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HIGH COURT OF BORNO STATE OF NIGERIA (CIVIL PROCEDURE) RULES, 2006.
BORNO STATE HIGH COURT (CIVIL PROCEDURE RULES), 2006.
A [LAW] TO ESTABLISH THE HIGH COURT OF BORNO STATE (CIVIL PROCEDURE) RULES AND FOR CONNECTED PURPOSES
BE IT ENACTED BY THE BORNO STATE HOUSE OF ASSEMBLY AS FOLLOWS:
Date of Commencement.
(2) The provisions contained in the Rules set out in the Schedule to this Bill (hereafter referred to as “the Rules”) shall be the Rules of (Civil Procedure) to be followed in the High Court of Borno State.
(2) Except where the context otherwise requires, any reference to this Bill to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment.
“Court” means the High Court of Borno State of Nigeria;
“Government” means the Governor of Borno State; and
“State” means the Borno State of Nigeria.
SCHEDULE
HIGH COURT OF BORNO STATE (CIVIL PROCEDURE) RULES 2006.
TABLE OF CONTENT
Order Rule Description
Pages
1.- CITATION AND COMMENCEMENT. 1
2.- PLACE OF INSTITUTING AND TRIALS OF SUITS
3.- FORM AND COMMENCEMENT OF ACTION
4.- INDORSEMENT OF CLAIM AND OF ADDRESS
5.- EFFECT OF NON COMPLIANCE
6.- ISSUE OF ORIGINATING PROCESS
7.- SERVICE OF ORIGINATING PROCESS
8.- SERVICE OUT OF NIGERIA AND SERVICE OF FOREIGN PROCESS
9.- APPEARANCES
10.- DEFAULT OF APPEARANCE
11.- SUMMARY JUDGMENT
12.- APPLICATION FOR ACCOUNT
13.- PARTIES GENERALLY
II ACTIONS AGAINST FIRMS AND PERSONS CARRYING ON
BUSINESS IN NAMES OTHER THAN THEIR OWN
III CHANGE OF PARTIES BY DEATH OR OTHERWISE, ETC.
14.- JOINDER OF CAUSES OF ACTION
15.- PLEADINGS
16.- STATEMENT OF CLAIM
17.-DEFENCE AND COUNTER CLAIM
18.- REPLY
19.- ADMISSIONS
20.- DEFAULT OF PLEADING
21.- PAYMENT INTO AND OUT OF COURT
22.- PROCEEDING IN LIEU OF DEMURER
23.- DISCONTINUANCE
24.- AMENDMENT
25.- PRE-TRIAL CONFERENCE AND SCHEDULING
26.- DISCOVERY AND INSPECTION
27.- ISSUES, INQUIRIES, ACCOUNTD AND REFERENCES TO REFEREES
28.- SPECIAL CASE
29.- CAUSE LISTS
30.- PROCEEDING AT TRIAL
31.- FILING OF WRITTEN ADDRESS
32.- EVIDENCE GENERALLY
9 Order for attendance of person to produce document. 83
33.- AFFIDAVITS
34.- NON-SUIT
35.- JUDGMENT, ENTRY OF JUDGEMENT
36.- DRAWING UP OF ORDERS
37.- TRANSFER AND CONSOLIDATION
Borno State, 1994 92
38.- INTERLOCUTORY ORDERS, ETC.
In balances and neglect of receiver. 98
39.- MOTIONS AND OTHER APPLICATIONS
40.- APPLICATION FOR JUDICIAL REVIEW
41.- I JURISDICTION OF CHIEF REGISTRAR
II – CHIEF REGISTRAR’S CERTIFICATE
42.- HABEAS CORPUS, ATTACHMENT FOR CONTEMPT
I – HABEAS CORPUS
II – ATTACHMENT FOR CONTEMPT
43.- INTERPLEADER
44.- COMPUTATIN OF TIME
45.- MISCELLANEOUS PROVISIONS
I – COURT SITTING AND VACATION
II – GENERAL
7 Recovery of penalties and costs. 118
8 Notices. 118
9 Filling. 118
10 How process addressed. 118
11 No fees where proceedings by Government Department. 118
12 Regulations. 119
13 Savings. 119
46.- ARREST OF ABSCONDING DEFENDANT.
47.- PROCEEDINGS INFORMA PAUPERIS
48.- CHANGE OF LEGAL PRACTITIONER
49.- COSTS
50.- BUSINESS IN CHAMBERS
I -PROCEEDINGS RELATING TO PERSONS UNDER LEGAL
DISABILITY
II-FURTHER CONSIDERATION
51.- FORECLOSURE AND REDEMPTION
52.- I- SUMMONS TO PROCEED
Served with notice of judgment or order. 138
II- SUMMONS TO PROCEED BOOK
53.- SUMMARY PROCEEDINGS FOR POSSESSSION OF LANDED PROPERTY
OCCUPIED BY SQUATTERS OR WITHOUT THE OWNER’S CONSENT.
54.- STAY OF EXECUTION PENDING APPEAL
55.- PROBATE AND ADMINISRATION
94.Where claimant disputes defendants interest. 177
102.Order which may be made on application for administration or
Execution of trusts, where no account or insufficient accounts have been rendered.
179
Vesting order on sale, etc. payment out of court. 180
Sharia/Upper Sharia Courts, Rent Tribunal, etc to the High Court.
i- Motions generally
ii- Ex-parte motions
iii- Order to show cause
iv- Notice of Motion
v- Evidence in Interlocutory Proceedings.
A- Reference to arbitrator
B- Arbitration Proceedings
C- Enforcement of Arbitration Award
D- Registration of Foreign arbitration Award
E- Alternative Dispute Resolution.
For commencement of cases other than matrimonial and legitimacy causes.
Appendix III
Regulations regarding fees
Appendix IV
Notaries Public fees of office, translations.
Appendix V
Fees for registration of judgment.
HIGH COURT OF BORNO STATE OF NIGERIA
HIGH COURT (CIVIL PROCEDURE) RULES, 2006.
( ) Date of Commencement.
ORDERS
ORDER 1 – CITATION AND COMMENCEMENT.
(2) Application of these Rules shall be directed towards the achievement of just, efficient and speedy dispensation of justice.
(2) Where in these Rules depositions and affidavits are required to be made, if the deponent does not understand the English Language such deposition of affidavit shall be made in a language he understands and shall be accompanied by interpretation thereof in English language.
(3) In the construction of these Rules, unless there is anything in the subject of context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the following meanings:
“Claimant” shall include a claimant in a counter-claim;
“Court” means the High Court of Borno State;
“Court Process or “Process” includes writ of summons, originating summons, originating process, notices, petitions, pleadings, orders, motions, summons, warrants and all documents or written communication of which service is required;
“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. 63, Laws of Borno State, 1994 or any re-enactment thereof;
“Minor” means a person who has not attained the age of 18 years;
“Originating Process” means any Court process by which a suit is initiated.
“Persons Under Legal Disability” means persons who lack 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 from probate business;
“Registrar” means the Chief Registrar, Deputy Chief Registrar, Assistant Chief Registrar, Principal Registrar, Senior Registrar, High Registrar, or any other officer acting or performing the functions of a Registrar;
“Registry” means the Registry of the High Court of Borno State in the appropriate judicial division;
“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 INSTITUTING AND TRIAL OF SUITS
Subject to the provisions of the Law on transfer suits, the place for trial suit shall be regulated as follows;
(2) Where there are several defendants who resides or carryon 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 – FORM AND COMMENCEMENT OF ACTION
(i) any relief or remedy for any civil wrong or otherwise, or
(ii) damages for breach of duty, whether contractual, statutory or otherwise, or
(iii) damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property.
(a) statement of claim;
(b) list of witnesses to be called at the trial;
(c) written statements on oath of the witnesses and
(d) copies of every document to be relied on at the trial.
(2) where a claimant fails to comply with Rules2 (1) above, his originating process shall not be accepted for filing by the Registry.
(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 application.
(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.
“This summons (or as the case may be) is to be served out of Borno State of Nigeria and in the………………………state.”
(2) An originating process shall not be altered after it is sealed except upon application to a Judge.
ORDER 4 – INDORSEMENT OF CLAIM AND OF ADDRESS
(2) The defendant may notwithstanding payment under this rule, have the costs taxed and if more than one sixth of the costs shall be disallowed, the claimant’s Legal Practitioner shall pay the costs of taxation.
(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 shall state a chamber’s address within the jurisdiction as his address for service.
ORDER 5 – EFFECT OF NON-COMPLIANCE
(2) Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.
(3) The Judge shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
(2) An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion.
ORDER 6 – ISSUE OF ORIGINATING PROCESS
(2) A claimant or his Legal Practitioner shall, on presenting any originating process for scaling, 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 n true copy of the original process filed.
(2) If a Judge 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 or renewal of the process, the Judge may renew the original or concurrent process for 3 months from the date of such renewal. A renewed originating process shall be in Form 6 with such modifications or variations as circumstances may require..
ORDER 7 – SERVICE OF ORIGINATING PROCESS
(2) Where 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.
Provided that such written authority shall be attached to the memorandum of appearance filed by such Legal practitioner.
(2) Every application to the Judge for substituted or other service, or for the submission of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.
(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 partnership that has been dissolved to the knowledge of the claimant before the commencement of the action, the originating process shall be served upon every person 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 Mailers Act, personal service shall be effected on one of the persons authorized to accept service on behalf of the said company,
(2) After service the affidavit shall be prima facie proof of service.
(2) The rate of service shall be as directed by the Chief Judge in Practice Directions from time to time.
(2) Save in exceptional circumstances and as may be authorized by a Judge, service shall not be effected on a Sunday or on a public holiday.
(2) Where any process was not served the cause of failure shall be recorded in the register. Every entry in such register or certified copy thereof shall be prima facie evidence or the matters stated therein.
ORDER 8 – SERVICE OUT OF NIGERIA AND SERVICE OF FOREIGN PROCESS
(a) the whole subject matter of the claim is land situate within jurisdiction, or
(b) any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within jurisdiction, is sought to be construed, rectified, set aside or enforced;
(c) any relief is sought against any person domiciled or ordinarily resident within jurisdiction, or
(d) the claim is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within jurisdiction or for the execution (as to property situate within jurisdiction) of the trusts of any written instrument, which ought to be executed according to the law in force in Borno State, or
(e) the claim is brought against the defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for an in respect of a contract:
(i) made within jurisdiction, or
(ii) made by or through an agent residing or carrying on business within jurisdiction on behalf of a principal residing or carrying on business out of jurisdiction and
(iii) made by its terms or by implication is to be governed by the applicable law in Borno state, or the parties have agreed that the Court shall have jurisdiction to entertain any claim in respect of such contract, or is brought against the defendant in respect of a breach committed within jurisdiction, of a contract whatever made notwithstanding that such breach was preceded or accompanied by a breach out of jurisdiction, which rendered impossible the performance of the contract which ought to have been performed within jurisdiction.
(f) the claim is founded on a tort committed within jurisdiction, or
(g) an injunction is sought as to anything to be done within jurisdiction, or any nuisance within jurisdiction is sought to be prevented or removed, whether or not damages are sought in respect thereof, or
(h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within jurisdiction, or
(1) the claim is by a mortgage or mortgagor in relation to a mortgage of property situate within jurisdiction and seeks relief of the nature or kind following that is sale, foreclosure delivery of possession by the mortgagor; redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under paragraph (e) of this Rule) any judgment or order for payment of any monies due under the mortgage, or
(j) the proceedings relate to a person under legal disability, or
(k) the proceedings relate to probate matters, or
(l) where any proceedings under any law or rule of Court have been instituted by any originating process.
(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 languages 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 7 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 8 with such modifications or variations as circumstances may require;
(c) a certificate, declaration, affidavit or other notification of due ser-vice 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 9 with such modifications or variations as circumstances may require:
Provided that notwithstanding the foregoing provision a claimant may with leave of a Judge serve any originating process by courier. 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 with to be dealt with or affected. The Court may, without assuming jurisdiction over any person out of
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 interviewing.
(a) the party desiring such service shall file in the registry a request in- Form 10 with such modifications or variations as circumstances may re-quire and the request shall slate 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 mad 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 he 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 a Nigerian diplomatic agent to the, 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 therefor in appropriate cases direct that courier shall be used by the party effecting service.
(a) the letter of request for service shall be accompanied by a translation in the 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 and 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 Judge shall forward to the Attorney-General a letter of request for service, the approved amount for service, evidence of ser-vice 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 paragraph (b) of this rule.
ORDER 9 – APPEARANCE.
(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 scaled copy to the person making the appearance,
(3) A defendant entering appearance shall not later than 2 days thereafter serve a sealed copy of the memorandum of appearance on a claimant’s Legal Practitioner or on the claimant if he sues in person.
(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 Borno 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.
ORDER 10 – DEFAULT OF APPEARANCE
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 11 – SUMMARY JUDGMENT
(a) his statement of defence,
(b) depositions of his witnesses,
(c) exhibits to be used in his defence; and
(d) a written brief in reply to the application for summary judgment.
(2) Where it appears to a Judge that the defendant has no good defence the Judge may thereupon enter judgment for a claimant.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claims, the Judge may thereupon enter judgment for that part of the claim to which there is no de-fence and grant leave to defend that part to which there is a defence.
ORDER 12 – APPLICATION FOR ACCOUNT
ORDER 13 – PARTIES GENERALLY
(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 proceedings in which he may have no interest.
(2) Where there are numerous persons having the same interest in one suit 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.
(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, 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 appointed to represent that person or class or member of the class, the Judge make the appointment. The decision of the Judge in the proceedings 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 proceedings 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 the persons recognized by Customary Law as members of a family or as members of a land owning community.
(i) where there are some other persons having the same interest before the Court who assent the compromise or on whose behalf the Court sanctions the compromise or
(ii) the absent persons arc represented by a person under Rule 13 of this Order who so assents; 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.
(2) Where a sole or sole surviving claimant or defendant in a proceedings dies and the cause or action survives but the person entitled to proceed fails to proceed, a Judge may on the application or either the deceased’s Legal Practitioner or the opposing party order any person to take the place or 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 proceedings might have been continued.
(2) A Judge may at any stage of the proceedings, either upon or without either party, and on such terms as may appear to the Judge to nonjoinder 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 proceedings be added.
(4) No person under legal disability shall be added as a claimant suing without a guardian and no person on shall be added as the guardian of a claimant under legal disability without his own consent in writing.
(5) Every 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 proceedings against such person shall be deemed to have begun on the service of such originating processes or 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.
(2) The order and existing processes shall be served on the Third Party within the time prescribed for delivering the defence.
II ACTIONS AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN.
(2) Where the claimants or their Legal Practitioners fail to comply with such demand, all proceedings 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 proceedings may continue in the name of the firm.
(2) Where an originating process is served upon a person having the con-trol of 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.
(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) Every person served who is not already a party to the proceedings 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 proceedings shall file his pleadings and other documents as if he had been an originating party in the proceedings.
(2) A copy of the notice endorsed with an affidavit stating that the notice has been duly filed in the registry shall also be filed.
(3) The party giving the notice may perform the duties prescribed by this Order in person or by his new legal representative.
(2) An action under sub-rule (1) of this rule shall not be made until the Legal Practitioner serves on every party to the cause or matter a copy of the notice otherwise he shall be considered the legal practitioner of the party till the final conclusion of the cause or matter.
(3) An application for an order under this rule shall be made by the originating motion supported by an affidavit stating the grounds of the application.
(4) An order made under this rule shall not affect the rights of the legal representative and the party for whom he acted for as between themselves.
ORDER 14 – JOINDER OF CAUSES OF ACTION
(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. ‘
(2) Rule 1 shall apply in relation to a counter-claim as if the counter- claim were a separate action and if the person making the counter-claim were a plaintiff and the person against whom it is made a defendant.
(3) Counter-claim may be proceeded with notwithstanding that judgment is given for the plaintiff in his action or that the action is stayed, discontinued or dismissed.
(2) If it appears on the application of any party against whom a counter-claim is made that the subject matter of the counter-claim ought for any reason to be disposed of by a separate action, the Court may order it to be tried separately or make such other order as may be expedient.
ORDER 15 – PLEADINGS
(2) defendant shall file statement of defence, set off or counter claim, if any, not later than 42 days after service on him of the claimant’s originating process and accompanying documents. A counter-claim shall have same effect as a cross action, so as to enable the Court pronounce a final Judgment in the same proceedings. A set-off must be specifically pleaded.
(3) A claimant shall within 14 days of service of the statement of de-fence and counter-claim if any, file his reply, if any, to such defence or counter-claim:
Provided that where a defendant sets up a counter-claim, if a claimant or any other person named as party to such counter-claim contends that the claim thereby raised ought to be disposed of by way of counterclaim, but in an independent proceeding, a Judge may at any time order that such counter- claim be excluded.
(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.
(2) A general denial in any pleadings shall not operate as denial of any specific fact in the pleadings of the opposing party.
(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.
(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 an in support of the allegation that the words are true.
(a) it discloses no reasonable cause of action or defence, as the case may be; 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 paragraph (l) (a).
(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 proceedings 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) 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 or 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 counter-claim.
ORDER 16 – STATEMENT OF CLAIM
(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, as far as may be, separately and distinctly. The same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off or counterclaim founded upon separate and distinct facts.
Provided that the claimant may not completely change his cause of action indorsed on the writ without amending the writ.
ORDER 17 – DEFENCE AND COUNTER-CLAIM
(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 an 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.
(2) If after a defence has been delivered along with a set-off or counter- claim, 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 rely (in the case of a set-off) or defence to counterclaim, either alone or together with any other ground of reply or defence to counterclaim.
ORDER 18 – REPLY
ORDER 19 – ADMISSIONS
(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 cost of proving the document, which shall not be less than a sum of five thousand naira, shall be paid by the party who has challenged it, unless at the trial or hearing the Judge shall certify that there were reasonable grounds for not admitting the authenticity of the document.
(2) Any 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.
(3) Where there is refusal or neglect to admit the same within 4 days after service of such notice or within such further time as may be allowed by the Judge, the cost of proving such fact or facts which shall not be less than a sum of five thousand naira, shall be paid by the party so refusing or neglecting whatever the result of the proceedings, unless the Judge certifies that the refusal to admit was reasonable or unless the Judge at any time otherwise orders or directs.
ORDER 20 – DEFAULT OF PLEADING
Provided that the unanswered part consists of a separate cause of action is sever able from the rest, as in the case of a debt or liquidated demand:
Provided also that where there is a counterclaim, execution on any such judgment as above mentioned in respect or the claimant’s claim shall not issue without leave of the Judge.
ORDER 21 – PAYMENT INTO AND OUT OF 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) Where the money is paid into Court in satisfaction of one or more of several causes of action, the notice shall specify the causes of action in respect of which payment is made and the sum in respect of each such cause of action unless a Judge otherwise directs.
(5) The notice shall be in Form 14 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 with-drawn or delivered in an amended form by leave of a Judge upon such terms as may be just.
(6) 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) 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 abate.
(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 his costs incurred to the time of payment into Court, and 48 hours after taxation may sign judgment for his taxed costs.
(4) Where in an action for libel or slander, the claimant accepts money paid into Court, either party may apply by summons to a Judge for leave for 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 16 with such modifications or variations as circumstances may require to each defendant and thereupon all further proceedings 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 dealing with the whole cause or causes of action.
(4) In an action for libel or slander against several defendants sued jointly, if any defendants pays money into Court, the claimant may within 14 days elect to accept the slim paid into Court in satisfaction of his claim against the defendant making the payment and shall give notice to all the defendants as in Form
15 with such modifications or variations as circumstances may require, the claimant may tax his costs against the defendant who has such payment in accordance with Rule 2(3) of this Order and the action shall 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 awarded or agreed to be paid in any such proceedings 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 claimant’s Legal Practitioner in respect of costs or of the difference between party and party and Legal Practitioner and client costs.
ORDER 22 – PROCEEDINGS IN LIEU OF DEMURRER
(2) If in the opinion of the Judge, the decisions on such point of law substantially dispose of the whole proceedings or of any distinct part thereof, the Judge may make such decision as may be just.
ORDER 23 – DISCOUNTINUANCE
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 proceedings 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 counter claim to be withdrawn or struck out.
ORDER 24 – AMENDMENT
“Amended………………………………….…day of pursuant to Order of
(name or Judge) dated the …………………….……day of……………..”
ORDER 25 – PRE – TRIAL CONFERENCES AND SCHEDULING
(2) Upon application by a claimant under sub-rule 1 above, the Judge shall cause to be issued to the parties and their Legal Practitioners (if any) a pre-trial conference notice as in Form 17 accompanied by a pre-trial information sheet as in Form 18 for the purposes set out hereunder:
(a) disposal of 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 or adoption of alternative dispute resolution.
(3) At 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 to dismiss the action.
(a) joining other parties;
(b) amending pleadings or any other processes;
(c) filing motions;
(d) further pre-trial conference;
(e) any other matters appropriate in the circumstances of the case.
(a) formulation and settlement of issues;
(b) amendments and further and better particulars;
(c) the admissions of facts, and other evidence by consent of the parties;
(d) control and scheduling of discovery, inspection and production of documents;
(e) narrowing the field of dispute between expert witnesses, by their particulars at pre-trial conference or in any other manner;
(f) hearing and determination of objections on point of law;
(g) giving orders or directions for separate trial or a claim, counter-claim, set-off, cross-claim or third party claim or of any particular issue in the case;
(h) settlement of issues, inquiries and accounts under Order 27;
(1) securing statement of special case of law or facts under Order 28;
(j) determining the form and substance of the pre-trial order;
(k) such other matters as may facilitate the just and speedy disposal of the action.
(a) in the case of the claimant dismiss the claim;
(b) in the case of a defendant enter final Judgment against him.
Any Judgment given under this rule may be set aside upon an application made within 7 days of the judgments or such other period as the Pre-trial Judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial
conference.
ORDER 26 – DISCOVERY AND INSPECTION
(2) Every affidavit in answer to a request for discovery of documents shall be accompanied by office copies or the documents referred to therein.
(3) The affidavit to be made by any 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 21 with such modifications or variations as circumstances may require.
(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.
Provided that the Judge may look at the whole of the answers and order that any of
them may be put in.
ORDER 27 – ISSUES, INQUIRIES, ACCOUNTS AND REFERENCES TO REFEREES.
(2) If the parties differ on the issues the pre-trial Judge may settle the issues.
(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 authorized any referee to commit any person to prison or to enforce any order attachment or otherwise; but the Judge may, in respect of matters before a referee, make such order of attachment or commitment as he may consider necessary.
(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 on the hearing by the Judge for the further consideration of the matter, after giving not less than 4 days notice thereof and any other application with respect to the report may be made on that 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 proceedings on the receipt of the report find the foregoing provisions of this rule shall have effect subject as to any such directions.
ORDER 28 – SPECIAL CASE
(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 29 – CAUSE LISTS
(2) The Registrar shall also keep a Weekly Cause List of all other actions which are ready for trial or hearing.
(2) Nothing in this rule shall preclude the Chief Judge from making special arrangements, whenever necessary or convenient, for the disposal of causes and matters included in the list.
ORDER 30 – PROCEEDING AT TRIAL
(2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge upon such terms as he may deem fit.
(3) All 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.
(2) All application for leave in sub-rule 1 above shall be accompanied by the deposition on oath on such witness.
either the claimant or defendant may make oral application to have the case closed.
(2) Notwithstanding the provisions of sub-rule 1 above, the Judge may suo-motu where he considers that either party fails to conclude his case within a reasonable time, close the case for the party.
(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 proved includes a witness in the course of whose evidence the exhibit is put in.
(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.
(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 – 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 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 cita-tion of each such authority.
ORDER 32 – EVIDENCE GENERALLY
(2) All agreed documents or other exhibits shall be tendered from the bar or by the party where he is not represented by a Legal Practitioner.
(3) The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.
(4) Real evidence shall be tendered during the trial.
(2) The power conferred by sub-rule 1of 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 newspaper which contains a statement of that fact.
(a) the party obtaining such order shall file in the Registry an undertaking in the Form 23 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 24, with such modifications or variations as may be directed in the order for its issue, together with a 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 33 – AFFIDAVITS
ORDER 34 – NON-SUIT
ORDER 35 – JUDGMENT, 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 – DRAWING UP OF ORDERS
(a) for the issue or any writ other than a writ of attachment;
(b) for the amendment or 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 note 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 37 – TRANSFERS AND CONSOLIDATION
I TRANSFER.
(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.
(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 each other Judge appointed by the Chief Judge.
(2) The Registrar shall then give notice to the parties to attend in person or by counsel 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 1iIing 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 filing and service of pleadings.
(2) If the defendant fails or all of several defendants fail to attend in compliance with a notice under sub-rule 2 of Rule 3, the claimant may enter judgment with costs or obtain the order prayed for in the transferred proceedings.
II – CONSOLIDATION.
(2) Where actions are pending before different Judges, a party desiring consolidation shall first apply to the Chief Judge for transfer of the matter to a Judge before whom one or more of the matters is pending.
(3) An order to consolidate may be made where two or more actions are pending between the same claimant and different defendant or between different claimant and the same defendant or between claimants and different defendants:
Provided that where the same claimant brings actions against different defendants, they will not be consolidated without the consent of all parties unless the issues to be tried are identical.
(4) Where an order for consolidation has been made, it shall be drawn up at the expenses of the party or parties who applied for consolidation and shall be recorded in the Cause Book.
ORDER 38 – INTERLOCUTORY ORDERS, ETC.
(2) An application for an order under Rule 1, sub-rule 1 of this Order may be made by the claimant at any time after his right thereto appears from the pleadings.
(2) Where all order for the inspection of any property or thing is made on an application under this rule (including an application made before any pleadings have been delivered in the action or matter) it appears that inspection was requested in writing by the applicant and was not given, then, unless the Judge is satisfied that the respondent did not unreasonably fail or refuse to permit the inspection, the Judge shall order the costs to be paid by the respondent in any event and except where the respondent is a “Poor Person”, shall order the costs to be paid forthwith.
(3) The 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) The money paid after disposal or any goods or chattel shall be withdrawn from the bank successful party who shall present to the Chief Registrar a certified true copy of the enrolment of the judgment.
ORDER 39 – MOTIONS AND OTHER APPLICATIONS
(2) Every such application 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 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 point of law within 7 days of being served. Where a counter affidavit is served on the applicant he may file further affidavit with his reply.
(2) No application for an injunction shall be made ex-parte unless the applicant files with it a motion on notice in respect of the application.
(3) An order or injunction made upon an application ex-parte shall abate after 7 days.
(4) A Judge may upon application extend the effective period of an order made exparte if he is satisfied that the motion on notice have been served and that such extention is necessary in the interest of justice or to prevent an irreparable or serious mischief. The application for such an extension shall be made before abatement of the order and the extension shall not be for a period exceeding 7 days from the day the extension is granted.
(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 or a duly certified copy thereof.
(3) An award by an arbitrator or a decision reached at the Multi-Door Court House may by leave of a Judge be enforced in the same manner as a Judgment or order of Court
(4) An application to set aside or remit any award may be made at anytime within 6 weeks after such has been made and published to the parties:
Provided that a 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 40 – APPLICATION FOR JUDICIAL REVIEW
(a) an order or 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 in rule (1) (b) of this Rule) 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.
(2) An application for leave shall be made ex-parte to the 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 and;
(c) a written address in support of application for leave.
(3) The 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) The 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 is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
(6) 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 proceedings to which the application relates until the determination or the application or until the Judge otherwise orders:
(b) if any other relief is sought, the Judge may at any time grant in the proceedings 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.
(2) The notice of motion or summons shall be on all persons directly affected and where it relates to any proceedings 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 proceedings, or to quash them or any order made therein, the notice or summons shall also be served on the Clerk or Registrar of the Court and where any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless the Judge granting leave has otherwise directed, there shall be at least 7 days between the service of the notice of motion or summons and the day named therein for the hearing.
(4) A motion shall be entered for hearing within 14 days after the grant of leave.
(5) An affidavit giving the names and addresses of and the places and dates of service on all persons who have been served with the notice of motion or summons shall be filed before the motion or summons is entered for hearing and if any person who ought to be served under this rule has not been served, the affidavit shall state that fact and the reason for it and the affidavit shall be before the .Judge on the hearing of the motion or summons.
(6) If on the hearing of the motion or summons the Judge is of 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 notice or summons may be served on that person.
(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 or relief or otherwise, on such terms, if any, as he deems fit and 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 amendments 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 hearing including, in the case of the applicant, the affidavit in support of the application for leave under Rule 3.
(a) he has included in the statement in support of his application for leave under Rule 3 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.
(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he had 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, the order shall, subject to sub-rule 4, 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 ill 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 proceedings to continue as if they had been begun by writ.
ORDER 41 – JURISDICTION OF CHIEF REGISTRAR
(a) application 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 registrar;
(c) the taxation of bills of costs;
(d) 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.
I CHIEF REGISTRAR’S CERTIFICATE
(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 which (if any) of such items 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 42 – HABEAS CORPUS, ATTACHMENT FOR CONTEMPT
I HABEAS CORPUS
(a) in vacation or at 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) 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.
(2) Where the application is made to a Judge sitting otherwise than in court he may direct the Order to issue or that an application therefor be made by notice of motion to the Judge or to a Judge.
(3) A Judge to whom the application is made may adjourn it so that notice thereof may be given to the jailer.
(4) Where the person detained is produced before a Judge he may discharge him immediately with or without conditions.
(2) Unless the Judge otherwise directs, there shall be at least 2 clear days between the service of the notice and the date named for the hearing of the application.
(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, proceedings for attachment of the party disobeying will be taken.
(2) Where the prisoner 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.
II ATTACHMENT FOR CONTEMPT
(2) The notice of motion shall be personally served unless the Judge dispenses with such service.
(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 proceedings;
(c) subject to the provisions of the Sheriff and Civil Process Act, any proceedings in the High Court or where the contempt consists of disobedience to an Order of the Court;
(d) in connection with the proceedings in an inferior Court:
Provided that this rule shall not apply where the contempt is committed in facie curiae.
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 committed to prison.
Dated this…………………………day of……………………………20………………………
…………………………….
Registrar.
ORDER 43 – 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;
(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 44 – 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 public holiday;
(c) where the act is required to be done within a period which does not exceed 6 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 authorized by the Judge or under these rules, shall pay to the Court an additional fee of N200.00 (two hundred naira) for each day of such default at the time of compliance.
ORDER 45 – MISCELLANEOUS PROVISIONS
1 COURT SITTINGS AND VACATION
(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 January next following;
(d) during the long vacation, i.e, the period beginning middle of July and ending on a date not more than 6 months later as the Chief Judge may by notification in the Gazette appoint.
(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.
(2) No business shall be transacted in Chambers on Sundays and public holidays.
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 46 – ARREST OF ABSCONDING DEFENDANT
(2) The defendant shall be brought to court within 2 days of the execution of the warrant.
(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 lit in the circumstance.
(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 47 – PROCEEDINGS IN FORMA PAUPERIS
(2) If in the opinion of the Chief Judge the applicant 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.
(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.
(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 48 – CHANGE OF LEGAL PRACTITIONER
ORDER 49 – COSTS
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment, or making the order.
(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.
(2) Costs when ordered becomes payable forthwith, and shall be paid within 7 days of the order, otherwise the defaulting party or his Legal Practitioner may be denied further audience in the proceedings.
(2) Without prejudice to the generality of sub-rule 1 of this rule, the Judge, shall for the purpose of that sub-rule have regard in particular to the following matters, that is to say:
(a) the omission to do anything the doing of which would have been calculated to save costs;
(b) the doing or anything calculated to occasion or in a manner or at a time calculated to occasion unnecessary costs;
(c) any unnecessary delay in the proceedings.
(3) The Judge may instead or 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 him that such a direction as aforesaid should have been given in relation to it, to act as if the appropriate direction has been given.
(a) disallowing the costs as between the Legal Practitioner and his client; and
(b) directing the Legal practitioner to pay to his client costs which the client has been ordered to pay to other parties to the proceeding; or
(c) directing the Legal practitioner personally to indemnify such other parties against costs payable by them.
(2) The provisions of Rule 13 sub-rule 1 shall apply where proceedings in court cannot conveniently proceed or fails or are adjourned without useful 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) 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.
(5) 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 proceedings before him to be separately represented;
(c) examine any witness in those proceedings;
(d) direct the production of any document which may be relevant in connection with those proceedings.
(a) extend the period within which a party is required by or under these rules to begin proceedings for taxation or to do anything in or in connection with proceedings 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 as he deems fit.
(3) A taxing order may extend any such period as is referred to in the foregoing provisions of this Rule although the application for extension is not made until after the expiration or 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.
(2) A notice under sub-rule I of this rule need not be given to any party who has not entered an appearance or taken any part in the proceedings which gave rise to the taxation proceedings.
(2) Before a bill of costs is left far 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.
(2) The taxing officer by whom any taxation proceedings are being conducted may, if he deems it necessary, adjourn those proceedings from time to time.
(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 in the scale contained in the said appendix of these rules.
(2) Unless the 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 or the application.
(3) On an application under this rule the 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 50
I BUSINESS IN CHAMBERS
II PROCEEDING RELATING TO PERSONS UNDER LEGAL DISABILITY
(a) the ages of the infants;
(b) the nature and amount of the infants’ fortunes and incomes; 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 original or any subsequent hearing, have been adjourned in Court.
IV REGISTERING AND DRAWING UP OF ORDER IN CHAMBERS COSTS
(2) The notice of motion shall be filed not later than 7 days after the drawing up of the Order made 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 Borno State.
(3) This rule shall apply to decisions given by a Judge in Chambers on appeal from the Chief Registrar under Rule 4 of Order 41.
ORDER 51 – FORECLOSURE AND REDEMPTION
(a) payment of money secured by the mortgage or charge;
(b) sale;
(c) foreclosure;
(d) delivery of possession, whether before or after foreclosure, to the mortgagee or person entitled to the charge, by the mortgagor 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) reconveyance;
(g) delivery of possession by the mortgagee.
ORDER 52
I SUMMONS TO 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 fur the further attendance of the parties, and all such directions may afterwards be varied by addition thereto or otherwise, us 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.
II SUMMONS TO PROCEED BOOK
ORDER 53 – SUMMARY PROCEEDINGS FOR POSSESSION OF LANDED PROPERTY OCCUPATION BY
SQUATTERS OR WITHOUT THE OWNER’S CONSENT.
(a) a tenant; or
(b) a tenant holding over after termination or 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 which he alleges is occupied solely by a person listed in sub-rule 1 above, proceedings 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 license 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.
(a) personally or in accordance with Order 7, Rule 1, sub-rule 2; or
(b) by leaving a copy of the summons and of 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 I of this rule be served, unless the Judge otherwise directs by:
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the promises; and
(b) if practicable, inserting through the letter box at the premises, a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to “the occupiers.”
(3) Every 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.
(2) The Judge may forthwith order a writ of possession to issue.
(3) Nothing in this Order shall prevent the Judge from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action began by writ.
(2) The application for leave may be made ex parte unless the Judge otherwise directs.
(2) In this Order “landed property” means land with or without building thereon.
ORDER 54 – STAY OF EXECUTION PENDING APPEAL
(2) Where a Judge has struck out an application for stay, no further application for stay of execution shall be made in the same matter.
ORDER 55 – PROBATE AND ADMINISTRATION
I GRANT OF PROBATE OR ADMINISTRATION IN GENERAL
(2) The Chief Judge shall request a Judge of any Judicial Division to take measures 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 Judge under this Order, and every Judge shall carry out any such request as far as practicable and report to 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.
Provided that for the purpose of the fees payable on Letters of Administration, the value of the property in respect of which the grant is made shall be deemed not to include:
(a) any gratuity payable by the Government of the Federation of Nigeria, or of a State, to the estate of any person formerly employed by either of 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.
(2) If the Will appears to be so signed and subscribed, the Judge shall refer to the attestation clause and consider whether the wording thereof states the Will to have been in fact executed in accordance with those enactments.
I8. (1) Where a Will contains no attestation clause or the clause is insufficient or where it appears to the Judge 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 lime the Will was executed.
(2) If no affidavit can be obtained in accordance with the foregoing paragraph, the Judge may, if he deems 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 Judge, after considering the evidence is satisfied that the Will was not duly executed, he shall refuse probate and mark the Will accordingly.
Provided that this sub-rule shall not apply to any alteration which appears to the Judge to be of no practical importance.
(2) Where from any mark on the Will it appears to the Judge 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 Judge may require the document to be produced and may call for such evidence in respect of the attachment 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 Judge 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 for life;
(d) the ultimate residuary legatee or devisee, including one entitled on the happening or 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:
(e) any specific legatee or devisee or any creditor or, subject to sub-rule 3 or Rule 59, 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.
(2) An application to join with a person entitled to a grant of administration, a person having no right to it, shall be made to the Judge 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 Judge may require.
Provided that there may, without any such application be joined with a person entitled to administration;
(a) 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;
(b) unless the Judge otherwise directs, any person whom the guardian or a minor may nominate for the purpose;
(c) a trust corporation.
(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 ill 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, 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) Where 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.
(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 given.
Provided that where the Judge 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.
(2) The Judge shall ascertain the time and place of the deceased’s death and the value of the property to be covered by the administration.
(2) The Judge may if he deems fit take one surety only where the gross value of the estate does not exceed N250,000.00 (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 Judge deems it expedient to reduce the amount.
(4) The Judge 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.
(a) by virtue of Rule 25(e) to a creditor or the personal representative of a creditor or to a person who has no 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 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 to the attorney of a person entitled to a grant;
(d) under Rule 64 for the use and benefit of a minor;
(e) under Rule 66 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 Judge to be resident elsewhere than in the State; or
(g) except where the Judge 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) Every guarantee entered into by a surety for the purpose of the Order shall be in Probate Form 1 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 authorized officer, commissioner for oaths or other person authorized 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 Judge 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.
(2) The Judge may make or refuse any such order or give any special directions in respect of the carriage or execution of it and where there are 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 or claimants, as the Judge deems fit.
(3) Where the Judge deems fit the carriage of the order may subsequently be given to such person, and on such terms, as he may direct.
(2) The Judge shall require and compel him to file in Court the accounts of his administration at intervals not exceeding 12 months.
Provided that Where the Judge is satisfied that by reason of exceptional circumstances the administration of the property has required an extraordinary amount (If labour to be bestowed on it, he may allow in respect of such property a higher rate of remuneration.
(2) Any executor or administrator who fails to file his accounts within the prescribed period as aforesaid shall be liable to a penalty of N 100.00 (one hundred naira) for every day of default. A fine for nonpayment shall 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 there may be within such time as the Judge may deem reasonable for the purpose; an 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 proceedings may be taken against such person accordingly.
(4) The registrar shall 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 suo motu, 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 account 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) The accounts shall be open to the inspection of any person who satisfies the Registrar that he is interested in the administration.
(9) In this rule, the word “accounts” shall mean and 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.
II PROBATE (NON-CONTENTIOUS) PROCEDURE
(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 Judge 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 circum-stances the Judge 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 Judge 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 Judge 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.
(2) The Judge 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 3 months of the death of the deceased; and no grant of administration (not with the Will annexed) shall issue within 3 months of such death.
(2) Unless otherwise directed by the .Judge, the oath shall state where the deceased was, domiciled at the time of death.
(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) Any engrossment lodged under this rule shall reproduce the punctuation spacing and division into paragraphs or the Will and, if it is one to which sub-rule 2 of the rule applies, it shall be made book-wise on durable paper following continuously from page to page.
(4) Where any pencil writing appeals on a Will, there shall be lodged a copy of the Will or of the pages or sheets containing the pencil writing in which there shall be underlined in red ink those portions which appear in pencil in the original.
(2) Where there are two or more assignees, probate may be granted with the consent of the others to anyone or more but 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 Judge 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 Judge may require.
(2) On any such application the Judge 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.
(2) A dispute between persons entitled to a grant in the same degree shall be brought by application before the Judge.
(3) If an application under this rule is brought before the Judge, he shall not allow any grant to be sealed until such application is finally disposed of.
(4) Unless the Judge otherwise directs, administration 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.
(2) The rules mentioned in the last foregoing paragraph 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 its value may be.
(a) to the person entrusted with the administration of the estate by the Court having jurisdiction at the place where the deceased died domiciled;
(b) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;
(c) if there is no such person as is mentioned in paragraph (a) or (b) of this rule or if in the opinion of the Judge the circumstances so require, to such person as the Judge may direct;
(d) if a grant required to be made to, or if the Judge in his discretion considers that a grant should be made to, not less than two administrators, to such person as the Judge 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) Where the will is in English or in the local language, to the executor named therein:
(ii) Where 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;
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 Judge 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 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 Judge may direct.
(a) to both parents of the minor jointly or to any guardian appointed by a Judge; or
(b) where 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) Any person nominated under sub-rule l (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 1 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.
(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 Judge 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 Judge 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 subrule 3 of this rule and authorized to renounce by the Judge.
(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 Judge 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 authorized by the Judge to apply for the grant;
(b) where there is no person so authorized 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) where 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 Judge may by order direct.
(2) Unless the Judge 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) Where legal disability arises out of unsoundness of mind or insanity notice of intended application for a grant under this rule shall, unless the Judge otherwise directs, be given to his guardian.
(4) Where there is physical disability notice of intended application for a grant under this rule shall unless the Judge otherwise direct be given to the person alleged to be incapable.
(2) Unless the Judge 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 Judge:
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.
(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 Judge 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:
(4) Except by leave of the Judge, no grant shall be resealed unless it was made to such a person as is mentioned in paragraph (a) or (b) 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 or the Judge.
(6) Every 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.
(2) Any person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat in the Registry.
(3) Any person who wishes to enter a caveat, in this rule called “the caveator”, may do so by completing Probate Form 3 in the appropriate book at the Registry and obtaining an acknowledgement of entry from the proper officer, or by sending through the post at his own risk a notice in Probate Form 3 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 Probate Form 4.
(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 Registry 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 Probate Form 5 may issue from the Registry against a caveator at the instance of any person interested, in this rule called “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 or 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 Probate Form 6 and making an entry in the appropriate book, and shall forthwith serve on the person warning a copy of Probate Form 6 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 notice, which shall be returnable before the Registry.
(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 foregoing sub-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 Judge otherwise directs:
(a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to sub-rule 9 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 proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect;
(b) any caveat in respect of which all 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 Judge 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 Judge, 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.
(2) Every citation shall be settled by the Registrar before being issued.
(3) Every 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) Every citation shall be served personally on the person cited unless a Judge, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.
(6) Every 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 Judge 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 or sub-rule 2 of Rule 69 of this Order enter an appearance in the Registry by filing Probate Form and making an entry in the appropriate book, and shall thereafter serve on the citor a copy of Form 5 scaled with the seal of the Registry.
(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.
(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 Judge order for a grant on filing an affidavit showing that he has entered an appearance and that he has 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 1 of this rule apply to the Judge for an order for grant to himself;
(b) in the case of a citation under sub-rule 2 of this rule, apply by summons to the Judge for order striking out the appearance and for the endorsement on the grant of such a note as 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 Judge for, 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 persons cited in each case.
(2) Where the time limited for appearance has expired, the citor may:
(a) where no person cited has entered an appearance, apply to the Judge 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 Judge for an order striking out the appearance and for endorsement 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 for an order requiring the person cited to take a grunt 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 persons cited in each case.
(2) An application for the issue by the Judge of a subpoena to bring 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 excluded.
Provided that where a will is not available owing to its being retained in the custody of a foreign court or official, a duly certified 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) its 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.
(2) A notice filed under this rule shall be notice on the grant and the record shall be open to inspection.
(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.
(2) Whereby the provisions or this Order or by any direction given under sub-rule 1 of this rule a notice of motion or summons is required to be served on any person, it shall be served not less than 5 days, before the hearing of the motion or summons.
Provided that where the deceased died before the 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 ally class of creditors, beneficiary, next of kill, 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 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 ordered as aforesaid had previously been made.
Where the summons is taken out by an executor or administrator or trustee:
(a) for the determination of any question, under paragraph (a), (c), (f) or (g) of Rule 98 or this Order, the persons, or one of the persons whose rights or interests are sought to be affected:
(b) for the determination of any question, under paragraph (b) of Rule 98 of this Order any member or alleged member of the class;
(c) for the determination of any question under paragraph (c) of Rule 98 of this Order, any person interested in taking such accounts;
(d) for t he determination of any question under paragraph (d) of Rule 98 of this Order, any person interested in taking such money;
(e) for relief under paragraph (a) of Rule 99 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 99 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 executors, administrators or trustees, or some of them 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 proper statement or their accounts, with an intimation that if this is not done they may be made to pay the costs of the proceedings;
(b) when necessary, to prevent proceedings by other creditors, or by persons beneficially interested, make the usual judgment of order for administration with a proviso that no proceedings 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 where the appointment is made by a Judge;
(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 into Court in any case coming within the
provisions of Rule 8 of this Order.
(2) In this Order, unless the context otherwise requires:
“authorized officer” means any officer of the Registry who is for the time being authorized 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;
“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 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.
ORDER 56 – ALL APPEALS (CIVIL AND CRIMINAL) FROM MAGISTRATES’ COURT, DISTRICT COURT, SHARIA/UPPER SHARIA COURT, RENT TRIBUNAL, ETC, TO THE HIGH COURT.
(2) Where the appellant complains only of a part of the decision, the notice of the appeal shall specify the part complained of; otherwise the appeal shall he taken to be against the decision as 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 may be sent for the appellant, and such notices may be sent to him by registered post.
4) The notice of appeal shall be in Form 96 in Appendix 1 to these Rules and may be varied to suit the circumstances of the case but so that no variation of substance shall be made.
10.(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, for sufficient cause, to order otherwise.
(2) If in any such case the respondent appears, the judgment shall be with costs of the appeal against the appellant, unless the Court expressly orders otherwise; but if the respondent does not appeal, the cost of the appeal shall be at the discretion of the court.
(2) Where it appears or is proved to the Court that the appellant has not complied with the requirements precedent to the hearing of an appeal herein before contained, the Court shall dismiss the appeal and affirm the decision, with or without costs of appeal against the appellant.
(2) Notwithstanding the provisions of sub-rule (1) of this Rule where in the opinion of the Court, other grounds for appeal than those set forth in the memorandum of grounds for appeal should have been given, or the statement of grounds of appeal is defective, the Court, in its discretion, may allow such amendments of the memorandum of grounds for appeal upon such conditions as to service upon the respondent and as to costs as it may think fit.
13.(1) The respondent may give notice that he intends at the hearing to ask the Court to confirm the judgment 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 Judgment 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.
(2) Such grounds shall be filed by the respondent within 14 days of service on him of the appellant’s notice and grounds for appeal, and shall be served on the appellant or his legal practitioner before the hearing.
15.(1) No objection on account of defect in the form of setting forth any ground for appeal shall be allowed, unless the Court is of 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 opinion that any objection to any reason for appeal ought to prevail, the Court may, if it thinks fit, cause the reason for appeal forthwith to be amended upon such terms and conditions, if any, as the Court may think just.
(2) However, 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 the same 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 may 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.
(2) The appellant or his legal practitioner shall be present when the additional evidence is taken.
(3) Evidence taken in pursuance of rule 18 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 18, the lower court may express its opinion on the demeanor of the witness 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.
22.(1) On application being made for stay of execution under any enactment establishing the lower court, the lower 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 money or the value of the property affected by the decision or judgment 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 appeal shall, when the decision or judgment appealed from relates to possession of lands or houses, give security to the satisfaction of the Court for the performance of the decision or judgment 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 properly shall be seized, and attached and sold and the net proceeds deposited in court pending determination or the appeal.
(2) Any order made on any such application shall limit the time (not being more than thirty days) for the performance or the conditions imposed and direct that in default of such performance within the 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 lodging of the notice of appeal and shall in the first instance be made to the lower court:
Provided that where execution has been ordered by the lower court the application shall not be made to the lower court but to the Court of Appeal.
(4) The application may be ex parte but the Court may direct notice thereof to be given to the other party to the appeal. 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 judgment 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.
24.(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 costs of appeal including the costs incidental to the application.
(2) The order shall limit the time (not exceeding thirty 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 fit.
(4) Where an appeal so stands dismissed the appellant shall take no further step or proceeding therein save by leave of the Court 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), costs shall not normally be granted to the applicant save ) where the net proceeds of execution levied on the appellant’s goods are insufficient to satisfy the amount payable under the judgment or decision appealed from.
(2) The lower court to which the Court certified its judgment or order shall thereupon make orders as are conformable to the judgment or order of the Court, and, if necessary, the records shall be amended in accordance therewith.
“the lower court” means a Court whose Judgement is appealed against, but does not include an arbitrator, a referee or an auditor;
“judgment” includes an order or a ruling.
ORDER 57 – APPEALS TO THE HIGH COURT FROM DECISIONS OF AUDITORS
(2) If the notice of motion is not set down in accordance with this provision, either the local government or other body or the auditor may apply to the Court, upon notice to the appellant, for an order discharging the notice of motion and for the costs of the application.
ORDER 58 – APPEALS TO THE HGH COURT FROM PROFESSIONAL BODIES
(2) If the notice of motion is not set down in accordance with this provision, the professional body may apply to the Court, upon notice to the appellant, for an order discharging the notice or motion and for the costs of the application.
ORDER 59 – INTERLOCUTORY APPLICATION
I – MOTIONS GENERALLY
2.(1) Where by these rules any application is authorized to be made to the Court or a Judge in Chambers such application, if made to a Judge in Court, shall be made by motion and shall state under what rule or Court of Law the application is brought.
2) The Registrar shall make up, for each day on which there are any motions to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving, and the terms of the order sought by him.
(2) Notwithstanding sub-rule (I) of this rule, the court, if satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damage or serious mischief to the party moving, may make an order ex-parte upon such terms as to costs or otherwise and subject to such undertakings, if any, as the justice of the case demands.
II – EX- PARTE MOTIONS
12.(1) No order made on motion ex-parte shall last more than 14 days after the party affected by the order has applied for the order to be varied or discharged or last for another 14 days after application to vary or discharge it has been concluded.
(2) If a motion to vary or discharge an ex-parte order is not taken within 14days of its being filed, the exparte order shall automatically lapse,
III – ORDER TO SHOW CAUSE
IV – NOTICE OF MOTION
V – EVIDENCE IN INTERLOCUTORY PROCEEDINGS
ORDER 60 – PETITION: GENERAL PROVISIONS
(2) Every petition shall include at the end thereof a statement of the names of the persons, if any, required to be served therewith or, if no person is required to be served, a statement to that effect.
(3) Where a person brings a petition by a legal practitioner, the petition shall be endorsed with that person’s address and the legal practitioner’s name or firm and business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business of his principal.
(4) Where person brings a petition in person, the petition shall be endorsed with____-
(a) the address of his place of residence and; if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent:
(b) his occupation; and
(c) an address for service
(2) Unless the Court otherwise directs, a petition which is required to be served on any person shall be served on him not less than seven days before the day fixed for the hearing of the petition.
ORDER 61 – ARBITRATION
A – REFERENCE TO ARBITRATOR
and person not attending in compliance with such process, or making any other default or refusing to give evidence, or being guilty of any contempt of the arbitrators or umpire during the investigations of the suit, shall be subject to the disadvantages, penalties, and punishments, by order of the court on the representation of the arbitrators or umpire, as they would incur for the same offences in suits tried before the Court.
6.(1) When the arbitrators are not able to complete the award within the period specified in the order for want of the necessary evidence or information or other good and sufficient cause, the Court may, from time to time, enlarge the period for delivery of the award, if it thinks it proper.
(2) In any case in which an umpire is appointed, it shall be lawful for him to enter on the reference in lieu of the arbitrators, if they have allowed their time or their extended time, to expire without making an award or have delivered to the Court, or to the umpire, a notice in writing stating that they cannot agree.
(3) An award shall not be liable to be set aside only by reason of its not having been completed within the period allowed by the Court, unless on proof that the delay in completing the award arose from misconduct of the arbitrators or umpire, unless the award shall have been made after the issue of an order by the Court superseding the arbitration and recalling the suit.
(2) Where the arbitrators are empowered by the terms of the order or reference to appoint an umpire, and do not appoint an umpire, any of the parties may serve the arbitrators with a written notice to appoint an umpire and if within seven days after the notice is served, no umpire is appointed, it shall be lawful for the Court upon the application of the party having served such notice as aforesaid and upon proof to its satisfaction of such notice having been served, to appoint an umpire.
(3) In case of appointment under this rule, the arbitrators or umpire so appointed shall have the like power to act in the reference as if their names had been inserted in the original order of reference.
(2) The award shall comprehend a finding on each of the several matters referred.
(a) if the award has left undetermined some of the matters referred to arbitration;
(b) if it has determined matters not referred to arbitration;
(c) if the award is so indefinite as to be incapable of execution;
(d) if an objection to the legality of the award is apparent upon the face of the award.
(2) Any application to set aside an award shall be made within fifteen days after the publication thereof.
B- ARBITRATION PROCEEDINGS
(a) to revoke an arbitration under section 3 thereof;
(b) to appoint an arbitrator under section 6 thereof;
(c) to stay proceedings under section 5 thereof.
(d) to remove an arbitrator or umpire under section 12 (1) thereof;
(e) to direct an arbitrator or umpire to state the reasons for an award under section 15;
(f) to ask that a case on trial is the subject of an arbitration agreement be referred to an arbitration under section 6(1) thereof;
(g) to set aside an award under section 12(2) thereof;
(h) for declaration that an award is not binding on a party to the award on the ground that it was made without jurisdiction or because the arbitrator misconducted himself or that the proceedings was arbitrary or that the award has been improperly procured under section 12(2) thereof;
(i) generally to determine any question arising in the course of or concerning any arbitration agreement or proceedings referred to the Court;
(j) to subpoena a witness to attend under section 14(1) thereof, shall be made by originating motion.
C – ENFORCEMENT OF ARBITRATION AWARD
(2) The supporting affidavit shall-
(a) exhibit the arbitration agreement and the original award or in either case certified copies of each;
(b) state the name, as usual or last known place of abode or business of the applicant and the person against whom it is sought to enforce the award;
(c) state as the case may require either that the award has not been complied with or the extent to which it has not been compiled at the date of the application.
D – REGISTRATION OF FOREIGN ARBITRATION AWARD
E – ALTERNATIVE DISPUTE RESOLUTION (A.D.R.)
(2) Alternative Dispute Resolution, includes the means or methods of resolving dispute short of litigation or outside courtroom.
(3) The processes of Alternative Dispute Resolution which vary in form and substance include Negotiation, Early Neutral Evaluation, Mediation, Conciliation, Arbitration, Med-arb, Expert Determination and Sharia Mediation.
(4) (a) “Negotiation”; is the continuous process of bargaining by the parties to a dispute. It is the key to all other consensual Alternative Dispute Resolution procedures.
(b) “Early Neutral Evaluation”; is a quick method of obtaining a neutral advisory opinion. The Evaluation is used to assess the likely outcome of a legal action.
(c) “Mediation”, is a voluntary, non-binding, private dispute resolution process in which a neutral person called, the mediator; helps parties to reach a negotiated settlement.
(d) “Conciliation”, denotes facilitative (non-evaluative) mediation.
(e) “Arbitration”, is devised to overcome some of the problems encountered in litigation. It is however made according to the relevant law and the outcome of the decision is binding and not normally subject to appeal.
(f) “Med-Arb”; is a short form for mediation-arbitration which is a process which gives the parties to a dispute the opportunity to use mediation to reach a settlement.
(g) “Expert Determination”; is generally binding and is not subject to appeal. The expert who, is usually selected by the parties investigates and reports on the issue without relying on submissions made by the parties.
(h) “Sharia Mediation”; is an Islamic process of mediation and conciliation based on the existing Sharia legal system.
ORDER 62 – RECEIVERS
(2) An application for an injunction ancillary or incidental to an order appointing a receiver may be joined with the application for such order.
(3) Where the applicant wishes to apply for the immediate grant of such an injunction, he may do so exarte on affidavit in an appropriate case.
(4) The Court hearing an application under sub-rule (3) may grant an injunction restraining the party beneficially entitled to any interest in the property of which a receiver is sought from signing, charging or otherwise dealing with that property pending the hearing of a summons for the appointment of a receiver and may require such a summons, returnable on such date as the Court may direct, to be issued.
(2) Where by virtue of sub-rule (1) of this rule, or any judgment or order appointing a person named therein to be receiver, a person is required in accordance with this rule, he shall give security as in Form 31 in Appendix 1 to these rules, as may be approved by the Court duly to account for what he receives as receiver and to deal with it as the Court directs.
(3) Unless the Court otherwise directs, the security shall be by guarantee or, if the amount for which the security is to be given does not exceed five thousand naira, by an undertaking.
(2) Unless the court otherwise directs, each account submitted by a receiver shall be accompanied by an affidavit verifying it. The receiver, s account affidavit (if any) shall be left at the Registrar’s office, and the plaintiff or party having the conduct or matter shall thereupon obtain an appointment for the purpose of passing such account. .
(3) The passing of a receiver’s account shall be certified by the Registrar.
6.(1) Where a receiver fails to attend for the passing of any account of his, or fails to submit any account, make any affidavit or do any other thing which he is required to submit, make or do, he and any or all of the parties to the cause or matter in which he was appointed may be required to attend in Chambers to show cause for the failure, and the Court may, either in Chambers or after adjournment into court, give such direction as it thinks proper including if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs.
(2) Without prejudice to sub-rule (1) of this rule, where a receiver fails to attend for the passing of any account of his or fails to submit any account or fails to pay into account on the date fixed by the Court any sum shown by his account as due from him, the court may disallow any remuneration claimed by the receiver in any subsequent account and may, where he has failed to pay such sum into court, charge him with interest at the rate of ten per centum per annum on that sum while in his, possession as a receiver.
ORDER 63 – INTERIM ATTACHMENT OF PROPERTY
1.(a) Where the defendant in any suit with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove, any such property from the jurisdiction, or
(b) where, in any suit founded on contract or for detinue or trover in which the cause of action is within the jurisdiction–
(i) the defendant is absent from jurisdiction, or there is probable cause to believe that he is concealing himself to evade service; and
(ii) the defendant is beneficially entitled to any property in the State in the custody or under the control of any other person in the State, or such person is indebted to the defendant, than either such case the plaintiff may apply to the Court either at the time of the institution of the suit or at any time thereafter until final judgment to call upon the defendant to furnish sufficient security to fulfill any decree that may be made against him in the suit, and on his failing to give such security, or pending the giving of such security, to direct that any property movable or immovable belonging to the defendant shall be attached to the further order of the Court.
(2) Pending the defendant’s compliance with the order, the court may by warrant direct the attachment until further order of the whole, or any portion, of the property specified in the application.
(2) If the defendant shows such cause, or furnishes the required security and the property specified in the application or any portion of it, shall have been attached, the court shall order the attachment to be withdrawn.
(2) In case an order for the attachment of property is issued by a different court from that in which the suit is pending, that Court shall, on the request of either of the parties, transmit the application and evidence therein to the Court in which the suit is so pending, retaining the property in the meantime under attachment or taking sufficient security for its value and the Court in which the suit is pending shall thereupon inquire into and proceed with the application in accordance with the foregoing provisions, in such manner as shall seem just.
ORDER 64 – GARNISHEE PROCEEDINGS
1.(1) Where a person (in this Order referred to as “the judgment creditor”) has obtained a judgment or order for the payment by some other person (in this order referred to as “the judgment debtor”) of a sum amounting in value to at least one hundred naira, not being a judgment or order for the payment of money into Court, and any other person within the jurisdiction in this Order referred to as “the garnishee”) is indebted to the judgment debtor, the court may, subject to the provisions of this order and of any enactment order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.
(2) An order under this rule shal1 in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in sub-rule (1); or so much therefore as may be specified in the order, to answer the judgment or order mentioned in that and the costs of garnishee proceedings.
(3) An order under this rule shall not require a payment which would reduce below five naira the amount standing in the name of the judgment debtor in an account with a building society or a credit union.
(a) stating the name and last known address of the judgment debtor;
(b) identifying the judgment or order to be enforced and stating the amount of the judgment or order and the amount remaining unpaid under it at the time of the application.
(c) stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or the grounds for his belief; and
(d) stating, where the garnishee is a deposit-taking institution having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not known to the deponent.
(a) on the garnishee personally, at least 15 days before the day appointed thereby for the further consideration of the matter; and
(b) on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the day appointed for the further consideration of the matter.
(2) An order under rule 1 of this order shall bind in the hands of the garnishee as from the service of the order on him for any debt specified in the order or so much thereof as may be so specified.
(2) An order absolute under rule 1 of this order against the garnishee may be enforced in the same manner as any other order fix the payment of money.
ORDER 65 – LEGITIMACY PROCEEDINGS
(a) the place and date of the marriage concerned;
(b) the status and residence of each of the parents and the occupation and domicile of the father of the person whose legitimacy the court is asked to declare–
(i) at the date of his birth; and
(ii) at the date of the marriage;
(c) whether there are other living issue of the parents of such person as aforesaid and the respective names and dates of the birth of all such issue;
(d) the person (if any) affected by the legitimating of such person as aforesaid and the value so far as is known of the property (if any) thereby involved;
(e) whether any and if so what previous proceedings under the legitimacy law, or otherwise with reference to the paternity of such person as aforesaid, or the validity of the marriage leading to his legitimation have been taken in any court;
(f) that there is no collusion.
Provided that where the petition is filed through a legal practitioner an undertaking by him, in form to be approved by the Registrar, to be responsible for the costs shall be sufficient.
(2) There shall be lodged with the petition every birth, death or marriage certificate intended to be relied upon at the hearing.
(2) Any document or notice addressed to the Attorney-General shall be addressed to him at Attorney-General’s Chambers, Ministry of Justice, Borno State.
10.(1) A sealed copy of the petition and affidavit shall, unless the Court otherwise directs, be served by a bailiff or by a Police Constable fifty-six days at least before the hearing on every respondent (other than Attorney-General) personally and the petition and every copy to be endorsed with a notice in the prescribed form.
(2) At least fifty-six days’ notice of the day whereon the petition will first be heard shall be given by the Registrar to the Attorney-General.
(2) Every answer which contains matters other than a simple denial of the fact stated in the petition shall be accompanied by an affidavit made by the respondent verifying such matter as such other matter as far as he has personal knowledge thereof, and deposing to his belief in the truth of the rest of the other matter.
(3) There shall be filed with the answer as many copies of the answer and the affidavit (if any) as there are other parties to be served and also two copies for the use of the Court.
(4) The Registrar shall within forty-eight hours of receiving them send by post one sealed copy of the answer and the affidavit (if any) to petitioner, the Attorney-General, and any other respondents.
Provided that the Court or a Judge Chambers may, on application made before or at the hearing, for good cause shown, direct that any particular facts alleged in the petition or answer may be proved by affidavit.
ORDER 66 – FILING OF BRIEFS OF ARGUMENT
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages or cases reported in the Law Reports or elsewhere including the summary of decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) the parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgement of the lower Court, nor set out statutory provisions, or contain an account of the proceedings below or of the facts of the case.
4 (1) The respondent shall also within forty-five days of the service of the brief for the plaintiff on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The Respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform with rule 3(1), (2), (3), (4) and (5) of this Order.
(2) The appellant shall be entitled to open and conclude the argument. Where there is a crossappeal or a respondent’s notice, the appeal and such cross-appeal or a respondent’s notice shall be argued together with the appeal as one case and within the time allotted to one case, and the court may, having regard to the nature of the appeal, inform the parties which one is open and close the argument.
(3) Unless otherwise directed, one hour on each side will be allowed for argument.
(4) Save with the leave of the court, no oral argument will be heard on behalf of any party for whom no brief has been filed, or in respect of the point not covered by the briefs.
(5) When an appeal is called and the parties have been duly served with the notice of hearing but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.
HIGH COURT OF BORNO STATE
(CIVIL PROCEDURE) RULES
ORDER 67 – APPENDIX I
FORMS
FORM NO.
TITLE
PAGE
1 General Form of Writ of Summons.
2 Writ for service out of the jurisdiction
3 General Form of Originating Summons.
4 Originating Summons under O.3, R.8(1)
5 Form of ex parte originating summons.
6 Form of memorandum for renewed originating process.
7 Request to Minister of Foreign Affairs to transmit Writ to Foreign Government.
8 Request for service abroad (title as in Form No.4)
9 Letter forwarding request for substituted service.
10 Request to Minister of Foreign Affairs to transmit Notice of Writ to a Foreign Government.
11 Memorandum of Appearance.
12 Notice of counter-claim.
13 Concession to defence.
14 Notice of payment into court.
15 Acceptance of sum paid into court.
16 Acceptance of sum paid into court by one of several defendants.
17 Hearing notice for pre-trial conference.
18 Pre-trial information sheet.
19 Interrogatories.
20 Answer to interrogatories.
21 Affidavit as to documents.
22 Form of order for accounts and inquiries.
23 Legal Practitioner’s undertaking as to Expenses.
24 Letter of request to take evidence abroad (Convention Country).
25 Order for appointment of the Nigerian Diplomatic Agent as special examiner (in Convention Country).
26 Form of Praecipe.
27 Subpoena ad Testificandum.
28 Subpoena Corpus as Testificandum.
29 Subpoena duces Tecum.
30 Form of Guarantee for the Acts and defaults of a Receipt.
31 Receiver’s Security by undertaking.
32 Receiver’s Account.
33 Affidavit Verifying Receiver’s Account.
34 Certificate of the Chief Registrar.
35 Order for payment of Principal Money or Interest secured by Mortgage or charge.
36 Order for possession of property forming a security for payment to claimant of any principal money or interest.
37 Order for payment of Principal Money or Interest secured by mortgage or charge and for possession of property comprised therein.
38 Originating Process for possession.
39 Order for possession.
40 Legitimacy petition.
41 Legitimacy Law affidavit.
42 Legitimacy Law undertaking by next friends.
43 Legitimacy Law undertaking for costs.
44 Legitimacy Law Notice to Attorney-General of ………….. State.
45 Legitimacy Law Answer to Petition.
46 Legitimacy Law Degree.
PROBATE FORMS
1 Surety’s Guarantee.
2 Surety’s Guarantee on application for resealing.
3 Notice to prohibit grant.
4 Caveat.
5 Warning to Caveator.
6 Appearance to Warning/Citation.
7 Notice of election to redeem life interest
ORDER 68 – APPENDIX II
FEES PAYABLE
PART I
COMMENCEMENT OF CASES OR MATTER
OTHER THAN MATRIMONIAL OR LEGITIMACY CASES
ITEMS TITLE FEES
(a) Not exceeding N20,000 500.00
(b) Exceeding N20,000; but not above N50,000 750.00
(c) Exceeding N50,000; but not above N100,000 2,000.00
(d) Exceeding N100,000; but not above N1,000,000 3,000.00
(e) Exceeding N100,000,000 or part thereof 2,000.00
(f) Maximum fee 50,000.00
maximum payable per relief
(a) Initial fee 500.00
(b) Second fee (payable before settling down for judgment) – –
Per N 100 or part thereof found due in excess of N200 500.00
(c) Maximum fee 2,500.00
(a) Originating summons 500.00
(b) Oaths 100.00
(c) Filing 100.00
(d) Double sealing 50.00
(e) One exhibit each service as per distance 50.00
(a) Motion on Notice 250.00
(b) Oaths 100.00
(c) Filing 100.00
(d) Sealing 50.00
(e) One Exhibit 50.00
(f) Service as per distance, but not less than N50 per each.
(a) Motion Ex-parte- 250.00
(b) Others 100.00
(c) Filing 100.00
(d) Sealing 50.00
(e) One Exhibit 50.00
(f) Service as per distance, but not less than N200.00 per each.
(a) Where the annual rate of value does not exceed N2,000.00 200,000
(b) Second fee (payable before setting down for judgement):
Per N100 or part thereof 150.00
(c)Maximum fee 20,000.00
land between landlord and tenant:–
(a) Per N100 or part thereof of the annual rent of value 100.00
(b) Where no annual rent of value can be specified from to 100,00
(c) Maximum fee 5,000.00
and other land); as under item 1 on the sum claimed in lieu of the property.
there is no dispute regarding succession or distribution–
(a) Where the gross value of the property does not exceed N600,00, but not
less than – N1,000.00 100.00
(b) Where it exceeds N1,000.00 but not less than N5,000.00 200.00
(c) Maximum fee where no value is specified 250.00
(d) Where no gross value can be specified 200.00
For the administration of the property of persons of unsound mind–
(a) Where the gross value of the property of the deceased person or the property
under trust does not exceed N300
(b) Where it exceeds N300.00, pills N 100.00 or part thereof 50.00
(c) Where no gross value can be specified 25.00
(d) Maximum fee 2,000.00
14 For any other relief or assistance not specifically provided for 100.00
NOTES:
(a)Item 1- Save where the claim is for an account to be taken the sum claimed
as debt or damages shall be specified.
(b)Item 8- The annual rent or value to be specified shall be that which is payable
under the lease granted to the tenant sued or the lease last granted to any person
before the bringing of the action other than money, whether wholly or in part; its natural or annual value shall be specified.
(c)Item 9 If no lease was ever granted in writing, no annual rent or value shall be specified.
(d)Items 12 and 13- If gross value of the property has not been estimated, no value shall be specified.
GENERAL:
(i) Claims (other than claims creditors) affecting trustee, executors, administrators,
heirs, legatees or other beneficiaries as between any of the aforesaid; but if no
question is raised regarding the construction of a deed or will, distribution or
succession, the Court may order the fee to be refunded.
(ii) If a flat fee was paid because no annual rent or value or gross value could be stated,
the Court may where the value is small or the time taken short, order a portion of
the fee to be refunded so that the balance left shall not fall below N10.00.
(iii) Where two or more claims are joined, the highest fee under any relevant item
shall be charged and in addition three-fifths of the fee under any other;
provided that N100.00 only be charged on claim of an injunction joined to any other claim.
(iv) A set-off or counterclaim shall be charged as if an action therefor were taken.
(v) If before the hearing begins the claims are admitted or settled the court may order one-half of the fees charged under items 8 to 13 be refunded except where the fee charged is no more than N100.00.
(vi) Where a case is adjourned through a party’s fault such party may be ordered to pay one-half of the fees charged under items 8 to 13 before the case is set down again.
(vii) Paragraph (vi) shall apply to setting down of a case which was struck out or to the re-opening of a case in which judgment was given by default.
MATRIMONIAL CASES
LEGITMACY CASE
PROBATE ADMINISTRATION
property administered exceeds N400… … … … … … … … … … … … … … 250.00
the value of the property affected by the grant or order:
(a) does not exceed N100.00 … … … .. …. … … … … … … …. … …. …. 20.00
(b) exceeds N100.00 but not N200.00 … … … … … … … … … … … … … … …40.00
(c) for each additional N100.00 or part thereof… … … .. … … … .. … … … …20.00
claimed under item 11 in part 1 on the value of the property in Borno
State affected by the re-sealing.
(a) for the first hour or part thereof… … … … … .. … … … … … … … … … … 100.00
(b) for every subsequent hour or part thereof … … .. … .. … .. … .. … .. … 50.00
inspect a grantor will … … … .. … … … … …………100.00
(a) if alone .. ….. ….. ….. ….. …… …… …… …… ….. …. ….. …. …. ….. ….. …100.00
(b) if accompanied by any other papers… … … … … … … … … …. …. ….150.00
defendant or a ship or of a writ of habeas corpus … … … … … … … … …100.00
MISCELLANEOUS
part thereof, as the court may order but not exceeding… … … ..,.. … … … … … .250.00
thereof found to have received… … … … … … … … .. .. … … … …. … … … …. ..100.00
direct but not exceeding .. … … … … .. … … .. … … … … … … … … … … 100.00
thereof .. … … … … .. … … … … …. … … … … … … … … … … … … … .100.00
PART II
WITNESS ALLOWANCES
(a) Person earning a minimum of N5,000.00 per annum .. … … … … … … … … …250.00
(b) Person earning less than N15,000.00 but not less than N2,000.00 per annum … 200.00
(c) Persons earning less than N2,000.00 but not less N1,000.00 per annum … … 150.00
(d) Persons earning less than N1,000.000 but not less than N500.00 per annum …100.00
(e) Persons earning less than N500.00 per annum .. … … … … … … … .. .. … … …50.00
(f) Married women not gainfully employed, at 50 per cent of rate .. … … … … … 100.00
(a) By private car, N20 per kilometre.
(b) By motorcycle N20 per kilometre.
(c) Other travelling expenses, according to the sums actually and reasonably paid.
NOTES
(a) No allowances shall be payable to an officer in the public service who is summoned as a witness by the Government or by any department of Government.
(b) Allowances payable to an officer in the public services shall be paid into revenue unless otherwise ordered.
(c) In respect of Appendices II, III, IV and V: fees payable in civil proceedings and allowances payable to witnesses must be assumed to be subject to adjustment from time to time to reflect the changing value of Naira.
TRANSFER OF CASES
3.On an application to the chief judge or a judge to transfer civil case from one District court or another to High court, or from one district court to another within the same district……. 100.00
4.On an application transferring a civil case from one district court to another
district court or the High court or from one district court to another within the same district where the order is made on the application of a
party………………………………………………………… 100.00
APPENDIX III:
REGULATIONS REGARDING FEES
– (a) all fees payable thereon as provided shall have been paid, and
(b) an account thereof, initiated as received shall have been set forth by the officer issuing the process both in the margin and in the counterfoil thereof.
APPENDIX IV
NOTARIES’ FEES OF OFFICE
Noting protest on bill or note………………………………………………………………..500.00
Extending protest on bills of exchange or promissory notes………………………………400.00
Should the acceptor or drawer of a bill or note reside out of town and the
notary have to present the bill or note, a further charge for the first two
kilometers of…………………………………………………………………………………100.00
And for additional two kilometers…………………………………………………………..100.00
Furnishing copy of extended protest………………………………………………………..150.00
Attesting to any document…………………………………………………………………..100.00
Declaration thereto for each additional declarant……………………………………………50.00
Attendances each…………………………………………………………………………….50.00
TRANSLATIONS
For every folio of seventy-two words………………………………………………………50.00
Attestation to translation……………………………………………………………………50.00
Transition of common attestation to power for stocks………………………………………50.00
APPENDIX V
FEES FOR REGISTRATION OF JUDGMENT
Registration of a certificate of a judgment of a High Court………………………………..200.00
Registration of a certificate of a judgment of a Court…………………………………….. 200.00
HIGH COURT OF BORNO STATE
(CIVIL PROCEDURE) RULES
ORDER 67: FORMS
FORMS
FORM 1 – GENERAL FORM OF WRIT OF SUMMONS
(o.3,r3.)
20…………………..
(Here put the letter and number (see note (a) following this form)
In the High Court or Borno 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 forty-two 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 or such date, and not afterwards.
Forms of Writs of Summons, etc – continued
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.
Indorsements 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, town or district and also the name of the street and number of the house of the claimant’s residence, if any)
Indorsement to be made on copy of writ 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) Indorsement of Claim-If the claimant sues, or defendant is sued, in a representative capacity, the indorsement must state in what capacity the claimant sues or the defendant is sued. Sec O.4 r.2. If the claim is for a debt or liquidated demand only, the Indorsement, even though not special, must strictly
comply with the provisions of O.4.r.4, including a claim for four day’s costs.
(c) Address for Service – see O.4.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”……………claimant, 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) Indorsement of service – See 0.7.r.13.
(f) Probate Actions – In these actions the indorsement of claim must show the nature of the claimant’s interest, under which he claims (O.4.r.3); and the alleged interest of the defendant.
Before the writ is issued the following certificate must be indorsed on it:
The Registrar, High Court of Borno State
In the……………………………………………………………………………Judicial Division
A sufficient affidavit in verification of the indorsement 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.3., 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 Borno 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).
Indorsement 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 out of the jurisdiction.
Note:
The above indorsement “N.B.” must be on every writ or concurrent writ for service out of the jurisdiction.
The indorsement “N.B.” need not be made on a writ against defendants domiciled abroad, but whom it is intended to serve within the jurisdiction. Indorsement: If the claim is for a debt or liquidated demand only, the indorsement, even though not special, must strictly comply with the provisions of 4.0.r.4(1), including a claim for costs.
See also notes to Form No. 1, supra.
FORM 3 – GENERAL FORM OF ORIGINATING SUMMONS
(O.3,r.8)
In the High Court of Borno State
In the…………………………………………………………………………….Judicial Division
(If the question to be determined arises in the administration of an estate or a trust entitle it: In the
matter of the estate or trust.)
Between:
In the……………………………………………………………………………Judicial Division
Between
A.B………………………………………………………………………………………..Claimant
and
C.D. and E.F……………………………………………………………………………Defendants
Let……………………….of……………………………………………………………………..in
………………………………………………………….within forty-two days after service of this
summons on him, inclusive of the day of 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 Practitioners for the
above-named…………………………………………………….
FORM 4 – ORIGINATING SUMMONS UNDER
(0.3, r, 8(1)
No………………………………………………….of 20………………………………………………
In the High Court of Borno 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 BORNO, on the……….day
of…………20………..At 9 o’clock in the forenoon (on the hearing of an application on the part of…………..
(State relief sought). (If for leave to endorse award under the Arbitration Law, ap.Add, “And that the respondent do pay the costs of this application to be taxed.”
DA TED 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 person or by your Legal Practitioner, at the time and place above mentioned (on at the time mentioned in the endorsement thereon), such order will be made and proceedings taken as the Judge may think just and expedient.
FORM 5 – FORM OF EX PARTE ORIGINATING SUMMONS
(0.3, r, 8(1)
In the High Court of Borno 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 Office), High Court, Borno 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 – FORM OF MEMORANDUM FOR RENEWED ORIGINATING PROCESS
(0.6, r, 6(2)
(Heading as in Form No.1)
Seal renewed Originating Process in this action indorsed as follows:- –
The Originating Process renewed on the………………………day of……………….……………
20………………………Pursuant to Order of Court Made………………………………….day of……………..20………………
for 3 months.
(Copy original Originating process and the Indorsement)
FORM 7 – REQUEST TO MINISTER OF FOREIGN AFFAIRS TO TRANSMIT WRIT TO FOREIGN GOVERNMENT
(0.8,r,3(a)
The Chief Judge of Borno State presents his compliments to the Minister 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 Borno 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 Borno 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 Borno State, or declared upon oath, or otherwise, in such manner as is consistent with the usage or practice of the courts of the (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 Government or Court of the said country be requested to certify the same to
the High Court of Borno State.
FORM 8 – REQUEST FOR SERVICE ABROAD
(Title as in Form No.4)
(0.8, r, 3(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 undertaken to
be responsible for all expenses incurred by the Ministry or Foreign Affairs in respect of the service hereby requested, and on receiving due notification of the amount of such expenses I (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 9 – LETTER FORWARDING REQUEST FOR SUBSTITUTED SERVICE
(0.8, r, 3 (d))
The Chief Judge of Borno State presents his compliments to the Minister of Foreign Affairs and encloses herewith 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 of Borno 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 Borno 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 10 – REQUEST TO MINISTER OF FOREIGN AFFAIRS TO TRANSMIT NOTICE OF WRIT TO A FOREIGN
GOVERNMENT
(0.8, r.4(1)(a))
The Chief Judge of Borno State presents his compliments to the Minister of Foreign Affairs and encloses herewith 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 Borno 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 of Borno State, stating that the writ of summons
has been delivered, and on what date.
FORM 11 – MEMORANDUM OF APPEARANCE
(0.9, r, l (l))
IN THE HIGH COURT OF BORNO STATE
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.
DATED the………………… day of……………..20………………
Signed………………………………………………………………..
Whose address for service is 1 (c)…………………………………………………………………
…………………………………………………………………………………………………….
N.B. – Additional notes for the guidance of defendants seeking to enter an appearance are given on the back. Please read carefully.
Notes:–
(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 Borno 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 12 – NOTICE OF COUNTERCLAIM
(0.17, r.8)
In the High Court of Borno 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 counter-claim 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, Borno State.
FORM 13 – CONCESSION TO DEFENCE
(0.17, r.15)
In the High Court of Borno State
In the………………………………………………………………………………Judicial Division
Between
A.B………………………………………………………………………………………..Claimant
and
C.D., E.F. and C. H……………………………………………………………………Defendants
The claimant concedes to the defence stated in the paragraph…………………………..of the defendant’s defence (or, of the defendant’s further defence).
FORM 14 – NOTICE OF PAYMENT INTO COURT
(0.21, r, 1(6))
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
Between
A.B……………………………………………………………………………………….Claimants
and
C.D., E.F. and G.H………………………………………………………………………Defendants
Take notice that the defendant…………………………………………has paid into Court N………………………….and
says that (……………………………….part of) that sum 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, C.D.
To X.Y., the claimant’s Legal Practitioner, and Mr. R.S. Legal Practitioner for the defendant E.F.
To be filed by the Cashier, High Court.
Received the above sum of……………………..………..naira……………………kobo
…………………………………………….into court in this action.
Dated the…………..day of…………..20………………..
FORM 15 – ACCEPTANCE OF SUM PAID INTO COURT
(0.21, r, 2(1))
In the High Court of Borno 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 the claim in respect of which it was paid in (and abandons his other claims in the action).
Dated the………………day of………………20……………………..
………………………………….…
X.Y. Claimant’s Legal Practitioner.
To.
i
Mr. P.O. Legal Practitioner for the defendant C.D. and MR. R. S. Legal Practitioner for the defendant E.F.
FORM 16 – ACCEPTANCE OF SUM PAID INTO COURT BY ONE OF SEVERAL DEFENDANTS
(0.21, r, 4(2))
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
Between
A.B……………………………………………………………………………………………………………………Claimant
and
C.D., D.F., and G.H……………………………………………………………………Defendants
Take notice that the claimant accept the sum of N……………………………………….Paid by
the defendant C.D. into court in satisfaction of his claim against 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 Mr. R.S. Legal Practitioner for the defendant E.F.
FORM 17 – HEARING NOTICE FOR PRE-TRIAL CONFERENCE
(O.25, r. 1)
In the High Court of Borno State
In the……………………………………….Judicial Division 20……………………………
Between
A.B………………………………………………………………………………………..Claimant
and
C.D………………………………………………………………………………………Defendant
To (insert name of parties)…………………………………………………………………………
Take Notice that you are required to attend the Court No………………………………at the High
Court of Borno State at the…………………………Judicial Division, on the………day of………………………
20…………………………at 9 o’clock in the forenoon, for a Pre-Trial Conference for 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.
2, Please answer the questions in the attached Pre-Trial Information Sheet (Form 18) on a separate sheet and submit 7 clear days before the above mentioned date.
Take Notice that if you do not attend in person or by Legal Practitioner at the time and place mentioned, such proceedings will be taken and such order will be made as the Judge may deem just and expedient.
Dated the…………………day of……………………20…………………..
Signed……………………………………..
Chief Registrar.
FORM 18 – PRE-TRIAL INFORMATION SHEET
(0.25, r. 1)
In the High Court of Borno State
In the……………………………Judicial Division 20……………………………………
Between
B.B………………………………………………………………………………………Claimant
and
C.D………………………………………………………………………………………Defendant
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 this 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 19 – INTERROGATORIES
(0.26, r.2)
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
Suit No……………………………………………………………………………………………………………………………
Between
A.B……………………………………………………………………………………Claimant
and
C.D., E.F. and G.H……………………………………………………………………Defendants
Interrogatories on behalf of the above-named (claimant or defendant C.D.) for the examination of the
above-named (defendants E.F., and G.B. or claimant).
(The defendant E.F. is required to answer the interrogatories numbered…………………………)
(The defendant G.B. is required to answer the interrogatories numbered…………………………)
Dated the…………………..day of………………..20………………………..
FORM 20 – ANSWER TO INTERROGATORIES
(0.26, r. 6)
In the High Court of Borno 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 says as follows:
I, the above-named defendant E.F. do hereby solemnly swear by Almighty God 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 21 – AFFIDAVIT AS TO DOCUMENTS
(0.26, r.8 (3))
In the High Court of Borno 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 Maiduguri this……………day of……………….20………………
(1LLlTERATE JURAT)
…………………………….
……………………………
FORM 22 – FORM OF ORDER FOR ACCOUNTS AND INQUIRIES
(0.27, r. 11)
In the High Court of Borno State
In the…………………………………………………………………………Judicial Division
Suit No……………………………………of…………………………………………………
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 inquiries and accounts be made and taken; that is to say:
5.
6.
7.
8.
And it is ordered that the further consideration of this cause be adjourned and any of the parties are to be at liberty to apply as they may be advised.
FORM 23 – LEGAL PRACTITIONER’S UNDERTAKING AS TO EXPENSES
(O.32, 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 24 – LETTER OF REQUEST TO TAKE EVIDENCE ABROAD
(Convention Country)
(0.32, r.7(b))
To the Competent Judicial authority of………………………………………………………in the
……………………………………………………………………………………………………of
……………………………………………………………………………………………………..
Whereas a civil (commercial) action is now pending in the……………………………….Judicial
Division of the High Court of Borno State, Nigeria, in which…………………………………….
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 should be examined as witnesses upon oath touching such matters, that
is………………………………………….of…………………………………and……………………of……………………………………….
and it appears that such witnesses arc resident within your jurisdiction.
Now, I the Chief Judge of the High Court of Borno 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 pleased to summon the said witnesses (and such other witnesses as the agents of the said claimant and defendant shall humbly request you in writing so to 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 claimant 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 witnesses (upon cross-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 witnesses (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 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 in such other ways as is in accordance with your procedure, and to return the same together with (the interrogatories and cross interrogatories, and) a note 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 Borno 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 25 – ORDER FOR APPOINTMENT OF THE NIGERIAN DIPLOMATIC AGENT AS SPECIAL EXAMINER (IN
CONVENTION COUNTRY)
(O.32, r.8)
(Heading as in Form No.1)
Upon hearing the Legal Practitioner on both sides and upon 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 reexamination,
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…………….days notice in writing of the date on which they propose to send out this order to……………..or execution and
that………………..days after the service or 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 of 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 dispensed with). That the depositions when taken together with any documents referred to therein
or certified copies of documents or of extracts therefrom, be transmitted by the examiner, under seal, to the Chief Registrar of the High Court, Borno 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 costs of and incident to this application and such examination be costs in the 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 complied with.
FORM 26 – FORMS OF PRAECIPE
(O.32, r, 20)
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
Suit No: …………………………………………………………………………………………….
Between:
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 27 – SUBPOENA AD TESTIFICANDUM
(O.32, r.21)
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
Suit No………………………………………………………………………………………………
Between
………………………………………………………………………………………..Claimant
and
………………………..
………………………………………………………………….DefendantT0…………………………………..of…………………………………
…………………………
You arc Commanded in the name of the Governor of Borno 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 28 – HABEAS CORPUS AD TESTIFICANDUM
(O.22, r.21)
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
Suit No…………………………………………………20……………………………………….
Between
……………………………………………………………………………………………Claimant
and
…………………………………………………………………………………………Defendant
………………………The Controller of Prison, at……………………………………………….
You are commanded in the name of the Governor of Borno State to have………………
who it is said is detained in your custody in Prison, at……………before the court……………..at
……………on…………….the……………day………….at………O’clock in the forenoon, and so from day to day until
the above action 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 brought.
DATED this…………..day of…………….20…………………….
………………………………………
Judge
FORM 29 – SUBPOENA DUCES TECUM
(0.32, r.2l)
In the High Court of Borno State
In the…………………………………………………………………………….Judicial Division
Suit No………………………………………………………………………………………………
Between
…………………………………………………………………………………………….Claimant
and
…………………………………………………………………………………………Defendant
To…………………………………of………………………………………………………………
You arc commanded in the name of the Governor of Borno 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 place aforesaid……………………………………………………………………………………….
(Specify documents to be produced)
DATED this………………day of……………….20…………….
…………………..
Judge
FORM 30 – FORM OF GUARANTEE FOR THE ACTS AND DEFAULTS OF A RECEIVER
(O.38, r.10)
In the High Court of Borno State
In the……………………………………………………………………………Judicial Division
PARTIES
Suit No……………………………………………………………………………………………..
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 Borno State. By an Order of the High Court of Borno State………Judicial Division dated the…….day of………20……..and made in the above mentioned 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 in this guarantee witnesses as follows: –
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 Indorsement to Guarantee.
The liability of the Surety under the within written guarantee has with the consent of 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 indorsement 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 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 31 – RECEIVER’S SECURITY BY UNDERTAKING
(O.38, r.10)
In the High Court of Borno 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 and 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 32 – RECEIVER’S ACCOUNT
(0.38, r. 13)
(TITLE)
Suit No:……………………………………………of 20……………………..………………………
The (……………………………….) account of A.B., the receiver appointed in this cause (or, pursuant to an order
made in this cause, dated the accord………………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 (or, intestate) in this cause named, from the ………………. Day of ……………………………
REAL ESTATE — 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 Observations
N N N N N N
PAYMENTS AND ALLOWANCES ON ACCOUNT OF REAL ESTATE
No. of item Date of Payment or allowance Names of persons to whom paid or allowed For what purpose paid or allowed Amount
N
One year’s insurance of due………
Bill for repairs at house let to……….
Allowance for a half-year’s Income Tax, due……..
To Payments………… N
RECEIPT ON ACCOUNT OF PERSONAL PAYMENT AND ALLOWANCE ON
ESTATE ACCOUNT 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
Amounts 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 .. .. .. .. .. .. .. .. ..…
Amount of payments and allowances on the above account
of real estate.. .. .. .. … .. .. .. .. . .. .. .. .. .. .. .. … .. .. .. .. .. .. .. .. .. . ——————————-
Amount of Receiver’s cost of passing this account as to real
estate .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. . .. . . . . N
——————————–
Balance due from the Receiver on account of real estate
Amount of balance due from Receiver on last account of
personal estate.. .. .. .. .. . . …. … .. .. .. .. .. .. .. .. . .. .. … .. .. .. . .. . ——————————–
Amount of receipts on the above of personal estate .. .. .. .. .. .. .. .. .. .. .. …. .. ..N
——————————–
Balance of last account paid into court. .. .. .. .. .. .. .. .. .. .. . .. ..
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………N
——————————-
FORM 33 – AFFIDAVIT VERIFYING RECEIVER’S ACCOUNT
(O.38, r. 14)
In the High Court of Borno State
In the………………………………………………………………………………….Judicial Division Borno, 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:
undertaking) dated……..20……….are both alive and neither of them has become bankrupt or insolvent.
undertaking) dated …………20………………is still carrying on business and no petition or other proceeding for its winding up is pending).
Additional paragraphs as to wages and petty case are sometimes necessary.
FORM 34 – CERTIFICATE OF THE CHIEF REGISTRAR
(O.41, 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:–
they have paid, or are entitled to be allowed an account thereof, sums to the amount of
N……………..leaving a balance due from (or to), them of N……………on that account.
the affidavit of………………….……………….filed on the……….day of…………..
And which account is to be filed with this certificate, except 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).
3.The defendants…………………have brought in an account verified by the affidavit of……….filed on
the…………..day of…………………………………….and which account is marked………………………and is to be filed
with this certificate. The account marked…………..and which is also to be filed with this certificate, is a transcript of the account as altered and passed.
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 35 – ORDER FOR PAYMENT OF PRINCIPAL MONEY OR INTEREST SECURED BY MORTGAGE OR
CHARGE.
(O.51, 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…………………and N……………..for interest thereon at N………………..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 36 – ORDER FOR POSSESSION OF PROPERTY FORMING A SECURITY FOR PAYMENT TO THE
CLAIMANT OF ANY PRINCIPAL MONEY OR INTEREST
(O.51, 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 costs 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 37 – ORDER FOR PAYMENT OF PRINCIPAL MONEY OR INTEREST SECURED BY MORTGAGE OR
CHARGE AND FOR POSSESSION OF PROPERTY COMPRISED THEREIN.
(O.51, r.2)
It is ordered that the claimant do recover against the defendant N…………secured by a mortgage
(order charge) dated the……………..day of……..20…………..(being the total of the principal sum of
N…………..and N…………….for interest thereon at N…………..per cent per annum less tax to the………………
day of (date or order), and N…………….for costs (or his costs of this summons to be taxed).
And 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 the said mortgage ( or charge)
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 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 38 – ORIGINATING SUMMONS FOR POSSESSION
(O.53, r.2)
In the High Court of Borno State
In the…………………………………………………………………………….Judicial Division
Suit No…………………………………………………………………………………………….
Between
A.B…………………………………………………………………………………….…Claimant
C.D., E.F. and G.H:……………………………………………………………………Defendant
(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
Borno 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 license 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 (state 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 39 – ORDER FOR POSSESSION
(O.53, r. 6(1)
(Heading as in Form 1)
Upon hearing……………………………………………………………………………and upon
reading the affidavit of…………………………………………………………………………..
Filed 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 on……………………) (and that the defendant do pay 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’s certificate dated the…………… of……………………
20…………).
DATED the……………………….day of…………………………..20…………………………………..…………
………………………
Judge
FORM 40 – LEGITIMATION PETITION
(O.65, r.2, 3,4,5,6 etc)
In the High Court of…………………………………………………………………………..State.
In the………………………………………………………………………………Judicial Division
IN THE MATTER OF THE LEGITIMACY LAW
and
in the matter of A.B. ………………………………………………………………………………
(State name, address and description of the person whose legitimacy the Court is asked to declare).
The petition of the above-named A.B. showed as follows:
1 .Your petitioner resides at…………………………………………………
20…………………………..……………………..at…………………………..………………………
The birth of your petitioner is recorded by an entry numbered………………………and made on the…………day
of………..20……..in the register of births for etc. (or as the case may be).
in…………………………..
5.The said C.D. and E.F. were lawfully married to one another on the……………………day
of……………..,20……………..at…………………..
The said C.D. and E.F. have had issue…………………Children and no more, namely:
(STATE NAMES AND DATES OF BIRTH OF SUCH ISSUE)
E.F. was a bachelor (or widower or as the case may be) and was residing at…………..and was domiciled
at……………………………………………………..
(STATE NAMES AND ADDRESS AND DESCRIPTIONS AND RELATIONSHIP).
petitioner, is N…………….
any Court (or as may be).
Your petitioner therefore prays:
That it may be decreed and declared that the said C.D. and C.D. and E.F. were lawfully married
at…………………………..on the day of……………….. 20 …………..and that by such marriage your petitioner
became legitimated as from the date of the said marriage (or as from the date of the commencement of
the legitimacy laws) for the purposes of the Legitimacy Law (Cap.71).
That the costs of’ the respondents to his petition may be taxed or otherwise ascertained.
DATED the…………………………..day of…………………….……….., 20…………………………..…………
It is to deliver a copy of this petition to the Attorney-General of…………………………………..
State and to serve this petition on…………………………………………………………………
NOTICE
(to be endorsed on the petition)
TAKE NOTICE that the within petition will be transferred from the General Cause List to the Hearing
paper for…………the……………day of……………., 20………..at………O’clock in the forenoon at…………………….And
will come on to be heard on that day if the business of the Court permits or otherwise on some adjournment day of which you will receive no further notice,
If any party desires to postpone the hearing he must apply to the Court as soon as possible for that purpose, and, if the application is based on any matter or facts, he must be prepared to give proof of such fact.
If you desire to make answer to the within petition you must file your answer in the above Court within twenty–eight days after service of the petition upon you. If your answer contains matter other than a simple denial of the stated in the petition, the answer must be accompanied by an affidavit made by you verifying such other matter as you have personal knowledge of and deposing to your belief in the truth
of the rest of such other matter. You must file with your answer as many copies of the answer and the affidavit (if any) as there are other parties to the petition, and also two copies for the use of the Court.
…………………………….
Registrar
FORM 41 – LEGITIMACY LAW AFFIDAVIT
(O.65, r.2)
(Heading as in Form 1)
I………………………..of……………………the petitioner (or the next friend of the petitioner)
In the above matter, make oath and say as follows:
20………..are true.
best or my knowledge information and belief .
sworn etc.
…………………………..
FORM 42 – LEGITIMACY LAW UNDERTAKING BY NEXT FRIEND (UNDERTAKING BY NEXT FRIEND OR
INFANT TO BE RESPONSIBLE FOR RESPONDENTS COSTS)
(O.65, r.3)
(Heading as in Form 1)
I, the undersigned G .H. of………………., being the next friend of A. B………………………..
who is an infant and who is desirous for filing a petition in this court under the Legitimacy Law (Cap. 79), hereby undertake to be responsible for the costs of the respondents to such petition in the manner following: namely, if the said A.B., fail to pay to the respondents or to any of them when and in such manner as the Court shall order all such costs as the Court shall direct him to pay to the respondents I
will forthwith pay the same.
DATED the ……………day of …………………….20……………….
………………………G.H.
FORM 43 – LEGITIMACY LAW UNDERTAKING FOR COSTS
(O.65, r 13)
As legal practitioner for the above-named petitioner I hereby undertake to personally responsible for any costs which the said petitioner may be ordered to pay to the respondents in this matter or any of them.
DATED the…………day of………..20………….
…………………………………
Legal practitioner for the petitioner
FORM 44 – LEGITIMACY LAW NOTICE OF ATTORNEY-GENERAL OF ……………… STATE
(O.65, r. 6)
TAKE NOTICE that the Petition in the above matter will be transferred from the General Cause List to the
Hearing Paper for……….the………….day of………20………..at…………’O’clock in the forenoon at…………….and
will come on to be heard on that day if the business of the Court permits or otherwise on some adjournment of which you will receive on further notice
…………………..
Registrar
FORM 45 – LEGITIMACY LAW ANSWER TO PETITION
(O.65, r. 6)
The respondent L.M. by P.Q. his legal practitioner (or in person) in answer to the petition filed in the
above matter says:
2…………………………………………………………………………………………………….
where one of this respondent humbly prays that the prayer of the petitioner may be rejected.
DATED this……………….day of……………….20………………..
FORM 46 – LEGITIMACY LAW DECREE
Upon reading the petition of A.B. of……………Presented to this Court in the above matter and
upon reading the affidavit (s) of……………And the several exhibits thereto.
and after hearing…………………………………………………………………………………
and the Court being satisfied that the allegations contained in the said petition are true and that a copy of the said petition was duly delivered to the Attorney-General of………………….State and that all proper persons have been served with the said petition:
IT IS DECREED AND DECLARED that C.D of E.F. of………….in the said petition mentioned were
lawfully married at…….on the…..day of……..20 ……..and the by such marriage the said A.B. was legitimated for the purposes of the Legitimacy Law (Cap. 79) as from the…….day of 20……… (being the dated of the said marriage) (or as from the 17th day of October, 1929) being the dated of commencement of the said Law).
AND IT IS ORDERED that the said A.B. do pay to the respondents the costs of the said respondents to the
petition respectively as follows……………………………………………….
DATED this…………….Day of…………………20………..
……………………
Registrar.
PROBATE FORM 1
(O.55, r.35(3))
Surety’s Guarantee
The High Court………………………………………………………………………………State
Probate Registry Suit No:…………………………………………………………………………
In the Estate of …………………………………………………………………………deceased.
Whereas………………………………..of………………………………………………..died on
the……………………………….day of……………..20……………………………………
and………………………………..(and…………………………………………………………)
hereinafter called “the Administrators” is/are the intended administrator(s) of his estate.
now therefore- –
(and………………………………….of…………………………………………………(and
……………………………………………of……………………………………………….hereby
jointly and severally) guarantee that I/WE will, when lawfully required to do so, make good any loss which any person interested in the administration of the estate of the deceased may suffer in consequence of the breach by the administrator(s) of his/her/their duty –
(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.
3.The liability under this guarantee shall be continuing and shall be for the whole amount of the loss mentioned in paragraph 1 above, but (my) (our) (aggregate) total liability shall not in any event exceed
the sum of N…………………….
Dated this,………………………day of…………….20………………………..
Signed, sealed and delivered by the above named in the presence of …………………………a
Commissioner for Oath, (or other person authorized by law to administer an oath).
(The Common Seal of……………..was hereunto affixed in the presence of……………………..)
PROBATE FORM 2
(O.55, 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- –
(and…………………………………of………………………………………………………..(and
……………………………………..of………………………………………………………hereby
(jointly and severally) guarantee that I/WE will, when lawfully required to do so, make good any loss which any person interested in the administration of the estate of the deceased in the State may suffer in consequence of the breach by the administrator( s) of his/her/their duty –
(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
N……………….
Dated this………………..day of……………..20……………..
Signed, sealed and delivered by the above named in the presence of………………………………
a Commissioner for Oaths, (or other person authorized by law to administer an oath).
(The Common Seal of…………………was hereunto affixed in the presence of…………….)
PROBATE FORM 3
(O.55, r.71 (3)
Notice to Prohibit Grant
IN THE MATTER OF……………………………………………………………DECEASED
LET NOTHING be done in the matter of…………………………………………………late
of……………………………deceased, who died on the…………………day of………20…….at……….and…………had the
time of his death his fixed place of abode at
……………………………………………………………………within the jurisdiction of
Court, without warning being given to………………………….of……………………………
………………………………………………………………………………………………………
DATED this…………………….…..day of…………………………………..20………………..……………………
…………………………
Signature
PROBATE FORM 4
(O.55, 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……………………………………………………………………………..
PROBATE FORM 5
(O.55, r.71 (8))
Warning to Caveator
In the High Court of……………………………………………………………………………State
The Probate Registry Suit No:………………………………………………………………………
To…………………………………………………………………………………………………of
……………………………………………………………………………………..a party who has
entered a caveat in the estate of…………………………………………………………..deceased.
You are hereby warned within 8 days after service hereof upon you, inclusive of the day of such service:
1.to enter an appearance either in person or by your Legal Practitioner at the Probate Registry:
………………setting forth what interest you have in the estate of the above
named…………………………………late of……………………….…deceased, contrary to that of the party at whose instance this warning is issued; or
And take notice that in default of your so doing the Court may proceed to issue a grant of probate or administration in the said estate notwithstanding your caveat.
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.
PROBATE FORM 6
(O.55, r.71(9)
Appearance to Warning/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):………………………………………………
………………………………………………………………………………………………………
Interest of person warning (for 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”)
PROBATE FORM 7
(O.55, 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………………………………………………day of
…………………………………..20………………………………………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………………of……………….)
And whereas (the said… . . . . . . . .. . . . . .. . . . . .. . . . … . . . has ceased to be a
personal representative because…………………………………………………………) 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
transaction.
DATED this………………………………………..day of……………………………………….…20…………………………….………
(Signed)……………………………………………………………………………..
(To the Probate Registrar)__