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Order XIII

Intervention by Persons Not Parties To Proceedings

 

1.    (1)           Where the Attorney-General is entitled to intervene in proceedings under section 62 or 63 of the Act, the Attorney-General may do so by causing to be filed a notice of intervention, in accordance with Form 42, stating whether lie is intervening under section 62 or 63 of the Act.

 

(2)           Where the Attorney-General intervenes in proceedings under section 63 of the Act the Attorney-General shall, at the time of intervening or as soon after that time as practicable, file a statement containing particulars of the matters relevant to the proceedings that the Attorney-General has reason to believe have not been, or may not be, but ought to he, made known to the court.

 

(3)            A copy of a notice of intervention, and a copy of a statement filed in pursuance of sub-rule (2) of this rule, shall, as soon as possible after it has been filed, be served on each other party to the proceedings who has an address for service.

 

(4)            The Attorney-General shall state in a notice of intervention an address for service or the name and place of business of any solicitor acting on his behalf and in that case the place of business so stated is the address for service of the Attorney-General.

 

(5)            In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 64 of the Act that is in force, the Attorney-General has delegated a power or function under Part III of the Act.

 

2.     (1)            Where the Attorney-General intervenes in proceedings after a decree nisi has been made-

 

(a)           the Attorney-General shall, as soon as practicable after intervening, make application to the court for directions with respect to matters arising out of the intervention and

 

(b)            a party to the proceedings may, in an affidavit filed for the purpose of the proceedings, deny an allegation contained in the statement filed in pursuance of sub-rule (2) of rule 2 of this Order or state a fact that has become relevant to the proceedings by reason of some matter alleged in that statement.

 

(2)            in this rule, a reference to the Attorney-Genera! shall be read as including a reference to a person to whom, by a delegation under section 64 of the Act that is in force, the Attorney-General has delegated a power or function under Part III of the Act.

 

3.     (1)           Service of an application under section 65 of the Act for leave to intervene proceedings shall, on the day on which the application is filed or on the next following day, he effected on each party to the proceedings who has an address for service.

 

(2)            Where the court makes an order under section 65 of the Act entitling a person to intervene in proceedings-

 

(a)           the court shall give such directions as it thinks proper with respect to the service of copies of the order, the filing of affidavits and the hearing or the further hearing of the proceedings as it thinks necessary for the proper determination or review of the proceedings and

 

(b)            the person shall, on the day on which the order is made or on the next following day, intervene in the proceedings by filing a notice of intervention in accordance with Form 43.

 

Order XIV

Proceedings for Ancillary Relief

 

Part 1.

Preliminary

 

1.             In this Order, unless the contrary intention appears-

 

                "application for ancillary' relief", in relation to proceedings for ancillary relief) means-

 

(a)            if the proceedings for ancillary' relief are instituted by petition-tl)at petition

 

(b)            if the proceedings for ancillary relief are instituted by an answer to a petition-that answer or

 

(c)           if the proceedings for ancillary relief are instituted by application to a court-the affidavit in support of that application

 

                "claimant" means a person who institutes or has instituted proceedings for ancillary relief

 

                "defence to the proceedings", in relation to proceedings for ancillary relief, means-

 

(a)            if the proceedings for ancillary relief were instituted by petition-the respondent's answer to the petition

 

(b)            if the proceedings for ancillary relief were instituted by an answer'; to a petition-the petitioner's reply to the answer ; or

 

(c)           if the proceedings for ancillary relief were instituted by application to a court-an affidavit filed in reply to the affidavit in support of the application;

 

                "proceedings for ancillary relief" means proceedings of a kind referred to in paragraph (c) of the 'definition of "matrimonial cause" that are in relation to proceedings for principal relief;

 

                "proceedings for principal relief" means proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause";

 

                "spouse", in relation to a claimant in proceedings for ancillary relief, means-

 

 

(a)            if the marriage of the claimant has been dissolved or annulled in the proceedings for principal relief to which those proceeding for ancillary relief relate-the person whose marriage to the claimant was so dissolved or annulled ; or

 

(b) in any other cause-the husband or wife or purported husband or wife, as the case may be, of the claimant.

 

2.    (1)           Where proceedings for principal relief have been instituted by petition, the respondent may, by filing an answer the petition, institute proceedings for ancillary relief that are in relation to these proceedings for principal relief without the leave of the court.

 

(2)           Proceedings for ancillary relief may be instituted by application and without the leave of the court if the proceedings relate to-

 

(a)            proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause" that were pending at, or were completed before, the commencement of the Act ; or

 

(b)            an order made by a court, whether before or after the commencement of the Act, in proceedings of a kind referred to in paragraph (c') cit that definition.

 

3.     (1)            Where a party to proceedings for principal relief makes application to a court for leave, tinder section 54 of the Act to institute proceedings for ancillary relief, service of the application shall, unless the court dispenses with the service, be effected on the spouse of the party in a manner referred lo in paragraphs (a), (b) or (c) of rule I of Order VI of these Rules.

 

(2)            A party to proceedings for principal relief who makes application for leave to institute proceedings for ancillary relief shall state in the affidavit in support of the application his reasons for not instituting the proceedings for ancillary relief by his petition or answer, as the case may be.

 

(3)           Where, before the making of the decree in proceedings for principal relief, proceedings for ancillary relief are instituted by leave of the court or under sub-rule (2) of rule 2 of this Order the proceedings for ancillary relief shall be deemed to have been consolidated with the proceedings for principal relief to which they are related and, as far as is practicable, shall be heard and determined by the court at the same time as the proceedings for principal relief.

 

(4)            Where proceedings for ancillary relief are instituted by leave of the court, the court shall not make an order with respect to the costs of the proceedings in favour of the claimant unless the court is satisfied that there were good reasons for not instituting the proceedings by the petition by which the proceedings for principal relief to which those proceedings for alicill:1rv relief relate were instituted or by an answer to that petition, as the case required.

 

4.  (1)           A claimant shall, in his application for ancillary relief, state-

 

(a)           particulars of the order sought by him and

 

(b)           the facts upon which the court will be asked to make that order.

 

(2)           where a claimant is, by his application for ancillary relief, seeking an order with respect to the maintenance of the claimant or of children of the marriage, the application shall specify-

 

(a)           the persons in respect of whom maintenance is sought

 

(b)           whether the order sought in respect of each of those persons is a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order ; and

 

(c)            the amount of the lump sum or the weekly, monthly, yearly or other periodic sum, as the case may be, sought in respect of each of those persons.

 

(3)            Where a claimant is, by his application for ancillary relief, seeking an award of damages under section 31 of the Act, the application shall specify the amount of damages sought.

 

(4)            In proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the claimant shall state in his application for ancillary relief particulars of-

 

(a)            the property, income and financial commitments of the claimant;

 

(b)            the capability of the claimant to earn income;

 

(c)            the property, income and financial commitments of the spouse of the claimant, so far as they are known to the claimant;

 

(d)            the capability of the spouse of the claimant to earn income, so far as that capability is known to the claimant;

 

(e)            any financial arrangements in operation between the claimant and the spouse of the claimant;

 

(f)            any order of a court under which one of the parties to the marriage is liable to make payments to the other ; and

 

(g)            the ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.

 

(5)            where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in sub-rule (4) of this rule, the claimant shall state in his application for ancillary relief particulars of such of the matters referred to in paragraphs (a) to (g), inclusive, of that sub-rule as are relevant to those proceedings.

 

(6)            A claimant to whom either of the last two preceding sub rules applies shall not be taken to have complied with those sub-rules unless he states in his application for ancillary relief-

 

(a)            that he has no property other than the property particulars of which are stated in the application or that he has no property, as the case may be and

 

(b)            that he has no income other than the income particulars of which are stated in the application or that he has no income, as the ease may be.

 

(7)           Where any particulars referred to in paragraph (c) or (d) of sub-rule (4) of this rule are included in a petition or answer, particulars of the claimant's means of knowing those first-mentioned particulars shall be stated in the petition or answer, as the case may be.

 

(8)            Where any particulars referred to in paragraph (c) or (d) of sub-rule (4) of this rule are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.

 

5.    (1)           Where proceedings for ancillary relief have been instituted, the spouse of the claimant may, in a defence to the proceedings-

 

(a)           admit or deny an allegation in the application for ancillary relief that relates to the proceedings for ancillary relief ; or

 

(b)            state any facts relevant to the proceedings for ancillary relief that the spouse wishes to be considered upon the determination of the proceedings.

 

(2)           Without limiting the generality of sub-rule (1) of this rule, in proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of-

 

(a)           the property, income and financial commitments of the spouse

 

(b)           the capability of the spouse to earn income

 

(c)           the property, income and financial commitments of the claimant, so far as they are known to the spouse

 

(d)           the capability of the claimant to earn income, so far as that capability is known to the spouse

 

(e)           any financial arrangements in operation between the spouse and the claimant

 

(f)           any order of a court under which one of the parties to the marriage is liable to make payments to the other ; and

 

(g)           the ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.

 

(3)            Without limiting the generality of sub-rule (1) of this rule, where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in the last preceding sub-rule, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of such of the matters referred to in paragraphs (a) to (g), inclusive, of that sub-rule as are relevant to those proceedings.

 

(4)            A spouse to whom either of the last two preceding sub-rules applies shall not be taken to have complied with those sub-rules unless he states in his defence to the proceedings for ancillary relief

 

(a)            that he has no property other than the property particulars of which are stated in the defence to the proceedings or that lie has no properly, as the case may be ; and

 

(b)            that he has no income other than the income particulars of which are stated in the defence to the proceedings or that he has no income, as the case may be.

 

(5)            Where any particulars referred to in sub-paragraph (c) or (d) of sub-rule (2) of this rule are included in an answer or reply, particulars of the spouse's means of knowing those first-mentioned particulars shall be stated in the answer or reply, as the case may be.

 

(6)            Where any particulars referred to in sub-paragraph (c) or (d) of sub-rule (2) of this rule are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.

 

(7)          Where the spouse of a claimant states in his defence to the proceedings that any particulars of a matter referred to in sub-rule (2) of this rule that are stated in the claimant's application for ancillary relief arc true and correct, this rule does not require the spouse to state those particulars in his defence to the proceedings

 

6.     (1)            This rule does not apply to proceedings for ancillary relief that are instituted by petition or by answer to a petition.

 

(2)           Subject to sub-rules (3) and (4) of this rule, an application to a court for purpose of instituting proceedings for ancillary relief shall be in accordance with Form 44.

 

(3)           Subject to sub-rule (4) of this rule, an application to a court for the purpose of instituting proceedings for ancillary relief-

 

(a)            being proceedings for relief pending the disposal of proceedings ; or

 

(b)            being proceedings for relief in relation to completed proceedings for principal relief, including proceedings for principal relief completed before the commencement of the Act.

 

                 shall be in accordance with Form 5.

 

(4)            An application to a court for the purpose of instituting proceedings for maintenance pending the disposal of proceedings shall he in accordance with

 

(5)            Subject to sub-rule (6) of this rule, service of an application instituting proceedings for ancillary relief shall be effected on the spouse of the claimant in a manner referred to in paragraphs (a), (b) or (c) of Order ~l rule I of these Rules.

 

(6)           Where proceedings for ancillary relief are instituted in relation to completed proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause", service of the application shall not be effected

 

                 in the manner referred to in paragraph (c) of rule 1 of Order VI of these Rules unless the address for service of the spouse of the claimant is the address of a legal practitioner representing that spouse and that legal practitioner is, at the time of the service, representing that spouse in connexion with those proceedings for ancillary relief.

 

7.    (1)            This rule applies in a case where proceedings for ancillary relief have been instituted seeking a decree with respect to the maintenance, pending the disposal of proceedings, of the claimant, of a child of the marriage or of the claimant and a child of the marriage.

 

(2)            Where, in a case to which this rule applies, no defence to the proceedings has been filed although the time for filing a defence has expired, the claimant may, by filing a request in accordance with Form 48, request the court to make an assessment for the purpose of this rule, and the court shall, as soon as practicable after the filing request-

 

(a)           if the particulars included in the application for ancillary relief are sufficient to enable him to do so-make the assessment ; or

 

(b)           in any other case-inform the claimant that it is unable to make the assessment until a certificate of means has been issued under rule 18 of this Order.

 

(3)           Where, in a case to which this rule applies, a defence to the proceedings has been filed, the claimant may, by filing a request in accordance with Form 48, request the court to make an assessment for the purpose of this rule, and the court shall, as soon as practicable after the filing of the request-

 

(a)           if the particulars included in the application for ancillary relief and the particulars in the defence to the proceedings are sufficiently consistent and give sufficient information to enable him to do so-make the assessment; or

 

(b)            in any other case-inform the claimant that it is unable to make an assessment until a certificate of means has been issued under rule 18 of this Order.

 

(4)            Where, in a case to which this rule applies, a certificate of means is issued after a registrar has informed the claimant that he is unable to make an

 

                assessment, the registrar shall, as soon as practicable after the certificate of means is issued, make an assessment for the purpose of this rule having regard to the matters specified in that certificate.

 

8.  (1)            An assessment made by the court for the purpose of this rule shall specify-

 

(a)            the rate (if any) per week at which the court considers maintenance should be payable for the claimant or the child, as the case may be, pending the disposal of proceedings

 

(b)            the date1 not being a date earlier than the day on which the petition. answer or application to the court for ancillary relief was filed, as from and including which maintenance at that rate should be payable

 

(c)           whether the court considers maintenance should be paid to the claimant, into court or to a person or public authority on behalf of the claimant ; and

 

(d)           the manner in which the court considers that the spouse of the claimant should pay maintenance for the claimant or the child in respect of the period commencing on the date specified in pursuance of paragraph (b) of this sub-rule and ending on the date of the assessment, less any amount paid as maintenance for the claimant or the child, as the case may be, in respect of that period.

 

(2)           The Court in making an assessment for the purpose of this rule shall not have regard to any allegation concerning the conduct of the claimant or the spouse of the claimant, whether or not that conduct is in question in the proceedings for principal relief unless that conduct is relevant to the means or financial needs of the claimant or his spouse or to the capability of the claimant or his spouse to earn income.

 

(3)            The court shall not, in proceedings for ancillary relief, make an assessment for the purpose of this rule specifying a rate per month for the maintenance of a claimant or a child if an order under rule 14 of this Order has been made concerning the maintenance to be paid for the claimant or child, as the case may be.

 

(4)            An assessment for the purpose of this rule shall be in accordance withForm49.

 

9.    (1)           Subject to rule 10 of this Order a claimant who requests a court to make an assessment for the purpose of the last preceding rule in relation to proceedings for ancillary relief shall deposit with the registrar a form of assessment, in accordance with Form 49) for signature by the court and two copies of that form for the claimant and the spouse of the claimant, respectively.

 

(2)           The provisions of sub-rule (1) of this rule do not require the deposit of a copy of a form of assessment for the spouse of the claimant if service of the application for ancillary relief on the spouse-

 

(a)           was dispensed with ; or

 

(b)           was effected by publishing notice of the application in a news-paper, but in no other manner,

 

                unless the spouse filed a defence to the proceedings or the court, as a condition of dispensing with the service, required a copy of the application to be sent to or served on some other person.

 

10.  (1)           A copy of a form of assessment for a person-

 

(a)           shall be capable of being folded, and of being sealed for trans-mission through the post as a letter;

 

(b)            shall have the name and address of the person or his solicitor 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 person or his solicitor, as the case may be, at that address ; and

 

(c)            shall have a notation, in accordance with the form set out in sub-rule (6) of this rule, so endorsed on it that, when it is folded and sealed, the notation will remain legible.

 

(2)           For the purpose of sub-rule (1) of this rule the address of a person that is to be written on a copy of a form of assessment is-

 

(a)            if the person is the claimant-the address for service of the claimant; or

 

(b)           if the person is the spouse of the claimant-the address for service of the spouse, the last address of the spouse known to the claimant, the address of the place at which the spouse was served with the application for ancillary relief or the address of the person to or on whom a copy of that application was sent or served as a condition of dispensing with service on the spouse.

 

(3)           As soon as practicable after a court makes an assessment under rule 7 of this Order, the judge-

 

(a)            shall complete, sign and file the form of assessment deposited under sub-rule (1) of rule 9 of this Order ; and

 

(b)            shall then complete and sign the copies of that form and cause each copy to be served on the person to whom it is addressed by posting it to that person as a letter, postage being prepaid.

 

(4)           Service of a copy of an assessment shall, unless the contrary is proved, be deemed to have been effected on a person at the time when the letter containing the copy of the assessment would, in the ordinary course of post, be delivered at the address to which it is posted.

 

(5)           In any proceedings, a certificate, under the hand of a registrar and written on an assessment, stating that a copy of the assessment was posted as a letter (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified person at a specified address is evidence of the facts stated in the certificate.

 

(6)            The form of the notation required by paragraph (c) of sub-rule (1) of this rule to be endorsed on a form of assessment deposited by a claimant is as follows

 

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

 

11.  (1)            When, in a case to which rule 7 of this Order applies, the court has made an assessment for the purpose of that rule, the petitioner or respondent may, not later than ten days after service of a copy of the assessment on him, by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court, and the registrar shall refer the proceedings accordingly and notify the person filing the request of the date on which the proceedings have been set down for hearing by the court.

 

(2)            Where a person on whom a copy of an assessment has been served-

 

(a)            does not duly file a request under sub-rule (1) of this rule

 

(b)            having duly filed a request under that sub-rule, gives notice in writing to the registrar that he desires to withdraw the request ; or

 

(c)            having duly filed a request under that sub-rule and being required by rule 13 of this Order to serve a notice of hearing on his spouse, being a person who has an address for service for the purpose of the proceedings does not duly serve such a notice on his spouse,

 

                 the person shall be taken to have consented to the court making, in the proceedings in relation to which the assessment was made, an order in accordance with the terms of the assessment, but that consent shall not be taken to prejudice the person in any other proceedings.

 

12.   (1)           Subject to sub-rule (2) of this rule, where, in proceedings with respect to maintenance, a claimant and his spouse are taken to have consented to the making of an order by the court in accordance with the terms of an assessment, the claimant may7 by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court under this rule, and the registrar shall refer the proceedings accordingly.

 

(2)            The provisions of sub-rule (1) of this rule do not require the registrar to refer proceedings to the court unless the registrar is satisfied, by affidavit, that the total amount of the payments (including payments in respect of a period preceding the date of the assessment) that would have become due and payable on or before the date on which the request is filed if the assessment had been an order for the payment of maintenance in accordance with its tenor exceeds, by more than the amount of the monthly rate, or the sum of the monthly rates, specified in the assessment in pursuance of paragraph (a) of sub-rule (1) of rule 8 of this Order, the total amount paid by the spouse of the claimant for the maintenance of the claimant, of the child or of the claimant and the child, as the case may be, since the date of the assessment (excluding so much of any maintenance so paid as relates to a period preceding the date specified in the assessment in pursuance of paragraph (b) of that sub -rule).

 

(3)           Where a registrar is required to refer proceedings to a court under sub-rule (1) of this rule, the registrar shall bring the proceedings before the court which, if it thinks fit, may without any application being made to it and without a hearing, order the payment of maintenance in accordance with the terms of the assessment less any amounts paid as maintenance in respect of the period covered by the assessment.

 

(4)           Where a court does not think fit to make an order under sub-rule (3) of this rule, the registrar of the court shall refer the proceedings to the court for hearing and determination and notify the claimant of the date on which the proceedings have been set down for hearing by the court and the spouse of the claimant may withdraw the consent that, under rule 11 of this order, he is taken to have given.

 

(5)           Where, in proceedings for ancillary relief, an order under rule 14 of this Order has been made for the payment of maintenance for the claimant in the proceedings or for a child of a marriage an order shall not be made under this rule for the payment of maintenance for the claimant or child, as the case may be, in accordance with the terms of an assessment made under rule 7 of this order.

 

13.  (1)           The party at whose request proceedings for ancillary relief are referred to the court under rule 11 of this Order or the claimant in proceedings for ancillary relief that are referred to the court under sub-rule (4) of rule 12 of this Order, shall cause to be served on the spouse of the party or claimant, as the case may be, a notice, in accordance with Form 51.

 

(2)            Sub-rule (1) of this rule does not require service of a notice referred to in that sub-rule to be effected on the spouse if service on the spouse of the application for ancillary relief instituting the proceedings-

 

(a)           was dispensed with ; or

 

(b)            was effected by publishing notice of the application in a newspaper, and the spouse did not file a defence to the proceedings.

 

(3)            A notice referred to in sub-rule (1) of this rule shall be served-

 

(a)            if the spouse has an address for service for the purpose of the proceedings-on the day on which the claimant or the party at whose request the proceedings are referred to the court is notified by the registrar of the date on which the proceedings have been set down for hearing by the court or the next following day ; or

 

(b)            in any other case as soon as is reasonably practicable after the claimant or party is notified by the registrar of the date on which the proceedings have been set down for hearing by the court.

 

14.  (1)          Where the parties to proceedings for ancillary relief, being proceedings for an order with respect to the maintenance, pending the disposal of proceedings, of one of those parties or of a child of a marriage, agree as to the maintenance that should be paid for the party or the child pending the disposal of proceedings, a form of order may be deposited with the registrar providing for one or more of the following

 

(a)            the payment of maintenance in accordance with the agreement; and

 

(b)            the payment of the costs of the proceedings.

 

(2)           A form of order shall not be deposited under sub-rule (1) of this' rule unless it has endorsed on it the consent, signed by each of the parties either personally or by his solicitor, to the making of an order in the terms of the form.

 

(3)            Where a form of order is duly deposited with a registrar, the registrar shall bring the proceedings to which the form of order relates before the court which, if it thinks fit, may, without any application being made to it and without a hearing, make an order, or orders, in the terms of the form.

 

(4)            Where, after a court has made an assessment under rule 7 of this Order specifying the rate per month at which the court considers maintenance should be paid for the person pending the disposal of proceedings, an order is made under sub-rule (3) of this Order with respect to the maintenance payable for the person pending the disposal of those proceedings, the assessment ceases to have effect for the purpose of rule 11 or 12 of this Order.

 

15.   (1)           A court may, in determining proceedings for ancillary relief, being proceedings seeking an order with respect to the maintenance, pending the disposal of proceedings, of a party to a marriage or of a child of a marriage, have regard to the conduct of the parties to the marriage other than conduct that is in question in the proceedings for principal relief.

 

(2)           Notwithstanding sub-rule (1) of this rule a court may take jut') account allegations concerning the conduct of a party to the marriage that is in question in the proceedings for principal relief if the truth of the allegation has been admitted by the party in a pleading or affidavit filed for the purpose of the proceedings for ancillary relief or in a pleading file for the purpose of the proceedings for principal relief or is to he deemed to have been admitted for the purpose of the proceedings for principal relief.

 

(3)           Where proceedings for ancillary relief are referred to court in pursuance of a request under rule it of this order, the court shall not make an order with respect to the costs of the proceedings in favour of the party- who made the request unless the court is satisfied that the references of the proceedings to the court was justified.

 

16.   (1)           Where proceedings for ancillary relief have been instituted seeking an order with respect to the maintenance, pending the disposal of proceedings, of the claimant or a child of the marriage, the court may, in a case of urgency, hear the proceedings and make an order in the proceedings ex-parte.

 

(2)           The court, in proceedings heard in pursuance if sub-rule (1) of this rule, shall not make an order for the maintenance of claimant or a child of the marriage other than an order having effect until further order.

 

(3)           Where a court makes an order of a kind referred to in sub-rule (1) of this rule upon an application that was heard ex parte, the court may give directions with respect to:-

 

(a)           the ser,-ice of the order and such other documents as it thinks fit on the spouse of the claimant ; and

 

(b)           the further hearing of the proceedings.

 

Part 3

Certificates of Means

 

17.   (1)            This rule applies to proceedings for ancillary relief in which-

 

(a)           a party- to a marriage is seeking a decree with respect to the maintenance of a party to the marriage, settlement or the maintenance of the child of the marriage; or

 

(b)            a court has informed the claimant that the court is unable to make an assessment under rule V of this order until a certificate of means has been granted.

 

(2)           In proceedings for ancillary relief t') which this rule applies, a party to the marriage may make application to a court for the certificate of means with respect to the pecuniary resources of the parties to the marriage and the capability' of each of those parties to earn income.

 

(3)            Except by leave of the court, an application referred to in sub-rule 2 of this rule shall not be made-

 

(a)           after the date on which the proceedings for principal relief have been set down for trial;

 

(b)           if a certificate of means has already been is5tietl in relation to the proceedings for ancillary relief; or

 

(c)            in the case of proceedings for ancillary relief (not being proceedings for maintenance pending the disposal of other proceedings) included in a suit to which Part 6 of Order XI of these Rules applies before a conference for the purpose of that Part has been held.

 

(4)            An application for a certificate of means shall be in accordance with Form 52.

 

(5)           Unless the court otherwise directs, it is not necessary for an applicant for a certificate of means to serve the application on the other party to the marriage unless that party has an address for service for the purpose of the proceedings.

 

(6)            Service of an application under sub-rule (2) of this rule by a party to a marriage shall be effected on the other party to the marriage in a manner referred to in paragraph (a), (b) or (c) of Order VI, r. 1 of these Rules.

 

(7)            On the hearing of an application for a certificate of means in relation to proceedings for ancillary relief the application for ancillary relief and the defence to the proceedings (if any), filed for the purpose of those proceedings are each evidence of any facts relevant to that first-mentioned application that are stated in it.

 

(8)           It is not necessary for a party making application for a certificate of means to file an affidavit in support of his application.

 

(9)            Notwithstanding sub-rule (8) of this rule, either party to an application for a certificate of means may file affidavits for the purpose of the application, and sub-rule (2) of rule 7 and rule 8, of Order III of these Rules apply to and in relation to affidavits so filed.

 

18.   (1)            A court shall, upon application made under the last pre-ceding rule, inquire into the pecuniary resources of the parties to the marriage to which the application relates and into the capability of each of those parties to earn income, and issue a certificate of means, in accordance with Form 53, with respect to those resources and capabilities.

 

(2)            Where a certificate of means is issued upon an application made after such a certificate has already been issued1 the certificate already issued shall be deemed to have been revoked.

 

(3)            A judge may give such directions as he thinks fit with respect to service of notice of the date fixed for the hearing of the inquiry and the filing and serving of affidavits for the purpose of that inquiry, and the parties of the marriage shall comply with any such directions.

 

19.            A certificate of means is evidence of the matters specified in the certificate.

 

 

Part 4

Custody

 

20.   (1)            Where proceedings for ancillary relief, being proceedings seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of a marriage pending the disposal of proceedings, are instituted by a petition or by an answer to a petition, the petitioner or respondent, as the case may he, may, at any time after the filing of the petition or answer, set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.

 

(2)           The registrar shall cause service of notice, in accordance with Form 4? of the place, date and time fixed for the hearing of the proceedings to he, effected, in a manner referred to in paragraph (a), (6) or (c) of rule 1 of Order VI of these Rules, on each other party to the proceedings for ancillary relief, other than a party service on whom of the petition or answer instituting the proceedings was dispensed with.

 

(3)            Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.

 

 

(4)            Where a notice referred to in sub-rule (2) of this rule is served on a respondent who has not filed an answer to the petition, or on a petitioner who has not filed a reply to the answer, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purpose of the proceedings-

 

(a)            deny any allegation in the petition, or answer, that relates to the proceedings for ancillary relief ; and

 

(b)            state any facts relevant to the proceedings for ancillary relief that the respondent or petitioner wishes to he considered by the court upon the determination of those proceedings.

 

21.   (1)          The respondent to a petition instituting proceedings for principal relief may, at any time before the filing of an answer to the petition on behalf of the respondent but not later than the expiration of the time limited for the filing of such an answer, make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of a child of the marriage pending the disposal of the proceedings.

 

(2)           Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in the last preceding sub-rule and the day named in the application for the hearing of the application or the day named by the registrar for the hearing of the application, as the case may be.

 

22.   (1)            Where, after proceedings for principal relief have been instituted, a dispute arises with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of a child pending the disposal of the proceedings, the petitioner or respondent may make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of the child pending the disposal of the proceedings.

 

(2)           Unless a judge otherwise directs, there shall be at least fourteen clear da5rs between the service of an application referred to in sub-rule (1) of this rule and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be,

 

23.   (1)            Where proceedings for ancillary relief have been instituted seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings, the court may, in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.

 

(2)            The petitioner or respondent in proceedings for principal relief may in a case of urgency, institute, by filing an application or, with the leave of the court, by making application orally to the court, proceedings for ancillary relief seeking an order of a kind referred to in sub-rule (1) above and the court may hear the proceedings for ancillary relief, and make an order in those proceedings, ex parte.

 

(3)            Where the court gives leave under sub-rule (2) of this rule to make an application orally to the court, the court may give the leave upon condition that the claimant gives to the court an undertaking to file, as soon as practicable, an application and such affidavits and other documents in support of the application as the court thinks fit.

 

(4)           Where a court makes an order of a kind referred to in sub-rule (1) of this rule upon an application that was made ex parte, the court shall-

 

(a)            specify in the order the period during which the order shall remain in force

 

(b)            give directions with respect to the service of copies of the order, the application and such other documents as it thinks fit on the spouse of the claimant and, if a person other than the claimant or the spouse of the claimant has the custody, or the care and control, of the child, on that person ; and

 

(c)            give directions with respect to the further hearing of the proceedings for ancillary relief.

 

24.   (1)            This rule applies in relation to a party to proceedings for principal relief-

 

(a)           who institutes proceedings for ancillary relief with respect to the custody of a child of the marriage before the determination of the proceedings for principal relief to which those first-mentioned proceedings relate

 

(b)            who has committed adultery since cohabitation between the parties to the marriage ceased or last ceased, as the case may be, but before the hearing of the proceedings with respect to the custody of the child ; and

 

(c)            who is not required by these Rules to file a discretion statement in relation to the adultery in connection with the proceedings for principal relief or any other proceedings related to those proceedings and is not excused by sub-rule (3) of rule 29 of Order XI of these Rules from filing such a discretion statement.

 

(2)            A party to whom this rule applies shall file a statement concerning the adultery-

 

(a)           if the adultery was committed before the application for ancillary relief is filed-at the time the application is filed ; or

 

(b)           in any other case-as soon as practicable after committing the adultery.

 

(3)            A statement referred to in sub-rule (2) shall state particulars of the acts of adultery committed by the party since cohabitation between the parties to the marriage ceased or last ceased, as the case may be (other than acts stated in any other statement filed by him for the purposes of the proceedings in accordance with the last preceding sub-rule), and the circum-stances giving rise to the commission of the acts of adultery.

 

(4)            Where, in a statement filed by a party in accordance with sub-rule (1) of this rule, the party states 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 statement under that sub-rule to be filed setting forth particulars of any further acts of adultery committed by him with that person.

 

(5)           A statement under sub-rule (1) of this rule shall not be filed by or on behalf of a party to proceedings 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 envelope having written on it the words

 

                "Statement under rule 24 of Order XIV of the Matrimonial Causes Rules", the number of the proceedings and a certificate

 

(i)             if the party is represented by a solicitor-signed by the solicitor ; or

 

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

 

(6)           Rules 30, 31 and 32 of Order XI of these Rules apply in relation to statements filed in accordance with sub-rule (1) of this rule as if references to a discretion statement were references to a statement so filed.

 

(7)            Where a party to whom this rule applies files a statement under sub-rule (1) of this rule, the legal practitioner for the party or, if the party is not represented by a legal practitioner, the party-

 

(a)            shall write on the application for ancillary relief, a notation in accordance with the following form, and sign his name immediately under that notation

 

                "Statement under rule 24 of Order XIV of the Matrimonial Causes Rules filed the day of 19."

                and

 

(b)          shall give notice of the filing of the statement to the other party to the proceedings for principal relief as soon as practicable after the filing of the statement.

 

(8)            where a notation in accordance with the last preceding sub-rule has been written on an application for ancillary relief before service of the application is effected on the other party to the proceedings for principal relief, notice of the filing of the statement under sub-rule (1) of this rule shall be deemed to have been given to that party if the copy of the application served on him has a copy of that notation written on it.

 

25.  (1)            where a person who is not the petitioner or respondent in proceedings for principal relief institutes, in relation to those proceedings and by leave of the court, proceedings for ancillary relief, being proceedings with respect to the custody, guardianship, maintenance, welfare, advancement or education of a child of the marriage to which the proceedings for principal relief relate, this rule applies to those proceedings for ancillary relief, but the provisions of Part 2, Part 3 and Part 4 of this Order do not apply to or in relation to those proceedings for ancillary relief.

 

(2)            where a person institutes proceedings for ancillary relief to which this rule applies-

 

(a)            the title to the proceedings for principal relief shall be deemed to have been amended by adding the full name and designation of the person

 

(b)            such of the parties to the marriage as are living on the date of the institution of the proceedings for ancillary relief are parties to the proceedings for ancillary relief

 

(c)            subject to the next succeeding sub-rule, the person shall cause service of the application instituting the proceedings for ancillary relief to be effected, in a manner referred to in paragraph (a), (b) or (c) of rule 1 of Order VI of these Rules, on such of the parties to the marriage as are living on that date

 

(d)           subject to sub-rule (5) of this rule, it is not necessary for service of a pleading, or of a copy of a document, filed for the purpose of the proceedings for principal relief after the institution of the proceedings for ancillary relief to be effected on the person unless the pleading or document relates to other proceedings with respect to the custody of the child ; and

 

(e)            a judge of the court may give such directions with respect to the filing of affidavits and the trial of the proceedings for ancillary relief as he thinks necessary for the proper determination of the proceedings for ancillary relief

 

(3)           where proceedings for ancillary relief to which this rule applies are instituted in relation to completed proceedings for principal relief, service of the application instituting the proceedings for ancillary relief shall not be effected on a party in the manner referred to in paragraph (c) of rule 1 of Order VI of these Rules unless the address for service of the party is the address of a solicitor representing that party and that solicitor is, at the time of the service, representing the party in connexion with those proceedings for ancillary relief

 

(4)            Where proceedings for ancillary relief to which this rule applies are instituted before the trial of the proceedings for principal relief, the proceedings for ancillary relief shall, subject to any directions given under paragraph (e) of sub-rule (2) of this rule, be deemed to have been consolidated with and shall, so far as is practicable, be heard and determined by the court at the same time as the proceedings for principal relief

 

(5)           where proceedings for ancillary relief to which this rule applies are instituted before the proceedings for principal relief are set down for trial-

 

(a)            a copy of any request to set the proceedings for principal relief down for trial ; and

 

(b)           any application, or any document filed for the purpose of an application, with respect to the date on which or place at which the trial of' the proceedings for principal relief shall take place)

 

                shall be served on the person who instituted the proceedings for ancillary relief

 

(6)           Subject to this rule and to any directions given under paragraph (e) of the sub-rule (2) of this rule) the provisions of rules 6, 7 and 8 of Order Ill of these Rules apply to and in relation to proceedings for ancillary relief to which this rule applies.

 

 

Part 6

Variation of Orders

 

26.  (1)            Where application is made to a court for the variation of an order made in respect of a matter referred to in section 70 of the Act so as to increase or decrease any amount ordered to be paid by the order, the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 7 of Order III of these Rules-

 

(a)           the changed circumstances relied on by the applicant

 

(b)           the material facts that are alleged by the applicant to have been withheld from a court ; or

 

(c)           the material evidence previously given before a court that is alleged by the applicant to have been false,

 

                as the case may be.

 

(2)           Where application is made to a court for an order increasing or decreasing-

 

(a)           the security for the payment of a periodic sum ordered to be paid ; or

 

(b)           the amount of a lump sum or periodic sum ordered to be secured the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of Rule 7 of Order III of these Rules, the material facts that are alleged by the applicant to have been withheld from a court or the material evidence previously given before a court that is alleged by the applicant to have been false, as the case may be.

 

(3)           where a party has made application to the court for the variation of an order, another party to the application may, in an affidavit filed for the purpose and without filing an application to the court, request the court to vary the order in a manner specified in the affidavit, and the court shall then determine the request upon the hearing of the application.

 

(4)           Where a party makes a request referred to in the last preceding sub-rule, the affidavit of the party shall state whichever of the matters referred to in paragraph (a), (b) or (c) of sub-rule (1), or in a paragraph (a) or (b) of sub-rule (2), of this rule are relevant to the request.

 

Order XV

Evidence

 

1.     (1)            Subject to this Pan, testimony at the trial of proceedings shall be given orally.

 

(2)            Nothing in this Part shall be taken to prevent the proof of facts, in accordance with the practice of the court and the relevant law of evidence, by the production of documents other than affidavits.

 

(3)            In sub-rule (2) of this rule, "the relevant law of evidence" means the law of evidence applying to civil proceedings in the court (other than proceedings under the Act) so far as it is not inconsistent with the Act or these Rules.

 

2.             Unless a court otherwise orders at the trial of proceedings or proof of the due service of a pleading or other document may be given by affidavit.

 

3.             Nothing in these Rules requires proof, at the trial of proceedings-

 

(a)            of the service of a petition on a person who has filed an answer to the petition or a notice of address for service ; or

 

(b)            of the service of an answer on a person who has filed a reply to the answer or, since the answer was filed, has filed a notice of address for service.

 

4.     (1)            In any proceedings, a certificate under the hand of a person occupying, or performing the duties, under the Post Office Act, of Director of Posts and Telegraphs, or a person authorised in writing by such a person to give certificates under this sub-rule, stating that a letter posted (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified address would, in the ordinary course of post, have been delivered at that address on a specified day is evidence of the fact stated.

 

(2)            For the purposes of the sub-rule (1) of this rule, a document purporting to be a certificate referred to in that sub-rule shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.

 

5.     (1)            This rule applies to proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" and to any related proceedings that are heard and determined by a court at the same time as the proceedings for such a decree.

 

(2)            Subject to sub-rule (3) of this rule, the court may, by order, grant leave to a party to proceedings to which this rule applies to furnish at the trial evidence of a particular fact by the affidavit of a person, whether a party to the proceedings or not, who has, of his own knowledge, deposed to the fact,

 

(3)             An order referred to in sub-rule (2) of this rule may be made by a court-

 

(a)            before the trial of the proceedings-upon application made by a party to the proceedings ; or

 

(b)            at the trial of the proceedings-upon oral application made during that trial.

 

(4)            Where the court makes an order referred to in sub-rule (2) of this rule before defended proceedings to which this rule applies are set down for trial- -

 

(a)            an affidavit proposed to be used on the trial of the proceedings in pursuance of leave granted to the party by the order shall, unless the court otherwise ordered, be filed within eight days after the making of the order, and a copy of the affidavit shall, on the day on which it is filed or on the next following day, be served on each other party to the proceedings who has filed a pleading;

 

(b)            a party on whom a copy of an affidavit is so served may, within eight days after the service, file an affidavit in reply;

 

(c)            the party who obtained the order may, within four days after an affidavit in reply is served on hirn1 file a further affidavit in reply; and

 

(d)            a copy of an affidavit in reply shall, on the day on which it is filed or on the next following day, be served on the party who filed the affidavit in reply to which it is filed.

 

(5)            Where the court makes an order referred to in sub-rule (2) of this rule after defended proceedings to which this rule applies have been set down for trial, the order shall specify the tune within which an affidavit may be filed and served, and the time within which affidavits in reply may be filed and served.

 

6.     (1)            Evidence shall be given by affidavit upon the hearing of proceedings of a kind referred to in paragraph (c), (d) or (e) of the definition of "matrimonial cause" (not being proceedings to which rule 5 of this Order applies) or on the hearing of an application to a court unless the court orders otherwise.

 

(2)            Where an affidavit intended to be used upon the hearing of proceedings or an application to which sub-rule (1) of this rule applies is filed on behalf of a party to the proceedings or application, the party shall, on the day on which the affidavit is filed or on the next following day, serve a copy of the affidavit on each other party who has an address for service.

 

(3)            Where a party to proceedings or to an application has served on another party to the proceedings or application a copy of an affidavit intended to be used upon the hearing of the proceedings or application, the party on whom the affidavit was served may, within the time limited for replying to the affidavit or, if no such time is limited, within four days after service of the affidavit on the party, serve on the party who served the affidavit notice that he desires, upon the hearing of the proceedings, or application, to cross-examine the person who made the affidavit.

 

(4)            A party who serves a notice that he desires to cross-examine the person who made an affidavit shall, unless that person is or has been the husband of the party, pay or tender reasonable expenses for the attendance of the person at the hearing.

 

(5)            Where a notice has been served under sub-rule (3) of this rule and sub-rule (4) of this rule has been complied with, the affidavit in relation to which the notice was served shall not be admitted in evidence upon the hearing of the proceedings or application unless

 

(a)            the person who made the affidavit is available at the hearing for cross-examination; or

 

(b)            the court is satisfied that there are special circumstances justifying the admission of the affidavit in evidence.

 

 

Part 2

Affidavits

 

7.     (1)            Where an affidavit states facts to which the deponent is unable to depose of his own knowledge-

 

(a)            the affidavit is not admissible as evidence of those facts upon the trial of proceedings to which rule 5 of this Order applies ; and

 

(b)            unless the affidavit states the deponent's belief in the truth of those facts and particulars of his means of knowing those facts, the affidavit is not admissible as evidence of those facts upon the hearing of any other proceedings or of an application to a registrar.

 

(2)            The costs of a part of an affidavit that unnecessarily sets forth matters of hearsay, argumentative matter or copies of, or extracts from, documents are payable by the party filing the affidavit.

 

8.             Where a document or a portion of a document is set forth in an affidavit, the party filing the affidavit shall produce the document, or cause the document to be produced, upon the trial of the proceedings in connexion with which the affidavit is filed.

 

9.              A document, object or thing referred to in an affidavit as an exhibit shall have written on it, or on a paper attached to it, the title and number of the proceedings in connexion with which the affidavit is filed and a certificate signed by the person before whom the affidavit is sworn certifying that the exhibit is the particular exhibit referred to in the affidavit.

 

10.           In an affidavit, dates and sums of money shall be written in figures and not in words.

 

11.   (1)            An affidavit may be sworn at a place in Nigeria before a person having authority to administer an oath at that place.

 

(2)            Without limiting the generality of sub-rule (1) of this rule, an affidavit to be used in proceedings in the High Court of a State or the Federal Capital Territory may be sworn at a place that is outside that State or the Federal Capital Territory, whether that place is within or outside Nigeria, before a person before whom affidavits for use in the High Court of that State or the Federal Capital Territory may, by virtue of a law of that State or the Federal Capital Territory, be sworn at that place.

 

(3)            An affidavit may be sworn at a place outside Nigeria before a Nigerian Diplomatic Officer or a Nigerian Consular Officer within the meaning of the Consular Conventions Act or before a judge of a court of that place, a magistrate or justice of the peace of or for that place or a notary public.

 

(4)            The title of the person before whom an affidavit is sworn, and the date on which and place at which the affidavit is sworn, shall he stated in the jurat to the affidavit.

 

(5)            Where an affidavit purports to have been sworn at a place before a person before whom an affidavit is permitted to be sworn at that place, the affidavit shall, without proof of the signature of that person or of his title, be deemed, unless the contrary is proved, to have been sworn before such a person.

 

(6)            Notwithstanding sub-rule (1) or (2) of this rule, an affidavit is not admissible in evidence if sworn by the deponent before-

 

(a)            the solicitor acting for the party on whose behalf the affidavit is to be used;

 

(b)            the agent or correspondent of the legal practitioner so acting

 

(c)            the party on whose behalf the affidavit is to be used; or

 

(d)            a clerk or partner of that legal practitioner, agent) correspondent or parry.

 

12.   (1)            An affidavit shall be drawn up in the first person and shall be divided into paragraphs.

 

(2)            Where an affidavit contains more than one paragraph, the paragraphs shall be numbered consecutively.

 

(3)            Each paragraph shall, so far as practicable, be confined to a distinct part of the subject.

 

(4)            An affidavit shall be in accordance with Form 54.

 

(5)            Costs shall not be allowed for an affidavit departing substantially from this rule.

 

13.           An affidavit shall state the full names, address and occupation of the deponent.

 

14.           An affidavit shall be signed on each page by the deponent and by the person before whom the affidavit is sworn.

 

15.   (1)            Subject to sub-rule (2) of this rule, where an affidavit is sworn by two or more deponents, the full names of each deponent shall be stated in the jurat.

 

(2)            If all the deponents swear the affidavit at the same time and before the same person, it is sufficient for the jurat to show that the affidavit was sworn or affirmed by all of the "above named" deponents.

 

16.   (1)            An affidavit to be used in proceedings before a court shall, unless the court otherwise directs, be filed before it is so used.

 

(2)            An affidavit to be used in connexion with an application shall, unless the court otherwise directs, be filed before it is so used.

 

17.   (1)            There shall be endorsed on an affidavit the names of the deponent, the date on which the affidavit is sworn and the party on whose behalf the affidavit is filed.

 

(2)            An affidavit that does not have endorsed on it the particulars referred to in sub-rule (1) of this rule shall not be used in proceedings in, or on the hearing of an application to a court, unless the court before which the proceedings are tried, otherwise directs.

 

18.           The court may, upon application by a party to proceedings1 order that any scandalous or irrelevant matter included in an affidavit filed for the purpose of the proceedings be struck out, and may further order that the costs of the application be paid as between solicitor and client.

 

19.           When an affidavit filed for the purpose of proceedings in or of an application to a court, contains, in the jurat or in the body of the affidavit, an interlineation, alteration or erasure, the affidavit shall not be used in the proceedings, or on the hearing of the application, without the leave of the court before whom the proceedings are tried, unless-

 

(a)            in the case of an interlineation or alteration, not being an alteration by erasure-the interlineation or alteration is authenticated by the initials of the person before whom the affidavit is sworn; or

 

(b)            in the case of an erasure-the words or figures appearing at the time the affidavit is sworn to be written on the erasure are written in the margin of the affidavit and initialled by the person before whom the affidavit is sworn.

 

20.   (1)            Where an affidavit is sworn by a deponent who appears to the person before whom it is sworn to be illiterate or blind, that person shall certify, in the jurat to the affidavit, that-

 

(a)            the affidavit was read in his presence to the deponent

 

(b)            the deponent appeared to understand the matter contained in the affidavit: and

 

(c)            the deponent signed the affidavit (whether by making his mark or otherwise) in the presence of that person.

 

(2)            Where an affidavit that is sworn by a person who is illiterate or blind does not bear the certificate referred to in the last preceding sub-rule, the affidavit is not admissible in evidence in proceedings in, or on the hearing of an application by a court, unless the court before whom the proceedings are tried, is satisfied that the affidavit was read over to the deponent and that the deponent appeared to understand the matter contained in the affidavit.

 

 

Order XVI

Affirmations And Defective Affidavits

 

1.             Where the deponent to an affidavit objects to swearing on oath to the truth of the statements contained in the affidavit, he may solemnly and sincerely declare and affirm that he objects to swearing an oath and that the statements contained in the affidavit are true, and the jurat to the affidavit shall be altered accordingly.

 

2.             Where, in an affidavit filed for the purpose of proceedings in or of an application to a court, there is a defect, by misdescription of parties or deponents or otherwise, in the title to, or jurat in, the affidavit, or there is any irregularity in the form of the affidavit, the court by whom the proceedings are tried1 may direct that a memorandum be written on the affidavit authorizing the use of the affidavit notwithstanding the defect or irregularity, and the affidavit may then be used in the proceedings, or on the hearing of the application.