and a copy of the entry is furnished in pursuance of an order referred to in sub-rule (1) of this rule, the copy shall he deemed not to have been verified as a true copy of the entry unless particulars of the erasure, alteration to interlineation are clearly shown in the Copy or set forth in the affidavit of the person who compared the copy with the entry of which it purports to be a copy.

 

(3)            An order for the production may be made by a court notwithstanding that a copy of an entry in the hook has been furnished in pursuance of an order of the court.

 

13.   (1)            A party to proceeding who is requested or ordered under these Rules to make discovery of documents or to produce documents is not excused from making discovery of or producing a particular document by reason only of the fact-

 

(a)            that the document relates solely to, and does not tend to impeach, the case of the party and that the document does not relate to, or tend to support, the case of the party to whom the discovery of documents is to be made or documents are to be produced, as the case may be

 

(b)            that there is, in the document, an admission by the party that he has committed adultery proof of which would be material to the decision in the suit ; or

 

(c)            that there is, in the document, any statement or other matter tending to show that the party has committed adultery proof of which would be material to the decision in the suit.

 

(2)            Where, upon application for an order for the production of documents, a respondent to the application claims that he is excused, by reason of privilege, from producing a particular document, the court may require the respondent to produce that document to the court, and the court may inspect the document for the purpose of determining whether the respondent is so excused.

 

14.           Where a party to proceedings fails to comply with an order to give particulars, to file an affidavit of discovery, to make discovery or to produce documents, the court may order that-

 

(a)            if the party is the petitioner-the proceedings instituted by the petition be stayed or dismissed for want of prosecution

 

(b)            if the party is the respondent-

 

(i)             any proceedings instituted by him by an answer to the petition and any other proceedings instituted by him in relation to proceedings instituted by the petition, be stayed or dismissed for want of prosecution; and

 

(ii)           any proceedings instituted by the petition may be continued by the petitioner as if the answer had not been filed ; or

 

(c)            if the party is any other party-his answer or reply, as the case may be, be struck out.

 

15.           An order shall not be made by a court authorizing the delivery of interrogatories in writing for the examination of a person.

 

16.   (1)            A party to proceedings may file an admission of the truth of a fact alleged in the proceedings by another party.

 

(2)            Where a party files an admission under sub-rule (1) of this rule, a copy of the admission shall be served on each other parry to the proceedings who has filed a pleading for the purpose of the proceedings.

 

Part 3

Admissions and Notices to Produce

 

 

17.   (1)            A party to proceedings may at any time not later than ten days before the trial of the proceedings by notice in accordance with Form 26 serve on another party to the proceedings, call upon that other party to make the admissions with respect to a document that are indicated in that form, and that other party may, by notice served on the first-mentioned party, make such of those admissions as he is willing to make.

 

(2)            If the other party desires to challenge the authenticity of the document, the party shall, within seven days after service on him of the notice to admit serve on the party giving the notice a notice that he does not admit the document and requires it to be proved at the trial.

 

(3)            If the other party refuses or fails to serve notice under sub-rule (2) of this rule within the time prescribed by that sub-rule and fails to serve, before the trial of the proceedings, a notice under sub-rule (1) of this rule, the party shall be deemed to have made the admissions indicated in the notice served on him, unless the court otherwise orders.

 

(4)            Where a party to proceedings does not admit a document after service on him of a notice under sub-rule (1) of this rule, the costs of proving the document shall, unless the court certifies that the refusal to admit was reason-able, be payable by the party.

 

(5)            Where a notice to admit a document has not been given by a party to proceedings, the party is not entitled to the costs of proving the document unless the taxing officer is of the opinion that the omission to give the notice saved expense.

 

(6)            An admission made or deemed to have been made under this rule with respect to a document does not prevent the party who made or is deemed to have made the admission from objecting to the admission of the document in evidence on a ground that is not inconsistent with his admission.

 

18.   (1)            Subject to sub-rule (5) of this rule, a party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice in writing served on another party to the proceedings, call upon the other party to admit, for the purpose of the proceedings, any specific fact or facts mentioned in the notice and that other party may, by notice in writing, admit the fact or any of those facts.

 

(2)            If the party on whom a notice to admit has been served refuses or fails to admit in writing a fact mentioned in the notice within seven days after service of the notice on the party, or within such further time as is allowed by the court, the court may order that party to pay the costs of proving the fact.

 

(3)            An admission made by a party to proceedings in pursuance of a notice to admit served under sub-rule (1) of this rule shall be deemed to be made only for the purpose of the proceedings and shall not be used-

 

(a)            against the party in any other proceedings ; or

 

(b)            in favour of any person other than the party giving the notice

.

(4)            A court may at any time allow the party to amend or withdraw an admission made under this rule upon such terms as the court thinks fit.

 

(5)            Nothing in this rule shall be deemed to authorize a parry to proceedings to call upon another party to admit a fact which that other party has denied in a pleading filed for the purpose of the proceedings.

 

(6)            A notice referred to in sub-rule (1) of this rule shall be in accordance Forms 27, with and an admission of a fact in answer to such a notice shall be in writing and in accordance with Form 28.

 

(7)            An admission made under this rule with respect to a fact does not prevent the party who made the admission from objecting to the admission of the fact in evidence on a ground that is not inconsistent with his admission.

 

19.           An affidavit by the solicitor representing a party, or by a clerk of that signature to solicitor, of the due signature of admission made by that party in pursuance of a notice to admit documents or facts is sufficient evidence of those admissions, if that evidence is required.

 

20.   (1)            A party to proceedings may, by notice in writing served on another party to the proceedings, require the other party to produce, at the trial of the proceedings, a document specified in the notice, being a document that is in the possession, custody or power of that other party.

 

(2)           A notice referred to in sub-rule (1) of this rule shall he in accordance with Form 29.

 

Part 4

Medical Examination of Parties

 

 

21.  (1)            This rule applies to proceedings for a decree of nullity of marriage on the ground that a party to the marriage is incapable of con-summating the marriage.

 

(2)            In proceedings to which this rule applies, the petitioner or respondent may make application to a court for an order under sub-rule (4) of this rule.

 

(3)            An application referred to in sub-rule (2) of this rule shall not be made to a court-

 

(a)            if the petitioner in the proceedings is seeking the decree of nullity of marriage before the time limited for the filing of an answer by the respondent has expired or, if the respondent files an answer before the expiration of that time, before the filing of an answer by the respondent or

 

(b)            if the respondent in the proceedings is seeking the decree-before the time limited for the filing of a reply by the petitioner has expired or, if the petitioner files a reply before the expiration of that time, before the filing of a reply by the petitioner.

 

(4)            Where, in proceedings to which this rule applies, application is made to a court for an order under this sub-rule, the court may, by order-

 

(a)            appoint a medical inspector or two medical inspectors to examine the petitioner and respondent;

 

(b)            appoint a medical inspector or two medical inspectors to examine the petitioner, and another medical inspector or two other medical inspectors to examine the respondent

 

(c)            appoint a medical inspector or two medical inspectors to examine either the petitioner or the respondent and dispense with the examination of the other of those parties or

 

(d)            dispense with the examination of the petitioner and respondent by a medical inspector appointed by a court.

 

22.           Notwithstanding that a court has dispensed with the examination of the petitioner or respondent by a medical inspector appointed under the rule 21 of this Order, where the court, upon the trial of proceedings to which rule 21 of this Order applies, thinks it desirable that the petitioner or respondent in the proceedings be examined or re-examined by a medical inspector or two medical inspectors appointed by the court, the court may appoint a medical inspector or two medical inspectors to examine or re-examine the petitioner or respondent, as the case may be.

 

23.           In proceedings for a decree of dissolution of marriage on the ground that a party to the marriage has wilfully and persistently refused to con-summate the marriage, a court may, upon application made by either party to the marriage-

 

(a)            appoint a medical inspector or two medical inspectors to examine the parties, or a parry, to the marriage ; or

 

(b)            appoint a medical inspector or two medical inspectors to examine one of those parties and another medical inspector or two other medical inspectors to examine the other party.

 

24.   (1)            Where, under rule 21, 22 or 23 of this Order, an order has been made, upon application by the petitioner in proceedings, for the appointment of a medical inspector to examine the respondent in the proceedings, the petitioner shall cause a copy of the order to be served on the respondent.

 

(2)            Where, under rule 21, 22 or 23 of this Order, an order has been made, upon application by the respondent in proceedings, for the appointment of a medical inspector to examine the petitioner in the proceedings, the respondent shall cause a copy of the order to be served on the petitioner.

 

(3)            Where, upon the trial of proceedings, a court has of its own motion made an order under rule 22 of this Order of these Rules for the appointment of a medical inspector to examine a party, being the petitioner or the respondent, to the proceedings and the party was not before the court at the tune when the order was made, another party, being the respondent or petitioner, to the proceedings who was before the court either in person or by his legal practitioner at that time shall cause a copy of the order to be served on the first-mentioned party.

 

(4)            Service of a copy of an order referred to In any of the proceeding sub-rules of this rule shall be deemed not to have been duly effected on a party on whom it is required to be served1 unless-

 

(a)            a notice specifying the time, day and place appointed by the medical inspector for the examination of the party is served on the party at the same time as the copy of the order is served ; and

 

(b)            there are at least seven clear days between service of the notice and the day specified in the notice for the examination of the party.

 

(5)            Unless the court otherwise orders service of a copy of an order referred to in this rule and of a notice referred to in sub-rule (4) of this rule shall not be effected otherwise than in a manner specified in paragraph (a), (b) or (c) of Order VI rule l of these Rules.

 

25.   (1)            A medical inspector appointed under this Part to examine a person shall not carry out the examination unless the medical inspector has made and subscribed, before the registrar of the High Court of a State or the Federal Capital Territory or before a person authorized by such a court for the purpose, an oath, in accordance with a form approved by the court that he will well and truly examine any person who submits himself for examination in accordance with an order made under this Part, and will make to the appropriate court a correct report of the examination.

 

(2)            Before a person is examined by a medical inspector appointed under these Rules

 

(a)            the person shall satisfy the medical inspector as to his identity by being identified by a legal practitioner or, if he is not represented by a legal practitioner, by some other credible person ; and

 

(b)            the person, and the legal practitioner or credible person by whom he is identified shall each write his address and sign his name on a paper in the presence of the medical inspector who shall also sign his name on the paper and annex it to the report of the result of the examination.

 

26.   (1)           When a medical inspector appointed under these Rules to examine a person has examined the person, the medical inspector shall report the result of the examination to the court.

 

(2)            When a party to proceedings has failed to submit to examination by the medical inspector appointed under these Rules to examine him or has failed to comply with rule 25 of this Order, the medical inspector shall report to the court accordingly.

 

(3)            A report referred to in either sub-rule (I) or (2) of this rule shall be forwarded by the medical inspector to the registrar of the court.

 

(4)            A report referred to in sub-rule (1) or (2) of this rule shall be filed

 

(a)            if the order appointing the medical inspector was made on the application of a party to proceedings by that party; or

 

(b)            if the order appointing the medical inspector was made by the court of its own motion-by the petitioner in the proceedings or, if the petitioner was not before the court, either in person or by his legal practitioner, when the order was made, by the respondent in the proceedings.

 

(5)            Each party to the proceedings is, upon request to the registrar, entitled to be furnished with a copy of the report.

 

27.   (1)            Proceedings to which rule 21 of this Order applies shall not be set down for trial unless-

 

(a)            application has been made to a court under that rule; and

 

(b)            except in a case where the examination of the petitioner and respondent by a medical practitioner appointed under that rule has been dispensed with-the provisions of rules 24 and 26 of this Order have been complied with.

 

(2)            Where, in proceedings to which rule 23 of this Order applies, the court has, under that rule, appointed a medical inspector or two medical inspectors to examine the parties or a party, the proceedings shall not be set down for trial unless the provisions of rules 24 and 26 of this Order have been complied with.

 

(3)            Where, in proceedings referred to in sub-rules (1) or (2) of this rule a copy of an order appointing a medical inspector to examine a party to the proceedings is required, under rule 24 of this Order to be served on the party, the proceedings shall not be set down for trial unless-

 

(a)            a report of the result of the medical examination of the party has been filed; or

 

(b)             proof, by affidavit, of the due service of a copy of the order on the party has been filed.

 

Part 5

Discretion Statements

 

 

28.   (1)            A petitioner or respondent in proceedings-

 

(a)            who is seeking a decree of dissolution of marriage on a ground specified in any of paragraphs (a) to kg), inclusive, of section 15(2) of the Act or a decree of judicial separation under section 39 thereof on a ground specified in any of paragraphs (a) to kg), inclusive, of the said section 15(2), and

 

(b)            who has committed adultery since the marriage, shall file a discretion statement-

 

(c)            if the adultery was committed before the filing of the petition or answer, as the case may be, by which the proceedings for the decree are instituted-at the time when the petition or answer is filed or

 

(d)            if the adultery was committed after the filing of that petition or answer but before the trial of the proceedings-as soon as practicable after committing the adultery.

 

29.   (1)            A discretion statement, which shall be in accordance with Form 30, shall state particulars of the acts of adultery committed by the petitioner or respondent, as the case may be, since the marriage (other than acts stated in any other discretion statement filed by him for the purposes of the proceedings), the circumstances giving rise to the commission of the act of adultery and the grounds upon which the court will be asked to wake a decree of dissolution of marriage or of judicial separation notwithstanding the adultery.

 

(2)            Where a petitioner or respondent alleges that an act of adultery set forth in his discretion statement has been condoned, he shall state in the discretion statement particulars of the facts that are alleged to constitute condonation of the adultery.

 

(3)            Where, in a discretion statement filed by a petitioner or respondent the petitioner or respondent states that he has committed adultery and that he and the person with whom he has committed adultery are living together as if they were husband and wife, it is not necessary for a further discretion statement to be filed setting forth particulars of any further acts of adultery committed by him with that person.

 

(4)            A discretion statement of a party to proceedings shall not be filed unless-

 

(a)                    it is signed by the party;

 

(b)            the matters set forth in it have been verified by the affidavit of the party written on it; and

 

(c)            it is enclosed in a sealed enveloped having written on it the words "Discretion Statement", the number of the proceedings and a certificate-

 

(i)             if the party is represented by a legal practitioner, signed by the legal practitioner; or

 

(ii)            if the party is not so represented-signed by the party, certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.

 

30.   (1)           Where a discretion statement of a party to proceedings contains an allegation that the party's spouse has committed adultery or another matrimonial offence, not being adultery or an offence particulars of which have been included in a pleading filed on behalf of the party for the purposes of the proceedings, the party shall cause service of notice of the allegation to be effected on his spouse before the proceedings are set down for trial.

 

(2)            The court may, on the hearing of proceedings, excuse a party who has failed to serve notice of an allegation on his spouse in accordance with sub-rule (1) of this rule, if it is satisfied that the failure has not prejudiced the spouse in connection with the proceedings.

 

31.   (1)            Where a petitioner whose petition does not contain the statement referred to in rule 13 of Order V of these Rules files a discretion statement after the filing of his petition-

 

(a)            service of notice of his intention to ask the court to make the decree notwithstanding the facts and circumstances set out in the discretion statement shall be effected-

 

(i)             if the respondent has an address for service for the purpose of the proceedings or if the petitioner is claiming custody of a child of the marriage-on the respondent ; and

 

(ii)            if a party to the proceedings, other than the petitioner or respond-ent, has an a4dress for service for the purposes of the proceedings-on that party ; and

 

(b)            the legal practitioner for the petitioner, or, if the petitioner is not represented by a legal practitioner, the petitioner shall write on the petition, in red ink, immediately after the signature to the petition, a notation in accordance with the following form, and sign his name immediately under that notation

 

                "Discretion statement filed the day

 

                of , 9 ."

 

(2)            Where a petitioner is claiming custody of a child of the marriage and the respondent does not have an address for service, sub-rule (1) of this rule does not require the service of the notice on a respondent-

 

(a)            if the court dispensed with service of the petition on the respondent; or

 

(b)            if service of the petition was effected on the respondent by advertising notice of the petition, but in no other manner,

 

                unless the petitioner is aware of the address of the respondent.

 

(3)            where service of a notice under sub-rule (1) of this rule is required to be effected on a respondent who does not have an address for service and the petition was served on the respondent in accordance with an order under rule 1 of Order VI of these Rules, service of the notice may be effected in the Same manner as service of the petition was effected, and service in that manner shall be deemed to be due service of the notice on the respondent.

 

(4)            where-

 

(a)            service of a notice under sub-rule (1) of this rule would be required to be effected on a respondent but for the fact that the court dispensed with service of the petition on the respondent ; and

 

(b)            the court, as a condition of dispensing with service of the petition on the respondent, required a copy of the petition to be sent to or served on some other person,

 

                the notice referred to in that sub-rule shall be sent to or served on that person.

 

(5)            Sub-rule (1) of this rule applies to and in relation to a respondent who files a discretion statement after the filing of his answer as if-

 

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

 

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

 

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

 

32.   (1)           The court may, if it considers it proper so to do in the circum-stances of the particular case, require a discretion statement filed by a party to a suit to be tendered in evidence, read out in open court or produced for inspection by another party to the suit-

 

(a)            at any stage of the trial of the suit or

 

(b)           at any stage of the hearing of proceedings with respect to the custody of a child of the marriage to which the suit relates.

 

(2)            Except as provided in sub-rule (1) of this rule, a discretion statement is not open to inspection by a person other than the Attorney-General, or a person authorised in writing by the Attorney-General to inspect the discretion statement, without the leave of the court.

 

(3)            An authorization b} the Attorney-General under sub-rule (2) of this rule may be either general or in relation to a particular suit or class of suits.

 

(4)            In sub-rules (2) and (3) of this rule, references to the Attorney-General shall be read as including references to a person to whom the Attorney-General has, by a delegation that is in force, delegated all or any of his powers and functions under Part III of the Act.

 

 

Part 6

Compulsory Conferences

 

 

33.           Where-

  

 (a)            a defended suit includes proceedings with respect to-

(i)             the maintenance of a party to the proceedings;

 

(ii)            settlements

 

(iii)           the custody or guardianship of an infant child of the marriage to which the proceedings relate; or

 

(iv)          the maintenances of welfare, advancement or education of a child of that marriage,

 

                and the petitioner and respondent are not in agreement as to the order that should be made by the court upon the trial of those proceedings in the event that the court does not make an order dismissing those proceedings; or

 

(b)            a defended suit includes proceedings for a decree of dissolution of marriage or of nullity of a voidable marriage in a case where there are children of the marriage-

 

(i)             who are not likely to have attained the age of sixteen years before the decree is made ; or

 

(ii)            in relation to whom the petitioner or respondent has obtained or is seeking an order under subsection (3) of section 57 of the Act,

 

                 and the petitioner and respondent are not m agreement concerning the arrangements that, in the event of a decree of dissolution or of nullity of marriage being made, should be made for the welfare, advancement and education of those children,

 

                this Part applies to the suit.

 

34.   (1)            Subject to sub-rule (2) of this rule, a suit to which this Part applies shall not, except by leave of the court, be set down for trial upon application made by a party to the suit, being the petitioner or respondent, unless-

 

(a)            a conference for the purpose of this Part has been held ; or

 

(b)            that party attended, on the day and at the time and place fixed under this Part for the holding of such a conference, for the purpose of discussing, and making a bona fide endeavour to reach agreement on, any matters referred to in sub-rule (1) of rule 35 of this Order, but the petitioner or respondent, as the case may be, failed to attend or to take part in the conference.

 

(2)            Where a registrar is satisfied-

 

(a)            that, by reason of-

 

(i)             the respective places of residence of the petitioner and respondent; and

 

(ii)            the respective places of business of the legal practitioner for the petitioner and the legal practitioner for the respondent,

 

                 it would be unreasonable in the circumstances of the particular case to require a conference for the purpose of this Part to be held before the suit is set down for trial

 

(b)            that the holding of such a conference before the suit is set down for trial would involve the petitioner or respondent, or the petitioner and the respondent, in undue expense ; or

 

(c)            that for any reason it would be impracticable for such a conference to be held before the suit is set down for trial,

 

                 the registrar may set the suit down for trial notwithstanding that the requirements of sub-rule (1) of this rule have not been complied with.

 

(3)            Where a registrar sets a suit to which this Part applies down for trial in accordance with sub-rule (2) of this rule, a conference for the purpose of this Part shall, unless the court otherwise orders, be held before the commencement of the trial of the suit.

 

35.   (1)            A conference for the purpose of this Part is a conference at which the petitioner and respondent discuss, and make a born fide endeavour to reach agreement on, any matters in question-

 

(a)            in proceedings pending between them with respect to a matter referred to in any of sub-paragraphs (a) to (iv), inclusive, of paragraph (a) of rule 33 of this Order ; or

 

(b)            concerning arrangements of a kind referred to in paragraph (a) of subsection (1) of section 57 of the Act.

 

(2)            A petitioner or respondent may attend a conference for the purpose of this Part in person, either with or without his legal practitioner, or may be represented by his legal practitioner.

 

(3)            A conference for the purpose of this Part may be adjourned from time to time and from place to place.

 

(4)            Subject to sub-rule (5) of this rule, evidence of anything said, or of any admission made, in the course of a conference for the purpose of this Part is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Federation or of a State or of the Federal Capital Territory, or by consent of the parties, to hear, receive and examine evidence.

 

(5)            The provisions of sub-rule (4) of this rule do not prevent evidence of anything said, or of any admission made, in the course of such a conference being admitted in evidence in a court upon the trial of a person for an offence committed at the conference.

 

 

36.   (1)            Where the petitioner and respondent in a suit to which this Part applies are each represented by a solicitor, this rule applies to the suit.

 

(2)            Where, in a suit to which this rule applies, the pleadings are complete, the solicitor for the petitioner may give to the solicitor for the respondent a notice in writing specifying a day, time and place for the holding of a conference for the purpose of this Part.

 

(3)            Where the legal practitioner for the petitioner has not given a notice under sub-rule (2) of this rule, and a period of not less than fourteen days has elapsed since the pleadings were completed, the solicitor for the respondent may give to the solicitor for the petitioner a notice in writing specifying a day, time and place for the holding of a conference for the purpose of this Part.

 

(4)            When the legal practitioner for a respondent has duly given a notice under sub-rule (3) of this rule, the legal practitioner for the petitioner ceases to be entitled to give a notice under sub-rule (2) of this rule.

 

(5)            In a notice given under sub-rule (2) or (3) of this rule, unless the legal practitioner for the petitioner and the legal practitioner for the respondent otherwise agree

 

(a)            the day specified in the notice shall be a day that is not less than seven clear days, and not more than twenty-one clear days, after the day on which the notice is given ; and

 

(b)            the place so specified shall be a place in a city or town (riot being the city or town in which that office is situated) in which the solicitor for the petitioner and the solicitor for the respondent each has a place of business.

 

37.   (1)            Where the petitioner or respondent in a suit to which this Part applies is not represented by a legal practitioner, this rule applies to the suit.

 

(2)            Where, in a suit to which this rule applies, the pleadings are complete, the petitioner and respondent may agree as to the day, time and place for the holding of a conference for the purpose of this Part.

 

(3)            Subject to sub-rule (4) of this rule, where the petitioner and respondent fail so to agree within fourteen days after either has approached the other for that purpose, the registrar shall, at the request of either party, fix a reasonable day, time and place for the holding of a conference for the purpose of this Part.

 

(4)            A registrar may refuse to comply with a request under the last preceding sub-rule if he is satisfied that, under sub-rule (2) of rule 34 of this Order, he would be entitled to set the suit down for trial notwithstanding that the requirements of sub-rule (1) of that rule have not been complied with.

 

(5)            On the day on which the registrar fixes a day, time and place or the holding of a conference for the purpose of this Part, or on the next following day, the party at whose request the day, time and place were fixed shall serve on the petitioner or respondent, as the case may be, notice of the day, time and place so fixed.

 

(6)            The petitioner and respondent may agree to appoint a particular person, being a person willing so to act, to act as chairman at tire conference held for the purpose of this Part.

 

(7)            Where the petitioner or respondent is represented by a legal practitioner, references in this rule to the petitioner or respondent, as the case may be, shall be read as references to that legal practitioner.

 

Part 7

Consolidation of Proceedings

 

 

38.   (1)            The court may, upon application made by the petitioner or respondent in proceedings, order that the proceedings be consolidated with other proceedings that are pending in the court and to which that petitioner and respondent are parties, and that both proceedings be tried together.

 

(2)            An order may be made under sub-rule (1) of this rule notwithstanding that a party to one of the proceedings is not a party to the other proceedings.

 

(3)            The court shall specify, in an order made under sub-rule (1) of this rule, the party who shall be deemed to be the party having the carriage of the consolidated proceedings.

 

Part 8

Setting Suits down for Trial

 

 

39.  (1)           Subject to rules 3 and 27 of this rules and to this rule, the registrar of the court in which an undefended suit is pending may, upon the petitioner filing a request and a certificate that the suit is ready for trial, set the suit down for trial.

 

(2)            A request and certificate referred to in the last preceding sub-rule shall be in accordance with Form 31, shall state the court division at which the petitioner desires the suit to be tried and shall be signed by the solicitor for the petitioner or, if the petitioner is not represented by a solicitor, by the petitioner.

 

(3)           Subject to rule 43 of this Order, a registrar shall not set an undefended suit down for trial unless-

 

(a)            proof, by affidavit or by a certificate filed in accordance with sub-rule (6) of rule 5 of Order VI of these Rules, of the due service petition on the respondent, and on each named person (if any) with whom the respondent is alleged to have committed rape, sodomy or adultery, has been filed;

 

(b)            the time limited for the filing of an answer by each person on whom service of the petition has been effected has expired and no answer has been filed by such a person

 

(c)            in the opinion of the registrar, the particulars of the marriage stated in the petition are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of Order V rule 27 of these Rules

 

(d)            in a case where the petitioner is seeking an order with respect to the maintenance of himself or a child of the marriage (not being an order for maintenance pending the disposal of the suit) or an order relating to the settlement of property-

 

(i)             the court is satisfied that it would not be unreasonable for the petitioner to proceed to the trial of the suit without obtaining a certificate of means ; or

 

(ii)            the petitioner has, in pursuance of a direction of the court, made application for, and been granted, a certificate of means.

 

(4)            Paragraph (a) of the last preceding sub-rule does not require a registrar to be satisfied as to the due service of a petition-

 

(a)           on a respondent, if-

 

(i)             the petition institutes proceedings for a decree of dissolution of marriage on the ground specified in paragraph (h) of section 15 (2) of the Act and on no other ground;

 

(ii)           service of the petition on the respondent has been dispensed with; or

 

(iii)           the respondent has an address for service for the purpose of the proceedings; or

 

(b)            on any other person, if-

 

(i)            the person is dead

 

(ii)           service of the petition on the person has been dispensed with; or

 

(iii)           the person has an address for service for the purpose of the proceedings.

 

(5)            Subject to rule 43 of this Order, where service of a petition on a person, whether or not that person is the respondent, has been dispensed with subject to compliance with a condition, a registrar shall not set the suit down for trial unless proof, by affidavit, of the due compliance with the condition has been filed.

 

(6)            A suit is not ready for trial for the purpose of sub-rule (1) of this rule unless-

 

(a)            any request for discovery or inspection of documents that the petitioner desires to make for the purpose of preparing for the trial has been made;

 

(b)           any interlocutory application that the petitioner desires to make for the purpose of preparing for the trial has been made, heard and determined.

 

(7)            Where an undefended suit includes proceedings in which there is a claim with respect-

 

(a)            the maintenance of the petitioner or of a child of the marriage (not being a claim for maintenance pending the disposal of proceedings); or

 

(b)            the settlement of property,

 

                 the court shall consider the facts alleged in the petition with respect to the claim and any reasons for obtaining a certificate of means stated in the request and, if it is satisfied that it would be unreasonable for the petitioner to proceed to the trial of the suit without obtaining a certificate of means, shall direct the petitioner, in writing, to make application for a certificate of means.

 

(8)           This rule applies to an undefended suit that consists only of proceedings instituted by the respondent to a petition as if-

 

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

 

(b)            references to the petition were read as references to the respondent's answer to the petition;

 

(c)            references to the respondent were read as references to the petitioner;

 

(d)           references to an answer were read as references to a reply; and

 

(e)           references to the petition in paragraph (c) or (d) of sub-rule (3) of this rule were read as references to the petition and the answer.

 

40.   (1)           Where-

 

(a)            In the case of a defended suit to which Part 6 of this Order applies, being a suit in relation to which-

 

(i)             a compulsory conference for the purpose of that Part has been held; or

 

(ii)            a date for the holding of such a conference has been fixed,

 

                 a period of less than fourteen days has elapsed since the date on which that conference was concluded or the date that was fixed for the holding of the conference, as the case may be

 

(b)           in the case of any other defended suit to which that Part applies--a period of less than twenty-eight days has elapsed since the pleadings were completed; or

 

(c)           in the case of a defended suit to which that Fart does not apply-a period of less than fourteen days has elapsed since the pleadings were completed,

 

                a request to set the suit down for trial shall not be made by a party other than the petitioner.

 

(2)           Where

 

(a)            in the case of a defended suit to which Part 6 of this Order applies--a period of less than fifty-six days; or

 

(b)            in the case of any other defended suit-a period of less than twenty-eight days,

 

                has elapsed since the pleadings were completed, a request to set the suit down for trial shall not be made by a party other than the petitioner or the respondent.

 

(3)            Where a request to set a defended suit down for trial has been duly made by a party, another party shall not make a request to set the suit clown for trial unless the first-mentioned request has been withdrawn by the party by whom it was made or has been refused.

 

41.   (1)           Subject to Order IX rule 3 and Order XI rules 27 and 37 of these Rules and to this rule, the court in which a defended suit is pending may, upon a party who has filed a pleading filing a request and a certificate that the suit is ready for trial, set the suit down for trial.

 

(2)            A request and certificate referred to in sub-rule (1) of this rule-

 

(a)           shall be in accordance with Form 32

 

(b)            shall state the court division at which the party desires the suit to be tried

 

(c)           shall state an estimate of the length of the trial ; and

 

(d)            shall be signed by the legal practitioner for the party or, if the party is not represented by a legal practitioner, by the party.

 

(3)           A court shall not set a defended suit down for trial upon the request of a party unless-

 

(a)            the pleadings are complete

 

(b)            in the opinion of the court, the allegations in the petition relating to the marriage are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of Order V rule 27 of these Rules

 

(c)           the facts alleged in the petition would, if true, establish1 in the opinion of the registrar, the domicile or residence, as the case may be of the petitioner in Nigeria, within the meaning of the Act, at the time of the institution of the suit ; and

 

(d)           in a case where the respondent has, in an answer, sought a decree of a kind referred to in paragraph (a) of the definition of  rnatrimonial cause"-the facts alleged in the petition and answer would, if true, establish in the opinion of the registrar, the domicile or residence, as the case may be of the respondent in Nigeria within the meaning of the Act at the time of the institution of the proceedings for that decree.

 

(4)           A suit is not ready for trial for the purpose of sub-rule (I) of this rule unless-

 

(a)            any request or order for the furnishing of particulars by or to the party, for the making of discovery by or to the party or for the inspection of documents has been complied with

 

(b)            the party has instituted all such interlocutory application and made all such requests for particulars, discovery or inspection of document, as the party desires to make for the purpose of preparing for the trial of the suit;

 

(c)            so far as practicable, a proof of the evidence of each person to be called by the party as a witness upon the trial of the suit has been obtained and

 

(d)           if, upon the trial of the suit, the party proposes to call an expert witness to give evidence in relation to any proceedings included in the suit-the party has furnished a copy of a proof of the witness's evidence to each other party to those proceedings who has filed a pleading.

 

(5)            For the purpose of paragraph (a) of the sub-rule (4) of this rule, a party shall be deemed to have complied with a request or order referred to in that paragraph if the party who made the request or was the applicant for the order, as the case may be, has waived compliance with the request or order.

 

(6)            A suit that includes defended proceedings in which there is a claim with respect to the maintenance of a party to the suit or of a child of the marriage (not being a claim for maintenance pending the disposal of the suit) or the settlement of property shall not be set down for trial upon request made by a party to the suit, being the petitioner or the respondent, unless-

 

(a)            application has been made for a certificate of means

 

(b)           the request to set the suit down for trial states that the parties to the marriage have agreed, whether or not subject to conditions--

 

(i)             with respect to the payment of maintenance, the payment of an amount in place of maintenance or the settlement of property ; or

 

(ii)            on a statement of their means,

 

                 and the terms of that agreement are set out in that request or in another document referred to in that request and filed in the proceedings ; or

 

(c)            the court is satisfied, for a reason stated in the request (not being the reason that the parties have so agreed) that it is unnecessary for a certificate of means to be obtained.

 

(7)            Where the parties to a marriage have agreed to the payment of maintenance in accordance with terms and conditions set out in an order of a court or in an agreement in writing entered into between the parties, it is sufficient compliance with paragraph (6) of sub-rule (6) of this rule, if the request states that the parties have so agreed and refers to the order or agreement, as the case may be.

 

(8)           Where the petitioner or respondent makes application to set down for trial a defended suit in relation to which Part 6 of this Order applies, file request and certificate filed in pursuance of sub-rule (1) of this rule-

 

(a)           shall state the facts by virtue of which the party is entitled, having regard to sub-rule (1) of rule 34 of Order XI of these Rules, to make the application ; or

 

(b)            shall request the registrar to set the suit down for trial standing that the requirements of that sub-rule have not been with and state the facts relied on in support of that as the case may be.

 

(9)           Where the request and certificate states that a conference for the purpose of Part 6 of this Order has been held, the request and certificate shall also state whether any agreement was reached at the conference, and, if agreement was so reached, brief particulars of that agreement.

 

42.           A party who makes a request to set a defended suit down for trial shall, on the day on which the request is filed or on the next following day, cause a copy of the request to be served on each other party who has an address for service.

 

43.   (1)            Where a request to set a suit down for trial has been made to stilt down for a registrar but the registrar is not satisfied that the suit is in order for trial, the registrar shall inform the party who made the request of the matter that, in his opinion, are not in order and, if such a matter relates to a pleading filed, or an application made or required to he made, by a party other than that first-mentioned party, shall also inform that party of the matter.

 

(2)            Where, under sub rule (1) of this rule, a registrar has informed the party who made the request that he is not satisfied that the suit is in order for setting down for trial, that party may request the registrar, in writing, to set the suit down for trial notwithstanding that the registrar is not so satisfied, and the registrar shall, on receipt of the request, set the suit down for trial.

 

(3)            Where a period of not less than twenty-eight days has elapsed after a registrar informed the party who made the request that he is not satisfied that a suit is in order for setting down for trial and the suit has not been Set down for trial, any other party entitled to make a request to set the suit down for trial may request the registrar, in writing, to set the suit down for trial, and the registrar shall, on receipt of the request, set the suit down for trill.

 

(4)            Where a registrar sets a suit down for trial in pursuance of a request under sub-rule 2 or 3 of this rule, the registrar shall state on the certificate filed in pursuance of rule 46 of this Order, the matters that in his opinion are not in order.

 

44.   (1)           A suit pending before the High Court of a State or the Federal Capital Territory may be set down for trial at a court division in that State or the Federal Capital Territory.

 

(2)            An undefended suit shall be set down for trial at the court division specified in the request to set the suit down for trial.

 

(3)            A defended suit shall, except in a case where an order under rule 47 of this Order has been made before the suit is set down for trial, be set down for trial at the court division specified in the request to set the suit down for trial.

 

45.   (1)            When a registrar sets a suit down for trial at a court division, the registrar shall, if it is in accordance with the practice of the court so to do, set the suit down for trial on a particular date or at a sittings of the court at the court division commencing on a particular date.

 

(2)            Unless the court otherwise orders under rule 48 of this Order, a defended suit shall not be-

 

(a)            set down for trial on a date;

 

(b)            set down for trial at a sittings of the court commencing on a date ; or

 

(c)            tried by the court on a date,

 

                that is less than fourteen clear days after the date on which the suit is set down for trial by a registrar.

 

46.  (1)            Subject to sub-rule (2) of this rule, a party who requests a registrar to set a suit down for trial shall deposit with the registrar a form of notice, in accordance with Form 33, for signature by the registrar and a copy of that form of notice for each party to the suit.

 

(2)           Sub-rule (1) of this rule does not require the deposit of a copy of a form of notice for a party-

 

(a)            if the court dispensed with service of the petition or answer on the party ; or

 

(b)            if service of the petition or answer was effected on the party by advertising notice of the petition or answer but in no other manner,

 

                 unless the party has an address for service, unless the party making the request is aware of an address of the party or unless the court, as a condition of dispensing with the service, required a copy of the petition or answer to be sent to or served on some other person.

 

(3)            A copy of a form of notice for a party to proceedings-

 

(a)            shall be capable~ of being folded, and of being sealed with adhesive material provided on the form, for transmission through the post as a letter

 

(b)            shall have the name and address of the party so endorsed on it that, when the form is folded and sealed, the form can, without being enclosed in an envelope and without any further addition to it, be posted as a letter to the party at that address ; and

 

(c)           shall have a notation, in accordance with the form set out in sub-rule (7) of this rule, so endorsed on it that, when it is folded and sealed, the notation will remain legible.

 

(4)           For the purpose of sub-rule (2) of this rule-the address of a party that is to be written on a copy of a form of notice is-

 

(a)           if the party has an address for service-that address ; or

 

(b)            in any other case-the address of the place at which the party is residing or working or, if the person on whose behalf the copy is deposited with a registrar does not know where the party is residing or working, any other address of the party known to the person, the address of the place at which service of the petition or answer, as the case may be, was effected on the party or the address of the person to or on whom a copy of the petition or answer was sent or served as a condition of dispensing with service on the party.

 

(5)            Where a registrar sets a suit down for trial, he shall

 

(a)            insert in each copy of the form of notice deposited under sub-rule (I) of this rule the name of the court division at which the suit has been set down for trial, and, if he has, in accordance with the practice of the court set the proceedings down for trial on a particular day or for a sittings of the court commencing on a particular day, also insert particulars of that day or sittings

 

(b)           post each copy of the notice to the party whose address appears on it at that address (postage being prepaid) ; and

 

(c)           certify, in accordance with Form 34, that-

 

(i)            the suit is ready for trial or has been set down for trial in pursuance of a request under sub-rule (2) or (3), as the case may be, of rule 43 of this Order ; and

 

(ii)            that he has complied with the preceding paragraphs of this sub-rule,

 

                and file that certificate.

 

(6)           In proceedings in a court, a certificate under sub-rule 5 of this rule, relating to a suit and under the hand of a registrar of the court, is evidence that the provisions of paragraphs (a) and (6) of that sub-rule have been duly complied with in relation to the suit

 

(7)           The form of the notation required by paragraph (c) of sub-rule (3) of this rule to be endorsed on a form of notice deposited by a party is as follows

 

                "If not delivered within 7 days, return to (name of the solicitor for that party or name of that party, as the case may be, and address for service a! that party)."

 

(8)            Where a party to proceedings is represented by a legal practitioner-

 

(a)            a copy of a form of notice deposited for that party that has endorsed on it the name and address of that solicitor together with the name and address of the city agent (if any) of that solicitor shall be deemed to comply with paragraphs (6) and (c) of sub-rule (3) of this rule ; and

 

(b)            the delivery by the registrar to-

 

(i)             the legal practitioner whose name and address is so endorsed on the copy ; or

 

(ii)           if the names and addresses of a legal practitioner and his city agent are so endorsed on the copy-the city agent,

 

                of the copy shall be deemed to be compliance with paragraph (6) of sub-rule (5) of this rule in respect of that party.

 

47.   (1)            At any time after a request has been made to a registrar to an set a suit down for trial at a court division in a State or the Federal Capital, Territory~', a party who has filed a pleading may, whether or not the suit has been set down for trial, make application to the court for an order that the trial of the suit take place at a court division in that State or the Federal Capital Territory' specified in the application.

 

(2)            Where the court is, upon the hearing of an application under sub-rule (1) of this rule, satisfied that it is proper so to do) the court shall order that the trial of the suit take place at a Court division specified in the order.

 

(3)           Where an order has been made by the court or by a registrar under sub-rule 2 of this rule, the registrar shall set the suit down for trial at the court division specified in the order.

 

48.  (1)           Where the court, in which a suit is pending is satisfied that it is, by reason of special circumstances, proper so to do, the court may, by order-

 

(a)           set the suit down for hearing on, or for hearing at a sittings of the court commencing on, a date that is less than fourteen days after the day on which the suit was set down for trial ; or

 

(b)           fix a specified day (which may be more or less than fourteen days after the day on which the suit was set down for trial) as the day on which the trial of the suit shall take place.

 

(2)           An application for an order under sub-rule (1) of this rule may be made by any party who has filed a pleading.

 

49.           Subject to any order made by the court under rule 48 of this Order, a suit shall be listed for trial at a court division in the order in which the suit is set down for trial at the court division.

 

 Order XII

Decrees

 

1.             A decree of dissolution of marriage shall be in accordance with Form 35.

 

2.             A decree of nullity of marriage shall be in accordance with Form 36 or Form 37 (whichever is appropriate).

 

3.            A decree of judicial separation shall be in accordance with Form 38.

 

4.            A decree of restitution of conjugal rights shall be in accordance with Form 39.

 

5.             Where, upon the trial of proceedings for a decree of dissolution of marriage or of judicial separation, the court is satisfied of the existence of-

 

(a)           a ground (not being the ground specified in paragraph (h) of section 15 (2) of the Act) in respect of which the decree may be granted ; and

 

(b)           a ground on which the court may, under section 28 of the Act, refuse to make the decree,

 

                the court shall state accordingly in its decree and shall also state that a decree of dissolution of marriage or of judicial separation-

 

(c)           was refused by the court in the exercise of its discretion under section 28 of the Act ;or

 

(d)           was granted by the court notwithstanding that last-mentioned ground,

 

as the case may be.

 

6.   (1)            Where, after a decree of dissolution of marriage or a decree of nullity of a voidable marriage has been made but before the decree has become absolute-

 

(a)           it comes to the notice of a party to the proceedings who has an address for service that a party to the marriage died before, or has died after, the making of the decree ; or

 

(b)           it comes to the notice of the legal practitioner presenting a party to the marriage that the party died before, or has died after, the making of the decree,

 

                 the party or legal practitioner, as the case may be, shall make and file an affidavit stating such particulars of the date and place of the death as are known to him.

 

(2)           Where the registrar is satisfied that the party is dead, he shall file a memorandum to that effect.

 

7.    (1)           A memorandum referred to in sub-section (1) of section 59 of the Act shall be in accordance with Form 40.

 

(2)             A certificate referred to in sub-section (2) of section 59 of the Act-

 

(a)            shall be in accordance with Form 41 ; or

 

(b)           shall be a certificate, endorsed on a copy of the decree atisi1 in accordance with the following form-

 

                " I certify that the decree nisi of which this decree is a copy became absolute on the ......... day of ....... 19.....

 

Dated this .......... day of ...........19 .....

 

Registrar "

 

8.    (1)            An application under section 60 of the Act by a party to a marriage to rescind a decree nisi on the ground that the parties to the marriage have become reconciled may be made ex parte if the parties to the marriage have, by a joint affidavit or by their respective affidavits filed in support of the application, verified the grounds of the application.

 

(2)            Subject to sub-rule (1) of this rule, service of an application referred to in that sub-rule shall be effected on the other party to the marriage in a manner referred to in paragraph (a) or (6) of Order VI, rule I of these Rules.

 

9.   (1)               A party to proceedings who makes application for the rescission, under section 61 of the Act, of a decree nisi shall! cause service of the application to be effected on each other party to the proceedings, except a party service on whom of the application is dispensed with.

 

(2)            Service of an application referred to in sub-rule (1) of this rule shall be effected in a mariner referred to in paragraph (a) or (b) of Order VI, rule I of these rules.