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HIGH COURT (CIVIL PROCEDURE) RULES OF CROSS RIVER STATE, 2008
ARRANGEMENT OF RULES
ORDER 1
APPLICATION AND INTERPRETATIONS
ORDER 2
PLACE OF INSTITUTION AND TRIAL OF SUITS
ORDER 3
MISCELLANEOUS PROVISIONS
ORDER 4
APPLICATION AND PROCEEDING IN CHAMBERS
III. Further Considerations
ORDER 5
COMPUTATION OF TIME
ORDER 6
CHANGE OF LEGAL PRACTITIONER
ORDER 7
FORM AND COMMENCEMENT OF ACTION
ORDER 8
ISSUE OF ORIGINATING PROCESS
ORDER 9
INDORSEMENT OF CLAIM AND OF ADDRESS
ORDER 10
SUMMARY JUDGMENT PROCEED1NG
(1) Notice of intention to defend
(2) Judgment in Undefended List
ORDER 11
NON-COMPLIANCE WITH RULES
ORDER 12
SERVICE OF PROCESS
13.(1) Proof of service generally
ORDER 13
ORDER 14
APPLICATION FOR ACCOUNT
ORDER 15
PARTIES GENERALLY
12.(1) Representative capacity
13.(1) Representation of persons or classes of persons in certain proceedings
15.(1) Where there is no personal representation
16.(1) Proceeding not defeated by mis-joinder/non-joinder
17.(1) Application to add or strike out
19.(1) Third parties may joined by any of the parties
25.(1) Disclosure of partners’ name
26(1) Appearance of partners
III. Change of Parties by Death or Otherwise, etc.
30.(1) Order to carry out proceeding
ORDER 16
JOINDER OF CAUSES OF ACTION
2.(1) Recovery of land
ORDER 17
PLEADINGS (STATEMENT OF CLAIM, DEFENCE, COUNTER-CLAIM, AND REPLY)
2.(1) Particulars to be given where necessary
4.(1) Denial
6.(1) Defence, Reply, certain facts to be specifically pleaded
16.(1) Defamation
17.(1) When pleading discloses no reasonable cause of action
18.(1) Raising point of law
19.(1) Close of pleading
20.(1) Statement of Claim
(3) Claim beyond indorsements
III. Defence and Counter-Claim
21.(1) Statement of defence
23(1) Denials generally
33.(1) Grounds for defence after action brought
IV: Reply
ORDER 18
ADMISSIONS, DISCOVERY, INSPECTION OF
DOCUMENTS AND THINGS
2.(3) Cost of proving documents
14.(1) Application for discovery of documents
15(1) Processes filed after pre-trial conference
17.(1) Non-compliance with order for discovery
ORDER 19
ARREST OF ABSCONDING DEFENDANT
2.(1) Warrant to arrest
ORDER 20
PRE-TRIAL CONFERENCE AND SCHEDULING
ORDER 21
MOTIONS AND OTHER APPUCATIONS
1.(1) Application by motion
2.(1) When notice of motion should be given
3.(1) Motion on arbitral award
ORDER 22
INTERLOCUTORY ORDERS
1.(1) Preservation or interim custody of subject matter of disputed contract
4.(1) Detention, preservation or inspection of property, the subject of an action
5.(1) Inspection by Judge
ORDER 23
DRAWING UP OF ORDERS
ORDER 24
WITHDRAWAL AND DISCONTINUANCE
(1) Claimant may discontinue before defence withdrawal by consent
ORDER 25
TRANSFER AND CONSOLIDATIONS
ORDER 26
AMENDMENT
ORDER 27
ISSUES, INQUIRIES, ACCOUNTS AND REFERENCE TO REFEREES
ORDER 28
PAYMENT INTO COURT
ORDER 29
SPECIAL CASE
ORDER 30
PROCEEDING AT TRIAL
10.(1) Additional witness
11.(1) Close of case of parties
12.(1) Exhibits during trial
17.(1) Custody of Exhibits after trial
18.(1) Office copy of list of exhibits
ORDER 31
EVIDENCE GENERALLY
1.(1) Facts how proved
2.(1) Particular facts
ORDER 32
AFFIDAVITS
ORDER 33
FILING OF WRITTEN ADDRESS
ORDER 34
JUDGEMENT IN DEFAULT OF PLEADING
ORDER 35
DELIVERY AND ENTRY OF JUDGEMENT
ORDER 36
COSTS
ORDER 37
STAY OF EXECUTION PENDING APPEAL
PART IV
SUPPLEMENTAL RULES FOR CERTAIN SPECIAL PROCEEDINGS
ORDER 38
ORDER 39
SUMMONS TO PROCEED
Judgment or Order
ORDER 40
APPLICATION FOR JUDICIAL REVIEW
3.(1) Grant of leave to apply for Judicial Review
ORDER 41
HABEAS CORPUS, COMMITTAL FOR CONTEMPT
ORDER 42
PROCEEDING IN FORMA PAUPERIS
ORDER 43
SUMMARY PROCEEDING FOR POSSESSION OF LANDED PROPERTY AND SERVICE ON UNKNOWN
PERSONS
ORDER 44
FORECLOSURE AND REDEMPTION
ORDER 45
JURISDICTION OF CHIEF REGISTRAR
Chief Registrars Certificate
ORDER 46
PROBATE AND ADMINISTRATION
III. Probate or Administration with Will annexed
17.(1) Examination of Will as to its execution
18.(1) Evidence as to due execution of Will
19 . Evidence on failure of attesting witnesses
20.(1) Evidence as to terms, conditions, and date of execution of Will
Caveat
103.(h) Where summons taken out
107.(a)Appointment of new trustees and vesting orders
107.(c) Vesting order on sale, etc
ORDER 47
PROCEEDINGS IN LIEU OF DEMURRER
ORDER 48
APPEALS FROM MAGISTRATE’S COURT, ETC
ORDER 49
FEES AND ALLOWANCES
LIST OF FORMS
FORMS
FEES
REGULATIONS REGARDING FEES
HIGH COURT (CIVIL PROCEDURE) RULES OF CROSS RIVER STATE, 2008
ORDER 1 – APPLICATION AND INTERPRETATION
1.-(1) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such actions.
(2) The application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.
(3) Where a matter arises in respect of which no adequate provisions are made in the Rules, the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.
2.- (1) These Rules may be cited as High Court (Civil Procedure) Rules of Cross River State 2008 and shall come into effect on the 29th day of September, 2008.
(2) These Rules shall be interpreted in accordance with the Interpretation Law, Cap 1.6 Laws of Cross River State 2004 or any re-enactment thereof
(3) In the construction of these Rules, unless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the following meanings:
“Claimant” includes a claimant in a counter-claim;
“Court” means the High Court of Cross River;
“Court Process” or “Process” includes writ of summons, originating process, notices, petitions, pleadings, orders, motion, summons, warrants and all documents or written communication, etc.
“Decision” means any decision of a Court and includes judgment, ruling, decree, order, conviction, sentence or recommendation;
“Defendant” shall include a defendant to a counter claim;
“Guardian” means any person who has for the time being, the charge of or control over a person under legal disability and includes a person appointed to institute or defend an action on behalf of any person under legal disability;
“Law” means the High Court Law, Cap H2, Laws of Cross River State, 2004 or any re-enactment thereof;
“Minor” means a person who has not attained the age 18 years;
“Originating Process” means any court process by which a suit is initiated in Court;
“Person under Legal Disability” means a person who lacks capacity to institute or defend any proceedings by reason of age, insanity, unsoundness of mind or otherwise;
“Probate action” means an action for the grant of probate of the will, or letters of administration of the estate of a deceased person, or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business;
“Registrar” means the Chief Registrar, Deputy Chief Registrar, Assistant Chief Registrar, Principal Registrar, Senior Registrar, Higher Registrar, or any other officer acting or performing the functions of a Registrar;
“Registry” means the Registry of the High Court of Cross River State in the appropriate Judicial Division;
“State” means Cross River State
“Taxing Officer” means the Chief Registrar or such other officer of the Court as the Chief Judge may appoint to tax costs.
ORDER 2 – PLACE OF INSTITUTION AND TRIAL OF SUITS
Subject to the provisions of any Law on transfer of suits, the place for instituting and trial of any suit shall be regulated as follows:
4.-(1) All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business.
(2). Where there are several defendants who reside or carry on business in different Judicial Divisions, the suit may be commenced in anyone of those Judicial Divisions subject to any order or direction a Judge may make or give as to the most convenient arrangement for trial of the suit.
ORDER 3 – MISCELLANEOUS PROVISIONS
4.-(1) Subject to the direction of the Chief Judge, sittings of the High Court for the dispatch of civil matters will be held on every week day except
(a) on any public holidays
(b) during the week beginning with Easter Monday;
(c) during the period beginning on Christmas eve and ending on the 2nd day of January next following;
(d) during the long vacation.
(2) There shall be an annual vacation of the court not exceeding eight weeks beginning in the month of July as the Chief Judge may by notification in the Gazette appoint.
5-(1) Notwithstanding the provisions of rule 4, any cause or matter may be heard by a Judge during any of the periods mentioned in paragraphs (b),(c) or (d) of Rule 4 (except on a Sunday or public holiday) where such cause or matter is urgent, or a Judge at the request of all the parties concerned, agrees to hear the cause or matter.
(2) An application for an urgent hearing shall be made by motion ex parte and the decision of the Judge on such an application shall be final.
II General
Provided however that when any person is ordered to pay the costs of the State or of any Government Department in any case, whether criminal or civil, all fees which would have been payable but for the provisions of this rule shall be taken as paid and shall be recoverable from such person.
ORDER 4 – APPLICATION AND PROCEEDINGS IN CHAMBERS
(a) the ages of the infants;
(b) the nature and amount of the infants’ fortunes and income; and
(c) what relations the infants have.
III. Further Consideration
“That this matter, the further consideration whereof was adjourned by the Order of the………………………..on …… day of……………20 ……………..may be further considered” and shall be served 7 clear days before the return provided that this Rule shall not apply to any matter,
the further consideration whereof shall at the hearing have been adjourned in Court.
9.-(1) Where any party to a proceeding in Chambers does not intend to accept the decision of the Judge in Chambers as final, he shall ask at once to have the summons adjourned into Court for argument. If such request is refused, the party may proceed by way of motion on notice in court to discharge, set aside or vary the Order made or the Judgment given or Order made in Chambers.
(2) The notice of motion shall be filed not later than 7 days after the making of the Order in Chambers unless the court grants an extension of time on good and sufficient reason being shown, and the motion shall be heard and determined by the Judge who has dealt with the matter in Chambers unless this proves impossible or inconvenient owing to such Judge’s death or retirement or prolonged absence from court.
(3) This rule shall also apply in the case of decisions given by a Judge in Chambers on appeal from the Chief Registrar under Rule 4 of Order 45.
ORDER 5 – COMPUTATION OF TIME
(a) as excluding the day on which the order is made or on which the event occurs;
(b) where the last day of the period is a holiday the time shall continue until the end of the next day following which is not a holiday;
(c) where the act is required to be done within a period which does not exceed 3 days, holidays shall be left out of account in computing the period.
Provided that any party who defaults in performing an act within the time authorised by the Judge or under these Rules, shall pay to the Court an additional fee of two hundred naira for each day of such default at the time of filing his application for extension of time.
ORDER 6 – CHANGE OF LEGAL PRACTITIONER
ORDER 7 – FORM AND COMMENCEMENT OF ACTION
(a) where a claimant claims;
(i) any relief or remedy for any civil wrong or
(ii) damages for breach of duty. Whether contractual death of any person, or in respect of damage or injury to any person, or in respect of damage or injury to any property
(b) where the claim is based on or includes an allegation of fraud, or
(c) where an interested person claims a declaration.
2-(1) All civil proceedings commenced by writ of summons shall be accompanied by:
(a) statement of claim;
(b) list of witnesses to be called at the trial;
(c) written statement on oath of the witnesses and
(d) copies and list of every document to be relied on at the trial
(2) Where a claimant fails to comply with Rule
2(1) above, his action shall be incompetent and liable to be struck out by the Court.
(2) Subject to the provisions of these rules or of any written law in force in the State, no writ of summons for service out of jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of Court or a Judge in Chambers.
(2) No writ which, or notice of which, is to be served out of the jurisdiction shall be issued without leave of the Court.
8.-(1) An originating summons shall be in the Forms 3, 4 or 5 to these Rules and shall be accompanied by a Notice of Appointment in Form 6, with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed shall be deemed to be issued.
(2) An originating summons shall be accompanied by:
(a) an affidavit setting out the facts relied upon;
(b) all the exhibits to be relied upon;
(c) a written address in support of the summons.
(3) The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the respondent or respondents.
(4) An originating process shall not be altered after it is sealed except upon application to a Judge.
“This summons (or as the case may be) is to be served out of Cross River State of Nigeria and in the …………………………. State”.
ORDER 8 – ISSUE OF ORIGINATING PROCESS
2.-(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.
(2) A claimant or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
6.-(1) The life span of every originating process shall be 3 months.
(2) If the Registrar is satisfied that it has proved impossible to serve an originating process on any defendant within its life span and a claimant applies before its expiration for renewal of the process, he may renew the original or concurrent process for 3 months from the date of such renewal. A renewed originating process shall be in Form 7 with such modifications or variations as circumstances may require.
10.- (1) An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction service within and an originating process for service out of the jurisdiction may be issued and marked as a concurrent jurisdiction originating process with one for service within jurisdiction.
(2) Out of Jurisdiction in this order means out of Cross River State but within Nigeria.
ORDER 9 – INDORSEMENT OF CLAIM AND OF ADDRESS
4.-(1) Where the claim is for debt or liquidated demand only, the originating process shall state the amount claimed for debt or in respect of such demand with costs and shall further state that the defendant may pay the amount with costs to the claimant’s Legal Practitioner within the time allowed for appearance and that upon such payment the proceeding shall terminate.
6.-(1) A claimant suing in person shall state on the originating process his residential or business address as his address for service. If he lives and carries on business outside the jurisdiction, he shall state an address within the jurisdiction as his address for service. He shall also state his telephone number, facsimile number, e-mail address, if any.
(2) Where a claimant sues through a Legal Practitioner, the Legal Practitioner shall state on the originating process his Chamber’s address as the address for service. If the Legal Practitioner is based outside the jurisdiction he shal1 state a Chamber’s address within the jurisdiction as his address for service. He shall also state his telephone numbers, e-mail address, if any.
ORDER 10 – SUMMARY JUDGMENT PROCEEDING
3.-(1). If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List; and the court may order pleadings, or proceed to hearing without further pleadings.
ORDER 11 – NON-COMPLIANCE WITH RULES
1.-(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceeding, or any document, judgment or order therein.
(2) The Court may on the ground that there has been such a failure as mentioned in sub rule (1) of this Order, and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceeding in which the failure occurred, any step taken in those proceeding, or any document, judgment or Order therein, or it may exercise its powers under these rules to allow such amendment (if any) to be made and to make such Order (if any ) dealing with the proceeding generally as it thinks fit.
(3) The Judge shall not wholly set aside any proceeding or the writ or other originating process by which they were begun on the ground that the proceeding were required by any of these Rules to be begun by an originating process other than the one employed.
2.-(1) An application to set aside for irregularity any step taken in the course of any proceeding may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
(2) An application under this rule may be made by motion and the grounds of objection shall be stated in the notice of motion.
ORDER 12 – SERVICE OF PROCESS
1.-(1) Service of originating process shall be made by a Sheriff Deputy Sheriff Bailiff Special Marshal or other officer of the court. The Chief Judge may also appoint and register any law Chambers, Courier Company or any other person to serve court processes and all such person serving court processes shall be called “Process Server”.
(2) When a party is represented by a Legal Practitioner, service of court process of which personal service is not required may be made on such Legal Practitioner or on a person under his control.
5.-(1) Where personal service of an originating process is required by these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the claimant make such order for substituted service as may seem just.
(2) Application to the Judge for substituted service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.
6.-(1) Where a person under legal disability is Persons under a defendant, service on his guardian shall be deemed legal disability good and sufficient personal service, unless a Judge otherwise orders.
Provided that personal service on a minor who is over 16 years of age living independently or doing business is good and sufficient.
(2) The Judge may order that personal service on a person under legal disability shall be deemed good and sufficient.
Provided that in the case of a partnership that has been dissolved to the knowledge of the claimant before the commencement of the action, the originating process shall be served upon all such partners within the jurisdiction sought to be made liable.
Provided that where a foreign company has complied with the provision of Chapter 3 of the Companies and Allied Matters Act, personal service shall be effected on one of the persons authorised to accept service on behalf of the said company.
13.-(1) After serving any process, or being unable to serve such process, the process server shall promptly depose to and file an affidavit stating the date, place, time, method and mode of service or the reason for his inability to serve within seven (7) days of the process being handed over to him for service.
(2) After serving any process or being unable to serve such process the affidavit shall be prima facie proof of service or inability to serve.
(a) the process to be served shall be sealed with the seal of the Court for service out of Nigeria, and shall be transmitted to the Solicitor- General of the Federation by the Chief Registrar, together with a copy translated into the language of that country if not English, and with a request for its further transmission to the appropriate authority in that country. The request shall be in Form 8 with such modifications or variations as circumstances may require;
(b) a party wishing to serve a process under this rule shall file a praecipe in Form 9 with such modifications or variations as circumstances may require;
(c) a certificate, declaration, affidavit or other notification of due service transmitted through diplomatic channels by a Court or other appropriate authority of the foreign country to the Court, shall be deemed good and sufficient proof of service;
(d) where a certificate, declaration, affidavit or other notification transmitted as aforesaid states that efforts to serve a process have failed, a Judge may, on an ex parte application, order substituted service whereupon the process and a copy as well as the order for substituted service shall be sealed and transmitted to the Solicitor-General of the Federation together with a request in Form 10 with such modifications or variations as circumstances may require:
Provided that a claimant may with leave of a judge serve any originating process by a reputable courier company or registered post
Nothing herein contained shall in any way affect any power of a Judge in cases where lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected. The Court may, without assuming jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceeding with a view to such person having an opportunity of claiming, opposing or otherwise intervening.
20.- (1) Where leave is granted or is not required in a civil suit and it is desired to serve any process in a foreign country with which a convention in that behalf has been made, the following procedure shall, subject to any special provisions contained in the convention, be adopted:
(a) the party desiring such service shall file in the registry a request in Form 11 with such modifications or variations as circumstances may require and the request shall state the medium through which it is desired that service shall be effected, either:
(i) directly through diplomatic channels or
(ii) through the foreign judicial authority;
(b) the request shall be accompanied by the original document and a translation thereof in the language of the country in which service is to be effected, certified by or on behalf of the person making the request, and a copy of each for every person to be served and any further copies which the convention may require (unless the service is required to be made on a Nigerian subject directly through diplomatic channels in which case the translation and copies thereof need not accompany the request unless the convention expressly requires that they should do so);
(c) the documents to be served shall be sealed with the seal of the Court for use out of the jurisdiction and shall be forwarded by the Chief Registrar to the Permanent Secretary, Federal Ministry of Foreign Affairs for onward transmission to the foreign country;
(d) an official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by Nigerian diplomatic agent to the Court, establishing the fact and the date of the service of the document, shall be deemed to be sufficient proof of service within the requirements of these Rules.
(2) A Judge, in granting leave to serve a process out of jurisdiction under this Order, may, upon request therefore in appropriate cases, direct that a reputable courier company shall be used by the party effecting service.
(a) the letter of request for service shall be accompanied by a translation in English Language, and by two copies of the process or citation to be served, and two copies thereof in English Language;
(b) service of the process or citation shall be effected by a process server unless a Judge otherwise directs;
(c) such service shall be effected by delivering to and leaving with the person to be served one copy of the process or citation to be served, and one copy of the translation thereof in accordance with the Rules and practice of the Court regulating service;
(d) after service has been effected by the process server, he shall file an affidavit of service in which he shall furnish particulars of charges for the cost of effecting the service. The affidavit shall be transmitted to the Chief Registrar with one copy of the process annexed;
(e) the Chief Registrar shall examine and verify the process server’s particulars of charges and may approve it or approve some lesser figure, whereupon the Chief Registrar shall forward to the Attorney- General a letter of request for service, the approved amount for service, evidence of service and a certificate appended to it.
(a) the process server shall deliver the original or a copy thereof, along with a copy of its translation to the party to be served;
(b) the process server shall submit the particulars of the costs and expenses of service to the Chief Registrar who shall certify the amount payable in respect of the service;
(c) the Chief Registrar shall transmit to the appropriate foreign authority a certificate establishing the fact and date of service, or indicating reasons for failure to serve, and also notify the authority as to the amount certified under sub rule (b) of this Rule.
ORDER 13 – APPEARANCE
1.-(1) A defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copy of a duly completed and signed memorandum of appearance as in Form 12 with such modifications or variations as circumstances may require.
(2) On receipt of the memorandum of appearance, the Registrar shall make entry thereof and stamp the copy with the seal showing the date he received it and return the sealed copy to the person making the appearance.
(3) A defendant entering appearance shall not later than 5 days thereafter serve the sealed copy of the memorandum of appearance on a claimant’s Legal Practitioner or on the claimant if he sues in person.
2.-(1) A defendant appearing in person shall state in the memorandum of appearance an address for service which shall be within Cross River State.
(2) Where a defendant appears by a Legal Practitioner, the Legal Practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within Cross River State, and where any such Legal Practitioner is only the agent of another Legal Practitioner he shall also insert the name and place of business of the principal Legal Practitioner.
Provided that such application shall be filed and served in the manner in which service of the originating process was effected or in such manner as a Judge shall direct.
ORDER 14 – APPLICATION FOR ACCOUNT
ORDER 15 – PARTES GENERALLY
6.-(1) It shall not be necessary for every defendant to be interested in all the reliefs claimed or answerable to every cause of action in any proceeding against him.
(2) A Judge upon considering the defence filed by any defendant may on application by that defendant make such order as may appear just to prevent him from being embarrassed or put to expense by being required to attend any proceeding in which he may have no interest.
12.-(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of, or for the benefit of, all persons so interested.
(2) Where there are numerous persons having the same interest in one suit and they seek to defend the action, a Judge may allow one or more of such persons to defend the action on behalf or for the benefit of all persons so interested.
13.-(1) Where in any proceedings concerning:
(a) the administration of an estate or
(b) property subject to a trust, or
(c) land held under customary law as family or community property, or
(d) the construction of any written instrument, including a statute,
(e) injury to a class of persons,
a judge is satisfied that:
(i) the person, the class or some members of the class interested cannot be ascertained or cannot readily be ascertained;
(ii) the person, the class or some members of the class interested if ascertained cannot be found;
(iii) though the person or the class and the members thereof can be ascertained and found;
it is expedient for the purpose of efficient procedure that one or more persons be allowed / appointed to represent that person or class or member of the class, the Judge may make the appointment. The decision of the Judge in the proceeding shall be binding on the person or class of persons so represented.
(2) Notice of appointment made by a Judge under this rule and all processes filed in Court shall be served on a person(s) so appointed.
(3) If in any proceeding mentioned in sub-rule 1 of this rule, several persons having the same interest in relation to the matter to be determined attend the hearing by separate Legal Practitioners, then, unless the Judge considers that the circumstances justify separate representation, not more than one set of costs of the hearing shall be allowed to these persons, and the judgment or order shall be framed accordingly.
(4) In this Rule, the word “class” includes all persons recognized by Customary Law as members of a family or as members of a land owning community or as regards Rule 13 (1) (9) and (e) of this Order all persons resident within the State.
(i) there are some other persons having the same interest before the court who assent to the compromise or on whose behalf the court sanctions the compromise or
(ii) the absent persons are represented by a person under Rule 13 of this Order who so assents;
a Judge if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that such compromise shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.
15.-(1) If in any proceeding it appears to a Judge that any deceased person who was interested in the proceeding has no legal representative, the Judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for the purpose of the proceeding, on such notice to such persons (if any) as the judge shall deem fit, either specifically or generally by public advertisement, and the order so made and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceeding.
(2) Where a sale or sale surviving claimant or defendant in a proceeding dies and the cause of action survives but the person entitled to proceed fails to proceed, a Judge may on application of either the deceased’s Legal Practitioner or the opposing party order any person to take the place of the said deceased and proceed with the suit.
(3) In default of such application or where the person substituted fails to proceed, judgment may be entered for the defendant or as the case may be for the person against whom the proceeding might have been continued.
16.-(1) No proceeding shall be defeated by reason of misjoinder or nonjoinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties properly before him.
(2) A Judge may at any stage of the proceeding, either upon or without the application of either party, and on such terms as may appear to the Judge to be just, order that the names of any parties improperly joined be struck out.
(3) A Judge may order that the names of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceeding be added.
(4) No person under legal disability shall be added as a claimant suing without a guardian and no person shall be added as the guardian of a claimant under legal disability without his own consent in writing.
(5) A party whose name is added as defendant shall be served with the originating processes or notice in the manner prescribed in these Rules or in such manner as may be prescribed by a Judge and the proceeding against such person shall be deemed to have begun on the service of such originating processes or notice.
17.-(1) Any application to add or strike out or substitute or vary the name of a claimant or defendant may be made to a Judge by motion on notice.
(2) Where the application is to add a claimant or a defendant, the application shall be accompanied by the statement of claim or defence as the case may be, all the exhibits intended to be used and the depositions of all the witnesses:
Provided that where the application is to substitute a deceased party with another person the application may not be accompanied by the documents specified above;
And Provided Further that where the documents specified above are already before the Court, the party applying shall depose to an affidavit asserting that fact and verifying the exhibits and depositions relevant to his claim or defence as the case may be.
19.- (1) Where it appears to a Judge that any person not a party in the proceeding may bear eventual liability either in whole or in part, the Judge may upon an ex parte application allow that person to be joined as a Third Party by any of the defendants. The application shall state the grounds for the applicant’s belief that such Third Party may bear eventual liability.
(2) The order and existing processes shall be served on the Third Party within the time prescribed for delivering the defence.
25.-(1) When an originating process-is issued by partners in the name of their firm, the claimants or their Legal Practitioners shall, on demand in writing by or on behalf of any defendant declare in writing the names and residential addresses of all the partners constituting the firm on whose behalf the action is brought.
(2) Where the claimants or their Legal Practitioners fail to comply with such demand, all proceeding in the action may, upon an application for that purpose, be stayed upon such terms as a Judge may direct.
(3) Where the names of the partners are so declared, the suit shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as claimants in the originating process provided that the proceeding may continue in the name of the firm.
26.-(1) Where persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent proceeding shall continue in the name of the firm.
(2) Where an originating process is served upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued.
III. Change of Parties by Death or Otherwise, etc.
30.-(1) Where by reason of death or bankruptcy, or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the proceeding, it becomes necessary or desirable that any person not already a party should be made a party in another capacity, an order that the proceeding shall be carried on between the continuing party or parties and such new party or parties may be obtained ex parte upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence.
(2) An order obtained under this rule shall be served upon the continuing party or parties, or their Legal Practitioner(s) and also upon such new party unless the person making the application is the new party.
(3) A person served who is not already a party to the proceeding, shall, where applicable, enter an appearance thereto within the same time and in the same manner as if he had been served with the originating process. He shall thereupon be served with the originating and all existing processes.
(4) Any party served under this rule who was not already a party to the proceeding shall file his pleadings and other documents as if he had been an original party in the proceeding.
IV: Legal Practitioners or Agents
ORDER 16 – JOINDER OF CAUSES OF ACTION
2.-(1) An action for recovery of land may be joined with an action for declaration of title, mense profit or arrears of rent, damages for breach of any contract under which the land or any part thereof is held, or for any wrong or injury to the premises.
(2) An action for foreclosure or redemption may be joined with a claim for delivery of possession of the mortgaged property and a claim for payment of principal money or interest secured by or any other relief in respect of the mortgage of or charge on such land.
ORDER 17 – PLEADINGS (STATEMENT OF CLAIM, DEFENCE, COUNTER-CLAIM, AND REPLY)
2.-(1) In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleading.
(2) In an action for libel or slander if the claimant alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of his allegation.
4.-(1) An allegation of facts in any pleading if not specifically denied in the pleading of the opposite party shall be taken as admitted except as against a person under legal disability. .
(2) A general denial in any pleading shall not operate as denial of any specific fact in the pleading of the opposing party.
(3) A defendant in an action for recovery of land shall plead specifically every ground of defence on which he relies. A plea that he is in possession of the land by himself or his tenant shall not be sufficient.
6.-(1) All grounds of defence or reply which make an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the preceding pleading shall be specially pleaded.
(2) Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in Contract or illegality either by any enactment or by common law, he shall specifically plead same.
16.-(1) Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
(2) Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privileged occasion, the claimant shall, if he intends to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matters from which such malice is to be inferred.
(3) Where in an action for libel or slander the defendant alleges that in so far as the words complained of consist of statement of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the facts and matters he relies on in support of the allegation that the words are true.
17-.(1) The Judge may at any stage of the proceeding order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:
(a) it discloses no reasonable cause of action or defence, as the case maybe; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action, or
(d) it is otherwise an abuse of the process of the court;
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on application under sub rule (1) of this Rule.
(3) This rule shall, so far as applicable, apply to an originating Summons and a petition as if the summons or petitions, as the case may be, were a pleading.
(4) No proceeding shall be open to objection on the ground that only a declaratory judgment or order is sought thereby and a Judge may make a binding declaration of right Whether any consequential relief is or could be claimed or not.
(2) If in the opinion of the Judge, the decision on such point of Iaw substantially disposes of the whole proceeding or of any distinct part thereof, the Judge may make such decision as may be just.
(2) Where a pleading subsequent to reply is ordered, and the party who has been ordered or given leave to file the same fails to do so within the period limited for that purpose, then, at the expiration of the period so limited the pleadings shall be deemed closed:
Provided that this rule shall not apply to a defence to counterclaim and unless the claimant files a defence to counterclaim, the statements of fact Contained in such counterclaim shall at the expiration of 14 days from the service thereof or of such time (if any) as may by order be allowed for filing of a defence thereto be deemed to be admitted, but the Judge may at any subsequent time give leave to the claimant to file a defence to counterclaim.
20.-(1) A statement of claim, or a counter-claim, shall state specifically the relief claimed either singly or in the alternative, and it shall not be necessary to ask for general or other relief, which may be given as a Judge may think just as if it has been asked for.
(2) Where the claimant seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated separately and distinctly. The same role shall apply where the defendant relies upon several distinct grounds of defence, set-off or counterclaim founded upon separate and distinct facts.
(3) Whenever a statement of claim is filed, the claimant may alter, modify or extend his claim without any amendment of the indorsement of the writ:
Provided that the claimant may not completely change his cause of action indorsed on the writ without amending the writ.
III. Defence and Counter-Claim
21.-(1) The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath.
(2) A defendant shall file his statement of defence, set-off or counterclaim, if any, not later than 14 days after service on him of the claimant’s originating process and accompanying documents. A counterclaim shall have the same effect as a cross action, so as to enable the court pronounce a final judgment in the same proceeding. A set-off must be specifically pleaded.
Provided that in land cases a defendant shall serve his statement of defence on the claimant not later than 30 days from the day the statement of claim was served on him.
(3) A claimant shall within 14 days of service of the statement of defence and counterclaim if any, file his reply, if any, to such defence or counterclaim, accompanied by any additional list of witnesses, written statements on oath of such witnesses and copies of all documents to be relied upon in proof of the reply:
Provided that where a defendant sets up a counterclaim, if a claimant or any other person named as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent proceeding, a Judge may at anytime order that such counterclaim be excluded.
23.-(1) In an action for debt or liquidated Denials demand in money, a mere denial of the debt shall not be generally sufficient defence.
(2) In an action for money had and received, a defence in denial must deny the receipt of the money or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the claimant.
(3) In an action for goods sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed.
(4) In action upon a bill of exchange, promissory note or cheque, a defence in denial must deny some matter of fact, e.g. the drawing, making, indorsing, accepting, presenting or notice of dishonour of the bill or note.
33.-(1) Any ground of defence which arises after the action has been filed, but before the defendant has delivered his defence, and before the time limited for doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence.
(2) If, after a defence has been delivered along with a set -off or counterclaim, any basis for answer or ground of defence arises to any such set-off or counterclaim respectively, it may be raised by the claimant in his reply (in the case of a set-off) or defence to counterclaim, either along or together with any other ground of reply or defence to counterclaim.
ORDER 18 – ADMISSIONS, DISCOVERY, INSPECTION OF DOCUMENTS AND THINGS
2.-(1) Either party may, not later than 7 days before the first pre-trial conference, by notice in writing filed and served, require any other party to admit any document and the party so served shall not later than 7 days after service give notice of admission or non-admission of the document, failing which he shall be deemed to have admitted it unless a Judge otherwise orders.
(2) When a party decides to challenge the authenticity of any document, he shall not later than 7 days of service of that document, give notice that he does not admit the document and requires it to be proved at the trial.
(3) Where a party gives notice of non-admission and the document is proved at the trial, the fee of proving the document, which shall not be more than a sum of five thousand Naira for each document, shall be paid to the court by the party who has challenged it, unless in giving his final judgment, the Judge shall determine that there were reasonable grounds for not admitting the authenticity of the document.
3.-(1) Either party may not later than 7 days before the first pre-trial conference by notice in writing filed and served require any other party to admit any specific fact or facts mentioned in the notice, and the party so served shall not later than 7 days after service give notice of admission or non-admission of the fact or facts failing which he shall be deemed to have admitted it unless a Judge otherwise orders.
(2) An admission made pursuant to such notice shall be deemed to be made only for the purposes of that particular proceeding and not as an admission to be used against the party or any other party than the party giving the notice.
14.-(1) Any party may in writing request any other party to any cause or matter to make discovery on oath of the documents that are or have been in his possession, custody, power or control, relating to any matter in question in the case. Request for discovery shall be served within 7 days of close of pleadings and shall form part of the agenda of pre-trial conference. The party on whom such a request is served shall answer on oath completely and truthfully within 7 days of the service on him of the request or within such other time as the Judge may allow and it shall be dealt with at pre-trial conference.
(2) An affidavit in answer to a request for discovery of documents shall be accompanied by office copies of documents referred to therein.
(3) The affidavit to be made by a person in answer to a request for discovery of documents shall specify which, if any, of the listed documents he objects to producing, stating the grounds of his objection, and it shall be in Form 17 with such modifications or variations as circumstances may require.
15.-(1) Any process to be filed after the pre-trial conference shall be accompanied by copies of documents referred to in the process.
(2) Where a process filed is not accompanied by a document referred to therein, a Judge may on application strike out the process.
(2) Notwithstanding that a copy has been supplied a Judge may order inspection of the book from which the copy was made.
(3) The Judge may upon application whether or not an affidavit of document has been ordered or filed, make an order requiring any party to state by affidavit whether any particular document or any class of documents is or has at any time been in his possession, custody, power or control, when he parted with the same and what has become of it.
17.-(1) If any party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall be liable for committal.
(2) Service of an Order for interrogatories or discovery or inspection made against any party or his legal practitioners shall be sufficient service to forward an application for an attachment for disobedience to the court
(3) The party shall also, if a claimant, be liable to have hi s action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court or a Judge in Chambers for an Order to that effect and an Order may be made accordingly.
Provided that the Judge may look at the whole of the answers and order that any of them may be put in.
ORDER 19 – ARREST OF ABSCONDING DEFENDANT
2.-(1) If the Judge after considering the application shall be of opinion that there is probable cause for believing that the defendant is about to leave Nigeria and that by reason thereof the execution of any judgment which may be made against him is likely to be obstructed or delayed, the Judge shall issue a warrant to bring the defendant before him to show cause why he should not give good and sufficient bail for his appearance.
(2) The defendant shall be brought to court within 2 days of the execution of the warrant.
4.-(1) Where a defendant offers to deposit a sum of money in lieu of bail for his appearance, sufficient to answer the claim against him, with costs of the suit, the Judge may accept such deposit and direct that the deposit be paid into an interest yielding account in a bank to be appointed by the court in the name of the office of the Chief Registrar.
(2) Where a defendant offers security other than money in lieu of bail for his appearance, sufficient to answer the claim against him, the Judge may accept such security and make such order as he may deem fit in the circumstance.
5.-(1) If the defendant fails to furnish security or offer a sufficient deposit, the Judge may commit him into custody until the decision of the suit or if judgment has been given against the defendant, until the execution of the judgment.
(2) Committal to custody under this rule shall not exceed a period of 6 months.
(3) The Judge may at any time upon reasonable cause being shown and upon such terms as to security or otherwise as may seem just, release the defendant.
ORDER 20 – PRE-TRIAL CONFERENCES AND SCHEDULING
1.-(1) Within 14 days after close of pleadings, the claimant shall apply for the issuance of a Pre-Trial Conference Hearing Notice as in Form 18.
(2) Upon application by a claimant under sub-rule 1 above, the Pre-trial Judge shall cause to be issued to the parties and their Legal Practitioners (if any) a Pre-Trial Conference Hearing Notice as in Form 18 accompanied by a pre-trial information sheet as in Form 19 for the purposes set out hereunder:
(a) Disposal of non-contentious matters which must or can be dealt with on interlocutory application;
(b) Giving such directions as to the future course of the action as appear best adapted to secure its just, expeditious and economical disposal;
(c) Promoting amicable settlement of the case by the adoption of alternative dispute resolution.
(3) lf the claimant does not make the application in accordance with sub-rule 1 of this rule, the defendant(s) may do so or apply for an order striking out the action within 7 days after the time limited for the claimant.
(a) joining other parties;
(b) amending pleadings or any other processes;
(c) filing motions;
(d) further pre-trial conferences;
(e) any other matters appropriate in the circumstances of the case.
(1) formulation and settlement of issues;
(2) amendments and further and better particulars;
(3) the admissions of facts, and other evidence by consent of the parties;
(4) control and scheduling of discovery, inspection and production of documents;
(5) narrowing the field of dispute between expert witnesses, by their participation at pre-trial conference or in any other manner;
(6) eliciting preliminary objections on point of law;
(7) hearing and determination of non-contentious motions;
(8) giving orders or directions for separate trial of a claim, counterclaim, set-off, cross-claim or third party claim or of any particular issue in the case;
(9) settlement of issues, inquiries and accounts under Order 27;
(10) securing statement of special case oflaw or facts under Order 29;
(11) determining the form and substance of the pre-trial order;
(12) such other matters as may facilitate the just and speedy disposal of the action.
(a) in the case of the claimant, strike out the claim;
(b) in the case of a defendant enter judgment against him.
Any judgment given under this Rule may be set aside upon an application made within 7 days of the judgment or such other period as the Pre-trial Judge may allow not exceeding the pre-trial conference period with an Order as to penalty of a sum not less than N5, 000. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference jointly signed by the applicant and the Legal Practitioner representing him, if any.
Provided that in the application of this Order and in all subsequent proceeding, the Pre-Trial Judge who prepares a Report need not be the same as the Trial Judge; but the Trial Judge shall be bound to conduct the said subsequent proceedings in accordance with the Report issued by the pre-trial Judge.
ORDER 21 – MOTIONS AND OTHER APPLICATIONS
1.- (1) Whereby these Rules any application is authorised to be made to a Judge, such application shall be made by motion which shall be supported by affidavit and shall state under what Rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.
(2) All such applications shall be accompanied by a written address in support of the relief sought.
(3) Where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address in opposition and may accompany it with a counter affidavit.
(4) The applicant may on being served with the written address of the opposing party file and serve an address in reply on points of law within 7 days of being served. Where a counter affidavit is served on the applicant he may file a further affidavit within 3 days with his reply.
2.-(1) Except where an application ex parte is required or permitted under any law or Rules, every motion shall be on notice to the other party.
(2) No application for an injunction shall be made ex parte unless the applicant files with it an affidavit of urgency which urgency is not self-imposed or illusory, and a motion on notice in respect of the application shall be heard so soon after the grant of an ex parte order.
(3) An order of injunction made upon an application ex parte shall abate after 14 days.
(4) A .Judge may upon application extend the effective period of an order made ex-parte if he is satisfied that such extension is necessary in the interest of justice or to prevent irreparable damage or serious mischief to the applicant. The application for such an extension shall be made before abatement of the order and the extension shall not be for a period exceeding the period of time up to the date of the ruling on the motion on notice, provided that period shall not exceed 21 days.
(5) If a Motion to vary or discharge an ex parte order is not disposed of within 14 days of its being filed, the ex parte order shall automatically lapse.
3.-(1) A motion on notice to set aside, remit or enforce an arbitral award shall state in general terms, the grounds of the application, and where any such motion is founded on affidavit evidence, a copy of any affidavit intended to be used shall be served with the notice of motion.
(2) The party relying on an award, on applying for its enforcement, shall supply:
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original arbitration agreement or a duly certified copy thereof.
(3) An award made by arbitrator or a decision reached at the Multi-Door Court House may by leave of the Judge be enforced in the same manner as a judgment or order to the same effect.
(4) An application to set aside or remit any award may be made at any time within 6 weeks after such award has been made, and published to the parties:
Provided that the Judge may by order extend the said time either before or after the same has elapsed.
Provided that application for adjournment at the request of a party shall not be made more than two times.
ORDER 22 – INTERLOCUTORY ORDERS
(2) An application for an order under Rule I Sub- Rule I of this Order may be made by the claimant at any time after his right thereto appears from the pleadings, is made to appear by affidavit or otherwise to the satisfaction of the Judge.
4.- (1) A Judge upon the application of any party to an action or matter, and upon such terms as may be just, may make any order for the detention, preservation or inspection of any property or thing, being the subject of such action or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into any land or building in the possession of any party to such action or matter, and for all or any of the purposes aforesaid to authorize any samples to be taken or any observation to be made or experiment to be carried out, which may be necessary or expedient for the purpose of obtaining full information or evidence.
(2) Where an order for the inspection of any property or thing is made on an application under this rule (including an action or matter) and the person who ought to permit the inspection refuses to do so, then, unless the Judge is satisfied that such person reasonably failed or refused to permit the inspection, shall order the costs to be paid by such person in any event and except where such person is a “Poor Person”, shall order the costs to be paid forthwith.
5.-(1) A Judge by whom any action or matter may be heard or tried, may inspect any property or thing concerning which any question may arise therein.
(2) Where the property is in possession of the court either before or after judgment and it has remained so for a period of 12 months, a Judge may upon an application make an order for the sale of that property and the proceeds thereof to be paid into an interest yielding account in a commercial bank directed by the Judge for the benefit of the person that succeeds at the trial or on appeal.
(3) The money paid after disposal of any goods or chattel shall be withdrawn from the bank by the successful party who shall present to the Chief Registrar a certified true copy of the enrolment of the judgment.
ORDER 23 – DRAWING UP OF ORDERS
(a) for the issue of any writ other than a writ of attachment;
(b) for the amendment of any writ or pleading;
(c) for the filing of any document; or
(d) for any act to be done by any officer of the court other than a legal practitioner,
It shall not be necessary to draw up such order unless the Judge otherwise directs; but the production of a notice or memorandum of such order signed by a Judge shall be sufficient authority for such enlargement of time, issue, amendment, filing or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed to be a special direction within the meaning of this rule.
ORDER 24 – WITHDRAWAL AND DISCONTINUANCE
1.-(1) The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants, or withdraw any part or parts of his claim. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim.
(3) Where a defence has been filed, the claimant may, with the leave of a Judge, discontinue the proceeding or any part thereof on such terms and conditions as the Judge may order.
(4) Where proceedings have been stayed or struck out upon a claimant’s withdrawal or discontinuance under this Order, no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with.
(5) The Judge may in like manner and like discretion as to terms, upon the application of a defendant order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out.
ORDER 25 – TRANSFERS AND CONSOLJDATION
(2) Such notification shall be effected by serving a notice personally on the party concerned, or, where an address for service has been given by such party, at that address.
3.-(1) The Registrar shall on payment of the prescribed fees, in any case not later than 7 days:
(a) file the documents received from the Lower Court;
(b) make an entry of the filing in the Cause Book; and
(c) transmit the documents to the Chief Judge or such other Judge appointed by the Chief Judge in the Order of transfer.
(2) The Registrar shall then give notice to the parties to attend in person or by Legal Practitioner before a named Judge on the day and at the time specified in the notice. The fees for the service of this notice shall be borne in the first instance by the party who has paid the fees for filing as provided by Rule 2 of this Order.
(a) hear the parties or their Legal Practitioners;
(b) take cognizance of the documents, and thereafter;
(c) give directions for the trial or hearing of the action or matter.
(2) Directions given under this Rule may include directions for the filing and service of pleadings.
(2) If the defendant fails or all of several defendants fail to attend in compliance with a notice given under sub-rule 2 of Rule 3 of this Order, the claimant may ask for judgment with costs or obtain the order prayed for in the transferred proceeding.
7.-(1) The Judge may on application consolidate several actions pending before him where it appears that the issues are the same in all the actions, and can therefore be properly tried and determined at the same time.
(2) Where actions are pending before different Judges, a party desiring consolidation shall first apply to the Chief Judge or the Administrative Judge in a Judicial Division for transfer of the matter to a Judge before whom one or more of the matters is pending or any other Judge.
(3) An order to consolidate may be made where two or more actions are pending between the same claimant and the same defendant, or between the same claimant and different defendants, or between different claimants and the same defendant, or between different claimants and different defendants:
(4) Where an order for consolidation has been made, it shall be drawn up at the expense of the party or parties who applied for consolidation and shall be recorded in the Cause Book.
ORDER 26 – AMENDMENT
“Amended……………day………… of …………pursuant to Order of (name of Judge) dated the ………………………..day of ………………………
ORDER 27 – ISSUES, INQUIRIES, ACCOUNTS AND REFRENCES TO REFREES
(2) If the parties differ on the issues, the pre-trial Judge may settle the issues.
5.-(1) Subject to any order made by the Judge ordering the inquiry, evidence shall be taken at any inquiry before a referee. The attendance of witnesses to give evidence before a referee may be enforced by the Judge in the same manner as such attendance may be enforced before the court; and every such inquiry shall be conducted in the same manner or as nearly as circumstances will admit as trials before a court.
(2) The referee shall have the same authority in the conduct of any inquiry as a Judge when presiding at any trial.
(3) Nothing in these Rules shall authorise any referee to commit any person to prison or to enforce any order by attachment or otherwise; but the Judge may, in respect of matters before a referee, make such order of attachment or committal as he may consider necessary.
6.-(1) The report made by a referee in pursuance of a reference under this Order shall be made to the Judge and notice thereof served on the parties to the reference.
(2) A referee may by his report submit any question arising therein for the decision of the Judge or make a special statement of facts from which the Judge may draw such inferences as he deems fit.
(3) On the receipt of a referee’s report, the Judge may:
(a) adopt the report in whole or in part;
(b) vary the report;
(c) require an explanation from him;
(d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee;
(e) decide the question or issue originally referred to him on the evidence taken before him, either with or without additional evidence.
(4) When the report of the referee has been made, an application to vary the report or remit the whole or any part of the question or issue originally referred, may be made at the hearing by the Judge for the further consideration of the cause or matter, after giving not less than 4 days notice thereof, and any other application with respect to the report may be made at the hearing without notice.
(5) Where on a reference under this Order, a Judge orders that the further consideration of the cause or matter in question shall not stand adjourned until the receipt of the referee’s report, the order may contain directions with respect to the proceeding on the receipt of the report and the provisions of this rule shall have effect subject to any such directions.
ORDER 28 – PAYMENT INTO COURT
(2) Where a teller for payment is filed with the Chief Registrar, he shall forthwith give notice of the payment to the claimant who may apply to a Judge for an order to withdraw the amount so paid.
(3) Where a defence of tender before action is set up, the sum of money alleged to have been tendered shall be brought into court.
(4) The defendant may without leave give a written notice to the Chief Registrar of his intention to increase the amount of any sum paid into Court.
(5) Where the money is paid into court in satisfaction of one or more of several causes of action, the notice shall specify the cause or causes of action in respect of which payment is made, and the sum paid in respect of each such cause of action unless a Judge otherwise directs.
(6) The notice shall be in Form 25 with such modifications or variations as circumstances may require. The receipt of the notice shall be acknowledged in writing by the claimant within 3 days. The notice may be modified or withdrawn or delivered in an amended form by leave of a Judge upon such terms as may be just.
(7) Where money is paid into court with denial of liability the claimant may proceed with the action in respect of the claim and if he succeeds, the amount paid shall be applied so far as is necessary in satisfaction of the claim, and the balance, if any, shall, on the order of a Judge be repaid to the defendant. Where the defendant succeeds in respect of such claim, the whole amount paid into court shall be repaid to him on the order of a Judge.
2.-(1) Where money is paid into court under Rule 1 of this Order, the claimant shall within 14 days of the receipt of the notice of payment into court, or where more than one payment into court has been made, within 14 days of the receipt of the notice of the last payment in court, accept the whole sum or anyone or more of the specific sums in satisfaction of the cause or causes of action to which the specified sum or sums relate by giving notice to the defendant in Form 26 with such modifications or variations as circumstances may require and thereupon shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.
(2) Payment shall be made to the claimant or on his written authority to his Legal Practitioner and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed.
(3) If the claimant accepts money paid into court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more specified causes of action, and gives notice that he abandons the other causes of action, he may after 4 days from payment out and unless a Judge otherwise orders, tax the costs incurred to the time of payment into court, and 48 hours after taxation may sign judgment for the taxed costs.
(4) Where in an action for libel or slander, the claimant accepts money paid into court, a Judge may allow the parties or either of them to make a statement in open court in terms approved by the Judge.
(2) If the claimant elects within 14 days after receipt of notice of payment into court to accept the sum or sums paid into court, he shall give notice as in Form 27 with such modifications or variations as circumstances may require to each defendant and thereupon all further proceeding in the action or in respect of the specified cause or causes of action (as the case may be) shall abate.
(3) The money shall not be paid out except in pursuance of an order of a Judge.
(4) In an action for libel or slander against several defendants sued jointly, if any defendant pays money into court, the claimant may within 14 days elect to accept the sum paid into court in satisfaction of his claim against the defendant making the payment, and shall give notice to all the defendants in Form 26 with such modifications or variations as circumstances may require. The claimant may tax his costs against the defendant who has made such payment in accordance with Rule 2(3) of this Order and the action shall thereupon abate against that defendant.
(5) The claimant may continue with the action against any other defendant but the sum paid into court shall be set-off against any damages awarded to the claimant against the defendant or defendants against whom the action is continued.
(2) No money (which expression for the purposes of this Rule includes damages) in any way recovered or adjudged or ordered or award or agreed to be paid in any such proceeding in respect of the claims of any such person under legal disability whether by judgment, settlement, compromise, payment into court or otherwise, before, at or after the trial, shall be paid to the claimant or to the guardian of the claimant or to the claimant’s Legal Practitioner unless a Judge shall so direct.
(3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the Judge shall direct. The directions thus given may include any general or special directions that the Judge may deem fit to give, including directions on how the money is to be applied or dealt with and as to any payment to be made either directly or out of money paid into court to the claimant or to the guardian in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the person under legal disability or otherwise or to the claimants Legal Practitioner in respect of costs or of the difference between party and party and Legal Practitioner and client costs.
ORDER 29 – SPECIAL CASE
5.- (1) The parties to a special case may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, that on the judgment of the court being given in the affirmative or negative on the questions of law raised by the special case, a sum of money fixed by the parties or to be ascertained by the court or in such manner as the court may direct, shall be paid by one of the parties to the other, either with or without costs as the case may be.
(2) The judgment of the court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed or unless stayed on appeal.
ORDER 30 – PROCEEDING AT TRIAL
4.-(1) Where a cause is struck out under Rule 1 or Rule 2 of this Order, either party may apply that the cause be relisted on the cause list on such terms as the Judge may deem fit.
(2) Any judgment obtained where any party did not appear at the trial maybe set aside by the Judge upon such terms as he may deem fit.
(3) An application to re-list a cause struck out, or to set aside a judgment shall be made within 6 days after the order or Judgment or such other larger period as the Judge may allow and upon payments of five thousand Naira fee to the court.
10.-(1) The court may in order to discover or to obtain proper proof of the relevant facts, without seeming to make any case for either of the parties, ask any question he pleases, in any form, at any time, of any witness or any person (whether called by any party or not) who had made a deposition or not, about any fact relevant or irrelevant ;and may order the production of any document or thing; during pre-trial or at the trial.
(2) A party who desires to call any witness not being a witness whose deposition on oath accompanied his pleading shall apply to the Judge for leave to call such witness.
(3) An application for leave in sub-rule 1 of this Order shall be accompanied by the deposition on oath of such witness, and the Judge may, if good cause is shown as in sub-rule 1 above, grant leave to call the additional witness.
11.-(1) A party shall close his case when he has concluded his evidence. Either the claimant or defendant may apply orally to have the case closed.
(2) Notwithstanding the provisions of sub-rule 1 of this Order, the Judge may on his own motion where he considers that either party fails to conclude his case within a reasonable time, close the case for the party.
12.-(1) The Registrar shall take charge of every document or object put in as an exhibit during the trial of an action and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in (or where more convenient, the witness by whom the exhibit is put in) and with a number, so that all the exhibits put in by a party are numbered serially.
(2) The Registrar shall cause a list of all the exhibits in the action to be made.
(3) The list of exhibits when completed shall form part of the record of the action.
(4) For the purpose of this rule a bundle of documents may be treated and counted as one exhibit.
(5) In this rule a witness by whom an exhibit is tendered includes a witness in the court by whose evidence the exhibit is put in.
17.-(1) An exhibit shall not be released after the trial to the party who has put it in unless the period during which notice of appeal may be given has elapsed without such notice having been given, and if the trial Judge (or in his absence, another Judge) grants leave to release such exhibit on being satisfied:
(a) that the exhibit will be kept duly marked and labeled and will be produced, if required, at the hearing of an appeal (if any such appeal is lodged), or
(b) that the release of the exhibit will not in any way prejudice any other party.
(2) After a notice of appeal has been filed, an exhibit produced at the trial shall not be released by the High Court unless leave to release such exhibit is granted by the Court of Appeal.
18.-(1) Any party may apply for and on payment of the prescribed fee obtain an office copy of the list of exhibits.
(2) Where there is an appeal, an office copy of the list of exhibits shall be included amongst the documents supplied for the purpose of the appeal.
ORDER 31 – EVIDENCE GENERALLY
1.-(1) Subject to these Rules and to any enactment relating to evidence, any fact required to be proved at the trial of an action, shall be proved by written deposition and oral examination of witnesses in open court.
(2) The oral examination of a witness during his evidence-in-chief shall be limited to confirming and adopting his written deposition and tendering in evidence all documents or other exhibits referred to in the deposition.
2.-(1) A Judge may, at or before the trial of an action, order or direct that evidence of any party or fact be given at the trial in such manner as may be specified by the order or direction.
(2) The power conferred by sub-rule 1 of this Rule extends in particular to ordering or directing that evidence of any particular fact be given at the trial:
(a) by statement on oath of information or belief;
(b) by the production of documents or entries in books;
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified document which contains a statement of that fact.
(a) the party obtaining such order shall file in the Registry an undertaking as in Form 28 which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used;
(b) such undertaking shall be accompanied by:-
(i) a request in Form 29, with such modifications or variations as may be directed in the order for its issue, together with translation in the language of the country in which it is to be executed (if not English);
(ii) a copy of the interrogatories (if any) to accompany the requests, with a translation if necessary;
(iii) a copy of the cross-interrogatories (if any) with a translation, if necessary.
Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.
ORDER 32 – AFFlDAVlTS
ORDER 33 – FILING OF WRITTEN ADDRESS
(i) the claim or application on which the address is based;
(ii) a brief statement of the facts with reference to the exhibit attached to in the application or tendered at the trial;
(iii) the issues arising from the evidence;
(iv) a succinct statement of argument on each issue incorporating the purport of the authorities referred to together with full citation of each such authority.
PART III
NON-SUIT, JUDGMENT, COST AND STAY PENDING APPEAL
ORDER 34 – JUDGMENT IN DEFAULT OF PLEADING
In such a case, the value and amount of damages against the defendant making default shall be assessed at the trial of the action or issues therein against the other defendants, unless the Judge shall otherwise order.
Provided that the unanswered part consists of a separate cause of action or is severable from the rest, as in the case of part of a debt or liquidated demand:
Provided also that where there is a counterclaim, execution on any such judgment as above mentioned in respect of the claimant’s claim shall not issue without leave of the Judge.
ORDER 35 – DELIVERY AND ENTRY OF JUDGMENT
Provided that the order may direct that the judgment shall not be entered until a given date; in which case it shall take effect from that date.
“If you, ‘the within-named A.B., neglect to obey this judgment (or order)’ by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the said judgment (or order)” and same shall be served upon the person required to obey the judgment or order.
ORDER 36 – COSTS
1.-(1)In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses which he has necessarily put in the proceeding, as well as compensated for his time and effort in coming to court. The Judge may take into account all the circumstances of the case.
(2) When costs are ordered to be paid, except as otherwise stated in these rules, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of making the judgment or order and stated therein.
(3) When the Judge deems it to be impracticable to determine summarily the amount of any costs which he has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge to a taxing officer for taxation.
9.- (1) Costs when ordered immediately become payable, and in all events shall be paid within 7 follow the event days of the order, otherwise the defaulting party or his Legal Practitioner may be denied further audience in the proceeding.
(2) In addition to any penalty payable for default under these Rules, the costs of and occasioned by any application to extend the time fixed by the Rules or any direction or order thereunder, for delivering or filing any document or doing any other act (including the costs of any Order made on the application) shall be borne by the party making the application unless the Judge otherwise orders.
12.-(1) Where in any cause or matter anything is done or omission is made improperly or unnecessarily by or on behalf of a party, the Judge may direct that any costs to that party in respect of the cause or matter shall not be allowed. Any costs occasioned by such act of misconduct or neglect shall be borne by the party in default.
(2) Without prejudice to the generality of sub-rule I of this rule, the Judge shall, for the purpose of that sub-rule, have regard in particular to the following matters:
(a) the omission to do anything the doing of which would have been calculated to save costs;
(b) the doing of anything calculated to occasion or in a manner or at a time calculated to occasion unnecessary costs;
(c) any unnecessary delay in the proceeding.
(3) The Judge may instead of giving a direction under sub-rule 1 of this rule in relation to anything done or any omission made, direct the taxing officer to inquire into it and if it appears to the Taxing Officer that such a direction as aforesaid should have been given in relation to it, to act as if the appropriate direction had been given.
13.-(1) Subject to the following provisions of these Rules, where in any proceeding costs are incurred liability of improperly or without reasonable cause or by undue delay or by any other misconduct or default, the Judge for costs may make against any Legal Practitioner whom he considers to be responsible (whether personally or through a servant, agent or delegate) an order:
(a) directing the Legal Practitioner personally to pay to his client costs which the client has been ordered to pay to other parties to the proceedings; or
(b) directing the Legal Practitioner personally to indemnify such other parties against costs payable by them: or
(c) disallowing the costs as between the Legal Practitioner and his client.
(2) The provisions of Rule 13 sub-rule 1 shall apply where proceeding in court cannot conveniently proceed or is adjourned without progress being made:
(a) because of the failure of the Legal Practitioner to attend in person or by a proper representative; or
(b) because of the failure of the Legal Practitioner to deliver any document for the use of the court which ought to have been delivered or to be prepared with any proper evidence or account or otherwise to proceed.
(3) No order under this Rule shall be made against a Legal Practitioner unless he has been given a reasonable opportunity to appear before the Judge to show cause why the order should not be made.
(4) Any counsel holding brief for another must be ready to proceed with the matter, otherwise the counsel holding brief shall pay cost not less than One Thousand Naira to the court.
(5) The Judge may direct that notice of any proceedings or order against a Legal Practitioner under this Rule shall be given to his client in such manner as may be specified in the direction.
(6) If, on the taxation of costs to be paid out of a fund, one-sixth or more of the amount of the bill for those costs is taxed off, the Legal Practitioner whose bill it is shall not be allowed the fees to which he would otherwise be entitled for drawing the bill and for attending the taxation.
(a) take an account of any dealings in money made in connection with the payment of the costs being taxed, if the Judge so directs;
(b) require any party represented jointly with any other party in any proceeding before him to be separately represented;
(c) examine any witness in those proceeding;
(d) direct the production of any document which may be relevant in connection with those proceeding.
18.-(1) A Taxing Officer may:
(a) extend the period within which a party is required by or under these Rules to begin proceeding for taxation or to do anything in or in connection with proceeding before that officer;
(b) where no period is specified by or under these Rules or by the Judge for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done.
(2) Where an order of the court specifies a period within which anything is to be done by or before a Taxing Officer, then unless the Judge otherwise directs, the Taxing Officer may from time to time extend the period so specified on such terms, if any, as he deems fit
(3) A Taxing Officer may extend any such period as is referred to in the provisions of this Rule although the application for extension is not made until after the expiration of that period.
(a) tax the costs which that party is liable to pay and set-off the amount allowed against the amount he is entitled to be paid and direct payment of any balance; or
(b) delay the issue of a certificate for the costs he is entitled to be paid until he has paid or tendered the amount he is liable to pay.
20.-(1) A party entitled to require any costs to be taxed shall begin proceeding for the taxation of those costs by filing in the Registry a bill of costs and obtain a day and time for the taxation thereof. Such party shall give at least 7 days notice to all other parties of the day and time appointed for taxation proceeding and at the same time serve a copy of its bill of costs on the other party if he has not already done so.
(2) A notice under sub-rule 1 of this Rule need not be given to a party who has not entered an appearance or taken any part in the proceeding which gave rise to the taxation proceeding.
21.-(1) In any bill of costs the professional charge and the disbursements shall be entered in separate columns and every column shall be cast before the bill is left for taxation.
(2) Before a bill of costs is left for taxation it shall be indorsed with:
(a) the name or firm and business address of the Legal Practitioner whose bill it is; and
(b) if the Legal Practitioner is the agent of another, with the name or firm and business address of that other Legal Practitioner.
22.-(1) If a party entitled to be heard on any taxation proceeding does not attend within a reasonable time after the time appointed for the taxation, the Taxing Officer, if satisfied by affidavit or otherwise that the party had due notice of the time appointed, may proceed with the taxation.
(2) The Taxing Officer before whom any taxation proceeding are being conducted may, if he deems it necessary to do so, adjourn the proceeding from time to time.
23.-(1) Subject to Rule 20 of this Order, and the following provisions of this Rule, the scale of costs as may be determined by the Chief Judge from time to time by Order, shall apply to the taxation of all costs incurred in relation to contentious business done after the commencement of these Rules.
(2) Where the amount of a Legal Practitioner’s remuneration in respect of non-contentious business connected with sales, purchases, leases, mortgages and other matters of conveyancing or in respect of any other non-contentious business is regulated (in the absence of agreement to the contrary), the amount of the costs to be allowed on taxation in respect of the like contentious business shall be the same, notwithstanding anything contained in the scale of the appendix to these Rules.
27.-(1) An application under the preceding Rules shall be made by summons at any time within 14 days after the Taxing Officer’s certificate.
(2) Unless a Judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on taxation but, save as aforesaid, on the hearing of any such application the Judge may exercise all such powers and discretion as are vested in the Taxing Officer in relation to the subject matter of the application.
(3) On an application under this Rule, a Judge may make such order as the circumstances require and in particular may order the Taxing Officer’s decision to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the same or another Taxing Officer for taxation.
ORDER 37 – STAY OF EXECUTION PENDING APPEAL
2.- (1) Application for stay of execution shall be regarded as an urgent matter and shall be heard within 28 days from the date of filing.
(2) Where a Judge refuses an application for stay, no further application for stay of execution shall be made by the same applicant in the matter.
(3) An order for stay may be made subject to such condition as shall appear just, including the deposit in court of monies adjudged in liquidated claims, due to any party in the Judgment appealed from.
PART IV
SUPPLEMENTAL RULES FOR CERTAIN SPECIAL PROCEEDINGS
ORDER 38 – INTERPLEADER
Provided that where the applicant is a Sheriff or other officer charged with the execution of process by or under the authority of the High Court, the provisions of Section 34 of the Sheriffs and Civil Process Act and the Rules made under it shall apply.
(a) claims no interest in the subject matter in dispute other than for charges or costs; and
(b) does not collude with any of the claimants; and
(c) is willing to pay or transfer the subject matter into court or to dispose of it as the Judge may direct.
ORDER 39 – SUMMONS PROCEED
(i) the manner in which each of the accounts and inquiries is to be prosecuted;
(ii) the evidence to be adduced in support thereof;
(iii) the parties who are to attend on the several accounts and inquiries; and
(iv) the time within which each proceeding is to be taken,
and a day or days may be appointed for the further attendance of the parties, and all such directions may afterwards be varied by addition thereto or otherwise, as may be found necessary.
Provided that no copies shall be made of deeds or documents where the originals can be brought in unless the Judge shall otherwise direct.
ORDER 40 – APPLICATION FOR JUDICIAL REVIEW
1.- (1) An application for:
(a) an order of mandamus, prohibition or certiorari; or
(b) an injunction restraining a person from acting in any office in which he is not entitled to act shall be made; by way of an application for judicial review in accordance with the provisions of this Order,
(2) An application for a declaration or an injunction (not being an injunction mentioned in rule (1)(b) of this Rule of this Order) may be made by way of an application for judicial review and the Court may grant the declaration or injunction if it deems it just and convenient to grant it by way of judicial review, having regard to:
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order;
(c) all the circumstances of the case.
3.- (1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this Rule.
(2) An application for leave shall be made ex parte to a Judge and shall be supported by:
(a) a statement setting out the name and description of the applicant, the reliefs sought and the grounds on which they are sought;
(b) an affidavit verifying the facts relied on.
(3) A Judge hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as he deems fit
(4) A Judge shall not grant leave unless he considers that the applicant has a sufficient interest in the matter to which the application relates.
(5) Where leave to apply for judicial review is granted, then:
(a) if the relief sought is an order of prohibition or certiorari and the Judge so directs, the grant shall operate as a stay of the proceeding to which the application relates until the determination of the application or until the Judge otherwise orders;
(b) if any other relief is sought, the Judge may at any time grant in the proceeding such interim relief as could be granted in an action begun by writ;
(c) the Judge may impose such terms as to costs and as to giving security as he deems fit.
5.-(1) Where leave has been granted and the Judge so directs, the application may be made by motion or by originating summons.
(2) The motion on notice or summons shall be served on all persons directly affected and where it relates to any proceeding before a Judge and the object of the application is either to compel the Judge or an officer of the court to do any act in relation to the proceeding, or to quash them or any order made therein, the motion or summons shall also be served on the Clerk or Registrar of the court and where any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless the Judge granting leave has otherwise directed, there shall be at least 7 days between the service of the motion on notice or summons and the day named therein for the hearing.
(4) The motion on notice shall be filed and entered for hearing within 14 days after the grant of leave.
(5) An affidavit giving the names and addresses of the places and dates of service on all persons who have been served with the motion on notice or summons shall be filed before the motion or summons is entered for hearing and if any person who ought to be served under this Rule has not been served, the affidavit shall state that fact and the reason for it and the affidavit shall be before the Judge on the hearing of the motion or summons.
(6) If on the hearing of the motion or summons the Judge is of the opinion that any person who ought, whether under this Rule or otherwise to have been served has not been served, the judge may adjourn the hearing on such terms, (if any), as he may direct in order that the motion or summons may be served on that person.
6.-(1) Copies of the statement in support of an application for leave under Rule 3 of this Order, shall be served with the motion on notice or summons and subject to sub-rule 2, of this Rule, no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.
(2) The Judge may on the hearing of the motion or summons allow the applicant to amend his statement whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as he deems fit. A Judge may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.
(3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.
(4) Each party to the application shall supply to every other party a copy of every affidavit which he proposes to use at the heating including, in the case of the applicant, the affidavit in support of the application for leave under Rule 3 of this Order.
(5) It shall not be necessary to draw up and serve an order granting leave where such order does not include any other special terms or special directions.
(a) he has included in the statement in support of his application for leave under Rule 3 of this Order, a claim for damages arising from any matter to which the application relates; and
(b) the Judge is satisfied that if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
9.-(1) On the hearing of any motion or summons under Rule 5 of this Order, any person who desires to be heard on the motion or summons, and appears to the Judge to be a proper person to be heard, shall be heard notwithstanding that he has not been served with motion on notice or the summons.
(2) Where the relief sought is or includes an order of certiorari to remove any proceeding for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Judge hearing the motion or summons.
(3) Where an order of certiorari is made in any such case as is referred to in sub-rule 2 of this Rule, the order shall, subject to sub-rule 4 of this Rule, direct that the proceedings shall be quashed forthwith on their removal into Court.
(4) Where the relief sought is an order of certiorari and the Judge is satisfied that there are grounds for quashing the decision to which the application relates, the Judge may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Judge.
(5) Where the relief sought is a declaration, an injunction or damages and the Judge considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Judge may, instead of refusing the application, order the proceeding to continue as if they had been begun by writ.
ORDER 41 – HABEAS CORPUS, COMMITTAL FOR CONTEMPT
(a) in vacation or anytime when no Judge is sitting in court it may be made to a Judge sitting otherwise than in court;
(b) in cases where the application is made on behalf of a child, it shall be made in the first instance to a Judge sitting otherwise than in Court.
2.- (1) The application may be made ex parte and shall be accompanied by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.
(2) Where the person restrained is unable owing to the restraint to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person which shall state that the person restrained is unable to make the affidavit himself.
3.-(1) A Judge to whom the application is made may make the order forthwith.
(2) Where an application is made to a Judge sitting otherwise than in court he may direct the Order to issue or that an application therefore be made by motion on notice.
(3) A Judge to whom the application is made may adjourn it so that notice thereof may be given to the detaining authority or person.
(4) Where the person detained is produced before a Judge he may discharge him immediately with or without conditions.
4.-(1) The summons or motion on notice aforesaid shall be served on the person against whom the order is sought and on such other persons as the Judge may direct.
(2) Unless the Judge otherwise directs, there shall be at least 2 clear days between the service of the motion or summons and the date named for the hearing of the application.
6.- (1) The order or motion on notice may be served personally or by courier on a jailer where the person is confined or restrained or on any other public official, and copies of the order or motion may be served in like manner on each person connected with or having authority over the place of confinement or restraint.
(2) The order shall contain the date on which the person restrained is to be brought before a Judge and that in default of obedience, proceeding for committal of the party disobeying will be taken.
8.- (1) Where the applicant is brought up in accordance with the Order, his Legal Practitioner shall be heard first, then the Legal Practitioner for the respondent and then the Legal Practitioner for the applicant in reply.
(2) Where the applicant is not brought in accordance with the Order, a Judge may upon the application of his Legal practitioner order that he be discharged or make any other order as he deems fit in the circumstances.
9.- (1) The procedure in applications for committal for contempt of court in cases to which this rule applies shall be the same as for applications for an order for judicial review under Order 40 so far as may be applicable.
(2) The motion on notice shall be personally served unless the Judge dispenses with such service as he deems fit in the circumstances.
(3) This Rule applies to cases where the contempt is committed:
(a) in connection with proceedings to which this Order relates;
(b) in connection with criminal proceeding or any proceedings in the High Court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the court;
(c) in connection with proceedings in an inferior court.
Registrar shall when the order is drawn up indorse it as follows:
Notice of Consequence of Disobedience to Court Order.
To …………………………………………..of……………………………………. .
Take Notice that unless you obey the direction(s) contained in this order you will be guilty of contempt of court and will be liable to be committed to prison.
Dated this ……………………….. day of …………………. 20 ………………………
………………….
Registrar
ORDER 42 – PROCEEDING IN FORMA PAUPERIS
3.-(1) A person seeking relief under this Order shall write an application to the Chief Judge accompanied by an affidavit, signed and sworn to by the applicant himself, stating that by reason of poverty he is unable to afford the services of a Legal Practitioner.
(2) If in the opinion of the Chief Judge the application is worthy of consideration, the Chief Judge shall appoint a Legal Practitioner to act for the applicant.
(3) Where a Legal Practitioner is so appointed the applicant shall not discharge the Legal Practitioner except with the leave of the Chief Judge.
5.- (1) The Legal Practitioner shall not, except by leave of the Chief Judge, take or agree to take any payment whatsoever from the applicant or any other person connected with the applicant on the action taken or defended thereunder.
(2) If the applicant pays or agrees to pay any money to any person whatsoever either in connection with his application or the action taken or defended thereunder, the order appointing the Legal Practitioner shall be revoked.
(3) If the Legal Practitioner assigned to the applicant discovers that the applicant is possessed of means beyond those stated in the affidavit, if any, he shall at once report the matter in writing to the Registrar.
6.-(1) The Chief Judge may at any time revoke the order granting the application and thereupon the applicant shall not be entitled to the benefit of this Order in any proceeding to which the application relates unless otherwise ordered.
(2) Neither the applicant nor the Legal Practitioner assigned to him shall discontinue, settle or compromise the action without the leave of a Judge.
ORDER 43 – SUMMARY PROCEEDING FOR POSSESSION OF LANDED PROPERTY AND SERVICE ON UNKNOWN PERSONS
1-(1) Proceeding under this Order shall apply Application of where a person is in occupation of land without being: this Order
(a) a tenant; or
(b) a tenant holding over after termination of his tenancy; or
(c) a licensee of the owner or person entitled to possession; or
(d) a person who had the consent of the predecessor-in-title of the person who is entitled to possession.
(2) Where a person claims possession of land that he alleges is occupied solely by a person listed in subrule (1) above, proceeding may be brought by originating summons in accordance with the provisions of this Order.
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons.
4.-(1) Where any person in occupation of the land is named in tile originating summons, the summons together with a copy of the affidavit in support shall be served on him:
(a) personally or in accordance with Order 12 Rule 1 sub-rule 2; or
(b) by leaving a copy of the summons with the affidavit or sending them to him at the premises; or
(c) in such other manner as the Judge may direct.
(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with sub-rule 1 of this Rule be served, unless the Judge otherwise directs by:
(a) affixing a copy of the summons with the affidavit to the main door or other conspicuous part of the premises; or
(b) if practicable, inserting through the letterbox at the premises, a copy of the summons with the affidavit enclosed in a sealed envelope addressed to “the occupiers”.
(3) A copy of an originating summons for service under sub-rule 1 or 2 of this Rule shall be sealed with the seal of the court out of which the summons was issued.
6.-(1) An order for possession in proceeding f under this Order shall be in Form 36 with such variations as circumstances may require.
(2) Nothing in this Order shall prevent the Judge from ordering possession to be given on a specified date, in the exercise of any power that should have been exercised if possession had been claimed in an action begun by writ.
8.- (1) The Judge may, on such terms as he deems fit, set aside or vary any order made in proceeding under this Order.
(2) In this Order “landed property” means land with or without building thereon.
ORDER 44 – FORECLOSURE AND REDEMPTION
(a) payment of moneys secured by the mortgage or charge;
(b) sale;
(c) foreclosure;
(d) delivery of possession (whether before or after foreclosure) to the mortgagor or person entitled to the charge, by the mortgagee or person having the property subject to the charge, or by any other person in, or alleged to be in possession of the property;
(e) redemption;
(f) re-conveyance;
(g) delivery of possession by the mortgagee.
ORDER 45 -JURISDICTION OF CHIEF REGISTRAR
(a) applications for the taxation and delivery of bills of costs and applications for the delivery by any Legal Practitioner of deeds, documents and papers;
(b) the taking of an account in any case where a Judge has ordered that the account be taken by the Chief Registrar;
(c) applications leading to the issue of the grant of probate of the Wills or Letters of Administration of the estates of deceased persons in non-contentious or common form probate business in the absence of a Probate Judge.
(d) the taxation of bills of costs.
Chief Registrar’s Certificate
9.-(1) In case of accounts and inquiries, the Certificate of the Chief Registrar shall be in Form 40 with such variations as the circumstances may require.
(2) The Certificate shall state the result of the account and not set the same out by way of schedule, but shall refer to the account verified by the affidavit filed and shall specify by the numbers attached to the items in the account (if any) which of such items as have been disallowed or varied and shall state what additions (if any) have been made by way of surcharge or otherwise and where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account so altered, such transcript may be required to be made by the party prosecuting the judgment or order and shall then be referred to by the certificate. The accounts and transcripts (if any) referred to by certificates shall be filed therewith.
ORDER 46 – PROBATE AND ADMINISTRATION
1.-(1) Subject to the provisions of Rules 44 and 45 of this Order when any person subject to the jurisdiction of the Court dies, all petition for the granting of any Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the Court.
(2) In regard to any such application, the Chief Judge or the Probate Judge shall have power to request the Court of any Judicial Division to take measure and make such orders as may appear necessary or expedient for the interim preservation of the property of the deceased within such Judicial Division, for the discovery or preservation of the Will of the deceased, or for any other purposes connected with the duties of the Court under this Order, and every Court shall carry out any such request as far as practicable and report the Chief Judge
(3) No grant of administration with the Will annexed shall issue within 7 days of the death of the deceased; and no grant of administration, without the Will annexed, shall issue within 14 days of such death.
Provided that the Judge may refuse the grant unless the applicant produces the required evidence on these points or any of them as required by the Judge.
Provided that the Judge may in his discretion refuse the grant unless and until all persons entitled to the grant in priority to the applicant shall have expressly renounced their prior right.
(a) any gratuity payable by the Government of the Federation of Nigeria, or of a State, or of a local government to the estate of any person formerly employed by either or such Governments or by a Statutory Corporation;
(b) any sum of money payable to an estate from a Provident Fund established under the provisions of any applicable law.
III. Probate or Administration with Will Annexed
17- (1) On receiving an application for administration with Will annexed, the Judge shall inspect the Will, and see whether it appears to be signed by the testator or by some other person in his presence, and by his direction, and subscribed by two witnesses according to the applicable law, and shall not proceed further if the Will does not appear to be so signed and subscribed.
(2) If the Will appears to be so signed and subscribed, the Judge shall then refer to the attestation clause (if any) and consider whether the wording thereof states the Will to have been in fact executed in accordance with those enactments.
18.-(1) Where a Will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the Will, he shall before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the Will was executed.
(2) If no affidavit can be obtained in accordance with sub-Rule 1of this Rule, the Registrar may, if he deems fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the Will, accept evidence on affidavit from any person he may deem fit to show that the signature on the Will is the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the Will.
(3) If the Registrar, after considering the evidence:
(a) is satisfied that the Will was not duly executed, he shall refuse probate and shall mark the Will accordingly;
(b) is doubtful whether the Will was duly executed, he may refer the matter to the Court by motion.
20.-(1) Where in a Will, there is any obliteration, interlineation or other alteration which is not authenticated in the manner prescribed by law, or by re-execution of the Will, or by the execution of a codicil, the Registrar shall require evidence to show whether the alteration was present at the time the Will was executed and shall give directions as to the form in which the Will is to be proved:
Provided that this sub-rule shall not apply to any alteration which appears to the Registrar to be of no practical importance.
(2) If from any mark on the Will it appears to the Registrar that some other document has been attached to the Will or if a Will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the Registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may deem fit.
(3) Where there is doubt as to the date on which a will was executed, the Registrar may require such evidence as he deems necessary to establish the date.
(a) The executor;
(b) any residuary legatee or devisee holding in trust for any other person;
(c) any residuary legatee or devisee for life;
(d) the ultimate residuary legatee or devisee, including one entitled on the happening of any contingency or where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person:
Provided that:
(i) unless the Registrar otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency; and
(ii) where the residue is nut in terms wholly disposed of, the Registrar may, if he is satisfied that the testat or has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made (subject to Rule 68 of this Order) to any legatee or devisee entitled to, or to a share in the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the Will; whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made (subject to Rule 68 of this Order) to any legatee or devisee entitled to, or to a share in the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the Will;
(e) any specific legatee or devisee or any creditor or, subject to sub-rule 3 of Rule 59 of this Order, the personal representative of any such person or where the estate is not wholly disposed of by Will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion to it;
(f) any specific legatee or devisee entitled on the happening of any contingency, or any person having no interest under the Will who would have been entitled to a grant if the deceased had died wholly intestate.
(a) an application to join with a person entitled to a grant of administration with the Will attached, a person in a lower degree shall, in default of renunciation by all persons entitled in priority to the latter, be made to the Registrar and shall be supported by an affidavit by the person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the Registrar may require;
(b) an application to join with a person entitled to a grant of administration with the Will attached, a person having no right to it, shall be made to the Registrar and shall be supported by an affidavit by the person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the Registrar may require:
Provided that there may, without any such application be joined with a person entitled to administration with the Will attached:
(i) on the renunciation of all other persons entitled to join in the grant, any kin of the deceased having no beneficial interest in the estate;
(ii) unless the Registrar otherwise directs, any person whom the guardian of a minor may nominate for the purpose;
28.- (1) The Court, on being satisfied that the Will was duly executed, shall carefully inspect it to see whether there are any interlineations, alterations, erasures, or obliterations appearing in it and requiring to be accounted for.
(2) Interlineations, alterations, erasures, and obliterations are invalid unless they existed in the Will at the time of its execution or unless, if made afterwards, they have been executed and attested in the mode required by the said enactments; or unless they have been made valid by the re-execution of the Will or by the subsequent execution of some codicil thereto.
(3) Where interlineations, alterations, erasures, or obliterations appear in the Will (unless duly executed or recited in or otherwise identified by the attestation clause), an affidavit in proof of their having existed in the Will before its execution shall be filed.
(4) If no satisfactory evidence is adduced respecting the time when an erasure or obliteration was made and the words erased or obliterated are not entirely effaced, and can, on inspection of the Will, be ascertained, they shall form part of the probate. Where any words have been erased which might have been of importance, an affidavit shall be required.
29.-(1) Where a Will contains a reference to any document of such a nature as to raise the question whether it ought or ought not to form a constituent part of the Will, the Court shall require the production of the document with a view to ascertaining whether or not it is entitled to probate; and if it is not produced, a satisfactory account of its non- production shall be proved. A document cannot form part of a Will unless it was in existence at the time when the Will was executed.
(2) If there are vestiges of sealing wax or wafers or other marks on the Will, leading to the inference that some document has been at sometime annexed or attached thereto, a satisfactory account of them shall be required, and if it is not produced, a satisfactory account of its non- production shall be proved.
Provided that where the Registrar is satisfied that compliance with this Rule might result in the loss of the Will, he may allow a photocopy to be marked or exhibited in lieu of the original document.
33.-(1) The Court in granting Letters of Administration shall proceed as far as may be as in cases of probate.
(2) The Court shall ascertain the time and place of the deceased’s death and the value of the property to be covered by the administration.
34.(1) The person to whom administration is granted shall give a bond with two or more responsible sureties to the satisfaction of the Probate Registrar. The bond shall affirm that the administrator shall be duly conditioned to collect, getting in and administering the personal property of the deceased.
(2) The Court may, if it deems fit, take one surety only where the gross value of the estate does not exceed two hundred and fifty thousand naira or where a corporation is proposed as a surety.
(3) The bond shall be in form of a penalty which is twice the sum value of the estate of the deceased unless the Court deems it expedient to reduce the amount.
(4) The Court may also in any case direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court deems reasonable.
35.-(1) The Registrar shall not require a guarantee as a condition of making a grant where it is proposed to make it:
(a) by virtue of Rule 25(e) of this Order to creditor or the personal representative of a creditor or to a person who has not immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;
(b) under Rule 61 of this Order to a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate, be entitled to his estate;
(c) under Rule 63 of this Order to the attorney of a person entitled to a grant;
(d) under Rule 64 Order for the use and benefit of a minor;
(e) under Rule 66 of this Order for the use and benefit of a person who by reason of mental or physical incapacity is incapable of managing his affairs;
(f) to an applicant who appears to the Registrar to be resident elsewhere than in the State; or
(g) except where the Registrar considers that there are special circumstances making it desirable to require a guarantee.
(2) Notwithstanding that it is proposed to make a grant as aforesaid, a guarantee shall not be required, except in special circumstances, on an application for administration where the applicant or one of the applicants is the Administrator-General or a trust corporation.
(3) A guarantee entered into by a surety for the purpose of this Order shall be in Form 41 with such variations as circumstances may require.
(4) Except where the surety is a corporation, the signature of the surety on every such guarantee shall be attested by an authorised officer, Commissioner for Oaths or other person authorised by law to administer an oath.
(5) Unless the Registrar otherwise directs:
(a) if it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed N250,000.00 (Two Hundred and Fifty Thousand Naira) or a corporation is a proposed surety, and in those cases one will suffice;
(b) no person shall be accepted as a surety unless he is resident in the State;
(c) no officer of the judiciary shall be a surety;
(d) the limit of the liability of the surety or sureties under a guarantee shall be the gross amount of the estate as sworn on the application for the grant;
(e) every surety other than a corporation, shall justify his eligibility.
(6) Where the proposed surety is a corporation, there shall be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the guarantee in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the Registrar that its assets are sufficient to satisfy all claims which may be made against it under any guarantee which it has given or is likely to give.
38.-(1) On proof of service of the summons or on appearance of the executor or administrator, and on proof of all such other things (if any) as the Judge may direct, the Judge may, if he deems fit, make an order for the administration of the property of the deceased.
(2) The Judge shall have discretionary power to make or refuse any such order or to give any special directions in respect of the carriage or execution of it and in the case of applications for such an order by two or more different persons or classes of persons, to grant the same to such one or more of the claimants or classes
(3) If the Judge deems fit the carriage of the order may subsequently be given to such person, and on such terms, as he may direct.
41.-(1) The officer or person so appointed shall act under the direction of the Judge, and shall be indemnified thereby.
(2) The Judge shall require and compel him to file in the Court his accounts of his administration at intervals not exceeding 3 months.
Provided that where the Court shall be satisfied that by reason of exceptional circumstances the administration of the property has required an extraordinary amount of labour to be bestowed on it, the Court may allow in respect of such property a higher rate of remuneration.
IV: Administration Generally
46.-(1) A person to whom a grant of probate or Letter of Administration shall have been made, and every administrator appointed by the Court shall, file in Court the accounts of his administration every 6 months from the date of the grant or the appoint-ment until the completion of the administration.
(2) Such executor or administrator who fails within any such period to file his accounts as aforesaid shall be liable to a penalty of one hundred naira for every day of default. Such fine shall on non-payment be enforceable by distress, and failing sufficient distress, by imprisonment for a term not exceeding 6 months.
(3) When an account is filed in Court under this Rule, the Judge shall scrutinize such account and if it appears to the Judge that by reason of improper, unvouched or unjustifiable entries or otherwise such account is not a full and proper account, the Judge shall require the person filing the account to remedy such defects as they may be within such time as the Judge may deem reasonable for the purpose; and on failure to remedy such defects within such time, the person who filed such defective account shall be deemed to have failed to file an account within the meaning of this Rule and proceeding may be taken against such person accordingly.
(4) It shall be the duty of the Probate Registrar to bring to the notice of the Judge the fact that any executor or administrator has failed to file his accounts as required by this Rule.
(5) The Judge may, on the motion of any party interested, or on its own motion, summon any executor or administrator failing as aforesaid, to show cause why he should not be punished.
(6) The Judge may for good cause shown extend the time for such filing of accounts.
(7) Any executor or administrator who has been granted an extension of time to file such accounts, and who fails within such extended time to file such accounts, shall be liable to the penalty set out above, and the procedure for bringing him before the Court shall be as set out above.
(8) Such accounts shall be open to the inspection of all persons satisfying the Probate Registrar that they are interested in the administration.
(9) In this Rule, the word “accounts” shall include an inventory, an account of the administration, the vouchers in the hands of the executor or administrator relating thereto and an affidavit in verification.
51.-(1) An applicant for a grant may apply in person.
(2) A personal applicant may not apply through an agent, whether paid or unpaid, and may not be represented by any person acting or appearing to act as his adviser.
(3) No personal application shall be received or proceeded with if:
(a) it becomes necessary to bring the matter before the Court by motion or by action;
(b) an application has already been made by a Legal Practitioner on behalf of the applicant and has not been withdrawn;
(c) the Registrar otherwise directs.
(4) After a Will has been deposited in the Registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Registrar so directs.
(5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as the Registrar may approve.
(6) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared in the Registry or may himself prepare such papers and lodge them unsworn.
(7) Unless the Registrar otherwise directs, every oath, affidavit or guarantee required of a personal application shall be sworn or executed by all the deponents or sureties before an authorized officer.
52.-(1) The Registrar shall not allow any grant to issue until all inquiries which he may deem fit to make have been answered to his satisfaction.
(2) The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond those contained in the oath.
(3) No grant of probate or of administration with the Will annexed shall issue within 7 days of the death of the deceased; and no grant of administration (not with
53.-(1) An application for a grant shall be supported by an oath in the form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the Registrar may require.
(2) Unless otherwise directed by the Registrar, the oath shall state where the deceased was domiciled at the time of death.
54.- Where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant shall state in the oath the true name of the deceased and shall depose that some part of the estate, specifying it, was held in the other name; or as to any other reason that there may be for the inclusion of the other name in the grant.
55-.(1) Where the Registrar considers that in any particular case a photocopy of the original Will would not be satisfactory for purposes of record, he may require that an engrossment suitable for photo reproduction be lodged.
(2) Where a Will contains alterations which are not admissible to proof, there shall be lodged an engrossment of the Will in the form in which it is to be proved.
(3) An engrossment lodged under this Rule shall reproduce the punctuation, spacing and division into paragraphs of the Will and, if it is one to which sub-rule 2 of this Rule applies, it shall be made book wise on durable paper following continuously from page to page.
(4) Where any pencil writing appears on a Will, there shall be lodged a copy of the Will or of the pages or sheets containing the pencil writing in which they shall be underlined in red ink those portions which appear in pencil in the original.
57.-(1) Where all the persons entitled to the estate of the deceased under a Will have assigned their whole interest in the estate to one or more persons, the assignees shall replace in order of priority for a grant of probate the assignor, or if there are two or more assignors, the assignors with the highest priority, in the absence of a proving executor.
(2) Where there are two or more assignees, probate may be granted with the consent of the others to anyone or more (not exceeding four) of them.
(3) In any case where probate is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Registry.
58.-(1) An application to add a personal representative shall be made to the Registrar and shall be supported by an affidavit by the personal applicant, the consent of the person proposed to be added as personal representative, and such other evidence as the Registrar may require.
(2) On any such application the Registrar may direct that a note shall be made on the original grant of the addition of a further personal representative, or he may impound or revoke the grant or make such Order as the circumstances of the case may require.
59.-(1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same degree.
(2) A dispute between persons entitled to a grant in the same degree shall be brought by application before the Registrar.
(3) If an application under this Rule is brought before the Registrar, he shall not allow any grant to be sealed until such application is finally disposed of.
(4) Unless the Registrar otherwise directs, probate or administration with the Will attached shall be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.
60.-(1) Nothing in Rules 57, 60 or 62 of this Order, shall operate to prevent a grant being made to any person to whom a grant may, or may require to be made under any enactment.
(2) The Rules mentioned in the last foregoing Sub Rule 1 of this Rule shall not apply where the deceased died domiciled outside the State, except in a case to which the provisions of Rule 63 apply.
Provided that a surviving spouse shall not be regarded as person in whom the estate has vested absolutely unless he would be entitled to the whole of the estate, whatever it’s value may be.
62.-(1) Where the deceased was domiciled outside the State, the Registrar may order that a grant should issue:
(2) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;
(3) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;
(4) if there is no person as is mentioned in paragraph (a) or (b) of this Rule or if in the opinion of the Registrar the circumstances so require, to such person as the Registrar may direct;
(5) if a grant required to be made to, or if the Registrar in his discretion considers that a grant should be made to, not less than two administrators, to such person as the Registrar may direct jointly with any such person as is mentioned in paragraph (a) or (b) of this Rule or with any other person:
Provided that without any such order as aforesaid:
(a) probate of any Will which is admissible to proof may be granted:
(i) if the Will is in English or in the local vernacular, to the executor named therein;
(ii) if the Will described the duties of a named person in terms sufficient to constitute him executor according to the tenor of the Will, to that person;
(b) where the whole of the estate in the state consists of immovable property, a grant limited thereto may be made in accordance with the law that would have been applicable if the deceased had died domiciled in the State.
63.-(1) Where a person entitled to a grant resides outside the State, a grant may be made to his lawful attorney for his use and benefit, until such person shall obtain a grant or in such other way as the Registrar may direct:
Provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any.
(2) Where the Registrar is satisfied by affidavit that it is desirable for a grant to be made to the lawful attorney of a person entitled to a grant and resident in the State, he may direct the grant to be made to the attorney for the use and benefit of such person, until such person obtains a grant or in such other way as the Registrar may direct.
64.- (1) Where the person to whom a grant would otherwise be made is a minor, a grant for his use and benefit until he attains the age of 18 years shall subject to sub-rules 3 and 5 of this Rule, be granted:
(a) to both parents of the minor jointly or to any guardian appointed by a court of competent jurisdiction; or
(b) if there is no such guardian able and willing to act and the minor has attained the age of 16 years, to any next-of-kin nominated by the minor, or where the minor is a married woman, to any such next-of-kin or to her spouse if nominated by her.
(2) A person nominated under sub-rule 1 (b) of this Rule may represent any other minor whose next-of-kin he is, being a minor below the age of 16 years entitled in the same degree as the minor who made the nomination.
(3) Notwithstanding anything in this Rule, administration for the use and benefit of the minor until he attains the age of 18 years may be granted to any person assigned as guardian by order of a court in default of, or jointly with, or to the exclusion of any such person as is mentioned in sub-rule I of this Rule; and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the court, an affidavit of fitness sworn by a responsible person. Such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the court, an affidavit of fitness sworn by a responsible person.
(4) Where a grant is required to be made to not less than two persons and there is only one person competent and willing to take a grant under the foregoing provisions of this Rule, a grant may, unless the Registrar otherwise directs, be made to such person jointly with any other person nominated by him as a fit and proper person to take the grant.
(5) Where a minor who is sole executor has no interest in the residuary estate of the deceased, administration with the Will attached for the use and benefit of the minor until he attains the age of 18 years shall, unless the Registrar otherwise directs, be granted to the person entitled to the residuary estate.
(6) A minor’s right to administration may be renounced only by a person assigned as guardian under sub-rule 3 of this Rule and authorised to renounce by the Registrar.
65.- (1) Where one of several executors is a minor, probate may be granted to the adult executors, with power reserved for making the like grant to the minor on his attaining the age of 18 years and administration for the use and benefit of the minor until he attains the age of 18 years may be granted under Rule 64 of this Order, if and only if the adult executors renounce or, on being cited to accept or refuse a grant, fail to make an effective application.
(2) A minor executor’s right to probate on attaining the age of 18 years shall not be renounced by any person on his behalf.
66.-(1) Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical infirmity incapable of managing his affairs, a grant for his use and benefit, during his incapacity may be made:
(a) in the case of mental incapacity, to the person authorised by the Judge to apply for the grant;
(b) where there is no person so authorised or in the case of physical incapacity:
(i) if the person incapable is entitled as executor and has no interest in the residuary estate of the deceased, to the person entitled to such residuary estate;
(ii) if the person incapable is entitled otherwise than as executor or is an executor having an interest in the residuary estate of the deceased, to the person who would be entitled to a grant in respect of his estate if he had died intestate; or to such other person as the Registrar may by order direct.
(2) Unless the Registrar otherwise directs, no grant shall be made under this Rule unless all persons entitled in the same degree as the person incapable have been considered and excluded.
(3) In the case of mental incapacity, notice of intended application for a grant under this Rule shall, unless the Registrar otherwise directs, be given to the person alleged to be so incapable.
67.-(1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.
(2) Unless the Registrar otherwise directs, no person who has renounced a grant in one capacity may obtain a grant in some other capacity.
(3) A renunciation of probate or administration may be retracted at any time on the order of the Registrar.
Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to such other person entitled in a lower degree.
69.-(1) An application for the resealing of probate or administration with the Will attached granted by a court outside the State shall be made by the person to whom the grant was made or by any person authorised in writing to apply on his behalf.
(2) On any such application:
(a) an Inland Revenue Affidavit shall be lodged as if the application were one for a grant in the State;
(b) the application shall be advertised in such manner as the Registrar may direct and shall be supported by an oath sworn by the person making the application.
(3) On an application for the resealing of such a grant:
(a) the Registrar shall not require sureties except where it appears to him that the grant is made to a person or for a purpose mentioned in paragraphs (a) to (1) of Rule 3 5( I) of this Order, or except where he considers that there are special circumstances making it desirable to require sureties;
(b) Rules 35(2), (4), (5) (6) and 51(4) of this Order shall apply with any necessary modifications; and
(c) a guarantee entered into by a surety shall be in Form 42 with such variations as circumstances may require.
(4) Except by leave of the Registrar, no grant shall be resealed unless it was made to such a person as is mentioned in sub-rules 2 or 3 of Rule 62 or to a person to whom a grant could be made under a proviso to that rule.
(5) No limited or temporary grant shall be resealed except by leave of the Registrar.
(6) A grant lodged for resealing shall include a copy of any will to which the grant relates or shall be accompanied by a copy certified as correct by or under the authority of the Court by which the grant was made.
(7) The Registrar shall send notice of the resealing to the Court which made the grant.
(8) Where notice is received in the Registry from outside the State of the resealing of a grant made in the State, notice of any amendment or revocation of the grant shall be sent to the Court by which it was resealed.
Provided that except in special circumstances no grant shall be amended or revoked under this Rule except on the application or with the consent of the person to whom the grant was made.
71.-(1) A notice to prohibit a grant of administration may be filed in Court.
(2) A person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat in the Registry.
(3) A person who wishes to enter a caveat (in this Rule called “the caveator”) may do so by completing the appropriate Form at the Registry and obtaining an acknowledgment of entry from the proper officer, or by sending through the post, at his own risk, a notice in the appropriate form to the Registry in which he wishes the caveat to be entered.
(4) Where the caveat is entered by a Legal Practitioner on behalf of the caveators the name of the caveator shall be stated in Form 43.
(5) Except as otherwise provided by this Rule, a caveat shall remain in force for 3 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.
(6) The Registrar shall maintain an index of caveats entered in the Registry and on receiving an application for a grant in the Registry, he shall cause the index to be searched and shall notify the applicant in the event of any caveat having been entered against the sealing of a grant for which application has been made.
(7) The Registrar shall not allow any grant to be sealed if he has knowledge of an effective caveat in respect thereof:
Provided that no caveat shall operate to prevent the sealing of a grant on the day on which the caveat is entered.
(8) A warning in Form 44may issue from the Registry against a caveator at the instance of any person interested (“the person warning”) which shall state his interest and, if he claims under a Will, the date of the Will, and shall require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning or a copy thereof shall be served on the caveator.
(9) A caveator having an interest contrary to that of the person warning may, within 8 days of service of the warning upon him inclusive of the day of such service; or at any time thereafter if no affidavit has been filed under sub-rule 12 of this Rule, enter an appearance in the Registry by filing Form 45 and making an entry in the appropriate book, and shall forthwith thereafter serve on the person warning a copy of Form 44 sealed with the seal of the Registry.
(10) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the Registry and the caveat shall then cease to have effect and if he has been warned, the caveator shall forthwith give notice of withdrawal of the caveat to the person warning.
(11) A caveator having no interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under sub-rule 12 of this Rule, issue and serve a summons for directions, which shall be returnable before the Registrar.
(12) If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under the last sub-rule of this Rule, and thereupon the caveat shall cease to have effect.
(13) Upon commencement of a probate action the Probate Registrar shall, if a Caveat is in force (other than a caveat entered by the claimant), give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.
(14) Unless the Registrar otherwise directs:
(a) a caveat in force at the commencement of proceeding by way of citation or motion shall, unless withdrawn pursuant to sub-rule 10 of this Rule, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceeding, and upon such application any caveat entered by a party who had notice of the proceeding shall cease to have effect;
(b) a caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action;
(c) the commencement of a probate action shall whether or not any caveat has been entered, operate to prevent the sealing of a grant until application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under sub-rule 13 of this Rule, shall cease to have effect.
(15) Except with the leave of the Registrar, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under sub-rule 12 or 14 of this Rule.
72.- (1) A Notice in the nature of citation shall be given in such manner as the Court may direct.
(2) A citation shall be settled by the Registrar before being issued.
(3) An averment in a citation and such other information as the Registrar may require shall be verified by an affidavit sworn to by the person issuing the citation (in this Order called “the citor”) or, if there are two or more citors, by one of them:
Provided that the Registrar may in special circumstances accept an affidavit sworn to by the citor’s Legal Practitioner.
(4) The citor shall enter a caveat before issuing a citation.
(5) A citation shall be served personally on the person cited unless the Registrar, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.
(6) A Will referred to in a citation shall be lodged in the Registry before the citation is issued, except where the Will is not in the citor’s possession and the Registrar is satisfied that it is impracticable to require it to be lodged.
(7) A person who has been cited to appear may, within 8 days of service of the citation upon him inclusive of the day of such service, or at any time thereafter if no application has been made by the citor under sub-rule 5 of Rule 35 of this Order, or sub-rule 2 of Rule 69 of this Order enter an appearance in the Registry by filing the appropriate Form and making an entry in the appropriate book, and shall thereafter serve on the citor a copy of the Form sealed with the seal of the Registry.
73.-(1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
(2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the Will, or the executors of the last survivor of deceased executors who have proved the Will.
(3) A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of 6 months from the death of the deceased:
Provided that no citation to take a grant shall issue while proceeding as to the validity of the Will is pending.
(4) A person cited, who is willing to accept or take a grant, may apply ex parte to the Registrar for an order for a grant on filing an affidavit showing that he has entered an appearance and that he has not been served by the citor with notice of any application for a grant to himself
(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may:
(a) in the case of a citation under sub-rule I of this Rule, apply to the Registrar for an order for a grant to himself;
(b) in the case of a citation under sub-rule 2 of this Rule, apply to the Registrar for an order that note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights or interest in respect thereof have ceased;
(c) in the case of a citation under sub-rule 3 of this Rule, apply to the Registrar by summons (which shall be served on the person cited) for an order requiring such person to take a grant within a specified time or for a grant to himself or some other person specified in the summons.
(6) An application under sub-rule 5 of this Rule shall be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.
(7) If the person cited has entered an appearance but has not applied for a grant under sub-rule 4 of this Rule, or has failed to prosecute his application with reasonable diligence, the citor may:
(a) in the case of a citation under sub-rule 1 of this Rule, apply by summons to the Registrar for an order for a grant to himself;
(b) in the case of a citation under sub-rule 2 of this Rule, apply by summons to the Registrar for an order striking out the appearance and for the indorsement on the grant of such a note as is mentioned in paragraph (b) of sub-rule 5 of this Rule;
(c) in the case of a citation under sub-rule 3 of this Rule, apply by summons to the Registrar for an order requiring the person cited to take a grant within a specified time or for a grant to himself, or some other person specified in the summons; and the summons shall be served on the person cited in each case.
74.-(1) A citation to propound a Will shall be directed to the executors named in the Will and to all persons interested there under, and may be issued at the instance of any citor having any interest contrary to that of the executors or such other persons.
(2) If the time limited for appearance has expired, the citor may:
(a) in the case where no person cited has entered an appearance, apply to the Registrar for an order for a grant as if the Will were invalid;
(b) in the case of a citation under sub-rule 2 of Rule 73 of this Order apply by summons to the Registrar for an order striking out the appearance and for indorsement on the grant of such a note as mentioned in paragraph (b) of sub-rule 5 of Rule 73 of this Order.
(c) in the case of a citation under sub-rule 3 of Rule 73 of this Order apply by summons to the Registrar for an order requiring the person cited to take a grant within a specified time, or for a grant to himself, or some other person specified in the summons; and the summons shall be served on the person cited in each case.
76.(1)An application for an order requiring a person to bring in a Will or to attend for examination may, unless a probate action has been commenced, be made to the Court by summons, which shall be served on every such person as aforesaid.
(2) An application for the issue by the Registrar of a subpoena to bring in a Will shall be supported by an affidavit setting out the grounds for the application, and if any person served with the subpoena denies that the Will is in his possession or control he may file an affidavit to that effect.
(a) whether the application is made in respect of the real estate only or any part thereof, or real estate together with personal estate, or in respect of a trust estate only;
(b) whether the estate of the deceased is known to be insolvent;
(c) that the persons entitled to a grant in respect of the whole estate in priority to the applicant have been considered and
80.-(1) An application for an order admitting to proof a codicil or a Will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original Will is not available, may be made to the Registrar:
Provided that where a Will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the Will may be admitted to proof without any such order as aforesaid.
(2) The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to:
(a) the due execution of the Will;
(b) it’s existence after the death of the testator; and
(c) the accuracy of the copy or other evidence of the contents of the Will, together with any consent in writing to the application given by any person not under disability who would be prejudiced by the grant.
82.-(1) Where a surviving spouse who is the sole personal representative of the deceased is entitled to a life interest in part of the residuary estate and elects to have the life interest redeemed, he may give written notice of the election to the Registrar by filing a notice in Form 46 with such variations as circumstances may require.
(2) A notice filed under this Rule shall be notice on the grant and the record shall be open to inspection.
83.-(1) Where copies are required of original Wills or other documents deposited under the provisions of any written Jaw, such copies may be photocopies sealed with the seal of the Registry and issued as office copies, and where such office copies are available copies certified under the hand of a Registrar to be true copies shall be issued only ifit is required that the seal of the court be affixed thereto.
(2) Copies, not being photocopies of original Wills or other documents deposited as aforesaid shall be examined against the documents of which they purport to be copies if so required by the person demanding the copy, and in such case the copy shall be certified under the hand of a Registrar to be a true copy and may in addition be sealed with the seal of the Court.
86.-(1) Any person aggrieved by a decision or requirement of the Registrar may by summons apply to a Judge for that decision or requirement to be reviewed.
(2) If in the case of a summons for review under sub-rule 1 of this Rule, any person besides the applicant appeared or was represented before the Registrar from whose decision or requirement the application for review is brought, the summons shall be issued within 7 days thereof for hearing on the first available day and shall be served on every such person concerned.
(3) On such review the Judge shall have power to cancel or amend anything which may have been done by the Probate Registrar.
88.-(1) A Judge or the Registrar may direct that a motion on notice or summons for the service of which no other provision is made in this Order shall be served on such person or persons as the Judge or Registrar may direct.
(2) Where by the provisions of this Order or by any direction given under sub-rule 1 of this Rule a motion on notice or summons is required to be served on any person, it shall be served not less than 5 days, before the heating of the motion or summons.
Provided that where the deceased died before the 1 commencement of these Rules, the right to a grant shall, subject to the provisions of any enactment, be determined by the principles and Rules in accordance with which the Court would have acted at the date of the death.
III. Proceeding Generally
(a) any question affecting the rights or interests of the person claiming to be creditor, beneficiary, next-of-kin, or heir-at-law or cestui que trust;
(b) the ascertainment of any class of creditors, beneficiary, next- of-kin, or others;
(c) the furnishing of any particular accounts by the executors or administrators or trustees and the vouching (when necessary) of such accounts;
(d) the payment into court of any money in the hands of the executors or administrators or trustees;
(e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees;
(f) the approval of any sale, purchase, compromise, or other transaction;
(g) the determination of any question arising in the administration of the estate or trust.
(a) the administration of the personal or real estate of the deceased;
(b) the administration of the trust;
(c) any act to be done or step to be taken which the Judge could have ordered to be done or taken if any such administration order as aforesaid has previously been made.
(a) for the determination of any question, under paragraph (a) (c), (f) or (g) of Rule 101 of this Order, the persons, or
(b) one of the persons, whose rights or interests, are sought to be affected; for the determination of any question, under paragraph (b) of Rule 101 of this Order any member or alleged member of the class;
(c) for the determination of any question, under paragraph (c) of Rule 101 of this Order, any person interested in taking such accounts;
(d) for the determination of any question under paragraph (d) Rule 101 of this Order, any person interested in taking such money
(e) for relief under paragraph (a) of Rule 102 of this Order, the residuary legatees, or next of kin (or some of them) or the residuary devisees, or heirs, or some of them, as the case may be;
(f) for relief under paragraph (b) of Rule 102 of this Order, the Cestui que trust or some of them;
(g) if there are more than one executor or administrator or trustee and they do not all concur in taking out the summons, those who do not concur;
(h) where the summons is taken out by any person other than the executors, administrators or trustees, the said executors, administrators or trustees, or some ofthem , must be served.
(a) order that the application shall stand over for a certain time, and that the executors, administrators or trustees in the meantime shall render to the applicant a proper statement of their accounts, with an intimation that if this is not done they may be made to pay the costs of the proceeding;
(b) when necessary, to prevent proceeding by other creditors, or by persons beneficially interested, make the usual judgment or order for administration with a proviso that no proceeding are to be taken under such judgment or order without leave of the Judge.
(a) an application for the appointment of a new trustee with or without a vesting or other consequential order;
(b) an application for a vesting order or other order consequential on the appointment of a new trustee whether the appointment is made by the court or otherwise;
(c) an application for vesting or other consequential order in any case where a judgment or order has been given or made for the sale, conveyance, or transfer of any land or stock or the suing for or recovering any chose in action;
(d) an application relating to a fund paid into Court in any case coming within the provisions of Rule 8 of this Order.
108.-(1) The provisions of the Interpretation Law shall apply to the interpretation of this Order.
(2) In this Order, unless the context otherwise requires:
“authorised officer” means any officer of the Registry who is for the time being authorised by law to
administer any oath or to take any affidavit required for any purpose connected with his duties;
“gross value” in relation to any estate means the value of the estate without deduction for debts, encumbrances, funeral expenses or estate duty;
“oath” means the oath required by this Order to be sworn by every applicant for grant;
“personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a Legal Practitioner, and “personal application” has a corresponding meaning;
“Poor person” means a person whose monthly income is less than N5,000.00
“Registrar” means the Probate Registrar;
“Registry” or “Probate Registry” means the Probate Registry of the Court;
“Will” includes a codicil and any testamentary document or copy or reconstruction of it;
(3) Unless the context otherwise requires, any reference in this Order to any rule or enactment shall be construed as a reference to that rule or enactment as amended, extended or applied by any other rule or enactment as amended or extended.
ORDER 47 – PROCEEDINGS IN LIEU OF DEMURRER
2.-(1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.
(2) If in the opinion of the Judge, the decision n such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such decision as may be just.
I DO NOT HAVE ORDER 48, ORDER 49 FORM 1 – FORM 27
ORDER 48 – APPEALS FROM MAGISTRATE’S COURT, ETC.
2.- (1) The Notice of appeal shall set out the reference number of the proceedings in which the decision complained of was given, the names of the parties, the date of the decision and the grounds for appeal in full.
(2) Where the appellant complains only of a part of the decision, the Notice of appeal shall specify the part complained of; otherwise the appeal shall be taken to be against the decision as a whole.
(3) The Notice of appeal shall give an address within the Judicial Division in which is situated the lower Court appealed from, to which notices can be sent to the appellant.
(4) The Notice of appeal shall be in Form47 in the appendix and may be varied to suit the circumstances of the case but so that no variation of substance shall be made.
3.-(1) The Registrar of the lower Court shall, within 3 months of the decision appealed from, prepare as many certified copies of the record of proceedings, including the Notice of Appeal, required for the consideration of the appeal as there are parties on record.
(2) The Registrar shall within 7 days of preparing the certified copies of the record of proceedings and Notice of Appeal referred to in sub-rule1 of this Rule notify the parties to come forward and collect their own copies upon payment of necessary fees, and shall send copies also to the Registrar of the Court in the Judicial Division in which the lower Court is situated, and the appeal shall be decided by the Judge of the Division.
(3) Except where the fees for preparing the copies are remitted, a deposit decided upon by the Registrar as likely to cover the fees, shall be made by the appellant before the preparation of the copies.
4.-(1) The appellant shall within 30 days of the receipt of the Record of Proceedings from the lower Court file in the Court a written address which shall contain succinct statement of his argument in the appeal.
(2) The respondent shall also within 30 days of the service of the written address of the appellant on him file the respondent’s written address, which shall answer all material points of substance contained in the appellant’s written address and contain all the points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed.
(3) The appellant may if necessary, within 14 days of the service on him of the respondent’s written address file and serve a reply written address which shall deal with all new points arising from the respondent’s written address.
(4) All parties, whose interests are identical or joint, shall file a joint written address, and separate written addresses may be filed only by those parties whose interests are separate or in conflict.
9.-(1) If, on the day of hearing or at any adjournment of the case, the appellant does not appear, the appeal shall be struck out and the decision shall be affirmed, unless the Court thinks fit, tor sufficient cause to order otherwise.
(2) If, in any such case the respondent appears, the judgement shall be with costs of the appeal against the appellant, unless the Court expressly orders otherwise; but if the respondent does not appear, the cost of the appeal shall be at the discretion of the Court.
12.- (1) The respondent may give notice that he intends at the hearing to ask the Court to confirm the judgement of the lower Court on grounds other than those stated by that Court.
(2) The notice shall be accompanied by a clear statement of the grounds on which the respondent intends to ask the Court to confirm the judgement of the lower Court.
(3) Such notice and grounds shall be filed in Court within 14 days of service on the respondent of the notice and grounds of appeal, and shall be served on the appellant or his Legal practitioner.
13.- (1) the respondent may file grounds of appeal against any part of the judgement of the lower Court.
(2) The grounds shall be filed by the respondent within 30 days of service on him of the appellant’s notice and grounds of appeal, and shall be served on the appellant or his Legal Practitioner before the hearing.
4.- (1) No objection on account of any defect in the form of setting forth any ground of appeal shall be allowed, unless the Court is of the opinion that the ground of appeal is so imperfectly or
incorrectly stated as to be insufficient to enable the respondent to enquire into the subject-matter thereof or to prepare for the hearing.
(2) In any case where the Court is of the opinion that any objection to any ground of appeal ought to prevail, the Court may, if it thinks fit, cause the ground of appeal forthwith to be amended upon such terms and conditions, if any, as the Court may think just.
Provided, however, that if any error, defect, or variance mentioned in this Rule appears to the Court at the hearing of any appeal to be such that the appellant has been thereby deceived or misled, it shall be lawful for the Court either to refer the case back to the lower Court with directions to re-hear and determine it or to reverse the decision appealed from, or to make such other order for disposing of the case as justice may require.
(a) order such evidence to be adduced before the Court on some day to be fixed in that behalf; or
(b) refer the case back to the lower Court to take such evidence, and may in such case either direct the lower Court to adjudicate afresh after taking such evidence and subject to such directions in law, if any, as the Court think fit to give, or direct it, after taking such evidence, to report specific findings of fact for the information of the Court, and on any such reference, the case shall, so far as may be practicable
and necessary, be dealt with as if it were being heard in the first instance.
18.- (1) When additional evidence is to be taken by the Court and specific findings of fact reported, it shall certify the evidence to the Court which shall thereupon proceed to dispose of the appeal.
(2) The appellant or his Legal Practitioner shall be present when the additional evidence is taken.
(3) Evidence taken in pursuance of Rule 17 shall be taken as if it were evidence taken at the trial before the lower Court.
(4) When forwarding to the Court any additional evidence taken by a lower Court in pursuance of Rule.17 the lower Court may express its opinion on the demeanour of the witnesses and of the value of their evidence and may also, if it is the same Court against whose decision the appeal has been made, state whether or not it would have come to a different decision had the additional evidence been brought forward at the trial.
20.-(1) On application being made for stay of execution under any enactment establishing the lower Court, the lower Court or the Court may impose one or more of the following conditions-
(a) that the appellant shall deposit a sum fixed by the Court not exceeding the amount of the money or the value of the property affected by the decision or judgement appealed from, or give security to the satisfaction of the Court for the said sum;
(b) that the appellant shall deposit a sum equal to the amount of the costs allowed against him or give security to the satisfaction of the Court for the said sum;
(c) that the appellant shall, where the decision or judgement appealed from relates to possession or lands or houses, give security to the satisfaction of the Court for the performance of the decision or judgement in the event of the appeal being dismissed;
(d) that the appellant’s property shall be seized and attached pending the making of a deposit or the giving of security as aforesaid, including a deposit or security for the expenses incidental to the seizure and attachment;
(e) that the appellant’s property shall be seized, and attached and sold and the net proceeds deposited in Court pending determination of the appeal.
(2) Any order made on any such application shall limit the time (not being more than thirty days) for the performance of the conditions imposed, and direct that in default of the performance within the period of time so limited, execution may issue or proceed.
(3) An application for stay of execution under the enactment establishing the lower Court may be made at any time after lodgement of the Notice of appeal and shall in the first instance be made to the lower Court; but where execution has been ordered by the Court the application shall not be made to the lower Court but to the Court.
(4) The application may be ex-parte but the Court may direct notice thereof to be given to the other party to the appeal; and where an order is made ex-parte the Registrar of the Court shall notify the other party of the order made.
(5) Where the appellant proposes to give security instead of making a deposit, the application shall state the nature of the security and the name of the surety proposed (if any).
(6) Any party dissatisfied with an order made by the lower Court may apply to the Court by motion (original or interlocutory, as the case may require) with notice to the other party for a review of the order, and the Court may thereupon make such order as may seem just.
(7) An appeal shall not operate as a stay of execution under the decision or judgement appealed from except so far as the lower Court or the Court may order; and no intermediate act or proceeding shall be invalidated except so far as either Court may direct.
22.- (1)The Court may, in special circumstances, upon application on notice by motion (original or interlocutory as the case may require), supported by affidavit, order the appellant to deposit such sum or give such security as may seem fit for the respondent’s cost of appeal including the costs incidental to the application.
(2) The order shall limit the time (not exceeding 30 days) within which the deposit or security shall be made or given and may direct that in default of its being made or given within the time so limited the appeal shall without further order stand dismissed.
(3) Where an appeal so stands dismissed the respondent shall be entitled to all reasonable costs occasioned by the appeal and the amount of such costs may be stated in the order in anticipation or may be assessed at any time by the Court of its own motion or on application made ex-parte or on notice, as the Court may see it.
(4) Where an appeal so stands dismissed the appellant shall take no further step or proceeding therein save by leave of the Court or for reinstatement of the appeal, which may be granted on such terms (if any) as may seem fit upon application by motion on notice given within a month of such dismissal (but not otherwise).
(5) Subject and without prejudice to the discretion of the Court to grant costs where it seems proper on an application made under sub rule (1), cost shall not normally be granted to the applicant save where the net proceeds of execution levied on the appellant’s goods are sufficient to satisfy the amount payable under the judgment or decision appealed from.
23.- (1) When a case is decided on appeal the Court shall certify its judgment or order to the lower Court in which the decision appealed against was pronounced.
(2) The lower Court to which the Court certifies its judgement or order shall thereupon make such orders as are conformable to the judgment or order of the Court, and, if necessary, the records shall be amended in accordance therewith.
“Judgement” includes an order or ruling.
ORDER 49 – FEES AND ALLOWANCES
(a) the fees set out in the First and Second Schedules hereunder shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in those Schedules;
(b) the allowances set out in Part II of the Third Schedule shall be payable to the various categories of witnesses mentioned therein by any person at whose instance the testify:
Provided that a witness who testifies at the instance of the Court acting on its own motion shall be paid out of public revenue.
HIGH COURT OF CROSS RIVER STATE (CIVIL PROCEDURE) RULES
APPENDIX
List of Forms
Form No. Title
HIGH COURT OF CROSS RIVER STATE (CIVIL PROCEDURE) RULES
FORMS
FORM 1
General Form of Writ of Summons (O.7, r.3)
/……/20…….
(Here put the Judicial Division letter and number of the suit (see note (a) following this form).
In the High Court of Cross River State
In the…………………………………………………………………………..Judicial Division
Between
A.B…………………………………………………………………………. …………Claimant
and
C.D………………………………………………………………………………….. Defendant
To C.D. of……….. in the………….. ………………….of…………………………………. .
You are hereby commanded that within eight days after the service of this writ on you, inclusive of the day of such service you do cause an appearance to be entered for you in an action at the suit A.B and take notice that in default of your so doing the Claimant may proceed therein, and judgment may be given in your absence.
DATED this……………………… day of……………………………….. 20……………………….. .
………………………….
Registrar
Memorandum to be subscribed on the writ
N.B:
This writ is to be served within three calendar months from the date thereof, or, if renewed, within three calendar months from the date of the last renewal, including the day of such date, and not afterwards.
The defendant may enter appearance personally or by Legal Practitioner either by handing in the appropriate forms, duly completed, at the Registry of the High Court of the Judicial Division in which the action is brought or by sending them to the Registry by registered post.
Endorsements to be made on the writ before issue thereof-
The claimant’s claim is for, etc
(b)……………………………………………………………………………
This writ was issued by G.H, of……………………………………………………..Whose address for service (c) is ……………………………………………………………………………, agent for………………………………………………………………………….. , of ………………………………………… Legal Practitioner for the said claimant who resides at (d)………………………………………………..(mention the city, two or district and also the name of the street and number of the house of the claimant’s
residence, if any)
Endorsement to be made on copy of writ of forthwith after service.
This writ was served by me at……………………………….. ……………………………..On the defendant (here insert mode of service) on the ……………………………………… day of……………………………… 20 ………………………..
Indorsed the ………………….……………. day of …………………………. 20 ……….
………………………….
(Signed)
…………………………..
(Address)
Note:
(a) Heading and Title – if the action is for administration the writ must be headed “In the matter of the Estate of …………………………. (Deceased). “If it is a debenture holder’s action the writ must be headed in the matter of the company, and in a probate action. “In the Estate of A.B., (Deceased). “A writ of summons claiming administration of a trust or settlement may be instituted “In the matter of the (Trust or settlement)”
(b) Endorsement of Claim- If the claimant sues, or defendant is sued, in a representative capacity, the endorsement must state in what capacity the claimant sues or the defendant is sued. See 0.9. r.2. If the claim is for a debt or liquidated demand only, the endorsement, even though not special, must strictly comply with the provisions of 0 . 9, r.4, including a claim for four days costs.
(c) Address for service – see 0.9, r.6. The address must be within the jurisdiction.
(d) Address of Claimant – in the case of a company in liquidation the claimant’s address should run “………………claimants, who are a company in liquidation. The liquidator is (name of liquidator), of (address of liquidator)”.
In the case of a foreign corporation within the meaning of part 10 of the Companies and Allied Matters Act the claimants’ address should run thus;
” ………………………………………………………………………………………….claimants, who are a foreign corporation within the meaning of the Companies and Allied Matters Act. The registered name and address of the person to be served are (here add registered name and address)”.
(e) Endorsement of Service – see 0.12 .r.13.
(f) Probate Actions -In these actions the endorsement of claim must show the nature of the claimant’s interest, under which he claims (0.9.r.3); and the alleged interest of the defendant.
Before the writ is issued the following certificate must be endorsed on it :
The Registry, High court of Cross River State
In the……………………………………………….. ……………………………………Judicial Division.
A sufficient affidavit in verification of the endorsement on this writ to authorize the sealing thereof has been produced to me this ………….. day of ………………………..20 ……………………………
………………………………
(Signature of
Registrar)
FORM 2
Writ for Service out of the jurisdiction (O.7., r.4)
To C.D of…………………………………. ………………………………………………..
You are hereby commanded that within (here insert the number of days directed by the Court or Judge ordering the service or notice) days after service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the ………………………………………………….. Judicial Division of the High Court of Cross River State in an action at the suit of A.B., and take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.
Dated this ………………………………day of ……………………..20……………..by order of the Court.
………………………..
Registrar
Memorandum to be subscribed on the writ
N.B:
This writ is to be served within three calendar months from the date thereof, or, if renewed, within three calendar months from the date of the last renewal, including the day of such date, and not afterwards.
The defendant (or defendants) may appear hereto by entering appearance (or appearances) either personally or by Legal Practitioner, at the Registry of the Judicial Division in which the writ is issued.
This writ was served (as in Form No.1)
Endorsement to be made on the writ before the issue thereof:
N.B:
This writ is to be used where the defendant or all the defendants or one or more defendant or defendants is or are outside of Cross River State in……………………………. state of Nigeria within 3 Calendar months.
Note:
The above endorsement “.B.” must be on every writ or concurrent writ for service out of the jurisdiction.
The endorsement “N.B.” need not be made on a writ against defendants domiciled abroad, but whom it is intended to serve within the jurisdiction.
Endorsement:- If the claim is for a debt or liquidated demand only, the endorsement, even though not special, must strictly comply with the provisions of 0.10. r.4, including a claim for costs.
See also notes to Form No.1, supra.
FORM 3
General Form of Originating Summons (O.7,r.8[1])
In the High Court of Cross River State
In the……………………………………………………………………….. ………..Judicial Division
(If the question to be determined arises in the administration of an estate or a trust entitled it: In the matter of the estate or trust).
Between:
A.B………………………………………………………………………………………………….Claimant
and
C.D. and E.F……………………………………………………………………… ……….Defendants
Let……………………………….. of…………………………………… in……………………………….
within eight days after service of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons which is issued upon the application of ……..………………of ………………………. who claims to be (state the nature of the claim), for the determination of the following questions: (State the questions).
Dated the……………………………….…..day of…………………………………….20………………
This summons was taken out by ……………………………………………………………………..
Legal Practitioner for the above-named …………………………………………………………..
FORM 4
Originating Summons under No……………of 20…….(O.7,r.8(1)
In the High Court of Cross River State
In the……………………………………………………………….. …………………….Judicial Division
In the matter of A.B. a Legal Practitioner (Re Taxation of costs, etc) (or as may be).
Let A.B. of ………………………………………………………………………attend the Court (or Chief Registrar’s Office) HIGH COURT …………………………………………………………. CROSS RIVER, on the …………… day of ……………….20 …….at 9 o’clock in the forenoon (on the hearing of an application on the of ………………………………………………… ) (State relief sought). (If for leave to endorse award under the Arbitration Law, Cap. Add, “And that the respondent pay the costs of this application to be taxed.”
Dated the……………….day of ……………………………………………20…………………………..
This summons was taken out by ………………………………………………………………………….
Note:
It will not be necessary for you to enter an appearance in the high court registry, but if you do not attend either in person or by your Legal Practitioner, at the time and place above mentioned (or at the time mentioned in the endorsement thereon), such order will be mad and proceedings taken as the Judge may think just and expedient.
FORM 5
Form of ex parte Originating Summons (O.7,r.8(1)
In the High Court of Cross River State
In the …………………………………………………………………………………….Judicial Division
Suit No…………………………………………………………….. …………………………………….
In the matter of A.B. an infant (or, as may be). Let all parties concerned attend before the Judge (or Chief Registrar’s Officer), High court, Cross River State, at the time specified in the margin hereof, on the hearing of an application on the part of the above named A.B., an infant, by C.D. his next friend, that etc.
This summons was taken out by ……………………………………………………………… of ……………………………………………… Agents for ……………………………………… of…………………………………………………………………………………… Legal Practitioner for the applicant.
FORM 6
Notice of Appointment to hear Originating Summons (O.7,r.8(1)
(Title, etc., as in Forms Nos. 2, 3)
To (insert the name of the defendant or respondent) ………………………………………………………
Take notice that you are required to attend the Judge at the HIGH COURT of the …………………….Judicial Division, Cross River State on the ………………….…. day of …………………………………………….20 ………………………………..,9 o’clock in the forenoon, for hearing of the originating summons issued herein on the ……………………………………….. day of …………………………….. 20 ………………. And that if you do not attend in person or by Legal Practitioner at the time and place mentioned, such order will be made and proceedings taken as the Judge may think just and expedient.
Dated the …………………………… day of …………………………….. 20 ……………………
(Signed) ………………………………………………………………………..
Legal Practitioner for the Claimant (or Applicant)
FORM 7
Form of Memorandum for Renewed Originating Process (O.8, r.6(2)
(Heading as in Form No.1)
Seal renewed Originating Process in this action endorsed as follows:
The Originating Process renewed on the ………… day of ………………………. 20 ………………………. …………… pursuant to Order of Court made ………………….. day of ………………… 20 …………………… for 3months.
(Copy original Originating Process and the endorsements)
FORM 8
Request to Minister of Foreign Affairs to transmit Writ to Foreign Government (O.12,r.19(a)
The Chief Judge of Cross River State presents his compliments to the Ministry of Foreign Affairs, and encloses herewith a notice of a Writ of summons issued in an action of …………. A.B …………… versus ………………….. C.D …………………. pursuant to order out of the Judicial Division of the High Court of Cross River State for transmission to the Ministry of Foreign Affairs in (name of country) with the request that the same may be served personally upon (name of defendant to be served) against who proceedings have been taken in the ………………………………. Judicial Division of the High court of Cross River State and with the further request that such evidence of the service of the same upon the said defendant may be officially certified to the High court of Cross River State, or declare upon oath, or otherwise, in such manner as is consistent with the usage or practice of the courts of (name of country) in proving service of legal process.
The Chief Judge further requests that in the event of efforts to effect personal service of the said notice of writ proving ineffectual the Government or Court of the said country be requested to certify the same to the High Court of Cross River State.
FORM 9
Request for Service Abroad (Title as in Form No.4) [O.12,r.19(b)]
I (or we) hereby request that the writ of summons in this action be transmitted through the proper channels to (name of country) for service (or substituted service) on the defendant (naming him) at (address of defendant) or elsewhere in (name of country). And I (or we) hereby personally undertake to be responsible for all expenses incurred by the Ministry of Foreign Affairs in respect of the service hereby requested, and on receiving the due notification of the amount of such expenses (or we) undertake to pay the same into the High Court Registry for transmission to the Director-General of the Ministry of Foreign Affairs.
Dated this …………………………. day of ………….. 20 ……………………….
……………………………………..
Signature of Legal
Practitioner
FORM 10
Letter Forwarding Request for Substituted Service (O.12, r.19(d))
The Chief Judge of Cross River State presents his compliments to the Ministry of Foreign Affairs, and encloses herewith a notice of a writ of summons in the case of …………………………………. Versus ………………………………. in which the claimant has obtained an order of the …………………………………………. Judicial Division of the High court Court of Cross River State (which is also enclosed) giving leave to make a request that the said writ may be served by substituted service on the defendant …………………………………… at ………………… in the (name of country).
The Chief Judge requests that the said writ and order may be forwarded to the proper authority in (name of country) with the request that the same may be transmitted by post addressed to the defendant at (the last known place of abode or the place of business) of the said defendant, or there delivered in such manner as may be consistent with the usage or practice of the courts of (name of country) for service of legal process where personal service cannot be effected; and with the further request that the same may be officially certified to the …………………………………….. Judicial Division of the High Court of Cross River State, or declared upon oath, or otherwise, in such manner as is consistent with the practice of the courts of the (name of country) in proving service of legal process.
FORM 11
Request to Minister of Foreign Affairs to transmit Notice of writ Writ to a Foreign Government (O.12, r.20(i)(a))
The Chief Judge of Cross River State presents his compliments to the Ministry of Foreign Affairs, and encloses herewith a notice of a writ of summons issued in an action ………………………………… of ………………………….. versus the (insert name of the defendant High Contracting Party) pursuant to order, out of the …………………………………… Judicial Division of the High Court of Cross River State for delivery to the Government of (insert name of the country of the High.
Contracting Party and to request that an official certificate may in due course be dispatched to the …………….. Judicial Division of the High court Court of Cross River State, stating that the writ of summons has been delivered, and on what date.
FORM 12
Memorandum of Appearance [O.13, r. 1(1)]
In the High Court of Cross River
In the ……………………………………………………………………………….Judicial Division
Suit No………………………………………………………………………………………………..
Between:
…………………………………………………………………………… Claimant(s) and …………………………………………………………………….. (Defendant(s)
Please enter an appearance for 1(a) ………………………………………………………… Sued as 1 (b) ………………………………………………………………………………in this action.
Whose address for service is 1(c)…………………………………………………………………….
…………………………………………………………………………………………………………………………..
Date the ……………………..Day of ……………………………………………., 20 …………………..
Signed……………………………………………………………………………………………………….
N.B. – Additional notes for the guidance of defendants seeking to enter an appearance are given on the back. Please read carefully.
Notes:
1.(a) The defendant must give his or her full name.
(b) Give name by which the defendant is described in the writ. If this differs from defendant’s full name, otherwise delete words “such as”.
(c) A defendant appearing in person must give his residence or some other place within the Judicial Division of Cross River State to which communications for him should be sent. Where he appears by a Legal Practitioner, the Legal Practitioner’s place of business.
I, ……………………………………………………. acknowledge that on the …………………day
of………………..20 ……………………………………at (time and place) received the following documents-
(a) …………………………………………………………………………………………………….
(b) …………………………………………………………………………………………………….
(c) …………………………………………………………………………………………………….
I also acknowledge that I am the person referred to in the sealed copy of the originating process.
Dated this ……………………day of ………………………………………………. 20……………..…
…………………………………..
Signature
FORM 13
Notice of Counterclaim (O.17,r.28)
In the High Court of Cross River State
In the ………………………………………………….Judicial Division ……………………………….…
Between:
A.B …………………………………………………………………………………………………Claimant
and
C.D ……………………………………………………………………………………………….Defendants
To the within-named X.Y.
Take notice that if you do not appear to the counter claim of the within- named C.D., within 8 days from the service of this defence and counterclaim upon you, you will be liable to have judgment given against you in your absence.
Appearance to be entered at the …………………………………………………………… Judicial Division, High Court Registry, Cross River State.
FORM 14
Concession to Defence (O.17,r.35)
In the High Court of Cross River State
In the ……………………………………………………………………………………….Judicial Division
Between
A.B ………………………………………………………………………………………………Claimant
and
C.D., E.F. and G.H …………………………………………………………………………Defendants
The claimant concedes to the defence stated in the paragraph ………………of he defendant’s defence (or, of the defendant’s further defence).
FORM 15
Interrogatories (O.18,r.8)
In the High Court of Cross River State
In the …………………………………………………………………………………..Judicial Division
Suit No …………………………………………………………………………………………….. …………
Between
A.B ……………………………………………………………………………………………..Claimant
and
C.D., E.F and GH ………………………………………………………………………….Defendants
Interrogatories on behalf of the above-named (claimant or defendant C.D) for the examination of the above-named (defendants E.F., and GH or claimant).
(The defendant E. F. is required to answer the interrogatories number ………………………………………. )
(The defendant G.H. is required to answer the interrogatories number ………………………………………… )
Dated the ……………………………………………day of ……………………………….20 …….……..
FORM 16
Answer to Interrogatories (O.18,r.12)
In the High Court of Cross River State
In the ……………………………………………………………………………………..Judicial Division
Suit No ……………………………………………………………………………………………………
Between
A.B ………………………………………………………………………………………………..Claimant
and
C.D., E.F and G.H. …………………………………………………………………………Defendants
The answer of the above-named defendant E.F., to the interrogatories for his examination by the above named claimant.
In answer to the said interrogatories, I the above-named E.F., make oath and say as follows:
I, the above-named defendant E.F., do hereby solemnly swear by Almighty God/affirm on my honour that this is my name and handwriting and that the facts deposed by me in this affidavit are the truth, the whole truth and nothing but the truth.
FORM 17
Affidavit as to Documents (O.18,r.14(3)
In the High Court of Cross River State
In the ……………………………………………………………………………………….Judicial Division
Suit No ……………………………………………………………………………………………………….
Between
A.B ………………………………………………………………………………………………….Claimant
and
C.D., E.F and G.H. …………………………………………………………………………Defendants
I, the above-named defendant C.D., make oath and say as follows
Dated at this ……………….. day of ………………………………………20 ………….
(ILLITERATE JURAT)
…………………………………………..
…………………………………………..
…………………………………………..
FORM 18
Hearing Notice for Pre-Trial Conference (O.20,r.l(1) & (2)
In the High Court of Cross River State
In the ………………………………………………………………………Judicial Division
20 …………..
Between
A.B ………………………………………………………………………………………………Claimant
and
C.D. ……………………………………………………………………………………………..Defendants
To (insert name of parties) ………………………………………………………………………………
Take Notice that you are required to attend the Court No ……………… at the High Court of Cross River State at the …………………………………… Judicial Division, on the …………… day of …………………….. 20 ………………………………………. At 9 o’clock in the forenoon, for a Pre-Trial Conference of the purposes set out hereunder:
(b) Giving such directions as to the future course of the action as appear best adopted to secure its just, expeditious and economical disposal;
(c) Promoting amicable settlement of the case or adoption of alternative dispute resolution.
Take notice that if you do not attend in person or by Legal Practitioner at the time and place mentioned, such proceeding will be taken and such order will be made as the Judge may deem just and expedient.
Dated the ………………………………………………. day of …………………………….. 20 ………….
Signed……………………….
Registrar
FORM 19
(O.20,r.1 [2])
Pre- Trial Information Sheet
In the High Court of Cross River State
In the ………………………………………………………………Judicial Division 20…..…
Between
B.B ………………………………………………………………………………………………….Claimant
and
C.D. ………………………………………………………………………………………………Defendants
This Pre-Trial Information Sheet is intended to include reference to all applications which the parties would wish to make at the Pre-Trial Conference. Applications not covered by the standard questions raised in the Pre-Trial Information Sheet should be entered under item 12 below.
All parties shall, not later than 7 days before the first Pre-Trial Conference, file and serve on all parties:
(a) all applications in respect of matters to be dealt with before trial including but not limited to the matters listed hereunder;
(b) written answers to the questions contained in this Pre-Trial Information Sheet.
Dated this ………………………………………………day of ……………………………..20 …………
Signed: ……………………………… .
(Legal Practitioner for the ……………………………)
For service on:
………………………….
FORM 20
Form of Guarantee for the Acts and Defaults of a Receiver (O.22, r.l0)
In the High Court of Cross River State
In the ……………………………………………………………………………..Judicial Division
PARTIES
Suit No ……………………………………………………………………………………………………..
Between:
Re: …………………………………………………………………..v ……………………………
Guarantee for N …………………………………………….Annual premium N ……………….
This guarantee is made the ….……day of ………………… 20 ……………….. Between (XYZ) of ……………………………………………………………….. (hereinafter called “the Receiver”) of the first part, the above named ……………………. the registered office of which is at ………………………………………………………… in …………………………………………………………………..(hereinafter called “the Surety”) of the second part and …………………………………………………………………………..The Governor of Cross River State.
By an Order of the High Court of Cross River State …………………………………………………………. Judicial Division dated the ……………… day of ……………………………………… 20 ………………………………………..,, and made in the abovementioned action the Receiver has been appointed to receive (and manage) (follow words of the order).
And it was ordered that the Receiver should give security to the satisfaction of the Judge on or before the ………….day of …………………………20 …………………
And whereas the Surety has agreed at the request of the Receiver to issue this guarantee in consideration of the annual premium above mentioned (the first payment of which the surety hereby acknowledges) which guarantee has been accepted by the Judge as a proper security pursuant to the said order in testimony whereof one of the Registrars of the High Court, has signed an allowance in the margin hereof.
Now this guarantee witnesses as follows –
(a) If the Receiver shall not for every successive twelve months to be computed from the date of his appointment as such Receiver as aforesaid or within fifteen days after the expiration of such twelve months pay at the office of the Surety the annual premium or sum of N …………………………………………………………then the Surety shall be at liberty to apply by summons in the said action to be relieved from all further liability as such surety under this guarantee save and except in respect of any damage or loss occasioned by any act or default of the receiver in relation to his duties as such Receiver (and manager) prior to the hearing and determination of such summons.
(b) A statement under the hand of any Registrar of the High Court of Cross River State of the amount which the Receiver is liable to pay and has not paid under this guarantee and that the loss or damage has been incurred through the act or default of the Receiver shall be conclusive evidence in any action or information by the Governor of Cross River State against the Receiver and Surety or either of them or by the Surety against the Receiver of the truth of the contents of such statement and shall constitute a binding charge not only against the Receiver and his personal representatives but also against the Surety and his funds and property without being necessary for the governor of Cross River State to take any legal or other proceedings against the Receiver for the recovery thereof and without any further or other proof being given in that behalf in any action to enforce this guarantee.
(c) The liability of the Surety under this guarantee is limited to the sum or N ………….Provided nevertheless that a Registrar of the High Court may by his signature to the endorsement on this guarantee (in the form printed thereon) reduce the said liability of the Surety still further or (but only with the consent of the Surety by an instrument in writing duly executed) increase such liability as may be necessary and upon such endorsement this guarantee shall continue in full force but in that case the premium shall be correspondingly reduced or increased.
(a) The Receiver will on being discharged from his office on ceasing to act as such receiver (and manager) as aforesaid forthwith give written notice thereof to the Surety by registered post and also within 7 days of such notice furnish to the surety free of charge an office copy of the order, if any, of the Judge discharging him.
(b) The Receiver and his personal representatives shall and will at all times hereafter indemnify the Surety and its property and funds against all loss, damage, costs and expenses which the Surety or its funds or property mayor might otherwise sustain by reason of the Surety having executed this guarantee at his request might otherwise sustain by reason of the Surety having executed this guarantee at his request.
In witness whereof the Receiver has hereunder set his hand and seal and the surety has caused its Common Seal to be affixed the ……………. day of ………………………….. 20 ……………………. In the matter of …………………………………………………………………………… increased liability. To be attached by way of Endorsement to Guarantee.
The liability of the Surety under the within written guarantee has with the consent of the receiver and the Surety been increased from N …..…………. to N …………………………… in respect of any acts or omissions to which the within written guarantee relates committed by the Receiver subsequent to the date hereof the total liability of the Surety in respect of both the within written guarantee and his endorsement being limited to the increased sum above stated.
Sealed with the seal of the receiver and also the Common Seal of the Surety this ……………………………. day of ………………………. 20 ………………………………….
As evidence of such increased liability and the admission thereof by the Receiver and the Surety respectively.
Signed, sealed and delivered by the Receiver in the presence of: ……………………..………………….
The Common Seal of the Surety was Hereunto affixed in the presence of: ………………………………..
FORM 21
Receiver’s Security by Undertaking (O.22,r.l0)
In the High Court of Cross River State
In the …………………………………………………………………………………..Judicial Division
PARTIES
Suit No ……………………………………………………………………………………………………….
Re: ……………………………………………………………v …………………………………………….
I, ………………………………………………………….of ………………………………………………. the Receiver (and manager) appointed by order dated ………………………………………… or proposed to be appointed in this action hereby undertake with the court to duly account for all moneys and property received by me as such Receiver (or Manager) or for which I may be held liable and to pay the balances from time to time found from me and to deliver any property received by me as such Receiver (or Manager) at such times in such manner in all respects as the court or a Judge shall direct.
And we, ………………………………………………………………………..hereby jointly and severally (in the use of guarantee or other Company strike out “jointly or severally”) undertake with the Court to be answerable for any default by the said …………………………………As such receiver (or manager) and upon such default to pay to any person or persons or otherwise as the Court or a Judge shall direct any sum or sums not exceeding in the whole N ………………………… That may from time to time be certified by a Registrar of the High Court to be due from the said receiver and we submit to the jurisdiction of the Court in this action to determine any claim made under this undertaking.
Dated this ……………………………….day of …………………………………………20 ………………
Signatures of Receiver and his Surety or Sureties. In the case of a Surety being a guarantee or other company, it must be sealed or otherwise duly executed.
FORM 22
Receiver’s Account (O.22, r. 13)
(TITLE)
Suit No: ……………………………………………………………………….…… of 20 …………………
The (………………………………………………) account of A.B., the deliver appointed in this cause (or, Pursuant to an order made in this cause, dated the ……………… day of ………………………………..), to receive the rents and profits of the real estate, and to collect and get in the outstanding personal estate of C.D., the testator (o, intestate) in this cause named, from the ……………………..……………
day of ………………………………………
REALESTATE-RECEIPTS
No. of item
Date when received
Tenant’s Name
Description of Premises
Annual Rent
Arrears Due At…..
Amount Due At
Amount Received
Arrears remaining
Due Observation
PAYMENTS AND ALLOWANCES ON ACCOUNT OF REAL ESTATE
No of Item
Date of Payment allowance
Names of persons to whom paid or allowed
For what purpose paid or allowed
Amount
Allowance for a half-year’s Income tax, due………….
RECEIPT ON ACCOUNT OF PERSONAL ESTATE ACCOUNT PAYMENT AND ALLOWANCES ON PERSONAL ESTATE
No of Item
Date when received
Names of persons from whom received
On what account received
Amount received
No. of item
Date when paid or Allowed
Names of persons to whom paid or allowed
For what purpose paid or allowed
Amount paid or allowed
SUMMARY N N
Amount of balance due from Receiver on account of real estate on last account
Amount of receipts on the above account of real estate … … … … …
Balance of last account paid into court … … … N
Amount of payment and allowances on the above account of real estate… … … …
Amount of Receiver’s costs of passing this account as to real estate… … … ……
Balance due from the Receiver on account of real estate … … ……
Amount of balance due from Receiver on account of personal estate
Amount of receipts on the above account of personal estate … … … … …
Balance of last account paid into court … … … N
Amount of payments and allowances on the above account of personal estate… … ……
Amount of Receiver’s costs of passing this account as to personal estate… …
Balance due from the Receiver on account of personal estate… … ……
FORM 23
Affidavit Verifying Receiver’s Account (O.22,r.14)
In the High Court of Cross River State
In the ………………………………………………………Judicial Division Cross River, Nigeria
Between:
A.B ……………………………………………………………………………………………….Claimant
and
C.D and E.F ……………………………………………………………………………………..Defendants
I ………………………..of …………………………………………………………,the Receiver appointed …………………………………………………………………..In this cause, make oath and say as follows-
2 . . . . . . . . . . . . . . . . . . . . . . . and …………………………………………………. my Sureties named in the guarantee (or undertaking) dated 20 …………. are both alive and neither of them has become bankrupt or insolvent.
Additional paragraphs as to wages and petty cash are sometimes necessary.
FORM 24
Form of order for Account and Inquiries (O.27,r.11)
In the High Court of Cross River State
In the ……………………………………………………………………………………….Judicial Division
Suit No ………………………………………
Between:
A.B …………………………………………………………………………………… Claimant
and
C.D., E.F and G.H .…………………………………… …………………………. Defendants
This Court doth order that the following accounts and inquiry be taken and made; that is to say.
1.
2.
3.
4.
And it is ordered that the following further inquires and accounts be made and taken; that is to say
5.
6.
7.
8.
And it is ordered that the further consolidation of this cause be adjourned, and any of the parties are to beat liberty to apply as they may be advised.
FORM 25
Notice of Payment into Court (O.28,r.1 (6)
In the High Court of Cross River State
In the ……………………………………………………………………………………….. Judicial Division
Between:
A.B ………………………………………………………………………………………………. Claimant
and
CD., E.F. and G.H ………………………………………………………………………. Defendants
Take notice that the defendant ………………………………………………………….. has paid into Court N ………………………………………………. and says that (……….. part of) that sum is enough to satisfy the claimant’s claim (for and N …………………… the other part of that sum is enough to satisfy the claimant’s claim for …………………………. )
Dated the …………………………. day of ………………………… 20 ………………
…………………………………………………………..
P.O., Legal Practitioner for the defendant, CD.
To X.Y., the claimant’s Legal Practitioner, and to Mr. R.S. Legal Practitioner for the defendant E.F.
(To be filled in by the Cashier, High Court)
Received the above sum of …………………..….naira ………………………………kobo into court in this action.
Dated the ………………………………………..day of ……………………………………20 ……………
FORM 26
Acceptance of Sum Paid into Court (O.28,r.2(1) and 4(4)
In the …………………………………………………………………………….Judicial Division
Between:
A.B …………………………………………………………………………….Claimant
and
C.D., E.F and G.H ……………………………………………………………………….Defendants
Take notice that the claimant accepts the sum of N ………………………………………. paid by the defendant (C.D) into court in satisfaction of the claim in respect of which it was paid in (and abandons his other claims in the action) .
………………………………………………
X.Y Claimant’s Legal Practitioner
To
Mr. P.O. Legal Practitioner for the defendant C.D. and Mr. R.S. Legal Practitioner for the defendant E.F.
FORM 27
Acceptance of Sum Paid into Court by one of Several Defendants (O.28,r.4(2)
In the High Court of Cross River State
In the ……………………………………………………………………………………….Judicial Division
Between
A.B ……………………………………………………………………………………………Claimant
and
C.D., E.F and G.H. ……………………………………………………………………….Defendants
Take notice that the claimant accepts the sum of N …………………………………….. paid by the defendant (C.D) into court in satisfaction of his claim against the defendant C.D.
Dated the …………..Day of …………………………………….20 ………………
…………………………………………………..
X.Y Claimant’s Legal Practitioner
To
Mr. P.O. Legal Practitioner for the defendant C.D. and Mrs. R. S. Legal Practitioner for the defendant E.F.
FORM 28
Legal Practitioner’s Undertaking as to Expenses (0.31, r.7(a)
(Heading as in Form No.1)
I (or we) hereby undertake to be responsible for all expenses incurred by the Ministry of Foreign Affairs in respect of the letter of request issued herein on the …………………………….and on receiving due notification of the amount of such expenses undertake to pay the same as directed by the Chief Registrar of the High Court.
The following have been appointed as agents for the parties in connection with the execution of the above letter of request:
Claimant’s Agent………………………………of………………………………………
Defendant’s Agent …………………………of ………………………………………….
Dated the ……….Day of………………………20……………………….
………………………..
Legal Practitioners for
………………………
………………………
FORM 29
Letter of Request to take Evidence Abroad (Convention Country) (0.31, r.7(b)
To the Competent Judicial Authority of ………………………………………………………in the …………………………………………………….. if ……………………………….. whereas a civil (commercial) action is now pending in the ………………………….. Judicial Division of the High Court of Cross River State, Nigeria, in which ………………………………………………… is the claimant and ………………………………..Is the defendant.
And in the said action the claimant claims …………………………………………….and whereas it has been represented to the said court that it is necessary for the purpose of Justice and for the due determination of the matters in dispute between the parties, that the following persons be examined as witnesses upon oath touching such matters, that is ………………. of. …………..and …………of ……….and it appears such witnesses are resident within your jurisdiction.
Now, I the Chief Judge of the High Court of Cross River State, Nigeria, have the honour to request, and do hereby request, that for the reasons aforesaid and for the assistance of the said court, you will be pleaded to summon the said witnesses ( and request you in writing to so summon) to attend at such time and place as you shall appoint before you, or such other person as according to your procedure is competent to take the examination of witnesses, and that you will cause such witnesses to be examined. (upon the interrogatories which accompany this letter of request and viva voce) touching the said matters in question in the presence of the agents of the claimants and defendant or such of them as shall, on due notice given, attend such examination.
And I further have the honour to request that you will permit the agents of both the said claimant and defendant or such of them as shall be present to be at liberty to examine (upon interrogatories and viva voce upon the subject -matter thereof or arising out of the answers thereto) such witnesses as may, after due notice in writing, be produced on their behalf, and give liberty to the other party to cross-examine the said witness (upon cross-interrogatories and viva voce) and the party producing the witness for examination liberty to re-examine him viva voce.
And I further have the honour to request that you will be pleased to t cause (the answers of the said witnesses and all additional viva voce questions, whether on examination, cross-examination or reexamination the evidence of such witnesses to be reduced into writing and all books, letters, papers, and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal, or such other way as is in accordance with your procedure, and to return the same together with (the interrogatories and cross interrogatories, and) a notice of the charges and expenses payable in respect of the execution of this request, through the Ministry of Foreign Affairs from whom the name was received for transmission to the said High Court of Cross River State:
And I further beg to request that you will cause me, or the agents of the parties if appointed, to be informed of the date and place where the examination is to take place.
Dated the ……………………………………….day of …………………….20……………………………
FORM 30
Order for Appointment of the Nigerian Diplomatic Agent
As Special Examiner (in Convention Country) (O.31, r.8)
(Heading as in Form No.1)
Upon hearing the Legal Practitioners on both sides and reading the affidavit of ……………………………….
It is ordered that the Nigerian Diplomatic Agent or his deputy at ………… be appointed as Special Examiner for the purpose of making the examination, cross-examination and re-examination, viva voce, on oath or affirmation, of …………………………………………………………. Witnesses on the part of the ………..at. ………….aforesaid. The examiner shall be at liberty to invite the attendance of the said witnesses and the production of documents, but shall not exercise any compulsory powers, otherwise such examination shall be taken in accordance with the Nigerian High Court Procedure. The
…………………………… Legal Practitioners to give to the …………………..Legal Practitioners ……………. days notice in writing on the date on which they propose to send out this order to ……………. for execution and that …………………………… days after the service of such notice the Legal Practitioners for the claimants and defendants respectively do exchange the names of their parents at ………. to whom notice relating to the examination of the said witnesses may be sent. That …………… days (exclusive of Sunday) prior to the examination any witness hereunder notice of such examination shall be given by the agent of the party on whose behalf such witness is to be examined to the agent of the other party unless such notice be disposed with). That the dispositions when taken together with any document referred to therein or certified copies of documents, or of extracts therefrom, be transmitted by the examiner, under seal, to the Chief Register of the High Court, Cross River State, Nigeria, on or before the …..…. day of ………. next, or such further or other day as may be ordered, there to be filed in the proper office. That either party be at liberty to read and give such depositions in evidence on the trial of this action, saving all just exceptions. That the trial of this action be stayed until the filing of such depositions. That the cost of an incident to this application and such examination be costs in action.
Note
If the Convention requires that the invitation or notice of the witnesses must expressly state that no compulsory powers may be used, these requirements must be compiled with.
FORM 31
Forms of Praecipe (O.31,r.20)
In the High Court of Cross river State
In the ……………………………………………………………………………………….Judicial Division
Suit No……………………………… .
A.B ………………………………………………………………………………………..Claimant
and
C.D and others …………………………………………………………………………….Defendants
Seal Writ of Subpoena …………..on behalf of the …………. directed ……………………………. No ……………. Returnable
Dated this ……………….day of ………………….20………………………. .
(Signed) ……………..
(Address) ……………………..
Legal Practitioner for the …………………………..
FORM 32
Subpoena ad Testificandum (0.31, r.21)
In the High Court of Cross River State
In the ……………………………………………………………………………..Judicial Division
Suit No………………………………………….. .
Between:
…………………………………………………………….. Claimant
and
…………………………………………………………….. Defendants
To ………………………………..of…………………………………………
You are commanded in the name of the Governor of Cross River State to attend before this Court at ……………….on ……………….the ……………day of …… 20 ………..at.. ………………o ‘clock in the forenoon, and so from day to day till the above cause is tried, to give evidence on behalf of the ……………………………….
Dated this ……………………………day of ……………………….20…………………..
……………………….
Judge
FORM 33
Habeas Corpus ad Testificandum (0.31, r.21)
In the ………………………………………………………………………………..Judicial Division
Suit No ………………………………….. 20………………………………………..
Between:
……………………………………………………………………………….. Claimant
and
………………………………………………………………………….. Defendants
…………………………….The controller of Prison at……………………………………………..
You are commanded in the name of the Governor of Cross River State to have ……….who it is said was detained in your custody in prison, at…………………before the court at …………… on …………….. the ………………. day ……………….at ………………….o’clock in the afternoon, and so from day to day till the above cause is tried, to give evidence in the above named cause, and immediately after the said ………… shall have so given his evidence you shall duly conduct him to the prison from which he shall have been bought.
Dated this …………………………….……day of ……………………..20……………………
……………………..
Judge
FORM 34
Subpoena duces Tecum
(O.31,r.21)
In the ……………………………………………………………………………………..Judicial Division
Suit No…………………………………………………..
Between:
………………………………………………………………………………….Claimant
and
…………………………………………………………………………….. Defendants
To ………………………………………………………..of……………………………………….
You are commanded in the name of the Governor of Cross River state to attend before the Court
at……………………on ………….the ……………… day of ………………..20 ………………at the hours of …………………….o’ clock in the forenoon, and so from day to day until the above cause is tried, to give evidence on behalf of the ……………… and also to bring with you and produce at the time and the placed aforesaid……………………..
(Specify documents to be produced)
Dated this …………………….day of …………………20 ……………………………
………………….
Judge
FORM 35
Originating Summons for Possession (0.43, r.2)
In the High Court of Cross River State
In the ……………………………………………………………………Judicial Division
Suit No …………………………………………………………….
Between:
A.B ……………………………………………………………………………..Claimant
and
C.D., E.F., and GH ……………………………………………………………….Defendants
(if any) whose name is known to the claimant
To (C.D. and) every (other) person in occupation of
………………………………………………………….
Let all persons concerned attend before ……………………………………………………….. at the High Court of the…………………….Judicial Division, Cross River State on …………………………the …………………… day of ………………… 20 …………….. at 9 o’clock in the forenoon for the hearing of an application by AB for an order that he do recover possession of ………………………………………on the ground that he is entitled to possession and that the person( s) in occupation is (are) in occupation without his licence or consent.
Dated this …………………day of. …………………………………..20
This summons was taken out by ………………………of Legal Practitioner for the said Claimant whose address is …………………………………………………………………… (or this Summons was taken out by ……………………………………… of ………………………….. for ……………. of ……………………………………… Legal Practitioner for the said Claimant whose address is ……………………………..) (or when the Claimant acts in person).
This Summons was taken out by the said Claimant who resides at …………………………………………………… and is (s tat e occupation) and if the claimant does not reside within the jurisdiction) whose address for service is ………………………………………..
Note:
Any person occupying the premises who is not named as a defendant by this Summons may apply to the Court personally or by Legal Practitioner to be joined as Defendant. If a person occupying the premises does not attend personally or by Legal Practitioner at the time and place above-mentioned, such order will be made as the Court may think just and expedient.
FORM 36
Order for Possession (0.43, r6 (1)
(Heading as in Form 1)
Upon hearing ……………………………………………………….and upon realising the affidavit of …………………………………..File on the ………………………………..day of ………………….. 20 ………………… It is ordered that the Claimant AB do recover possession of the land described in the Originating Summons as …………………. (and the defendant ……………………………………………… do give possession of the said land the Claimant N ………………costs (or costs to be taxed).
(The above costs have been taxed and allowed at N ………………as appears by a taxing Officer Certificate dated the …………day of ………………….. 20…………….)
Dated the …………………..day of ………………………..20……………………
…………………………
Judge
FORM 37
Order for Payment of Principal Money or Interest secured by Mortgage or charge (0.44, r.2)
It is ordered that the Claimant do recover against the defendant N ……………………………secured by a mortgage (or charge) dated the ……………… day of ……………………………..20……………….(being the total of
the principal sum o N f…………………………..per cent, per annum less tax to the…………………… Day of (date of order) and N ………………………for costs (or his costs of the summons to be taxed).
And it is ordered that upon the defendant paying to the claimant the moneys ordered to be recovered and all other moneys (if any) secured to the claimant by the said mortgage ( or charge) the claimant (subject and without prejudice to the due exercise of any power of sale for the time being vested in him) do release to the defendant the security constituted by the said mortgage (or charge).
And it is ordered that all parties be at liberty to apply to the Court as they may be advised.
FORM 38
Order for possession of property forming a security for payment to the Claimant of any principal money or interest (0.44, r.2)
It is ordered that the defendant do give the claimant possession on or before the ………………………….day of ………20 ………………….of the land hereinafter described and comprised in a mortgage ( or charge) dated the …………day of.. ………..20 …………….that is to say ……………………………( description of the property).
And it is ordered that the Claimant do recover against the defendant the sum of N ……………for costs (or his cost of this Summons to be taxed).
And it is ordered that upon the defendant paying to the Claimant the moneys remaining due to the Claimant upon the security of the said mortgage ( or charge) the Claimant (subject and without prejudice to the due exercise of any power of sale for the time being vested in him) do re-deliver to the defendant possession of the property subject to the said mortgage (or charge) and release to the defendant the security constituted by the said mortgage (or charge).
And it is ordered that all parties be at liberty to apply to the Court as they may be advised.
FORM 39
Order for the payment of Principal Money or Interest secured by Mortgage or Charge and for Possession of property comprised of Property comprised therein (0.44, r.2)
It is ordered that the claimant do recover against the defendant N …………………..secured by a mortgage (or charge) dated the …………………..day of ……….20 ……………….(being the total of the principal sum of N ……………………. per cent, per annum less tax to the ……………………………day of (date of order) and N…………………for costs of the summons to be taxed.
It is ordered that the defendant do give the claimant possession on or before the ……..day of ………20………..of the land hereinafter described and comprised in a mortgage (or charge) dated the …………day of …………..20 ……………..that is to say…………………….(description of the property).
And it is ordered that upon the defendant paying to the claimant the moneys hereby ordered to be recovered and all other moneys (if any) secured to the claimant by the said mortgage (or charge) the claimant (subject and without prejudice to the due exercise of any power of sale for the time being vested in him) do re-deliver to the possession of the property subject to the said mortgage (or charge) and release to the defendant the security constituted by the said mortgage (or charge).
And it is ordered that all parties be at liberty to apply to the Court as they may be advised.
FORM 40
Certificate of the Chief Registrar (0.45, r.9 (1)
PARTIES
Pursuant to the directions given to me by Hon. Justice …………………………………, I hereby certify that the result of the accounts and inquiries which have been taken and made in pursuance of the judgment for order, in this cause dated the ……………..day of …………………….is as follows-
Verified by the affidavit of………………….filed on the ……………day of ……………and which account is to be filed with this certificate, expect that in addition to the sums appearing on such account to have been received, the said defendants are charged with the following sums (state the same here or in a schedule), and except that I have disallowed the items of disbursement in the said account numbered ………………, and ……………..(or in cases where a transcript has been made).
N.B.:
The above numbers are to correspond with the number in the order after each statement: the evidence produced is to be stated as follows-
The evidence produced on this account (or inquiry) consists of the following document …………………… filed on …………………………day of. ………….20 ………………of the affidavit of C.D., filed……………………….
FORM 41 (0. 46, r, 35 (3)
Surety’s Guarantee
In the High Court of …………………….State
Probate Registry Suit No:…………………………………….
Whereas ……………………….. of ………………………………………………………… died on the ………………………………..day of ………………………..20 …………………and
Administrators’ is/are the intended administrator(s) of his estate.
(a) to collect and get in the estate of the deceased and administer it according to law;
(b) When required to do so by the Court to exhibit on oath in the Court a full inventory of the estate and when so required, to render an account of the estate; or
(c) When so required by the Court, to deliver up the grant to the Court.
Dated this ,,,,,,,,,,,,,,,,,,,,,,,,day of ………………………..20 .
Signed, sealed and delivered by the above named in the presence of ……………………. Commissioner for Oaths (or other person authorised by law to administer an oath).
(The common seal of ……………………………….was hereunto affixed in the presence of ……………………..).
FORM 42
[0.46, r.69 (3) (c)]
Surety’s Guarantee on Application for Resealing
In the High Court of ……………………………………………………….State
Probate Registry Suit No ………………………………………………. .
In the Estate of………………………………………..deceased
Whereas ……………………………..of ………………………. died on the ……………….day
of …………………………..20 ……………………………….and letters of administration of his estate were on the ………day of …………………….. 20 ………………..granted by the …………………………. to ……………………………..(and ……………….. ) and are about to be sealed in the State under the Succession law;
Now therefore
(a) to collect and get in the estate of the deceased which is situated in the State and administer it according to law
(b) when required to do so by the Court, to exhibit on oath in the Court a full inventory of the estate which is situated in the State and when so required, to render an account of the estate; or
Dated this ………………day of…………………..20……………………
Signed, sealed and delivered by the above named in the presence of …………………………………. a Commissioner for Oaths (or other person authorised by law to administer an oath).
…….. ………………………a Commissioner for Oaths (or other person authorised by law to administer an oath)
(The Common seal of ……………………………..was hereunto affixed in the presence of ……………………………).
FORM 43
(0.46, r.71(4)
Caveat
In the High Court of………………………………………………….State
Probate Registry Suit No ………………………………………………..
Let no grant be sealed in the Estate of ………………………………………Late of
………………………………. ………………..who died on the ……………………….day of
………………… 20 ………………………………without notice to………………………
Dated this ……………………………………day of …………………………20…………..
(Signed) ………………………..Legal Practitioner for the said caveator
whose address for service is…………………………
FORM 44
(0.46, r.71 (8))
Warning to Caveator
In the High Court of.. ………………………………………………………………State
Probate Registry Suit No……………………………….
To ……………………of ……………………………………a party who has entered a cavent in the Estate of deceased.
You are hereby warned within 8 days after service hereof upon you, inclusive of the day of such service-
And take notice that in default of your so doing the Court may proceed to issue a grant to probate or administration in the said estate notwithstanding your cavent.
Dated this …………………day of ………………..20……………………..
…………………
Registrar
Issued at the instance of (here set out the name and interest including the date of the Will, if any under which the interest arose) the party warning, the name of his Legal Practitioner and the address for service. If the party warning is acting in person, this must be stated.
FORM 45
(0.46, r.71(9)
Appearance to Warning of Citation
In the High Court of……………………………………………………………….
The Probate Registry
Caveat No ………………….dated the …………………day of ………………20 ………………
Full name and address of person warning (or Citor)
……………………………………………………………………………………………………
Full name and address of Caveator (or person cited)
……………………………………………………………………………………………………….
Date of Will…………………………………………………………………………………………..
Interest of Caveator …………………………………………………………………………….
Enter an appearance for the above named caveator (or person cited) in this matter.
Dated this ………………day of ……………………………20 ………………………..
………………………………………
Legal Practitioner or (“In person”)
FORM 46
(0.46, r.82(1)
Notice of Election to redeem Life Interest
In the High Court of …………………………………………………………………..State
Probate Registry Suit No………………………………………………………………..
In the Estate of. …………………………………………………………….deceased
Whereas ……………..of ……………….on…………………. day of …………………….20
…………………. died wholly/partially intestate leaving his/her lawful wife/husband and ………………………………………………lawful issue of the said.
And whereas Probate/Letters of Administration of the Estate of the said……… …………..were granted to me, the said …………………………….(and to……………………o f ………………………..)
And whereas (the said ……………………………..has ceased to be a personal representative because……………………… ) and I am now the sole personal representative:
Now, I, the said ……………………………….hereby give notice that I elect to redeem the life interest to which I am entitled in the estate of the ………………………. late by retaining N …………….. its capital value, and N ……………………..the cost of the transaction.
Dated this ………………….day of ……………………….20 ……………………….
(Signed)…………………………
(To the Probate Registrar)
HIGH COURT RULES
FEES SCHEDULE
FIRST SCHEDULE (0.49 R. 1)
FEES PAYABLE IN THE HIGH COURT FOR COMMENCEMENT OF CAUSES OR MATTERS,.ETC.
RATE –N-
(a) Not exceeding N 200 60.00
(b) Exceeding N 200; per N 100 or part thereof 40.00
(c) Maximum Fee 1,000.00
(a) Initial Fees
(b) Maximum total Fee
(a) Where the annual rent or value does not exceed N 200 80.00
(b) For every other N l 00 up total maximum to N 20 40.00
(c) Maximum Fee 1,000.00
(a) Declaration of title to land 1,000.00
(b) Trespass: according to amount claimed but not exceeding N 200 as in 1 above—1,100.00
(c) Maximum 1,200.00
(d) Possession 1,000.00
(a) Where the gross value of the property does not exceed N 200: ———- 100.00
(b) Exceeding N 200; per N 200 or part there of up to N 10,000 ———- 200.00
(c) Where no Value can be specified ———- 300.00
7.
(a) Where the gross value of the property of the deceased or of the property under trust does not exceed N 200 ———- 100.00
(b) Where it exceeds N 200; per N200 or part thereof up to N 10,000 ———- 60.00
(c) Where no gross value can be specified ———- 500.00
(a) does not exceed N 50 – fee ———- 20.00
(b) exceeds N 50 a but not N 100 ———- 40.00
(c) exceeds N 1 00 but not N 1 ,000 per N 100 or part thereof ———- 100.00
(a) for the first three hours or part thereof ———- 100.00
(b) for every subsequent hour or part thereof ———- 100.00
Applications Affidavits, Judgments, Orders, Security Bonds, Warrants and writs
(a) if alone ———- 100.00
(b) if accompanied by other papers ———- 200.00
per N 100 or part thereof found to have been received. ———- 40.00
court may direct but not exceeding. ———- 200.00
(a) out of the jurisdiction ———- 1,000.00
(b) within the jurisdiction ———- 200.00
of the sales by Auction Law by the regulations of Government Department per deponent) 100.00
(a) not exceeding N100:per N20 or part thereof ………… 40.00
(b) exceeding N100: per N100 or part thereof ………… 100.00
(not being a Government officer) and renewing yearly ………… 200.00
(b) if beyond one kilometre but not beyond five kilometres ………… 400.00
(i) For the first kilometre ………… 200.00
(ii) For every subsequent kilometre or part thereof (one way) ………… 40.00
TRANSFER OF CASES
CUSTOMARY COURT CASES
(b) on the petition, if out of time ………… 300.00
(c) if not dismissed summarily, on setting down for hearing ………… 200.00
(d) copies of customary court record or petition of appeal, whether for use of respondent per folio of 100 words. ………… 200.00
SECOND SCHEDULE (O. 48 R. 19 and O. 49 R. l(b) )
FEES PAYABLE IN APPEALS FROM THE MAGISTRATE’S COURTS
(a) Fees payable to Magistrate’s Court: upon giving or recording notice of appeal (whether verbal or in writing) ………… 100.00
Filing memorandum of grounds of appeal, service of ground of appeal or notice to respondent. ………… 200.00
Certified copy of proceedings per folio ………… 200.00
Copies thereof for respondent per folio. ………… 200.00
(b) Fees payable to High Court: Entering an appeal to the Supreme Court on a matter of law. ………… 200.00
(c) Fees payable to Magistrate’s Court or High Court: on every subpoena (unless specially directed by the court to be issued.) ………… 200.00
Service of subpoena. ………… 400.00
PART II
THIRD SCHEDULE (O 49. R l(b))
ALLOWANCE TO WITNESSES
Professional men, mercantile agents, bank manager, Surveyors, and any other officer of the public service whose salary is not less than N100,000 a year. ………… 1,000.00
Merchants, captains of ships, mercantile assistant and officers in the public service whose salary is N50,000 a year, but less than N100,000 a year ………… from 500.00
To Auctioneers, Chiefs, Master Tradesman, Pilots, and the like ………… from 500.00
Officers in the public service whose salary is less than N50,000 a year from ………… 400.00
Artisans, journeymen and the like ………… 400.00
Servants, Labourers, Canoemen and the like from ………… 400.00
XXX XXX XXX XXX XXX XXX
XXX XXX XXX XXX XXX XXX
XXX XXX XXX XXX XXX XXX
XXX XXX XXX XXX XXX XXX
HIGH COURT ASSESSMENT
Rate
Motion on Notice
Motion 100.00
Filing 100.00
Order 100.00
Oath 100.00
Annex 20.00
KM 400.00
Subpoena: (Memorandum of Appearance)
Subpoena 40.00
Service 40.00
KM 400.00
Attendance or transport depending on rank and destination.
Statement of Claim
Statement of Claim 200.00
Plan (if any) 100.00
Service 40.00
KM 400.00
Statement of Defence
Statement of defence 200.00
Plan (if any) 100.00
Service 40.00
KM 400.00
Divorce Petition
Petition 1,000.00
Certificate of Reg. 200.00
Setting Down 200.00
Notice of petition 100.00
Acknowledgement of service 100.00
Memo of appearance 100.00
Affidavit 100.00
Oath 100.00
Service 40.00
KM 400.00
Application for Direction of Trial
Filing 100.00
Application 100.00
Service 40.00
KM 400.00
Motion Ex parte
Filing 100.00
Order 100.00
Oath 100.00
Annex (if any) 20.00
Possession 200.00
Answer to Petition
Filing 100.00
Answer 500.00
Citation 200.00
Oath 100.00
Service 40.00
KM 400.00
FIFA Precipe for Execution
Filing 100.00
Writ 100.00
Execution 100.00
Service 100.00
KM 400.00
Affidavit in Support
Filing 100.00
Oath 100.00
Service 40.00
KM 400.00
Notice of Discontinuance
Filing 100.00
Service 40.00
KM 400.00
Notice of Judgment
Filing 100.00
Order 100.00
Oath 100.00
Service 40.00
KM 400.00
Counter Affidavit
Filing 60.00
Oath 60.00
Service 40.00
KM 400.00
Notice to Produce
Subpoena or Notice to produce 100.00
Service 40.00
KM 400.00
Filing Summons to Bail
Filing 200.00
Order 200.00
Oath 100.00
Annex (if any) 20.00
KM 400.00
Service 40.00
Certificate of Judgment
Filing 100.00
Oath 100.00
Sealing 20.00
Notice of Appeal
Filing 200.00
Notice and Ground of Appeal 400.00
Service 40.00
KM 400.00
Affidavit in Support of Application for Garnishee Order
Filing 200.00
Order Nisi 200.00
Garnishee 200.00
Oath 100.00
Service 40.00
KM 400.00
HIGH COURT (CIVIL PROCEDURE) RULES OF CROSS RIVER STATE 2008
FOURTH SCHEDULE (O. 49 R. 2)
REGULATIONS REGARDING FEES
(a) all fees payable therein as provided shall have been paid and
(b) an account thereof, initialled as received shall have been set forth by the officer issuing the process both in the margin and in the counterfoil thereof.
FORM 47
Notice of Appeal (Civil)
In the magistrate’s Court of the …………………………………. Magistrate District
No ……………………
A.B Versus C.D
Take notice that the claimant (or Defendant, as the case may be) A.B (or C.D.; name the party who is appealing) appeals from the judgement (or order, or decision) dated the ……………… day of …………………… 19………………….. in the above proceedings.
And further take notice that his grounds of appeal are …………………………………………….
…………………………………………………………………………………………………
……………………………………………………………………………………………………
Dated ……………………………………………………………………………………………….
A.B. (or C.D.) (or the Legal Practitioner acting for him)
To C.D. (or A.B.)
Of …………………………………………………………………………………………………..__