HIGH COURT OF NASARAWA STATE (CIVIL PROCEDURE) RULES, 2010

 

State Laws

Attorney-General

State Website

[We provide free online access to documents published on LawNigeria.com. Electronic PDF copy of this document is available for N1,000 . Electronic compendium (PDF) of the whole laws of Nasarawa is available.  Click HERE or Email lawnigeria@gmail.com and info@lawnigeria.com or text/call +234 706 7102 097 to order]   

 

HIGH COURT OF NASARAWA STATE (CIVIL PROCEDURE) RULES, 2010

THE HIGH COURT OF NASARAWA STATE OF NIGERIA

 

ARRANGEMENT OF SECTIONS

  1. [Citation]
  2. [Schedule]
  3. [Matter not covered by Rules]
  4. [Savings]
  5. [Forms]
  6. [Repeal]

 

HIGH COURT LAW (CAP 49) LAWS OF NORTHERN NIGERIA

THE NASARAWA STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010

In exercise of the powers conferred on me by section 274 of the Constitution of the Federal Republic of Nigeria, 1999 and section 116 of the High Court Law of Northern Nigeria 1963 (as applicable to Nasarawa State) and all other powers enabling me in that behalf, I, HON, JUSTICE AHMED YAKUBU UBANGARI, OFR, Chief Judge of Nasarawa State of Nigeria, do hereby make the following Rules:

 

[Citation]

  1. These Rules may be cited as the High Court of Nasarawa State (Civil Procedure) Rules, 2010 and shall come into force on the 4th day of April, 2011.

 

[Schedule]

  1. The provisions contained in the Rules set out in the Schedule shall be the Rules of Civil procedure to be followed in the High Court of the State.

 

[Matter not covered by Rules]

  1. Where a matter arises in respect of which no provision or adequate provision is made in the Rules, the court shall adopt such procedure as may in its view do substantial justice between the parties concerned.

 

[Savings]

  1. (1) A reference in these Rules to anything done under the Rules includes a reference to the thing done before the commencement of these Rules under any law or rule of court ceasing to have effect on the commencement of these Rules.

(2)     A reference in these Rules to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment.

 

[Forms]

  1. The Forms set out in the Appendix to the Schedule shall be used where applicable with such modifications as the circumstances of a particular case may require.

 

[Repeal]

  1. The High Court (Civil Procedure) Rules, 1987 of Plateau State as applicable in Nasarawa State is hereby repealed.

 

 

 

MADE at Lafia this 17th day of December, 2010

 

HON. JUSTICE AHMED YAKUBU UBANGARI, OFR
(Chief Judge)

 

ARRANGEMENT OF RULES

ORDER/RULE

ORDER 1 – Application and Interpretation

  1. Application
  2. Interpretation

ORDER 2 – Form and Commencement of Action

  1. Mode of beginning Civil Proceedings
  2. Originating process to be tested by its date
  3. Non alteration of originating process
  4. Person filing originating process to leave sufficient copies with Registrar for service.

ORDER 3 – Writ of Summons

  1. Proceedings which must be begun by Writ
  2. Accompaniments of Civil Proceedings, begun by writ.
  3. Form of writ: Civil Form 1
  4. Form of Writ for service out of Nigeria, civil form 2
  5. Issuance of writ of summons by Judge
  6. Alteration of writ
  7. Uniting several causes of action in one suit
  8. Consolidation of causes or matters
  9. Service outside Nasarawa State: cap407LFN1990

ORDER 4 – Originating Summons

  1. Proceedings which may be begun by originating summons
  2. Judge not bound to determine any question of construction
  3. Form of originating summons: civil form 3,4,5
  4. Accompaniments of originating summons

ORDER 5 – Originating Motion

  1. Proceedings which may be commenced by originating motion
  2. Form of originating motion: civil form 7
  3. Accompaniment of originating motion

ORDER 6 – Petition

  1. Proceedings which may be begun by petition
  2. Form of petition: civil form 8
  3. Accompaniments of petition

ORDER 7 – Place of Instituting and Trial of Suits

  1. Suits relating to land and property distrained or seized
  2. Suits for recovery of penalties, forfeitures and against public affairs
  3. Suits upon contract
  4. Other suits
  5. Suits commenced in wrong Judicial Division

ORDER 8 – Indorsement of claim and of Address

  1. Indorsement
  2. Indorsement to show representative capacity
  3. Probate actions
  4. What is indorsed where the debt is liquidated
  5. Ordering account
  6. Indorsement of address by plaintiff or by legal practitioner
  7. Indorsement of address
  8. Originating process without an address or with fictitious address

ORDER 9 – Effect of Non-Compliance

  1. Non-Compliance with Rules
  2. Application to set aside for irregularity

ORDER 10 – Issue of Originating Process

  1. Preparing Originating process
  2. Sealing of Originating process
  3. What is to be done after sealing
  4. Copies to be served
  5. Probate actions: affidavit with originating process
  6. Renewal of originating process: Civil Form 6
  7. Indorsement of renewal
  8. Loss of originating process
  9. Concurrent originating process
  10. Concurrent originating process for service within and out of jurisdiction

ORDER 11 – Service of originating process

  1. By whom service is effected
  2. Service of originating process etc. how effected
  3. When originating process need to be served personally
  4. Mode of service when not personal
  5. Substituted service
  6. Persons under legal disability
  7. Prisoner or detainee
  8. Partners
  9. Corporation or company
  10. Foreign Corporation or Company: (Cap. 59 LFN 1990)
  11. Local agent of principal who is out of jurisdiction
  12. Where violence threatened
  13. Proof of service generally
  14. Expenses of service
  15. Time of service on certain days
  16. Recording of service

ORDER 12 – Service out of Nigeria and service of foreign process

  1. Cases where Service of originating process etc are allowed out of Nigeria
  2. Agreement as to service
  3. Service abroad by letter of Request
  4. Where leave is granted or not required
  5. Service of foreign process
  6. Inapplicable of Rule 4
  7. Service on behalf of Foreign Tribunals
  8. Substituted service of foreign process

ORDER 13 – Appearance

  1. Mode of entry of appearance: Civil Form 13
  2. Department appearing in person or represented by Legal Practitioner
  3. Fictitious address
  4. Defendants appearing through some legal practitioner
  5. Late appearance
  6. Intervener in probate matters
  7. Recovery of land
  8. Landlord appearing
  9. Person under legal disability appearing
  10. Tenant

ORDER 14 – Default of Appearance

  1. Default of appearance by person under legal disability
  2. Default of appearance generally
  3. Liquidated demand
  4. Liquidated demand: Several defendants
  5. Judgment in default of appearance
  6. Several defendants
  7. Detention of goods, damages and liquidated demand
  8. Recovery of land
  9. Mesne profits
  10. Judgment for costs: upon payment, satisfaction etc
  11. Setting aside judgment
  12. Default of appearance in actions not otherwise specifically provided for
  13. Compulsory service

ORDER 15 – The Undefended List

  1. Undefended list affidavit
  2. Where plaintiff believes there is no defence
  3. Delivery of extra copies
  4. Documents to accompany defence of suit
  5. Where defendant has good defence, or has no good defence or has good defence to part of the claim
  6. Where defendant intends to defend
  7. Where there are several defendants
  8. Oral submission on written brief

ORDER 16 – Application for Account

  1. Order for account
  2. Application how made
  3. Account may be taken by a judge or referee

ORDER 17 – Parties Generally

  1. Person claiming jointly or severally
  2. Action in name of wrong plaintiff
  3. Misjoinder and counterclaim
  4. Any person may be joined as defendant
  5. Action in name of wrong defendant
  6. Defendant need not be interested in all the relief sought
  7. Joinder of persons severally or jointly and severally liable
  8. Plaintiff in doubt as to persons from whom redress is to be sought
  9. Persons under legal disability
  10. Guardian
  11. Trustees, executors etc, may be sued as representing the estate
  12. Numerous persons
  13. Representation of persons or classes of persons in certain proceedings
  14. Power to approve compromise
  15. Where there is personal representative
  16. Proceedings not defeated by misjoinder or nonjoinder
  17. Application to add or strike out
  18. Where defendant is added
  19. Third parties may be joined by any of the parties
  20. Appearance by third party
  21. Default by third party
  22. Subsequent third party
  23. Claim against co-defendant
  24. Actions by and against firms
  25. Disclosure of partners‟ names
  26. Appearance of partners
  27. Application to Rules to actions between co-partners
  28. Persons trading as firms
  29. Actions to abated where cause of action survives
  30. Order to carry on proceedings
  31. In case of assignment, creation or devolution of estate or title
  32. Application to discharge order by person under disability having a guardian
  33. Persons under disability having no guardian
  34. Acts may be done by legal practitioner or agent.

ORDER 18 – Joinder of causes of Action

  1. All causes of action may be joined
  2. Recovery of land
  3. Executor and administrator
  4. Claims by joint plaintiffs

ORDER 19 – Pleadings

  1. Filing of pleadings
  2. Pleadings to state material facts and not evidence
  3. Particulars to be given where necessary
  4. Further and better statement or particulars
  5. Denial
  6. Conditions precedent
  7. Defence, certain facts raising surprise, to be specifically pleaded
  8. Pleadings to be consistent
  9. Joinder of issue
  10. Effects of documents to be stated
  11. Notice
  12. Implied contract or relation
  13. Presumptions of law
  14. Stated or settled account
  15. Technical objection
  16. Striking out of pleadings
  17. Defemation
  18. Where pleading discloses no reasonable cause of action
  19. Close of pleading

ORDER 20 – Statement of claim/Defence and Counterclaim/Reply

  1. Statement of claim
  2. Claim beyond indorsement
  3. Statement of defence
  4. Evasive denial
  5. Denials generally
  6. Persons in representative capacity
  7. Pleading to damages
  8. Set off and counterclaim
  9. Title of counterclaim
  10. Claim against person not party: Civil Form 14
  11. Appearance by added parties
  12. Defence to counterclaim
  13. Discontinuance of the plaintiff’s claim
  14. Judgment for balance
  15. Grounds of defence after action brought
  16. Further defence or reply
  17. Concession to defence: Civil Form 15
  18. Defence to originating summons
  19. Filing of reply
  20. Reply to counterclaim

ORDER 21 – Admissions

  1. Notice of admission of facts
  2. Notice to admit document
  3. Notice to admit facts
  4. Judgment or order upon admission of facts
  5. Costs of notice where documents are unnecessary

ORDER 22 – Default of pleading

  1. Claim for debt or liquidated demand
  2. Several defendants: default of one
  3. Damages and detention of goods
  4. Default of one or more defendants
  5. Debt or damages and detention of goods or damages
  6. Recovery of land
  7. Claim for mesne profits, arrears or damages
  8. Where a defence is filled to part of claim only
  9. Defendant in default
  10. One of several defendants in default
  11. Default of third party
  12. Setting aside judgment by default

ORDER 23 – Payment into and out of Court

  1. Payment into and out court
  2. Plaintiff may take out money: Civil Form 17
  3. Money remaining in Court
  4. Several defendants
  5. Counterclaims
  6. Person under legal disability
  7. Payment into and withdrawal of money from court

ORDER 24 – Proceedings in Lieu of Demurrer

  1. Demurrer abolished
  2. Points of law may be raised by pleadings

ORDER 25 – Discontinuance

  1. Plaintiff may discontinue before defence
  2. Withdrawal by consent

ORDER 26 – Amendment

  1. Amendment of originating process and pleadings
  2. Application
  3. Amendment of originating process
  4. Failure to amend after order
  5. Filing and service of amendment to be displayed
  6. Clerical mistakes and accidental omissions
  7. General power to amend

ORDER 27 – Pre-Trial Conference and Scheduling

  1. Pre-trial conferences and scheduling
  2. Scheduling and planning
  3. Agenda
  4. Timetable
  5. Report
  6. Sanctions
  7. Management
  8. Reference to mediation

ORDER 28 – Discovery and inspection

  1. Discovery by interrogatories
  2. Interrogatories: Civil Form 21
  3. Corporation or companies
  4. Objection to interrogatories by answer
  5. Affidavit in answer: filing of
  6. Form of affidavit in answer: Civil Form 22
  7. Order to answer or answer further
  8. Application for discovery of documents
  9. Processes filed after pre-trial conference
  10. Verification of business books
  11. Attachment of party after service on legal practitioner
  12. Attachment of legal practitioner
  13. Using answers to interrogatories at trial
  14. Discovery against sheriff
  15. Order to apply to person under legal disability

ORDER 29 – Issues, Inquiries, Accounts and References to Referees

  1. Issues of facts
  2. Reference to referee
  3. Instructions to referee
  4. General power of referee
  5. Evidence
  6. Reports made in pursuance of reference under order
  7. Special directions as to mode of taking account
  8. Accounts be to verified by affidavit, numbered and left in the Registry
  9. Mode of Vouching accounts
  10. Surcharge
  11. Accounts and inquiries to be numbered: Civil Form 24
  12. Just allowances
  13. Expediting proceedings in case of undue delay.

ORDER 30 – Special case

  1. Special case by consent
  2. Special case by order before trial
  3. Special case to be signed
  4. Application to set down where a person under disability is a party
  5. Agreement as to payment of money and costs
  6. Application of order

ORDER 31 – Cause Lists

  1. Lists of causes for hearing
  2. Pre-trial and weekly cause lists
  3. Public cause list
  4. Judge unable to sit
  5. Notice board

ORDER 32 – Proceeding at Trial

  1. Non-appearance of both parties
  2. Default of appearance by defendant at trial
  3. Default of appearance by plaintiff
  4. Judgment by default may be set aside on terms
  5. Adjournment of trial
  6. Times of commencement and termination of trial
  7. Order of proceeding
  8. Burden of proof on party to begin
  9. Documentary evidence
  10. Additional witness
  11. Close of case of parties
  12. Exhibits during trial
  13. Written address by party beginning
  14. Written address by the other party
  15. Written address of party beginning
  16. Right of reply
  17. Custody of Exhibit after trial
  18. Office copy of lists of exhibits
  19. Indorsement prosecution

ORDER 33 – Filing of written Address

  1. Application
  2. Content of written address
  3. Summation of address
  4. Oral argument
  5. Copies of written address

ORDER 34 – Evidence Generally

  1. Facts how proved
  2. Particular facts
  3. Limitation of medical and expert evidence
  4. Limitation on use of documentary evidence
  5. Revocation and variation
  6. Office copies admissible in evidence
  7. Examination of witnesses abroad
  8. Form of order for examination of witnesses abroad: Civil Form 27
  9. Order for attendance of person to produce document
  10. Disobedience to order for attendance
  11. Expenses of persons ordered to attend
  12. Contempt of court
  13. Examination of witnesses
  14. Depositions not be given in evidence without consent or by leave of a judge
  15. Oaths
  16. Attendance of witness under subpoena for examination or to produce documents
  17. Practice as to taking of evidence at any stage of cause or matter
  18. Special directions as to taking of evidence
  19. Evidence in proceedings subsequent to trial
  20. Form of praecipe of a subpoena: Civil Form 28
  21. Form of subpoena: Civil Form 29, 30, 31
  22. Subpoena for attendance of witness in chambers
  23. Correction of errors in subpoena
  24. Personal service of subpoena
  25. Duration of subpoena
  26. Action to perpetuate testimony
  27. Examination of witnesses to perpetuate testimony
  28. Action not to be set down for trial

ORDER 35 – Affidavits

  1. Evidence on motions, etc
  2. Title of affidavit
  3. Use of defective affidavit
  4. Special time for filing affidavits
  5. Affidavits in support of ex parte applications
  6. Notice of intention to use affidavit
  7. Alterations in accounts to be initiated
  8. Exhibits
  9. Certificate of exhibit
  10. Application of Evidence Act (Cap. 112 LFN 1990)

ORDER 36 – Non-suit

  1. Power of Court to non-suit
  2. Non-suit where no leave

ORDER 37 – Judgment, Entry of Judgment

  1. Delivery of judgment at or after trial
  2. Date of judgment pronounced in Court
  3. Date of judgment directed to be entered
  4. Judgment may direct time for payment or
  5. Time to be stated for doing any act: Memorandum to be indorsed
  6. Judgment by consent where defendant appears by a Legal Practitioner
  7. Judgment by consent where defendant has no legal practitioner.

ORDER 38 – Drawing up of orders

  1. Date of order, when drawn
  2. What orders need not be drawn up
  3. Form of orders

ORDER 39 – Transfers and consolidation

  1. Order transferring proceedings to High Court
  2. Payment of filing fees
  3. Duties of Registry
  4. Directions

ORDER 40 – Interlocutory orders, etc.

  1. Preservation or interim custody of subject matter of disputed contract
  2. Early trial of cause
  3. Order for sale of perishable goods, etc.
  4. Detention, preservation or inspection of property, the subject of an action
  5. Sale of property in possession of court
  6. Order for recovery of specific property other than land subject to lien, etc.
  7. Allowance of income of property pendent lite
  8. Injunction against repetition of wrongful act for breach of contract
  9. Appointment of a receiver by way of equitable execution
  10. Receivers, security and remuneration: Civil Forms 32,33
  11. Where receiver appointed in court: Adjournment to give security
  12. Fixing days for receivers to leave and pass their accounts and pay in balances and neglect of receiver
  13. Form of receivers‟ accounts: Civil Form 34
  14. Leaving account at Registry: Civil Form 35
  15. Consequences of default by receiver
  16. Passing of guardians‟ accounts

ORDER 41 – Motions and other applications

  1. Application by motion
  2. When notice of motion should be given
  3. Motion on arbitral award
  4. Special leave
  5. Motions may be dismissed or adjourned where necessary notice not given
  6. Adjournment of hearing
  7. Service of motion with writ
  8. Account by Legal Practitioner
  9. Interim certificate

ORDER 42 – Application for Judicial Review

  1. Case appropriate for application for judicial review
  2. Joinder of claims for relief
  3. Grant of leave to apply for judicial review
  4. Time within which to bring application
  5. Mode of applying for judicial review
  6. Statements and affidavits
  7. Claim for damages
  8. Interlocutory application
  9. Hearing of application for judicial review
  10. Person acting in obedience to an order of mandamus
  11. Consolidation of applications

ORDER 43 – Jurisdiction of Chief Registrar

  1. Chief Registrar
  2. Business to be transacted by Chief Registrar
  3. Chief Registrar may refer matter to the Chief Judge
  4. Appeal form order of Chief Registrar
  5. Chief Registrars‟ lists
  6. Legal practitioner may represent party
  7. Certificate
  8. Reference to judgment, etc
  9. Form of certificate: Civil Form 36
  10. When certificate becomes binding
  11. Bill of costs
  12. Discharge or variation of certificate any time after lapse

ORDER 42 – Habeas Corpus, Attachment for contempt

  1. Application: how made
  2. Affidavit
  3. Power to issue order of release immediately
  4. Service of notice
  5. Copies of affidavits
  6. Service of order to release
  7. Statement and verifying affidavit
  8. Procure at hearing
  9. Procedure for attachment
  10. Procedure on disobedience of court order
  11. Response
  12. Return

ORDER 43 – Interpleader

  1. When relief by interpleader is granted
  2. Matter to be proved by application
  3. Adverse titles of plaintiffs
  4. When application to be made by a defendant
  5. Summons by applicant
  6. Stay of action
  7. Order upon summons
  8. Questions of law
  9. Failure of plaintiff to appear, or neglect to obey summons
  10. Costs, etc

ORDER 46 – Computation of Time

  1. Rules for computation of time
  2. Holiday
  3. Time of service
  4. Court may extended time

ORDER 47 – Arrest of Absconding Defendant

  1. Defendant leaving Nigeria
  2. Warrant to arrest
  3. Bail for appearance or satisfaction
  4. Deposit in lieu of bail
  5. Committal in default
  6. Costs of subsistence of person arrested

ORDER 48 – Proceedings in Forma Pauperis

  1. Application
  2. Who may sue or defend in forma pauperis
  3. Conditions to be fulfilled
  4. Fees and costs
  5. Procedure to be followed
  6. Revocation of order, discontinuance etc
  7. Payment to Legal practitioner
  8. Duty of Legal practitioner
  9. Appeals

ORDER 49 – Change of Legal Practitioner

  1. Legal practitioner to conduct cause or matter to final judgment
  2. Application for change of legal practitioner or withdrawal
  3. Service of application by legal practitioner

ORDER 50 – Costs

  1. Principle to be observed in fixing costs
  2. Security for costs
  3. Security for costs by plaintiff temporarily with jurisdiction
  4. Action founded on judgment or bill of exchange
  5. Bond as security for costs
  6. Costs at discretion of court
  7. Costs out of fund or property
  8. Stay of proceedings till costs paid
  9. Stage of proceedings at which costs to be dealt with
  10. When costs to follow the event
  11. Matters to be taken account in exercising discretion
  12. Costs arising from misconduct or neglect
  13. Personal liability of Legal practitioner for costs
  14. Taxation of costs
  15. Notice to other party
  16. Power of taxing officer
  17. Supplementary powers of taxing officers
  18. Extension of time
  19. Power of taxing officer where party entitled to be paid, liable to pay costs
  20. Mode of beginning proceedings for taxation
  21. Provisions as to bills of costs
  22. Provisions as to taxation proceedings
  23. Rate of taxation of costs
  24. Certificate of taxing officer
  25. Fees on taxation
  26. Application for review
  27. Application by summons

ORDER 51 – Proceedings in Chambers

  1. Representation in chambers
  2. Matters to be disposed of in chambers
  3. Evidence upon application for appointment of a guardian and for maintenance
  4. Guardian with reference to proceedings in chambers
  5. Further consideration of matter originating in chambers
  6. Notes of proceedings in chambers
  7. Drawing up any entry of orders made in chambers
  8. Costs
  9. Decisions given in chambers, how set aside or varied.

ORDER 52 – Foreclosure and Redemption

  1. Originating Summons for foreclosure
  2. Orders for payment and possession: Civil Forms 37,38,39
  3. Service and Execution of Judgment

ORDER 53 – Summons to proceed

  1. Bringing in judgment, etc
  2. Summons to proceed with accounts and inquiries
  3. Selling deed where parties differ
  4. Where service of notice of judgment or order dispensed with
  5. Stoppage of proceedings where all necessary parties have not been served with notice of judgment or order
  6. Documents: Copies for use of judge
  7. Entry in Summons to Proceed Registrar

ORDER 54 – Summary proceedings for possession of landed property occupied by squatters or without the owner’s consent

  1. Application of this order
  2. Proceedings to be brought by originating summons: Civil Form 40
  3. Affidavit
  4. Service of originating summons
  5. Application by occupier to be made a party
  6. Order for possession: Civil Form 41
  7. Writ of possession
  8. Setting aside of order

ORDER 55 – Appeals to the High Court

  1. Notice of appeal
  2. Contents of notice of appeal etc.
  3. Copies of proceedings
  4. Appeal to judge of High Court
  5. Respondent to be supply with copy of proceedings
  6. Enlargement of proceedings time
  7. Where time expires

8.1     Constitution of court hearing appeals

8.2     Constitution of court hearing interlocutory

  1. Time and place for hearing of appeals
  2. Where appellants fails to appear
  3. Where appellant appears
  4. Appeal limited to grounds given in notice
  5. Request to confirm judgment on other grounds
  6. Counter appeal
  7. Objection to form of ground of appeal
  8. Defects in proceedings under appeal
  9. Defect in notice of appeal or recognizance
  10. Additional evidence
  11. Mode of taking evidence
  12. Stay of execution pending appeal
  13. Compilation of record
  14. Formal order to be drawn up
  15. Filing of brief by appellant
  16. Filing of brief by respondent
  17. Appellant’s reply on points of law
  18. When legal practitioner does not appear
  19. Oral argument

ORDER 56 – Appeals to the Court Appeal

  1. Stay of execution pending appeal
  2. Court may grant or refuse order for stay
  3. Formal order to be drawn up

ORDER 57 – Fess and Charges

  1. Fees and charges
  2. Fees to be paid before issue of process
  3. Fees to be carried to account on process being issued
  4. Documents to be indorsed with amount of fees and number of receipt
  5. Payment into revenue

ORDER 58 – Miscellaneous Provisions

  1. Days of sittings
  2. Public or private sittings of the Court
  3. Office hours
  4. Days of sittings and long vacation
  5. Vacation
  6. Vacation not reckoned in time for pleadings
  7. Recovery of penalties and costs
  8. Notice
  9. Filing
  10. How process addressed
  11. No fees where proceedings by Government Department
  12. Regulations
  13. Saving

ORDER 59 – Probate and Administration

  1. Petition to be made to Probate Registrar
  2. Preservation of property
  3. Unauthorized person intermeddling with property
  4. Production of testamentary papers
  5. Judge may order production
  6. Examination respecting papers
  7. Notice to executor to come in and prove
  8. Liability of executor neglecting to apply for probate
  9. Evidence of identity
  10. Judge may refuse grant until all persons interested are given due notice
  11. Value of property
  12. Answers required before grant
  13. Forms of suits
  14. Testator may deposit will
  15. Custody of wills of which probate is granted
  16. Will not to be given out without order of judge
  17. Examination of Will as to its execution
  18. Evidence as to due execution of will
  19. Evidence on failure of attesting witnesses
  20. Evidence as to terms, conditions and date of execution of Will
  21. Attempted revocation of a Will
  22. Affidavit as to due execution, terms, etc of will
  23. Wills of persons in military service and seamen
  24. Evidence of foreign law
  25. Order of priority for grant where deceased left a Will
  26. Joinder of administrator
  27. Will of blind or illiterate testator
  28. Interlineations, erasures, obliteration
  29. Documents referred to in a Will or annexed or attached thereto
  30. Executor dying without proving or not appearing
  31. Marking of Wills
  32. Viva Voce examination of persons making affidavits
  33. Letters of Administration
  34. Administration bond
  35. Guarantee
  36. Assignment of bond
  37. Administration summons
  38. Order for administration
  39. Order relating to property
  40. Administration may be granted to officer
  41. Officer to act under the direction of judge
  42. Court may appoint person to be administrator
  43. Remuneration of administrators
  44. Collection and security of estate
  45. Application by Consular Officer or person authorized by him to administer estate
  46. Accounts to be filed
  47. Court may refuse application to review
  48. Grant to be signed by probate Registrar
  49. Application
  50. Application for grants through Legal Practitioners
  51. Personal applications
  52. Duty of Registrar on receiving application for grant
  53. Oath in support of grant
  54. Grant in additional name
  55. Engrossment for purpose of record
  56. Grant to attesting witnesses, etc
  57. Right of assignee to a grant
  58. Additional personal representatives
  59. Grants where two or more persons entitled
  60. Prevention of grant
  61. Grants to person having Spes successionis
  62. Grants where deceased was domiciled outside the State
  63. Grant to Attorney
  64. Grants on behalf of minors
  65. Grant where minor is co-executor
  66. Grants in case of metal or physical incapacity
  67. Renunciation of probate and administration
  68. Notice to State of intended application for grant
  69. Resealing
  70. Amendment and revocation of grant
  71. Notice to prohibit grant, caveats
  72. Citations
  73. Citation to accept or refuse a grant
  74. Citation to propound a Will
  75. Address for service
  76. Application for order to bring or to attend for examination
  77. Limited grants
  78. Grants ad colligenda bona
  79. Application for leave to swear to death of a person
  80. Grants in respect of codicils and copies of Wills
  81. Grants durants absentia
  82. Notice of election by surviving spouse to redeem life interest: Probate Form 7
  83. Photocopy of Wills or other documents may be certified and sealed
  84. Power to require application to be made by motion or summons
  85. Service of notice of motion or summons
  86. Service of Notices etc at the person’s address
  87. Affidavit
  88. Time
  89. Application
  90. Contentious probate: Form of suits
  91. Probate actions
  92. Service of writ of summons
  93. Pleadings and further actions
  94. Where plaintiff disputes defendant’s interest
  95. Notice of position to Will
  96. Inquiry as to outstanding personal state
  97. Discretion to order costs
  98. Originating summons relating to deceased person
  99. Order for administration of estate of deceased and of trust
  100. Persons to be served
  101. Judge not bound to order administration
  102. Order which may be made on application for administration or execution of trust, where no account or insufficient accounts have been rendered
  103. Interference with discretion of trustee
  104. Application by summons
  105. Interpretation Law

FORM 1 – General Form of Writ of Summons

FORM 2Writ for service out of the jurisdiction

FORM 3General form of originating summons

FORM 4 – Originating Summons

FORM 5 – Form of ex parte originating summons

FORM 6 – Form of Memorandum for Renewed originating process

FORM 7 – General form for originating motion

FORM 8 – General form for petition

FORM 9 – Request to Minister of Foreign Affairs to transmit

PREACIPE FORM 10 – Request for Service Abroad

FORM 11 – Letter forwarding Request for substituted service

FORM 12 – Request to Minister of Foreign Affairs to transmit Notice of writ to a Foreign Government

FORM 13 – Memorandum of Appearance

FORM 14 – Notice of Counterclaim

FORM 15 – Concession to Defence

FORM 16 – Notice of payment into Court

FORM 17 – Acceptance of sum paid into Court

FORM 18 – Acceptance of sum paid into Court by one of several Defendants

FORM 19 – Hearing Notice for pre-trial conference

FORM 20 – Pre-trial information sheet

FORM 21 – Interrogatories

FORM 22 – Answer to interrogatories

FORM 23 – Affidavit as to Documents

FORM 24 – Form of Order for Accounts and Inquiries

FORM 25 – Legal Practitioner’s Undertaking as to Expenses

FORM 26 – Letter of Request to take Evidence Abroad (Convention Country)

FORM 27 – Order for appointment of the Nigerian Diplomatic Agent as special Examiner (In Convention Country)

FORM 28 – Forms of preacipe

FORM 29 – Subpoena ad Testification

FORM 30 – Habeas Corpus ad Testification

FORM 31 – Subpoena duces Tecum

FORM 32 – Form of Guarantee for the acts and defaults of a Receiver

FORM 33 – Receiver’s Security by Undertaking

FORM 34 – Receiver’s Account

FORM 35 – Affidavit Verifying Receiver‟s Account

FORM 36 – Certificate of the Chief Registrar

FORM 37 – Order for payment of Principal Money or interest secured by mortgage or charge

FORM 38 – Order possession of property forming a Security for payment to the plaintiff of any principal Money or interest

FORM 39 – Order for payment of principal Money or interest Secured by Mortgage or charge and for possession of property comprised therein

FORM 40 – Originating Summons for possession

FORM 41 – Order for possession

PROBATE FORM 1 – Surety’s Guarantee

PROBATE FORM 2 – Surety’s Guarantee on Application for resealing

PROBATE FORM 3 – Notice to prohibit Grant

PROBATE FORM 4 – Caveat

PROBATE FORM 5 – Warning to caveator

PROBATE FORM 6 – Appearance to Warning/Citation

PROBATE FORM 7 – Notice of Election to redeem Life Interest

 

 

 

 

SCHEDULE

HIGH COURT OF NASARAWA STATE

(Civil Procedure) Rules 2010

ORDER 1

Application and Interpretation

 

Application

  1. (1) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters.

(2)     The application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.

Interpretation

  1. (1) These Rules shall be interpreted in accordance with the Interpretation Law applicable in Nasarawa State.

(2)     Where in these Rules depositions and affidavits are required to be made, if the deponent does not understand English Language, such deposition or affidavit shall be made in English language with the provision for illiterate Jurat.

(3)     In these Rules –

“Court process” or “process” includes Writ of Summons, Originating Summons, Originating Process, notices, petitions, pleadings, 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” includes a defendant to a Counter-claim;

“Governor” means the Governor of the State;

“Guardian” means any person who has 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;

“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;

“Person under Legal Disability” means a person who lacks capacity to institute or defend any proceedings by reason of age, insanity, unsoundness of mind or any other legal disability.

“Plaintiff” includes a plaintiff in a counter-claim;

“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, or non-contentious forms of action or common form of probate business;

 “Registrar” includes the Chief Registrar or any other officer acting or performing the functions of a Registrar;

“Registry” means the Registry of the High Court of the State;

“State” means Nasarawa State of Nigeria;

“Taxing Officer” means the Chief Registrar or such other officer of the Court as the Chief Judge may appoint to assess costs.

 

ORDER 2

FORM AND COMMENCEMENT OF ACTION

Mode of beginning Civil Proceedings

  1. Subject to the provision of any law, civil proceedings may be begun by writ, originating summons, originating motion or petition, as hereinafter provided.

Originating process to be tested by its date

  1. The Registrar shall indicate the date and time of presentation for filing on every originating process presented to him and shall arrange for service thereof to be effected.

Non alteration of originating process

  1. An originating process shall not be altered after it is issued with the leave of court.

Person filing originating process to leave sufficient copies with Registrar for service.

  1. The person filing any originating process shall leave at the registry sufficient number of copies together with the documents for service on the respondent(s).

 

ORDER 3

WRIT OF SUMMONS

Proceedings which must be begun by Writ

  1. Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings:

(a)     where a plaintiff claims:

(i)      any relief or remedy for any civil wrong 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.

  1. b) Where the claim is based on or includes an allegation of fraud, or
  2. c) Where an interested person claims a declaration.

Accompaniments of Civil Proceedings, begun by writ.

  1. (1) All civil proceedings commenced by writ of summons shall be accompanied by:

(a)     statement(s) of claim;

(b)     list of witness(es) to be called at the trial;

(c)     written statements on oath of the witness(es) and

(d)     copies of every document to be relied on at the trial.

(2)     where a plaintiff fails to comply with Rule 2 (1) above, the originating process shall not be accepted for filing by the registry.

Form of writ: Civil Form 1

  1. Except in the cases in which any different forms are provided in these Rules, the writ of summons shall be as in form 1 with such modifications or variations as circumstances may require.

Form of Writ for service out of Nigeria, civil form 2

 

  1. A writ of summons to be served out of Nigeria shall be as in Form 2 with such modifications or variations as circumstances may require.

Issuance of writ of summons by Judge

  1. A writ of summons shall be issued by a Judge, on application. The application shall ordinarily be made in writing by the plaintiff‟s solicitor but the Registrar or other officer of the court, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed by the applicant and issued by the Judge.

Alteration of writ

  1. Any alteration of a writ without leave of the Court shall render the writ void.

Uniting several causes of action in one suit

  1. A plaintiff may unite in the same suit several causes of action, but the Court if it thinks such causes of action, or some of them, one suit cannot be conveniently tried together, may order separate trials or may make such other order as may be necessary or expedient for the separate disposal thereof, and may make such other order(s) as to adjournment and costs as justice requires.

Consolidation of causes or matters

  1. Causes or matters pending in the same Court may by order of the Court be consolidated and the Court shall give such direction as may be necessary with respect to the hearing of the causes or matters so consolidated.

Service outside Nasarawa State: cap407LFN1990

  1. Subject to the provisions of the Sheriffs and Civil Process Act, a writ of summons issued by the Court for service in Nigeria outside the state shall be endorsed by the Registrar of the Court with the following notice- “This summons (or as the case may be) is to be served out of Nasarawa State of Nigeria and in the ………………… State”.

 

ORDER 4

ORIGINATING SUMMONS

Proceedings which may be begun by originating summons

  1. Proceeding may be begun by originating summons where –

(a)     the sole or principal question at issue is or is likely to be one of the construction of a written or of any instrument made under any written law, of any deed, will, contract or some other question of law; or

(b)     there is unlikely to be any substantial dispute of fact.

Judge not bound to determine any question of construction

  1. A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit.

Form of originating summons: civil form 3,4,5

  1. An originating summons shall be as in forms 3, 4 or 5 with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed shall be deemed to be issued upon the signature of the Judge.

Accompaniments of originating summons

  1. An originating summons shall be accompanied by:

(a)     An affidavit setting out the facts relied upon;

(b)     The exhibits to be relied upon;

(c)     A written address in support of the application.

 

ORDER 5

ORIGINATING MOTION

Proceedings which may be commenced by originating motion

 

1.1     Proceedings may be commenced by originating motion where by these rules or under any written law the proceedings in question are required or authorized to be so begun, but not otherwise.

1.2     Proceedings which may be commenced by originating motions include prerogative writs, fundamental rights enforcements and applications to set aside null orders or judgments.

Form of originating motion: civil form 7

  1. An originating motion shall be as in forms 7 with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed shall be deemed to be issued upon the signature of the Judge.

Accompaniment of originating motion

  1. An originating motion shall be accompanied by:

(a)     An affidavit setting out the facts relied upon;

(b)     The exhibits to be relied upon;

(c)     A written address in support of the application.

 

ORDER 6

PETITION

Proceedings which may be begun by petition

 

1.1     Proceedings may be commenced by petition where by these rules or under any written law the proceedings in question are required or authorized to be so begun, but not otherwise.

1.2     Proceedings which may be commenced by petitions include matrimonial causes, election petitions and any other proceedings or questions that are authorized to be so begun by a written law.

Form of petition: civil form 8

  1. A petition shall be as in Form 8 with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed shall be deemed to be issued upon the signature of the Judge.

Accompaniments of petition

  1. A petition shall be accompanied by:

(a)     A statement setting out the facts relied upon

(b)     Written statement(s) on oath of the witness(es)

(c)     A verifying affidavit of the petitioner;

(d)     The exhibits to be relied upon;

 

ORDER 7

Place of Instituting and Trial of Suits

Suits relating to land and property distrained or seized

  1. All suits relating to land or any mortgage or charge on or any interest in land, or any injury or damage to land and actions relating to personal property distrained or seized for any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distrain or seizure took place.

Suits for recovery of penalties, forfeitures and against public affairs

  1. All actions for recovery of penalties, forfeitures, and all actions against public officers shall be commenced and tried in the Judicial Division in which the cause of action arose.

Suits upon contract

  1. All suits for specific performance, or upon the breach of any contract, may be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.

Other suits

  1. (1) All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business.

(2)     Where there are several defendants who reside or carry on business in different Judicial Divisions, the suit may be commenced in any one 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.

Suits commenced in wrong Judicial Division

  1. If any suit is commenced in the wrong Judicial Division, it may be tried in that Division unless the Chief Judge otherwise directs.

 

ORDER 8

Indorsement of Claim and of Address

Indorsement

  1. Every originating process shall contain the claim, the relief or remedy sought and the full names and address of the plaintiff.

Indorsement to show representative capacity

  1. Where a plaintiff sues, or the defendant or any of several defendants is sued in a representative capacity, the originating process shall state that capacity.

Probate actions

 

  1. In probate actions the originating process shall state whether a plaintiff claims as creditor, executor, administrator, beneficiary, next of kin or any other capacity.

What is indorsed where the debt is liquidated

  1. (1) Where the claim is for debt or liquidated demand only, the originating process shall further state the amount claimed for debt or in respect of such demand with costs and shall further state that the defendant may pay the amount with costs to the plaintiff’s Legal Practitioner within the time allowed for appearance and that upon such payment the proceedings shall terminate.

(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 plaintiff‟s Legal Practitioner shall pay the costs of taxation.

Ordering account

  1. In all cases where a plaintiff in the first instance desires to have an account taken, the originating process shall so state.

Indorsement of address by plaintiff or by legal practitioner

  1. (1) A plaintiff suing in person shall state on the originating process his residential or business address as his address for service. If he lives and carries on business outside the jurisdiction he shall state within jurisdiction his address for service.

(2)     Where a plaintiff 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 Chambers address within the jurisdiction as his address for service.

Indorsement of address

  1. Where an originating process is to be served on a defendant outside the jurisdiction the process shall state the address required in Rule 6.

Originating process without an address or with fictitious address

  1. If the originating process does not state an address for service, it shall not be accepted and if any such address is illusory, fictitious or misleading the process may be set aside by a Judge on the application of the defendant.

 

ORDER 9

Effect of Non-Compliance

Non-Compliance with Rules

  1. (1) Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings.

(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 regularize 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 begun by an originating process other than the one employed.

Application to set aside for irregularity

  1. (1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2)     An application under this Rule may be made by summons or motion and the grounds or objection shall be stated in the summons or notice of motion.

 

ORDER 10

Issue of Originating Process

Preparing Originating process

  1. Originating process shall be prepared by a plaintiff or his Legal Practitioner, and shall be clearly printed on opaque A4 paper of good quality.

Sealing of Originating process

  1. (1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.

(2)     A plaintiff or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.

(3)     Each copy shall be signed by the Legal Practitioner or by a plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.

What is to be done after sealing

  1. The Registrar shall after sealing an originating process, file it and note on it the date of filing and the number of copies supplied by a plaintiff or his Legal Practitioner for service on the defendants. The Registrar shall then make an entry of the filing in the cause book and identify the action with a suit number that may comprise abbreviation of the Judicial Division, a chronological number and the year of filing.

Copies to be served

  1. The Registrar shall promptly arrange for personal service on each defendant of a copy of the originating process and accompanying documents duly certified as provided by Rule 2 (3) of this order.

Probate actions: affidavit with originating process

  1. The originating process in probate actions shall be accompanied by an affidavit sworn to by a plaintiff or one of several plaintiffs verifying the contents of the process.

Renewal of originating process: Civil Form 6

  1. (1) The life span of every originating process shall be 6 months.

(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 plaintiff 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 as in Form 6 with such modifications or variations as circumstances may require.

Indorsement of renewal

 

  1. A judge may order two renewals in each case strictly for good cause and upon prompt application, provided that no originating process shall be in force for longer than a total of 12 months. The Registrar shall state the fact, date, and duration of renewal on every renewed originating process.

Loss of originating process

  1. Where an originating process is lost after issue, a Judge, upon being satisfied of the loss and of the correctness of the process, may order the copy to be filed and sealed in place of the lost originating process.

Concurrent originating process

  1. A plaintiff may at the issuance of an originating process or at any time during its life span, cause to be issued one or more concurrent originating process each to bear the same date as the initial process marked „CONCURRENT‟ and have stated on it the date of issue.

Concurrent originating process for service within and out of jurisdiction

  1. An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process for service out of the jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.

 

ORDER 11

Service of Originating Process

By whom service is effected

 

  1. (1) Service of originating process shall be made by a Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officer of the court. The Chief Judge may also appoint and register any law Chambers, Courier Company or any other person to serve court processes and such person shall be called process server.

(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.

Service of originating process etc. how effected

  1. The process server shall serve an originating process by delivering to the party to be served personally a copy of the process duly certified as prescribed by Order 10 Rule 2 (3).

When originating process need to be served personally

  1. No personal service of an originating process shall be required where the defendant has authorized his Legal Practitioner in writing to accept service and such Legal Practitioner enters appearance. Provided that such written authority shall be attached to the memorandum of appearance filed by such Legal Practitioner.

Mode of service when not personal

  1. All processes in respect of which personal service is not expressly required by these Rules or any applicable law shall be sufficiently served if left with an adult person resident or employed at the address for service given under Order 8 Rule 6.

Substituted service

  1. (1) Where personal service of an originating process is required by these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the plaintiff make such order for substituted service as may seem just.

(2)     Every application to the Judge for substituted or other service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.

Persons under legal disability

  1. (1) Where a person under legal disability is a defendant, service on his guardian shall be deemed good and sufficient personal service, unless a Judge otherwise orders. Provided that personal service on a minor who is over 16 years of age living independently or doing business is good and sufficient.

(2)     The Judge may order that personal service on a person under legal disability shall be deemed good and sufficient.

Prisoner or detainee

  1. Where a detainee or prisoner is a defendant, service on the head or other officer in charge of the station, facility or prison where the defendant is, or an officer of the agency in charge of the station, facility or prison shall be deemed good and sufficient personal service on the defendant.

Partners

  1. Where persons are sued as partners in the name of their firm the originating process shall be served upon any one or more of the partners at the principal place of business within the jurisdiction or upon any person having control or management of the partnership business there; and such services shall be deemed good service upon the firm whether any of the members are out of the jurisdiction or not, and no leave to issue an originating process against them shall be necessary:

Provided that in the case of a partnership that has been dissolved to the knowledge of the plaintiff before the commencement of the action, the originating process shall be served upon every person within the jurisdiction sought to be made liable.

Corporation or company

  1. Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.

Foreign Corporation or Company: (Cap. 59 LFN 1990)

  1. When the suit is against a foreign corporation or company within the meaning of Section 54 of the Companies and Allied Matters Act having an office and carrying on business within the jurisdiction, and such suit is limited to a cause of action which arose within the jurisdiction, the originating process or other documents requiring personal service may be served on the principal officer or representative of such foreign corporation or company within the jurisdiction:

Provided that where a foreign company has complied with the provision of Chapter 3 of the Companies and Allied Matters Act, personal service shall be effected on one of the persons authorized to accept service on behalf of the said company.

Local agent of principal who is out of jurisdiction

  1. Where a contract has been entered into within the jurisdiction by or through an agent residing or carrying on business within the jurisdiction on behalf of a principal residing or carrying on business out of the jurisdiction, an originating process in an action relating to or arising out of such contract may, before the determination of such agent‟s authority or of his business relations with the principal, be served on such agent. A copy of the originating process shall be sent promptly by the plaintiff by courier to the defendant at his address out of the jurisdiction.

Where violence threatened

  1. Where a person to be served, whether alone or in concert with others, resists service or applies or threatens violence to the process server, the process server may leave the process within the reach of person to be served, and this shall be deemed good and sufficient service for all purposes.

Proof of service generally

  1. (1) After serving any process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit the acknowledgement of service.

(2)     After service the affidavit shall be prima facie proof of service.

Expenses of service

  1. (1) The party requiring service of any process shall pay in advance all costs and expenses of and incidental to service.

(2)     The rate for service shall be as directed by the Chief Judge by Notice from time to time.

Time of service on certain days

  1. (1) Service of originating and other processes, pleadings, notices, summons, orders, and documents whatsoever shall be effected between the hours of six in the morning and six in the evening.

(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.

Recording of service

  1. (1) A register shall be kept at the Registry in such form as the Chief Judge may direct for recording service of processes by any process server. The Registrar shall record therein the names of the plaintiff and defendant, the method of service, whether personal or otherwise, and the manner used to ascertain that the right person was served.

(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 of the matters stated therein.

 

ORDER 12

Service out of Nigeria and Service of Foreign Process

Cases where Service of originating process etc are allowed out of Nigeria

  1. A Judge may allow any originating or other process to be served outside Nigeria where:

(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 the 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 or 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 our of jurisdiction and

(iii)    which by its terms or by implication is to be governed by the applicable law in the 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 wherever 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

(i)      the claim is by a mortgagee 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 has been instituted by any originating process.

Agreement as to service

  1. Where parties have by their contract prescribed the mode or place of service, or the person that may serve or the person who may be served any process in any claim arising out of the contract, service as prescribed in the contract shall be deemed good and sufficient service.

Service abroad by letter of Request

  1. Where leave is granted to serve an originating process in any foreign country with which no convention in that behalf has been made, the following procedure may be adopted:

(a)     the process to be served shall be sealed with the seal of the court for service out of Nigeria, and shall be transmitted to the Solicitor General of the Federation by the Chief Registrar, together with a copy translated into the language of that country if not English, and with a request for its further transmission to the appropriate authority in that country. The request shall be as in Form 9 with such modifications or variations as circumstances may require;

(b)     a party wishing to serve a process under this Rule shall file a praecipe as in Form 10 with such modifications or variations as circumstances may require;

(c)     a certificate, declaration, affidavit or other notification of due service transmitted through diplomatic channels by a court or other appropriate authority of the foreign country, to the Court, shall be deemed good and sufficient proof of service;

(d)     where a certificate, declaration, affidavit or other notification transmitted as aforesaid states that efforts to serve a process have failed, a Judge may, on an ex parte application, order substituted service whereupon the process and a copy as well as the order for substituted service shall be sealed and transmitted to the Solicitor General of the Federation together with a request as in Form 11 with such modifications or variations as circumstances may require:

Provided that notwithstanding the foregoing provision a plaintiff 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, chooses in action, rights or property within the jurisdiction are sought to be dealt with or affected. The court may, without assuming jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

Where leave is granted or not required

  1. (1) where leave is granted or is not required in a civil suit and it is desired to serve any process in a foreign country with which a Convention in that behalf has been made, the following procedure shall, subject to any special provisions contained in the Convention, be adopted:

(a)     the party desiring such service shall file in the registry a request as in Form 12 with such modifications or variations as circumstances may require 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 documents and a translation thereof in the language of the country in which service is to be effected, certified by or on behalf of the person making the request, and a copy of each for every person to be served and any further copies which the Convention may require (unless the service is required to be made on a Nigerian subject directly through diplomatic channels in which case the translation and copies thereof need not accompany the request unless the Convention expressly requires that they should do so);

(c)     the documents to be served shall be sealed with the seal of the Court for use out of the jurisdiction and shall be forwarded by the Chief Registrar to the Permanent Secretary, Federal Ministry of Foreign Affairs for onward transmission to the foreign country;

(d)     an official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a Nigeria diplomatic agent to the Court, establishing the fact and the date of the service of the document, shall be deemed to be sufficient proof of service within the requirements of these Rules.

(2)     A Judge, in granting leave to serve a process out of Jurisdiction under this Order, may upon request therefore in appropriate cases direct that courier shall be used by the party effecting service.

Service of foreign process

  1. Where in any civil or commercial matter pending before a court or tribunal of a foreign country a Letter of Request from such court or tribunal for service on any person or citation in such matter is transmitted to the Court by the State Attorney-General with intimation that it is desirable that effect be given to the same, the following procedure shall be adopted:

(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 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 shall recommend to the Chief Judge for his approval whereupon he shall forward to the Attorney-General a letter of request for service, the approved amount for service, evidence and a certificate appended to it.

Inapplicable of Rule 4

  1. Rule 4 of this Order shall not apply to or render invalid, defective or insufficient any otherwise valid or sufficient mode of service in any foreign country with which a Convention has been made, provided that no mode of service expressly excluded by the Convention shall be allowed.

Service on behalf of Foreign Tribunals

  1. Where in any civil suit pending before a court or tribunal in a foreign country with which a Convention in that behalf has been made, request for service of any process or document on any person within the jurisdiction is received by the Chief Judge from the appropriate authority in that country, the following procedure shall, subject to any special provisions in the Convention, be adopted:

(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 submit 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.

Substituted service of foreign process

  1. In appropriate cases, upon application, a Judge may order substituted or other services of the foreign process.

 

ORDER 13

Appearance

Mode of entry of appearance: Civil Form 13

  1. (1) A defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copies of a duly completed and signed memorandum of appearance as in Form 13 with such modifications or variations as circumstances may require.

(2)     On receipt of the memorandum of appearance, the Registrar shall make entry thereof and stamp the copy with the seal showing the date he received it and return the sealed copy to the person making the appearance.

(3)     A defendant entering appearance in person shall not later than 5 Days thereafter serve through the High Court Registry, a sealed copy of the memorandum of appearance on a plaintiff‟s Legal Practitioner or on the plaintiff if he sues in person.

Department appearing in person or represented by Legal Practitioner

  1. (1) A defendant appearing in person shall state in the memorandum of appearance an address for service which shall be within the state.

(2)     Where a defendant appears by a Legal Practitioner, the Legal Practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within the 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.

Fictitious address

 

  1. The Registrar shall not accept any memorandum of appearance which does not contain an address for service. If any such address is illusory, fictitious or misleading, the appearance may be set aside by a Judge on the application of a plaintiff.

Defendants appearing through some legal practitioner

  1. If two or more defendants in the same action appear through the same Legal Practitioner the memorandum of appearance shall include the names of all defendants so appearing.

Late appearance

  1. If a defendant files an appearance after the time prescribed in the originating process, he shall pay to the Court an additional fee N200.00 (two hundred naira) for each day of default. If the defendant appears late but within the time prescribed for filing his defence, he shall file his defence within that time.

Intervener in probate matters

  1. In probate matters any person not named in the originating process may intervene and appear in the matter on filing an affidavit showing his interest in the estate of the deceased.

Recovery of land

  1. Any person not named as a defendant in an originating process for recovery of land may with leave of a Judge appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or through his tenant.

Landlord appearing

  1. Any person appearing to defend an action for the recovery of land as landlord, in respect of property of which he is in possession only through his tenant, shall state in his appearance that he appears as landlord.

Person under legal disability appearing

  1. A person under legal disability shall enter an appearance by his guardian.

Tenant

  1. In this Order the word “Tenant” includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise.

 

ORDER 14

Default of Appearance

Default of appearance by person under legal disability

  1. Where no appearance has been entered for a person under legal disability, a plaintiff shall apply to a Judge for an order that some person be appointed guardian for such defendant and when appointed the person may appear and defend. The application shall be made after service of the originating process. Notice of the application shall be served on the person intended to be appointed the guardian of the defendant.

Default of appearance generally

  1. Where any defendant fails to appear, a plaintiff may proceed upon default of appearance under the appropriate provisions of these rules upon proof of service of the originating process.

Liquidated demand

  1. Where the claim in the originating process is a liquidated demand and the defendant or all of several defendants fail to appear, a plaintiff may apply to a Judge for judgment for the claim on the originating process or such lesser sum and interest as a Judge may order.

Liquidated demand: Several defendants

  1. Where the claim in the originating process is a liquidated demand and there are several defendants of whom one or more appear to the process and another or others fail to appear, a plaintiff may apply to a Judge for judgment against those who have not appeared and may execute the judgment without prejudice to his right to proceed with the action against those who have appeared.

Judgment in default of appearance

  1. Where the claim in the originating process is for pecuniary damages, or for detention of goods with or without a claim for pecuniary damages, and the defendant or all of several defendants fail to appear, a plaintiff may apply to a Judge for judgment. The value of the goods and the damages or the damages only as the case may be shall be ascertained in such manner and subject to the filing of such particulars as a Judge may direct before judgment in respect of that part of the claim.

Several defendants

  1. Where the claim in the originating process is as in Rule 5 of this Order and there are several defendants, one or some of whom appear while another or others do not appear, a plaintiff may apply for judgment against the defendant(s) failing to appear. The value of the goods and the damages or the damages only as the case may be shall be ascertained in such a manner and subject to the filing of such particulars as a Judge may direct before judgment in respect of that part of the claim.

Detention of goods, damages and liquidated demand

  1. Where the claim in the originating process is for pecuniary damages or for detention of goods with or without a claim for pecuniary damages and includes a liquidated demand and any of the defendants fails to appear, a plaintiff may apply to a Judge for judgment. The value of the goods and the damages, or the damages only as the case may be shall be ascertained in such manner and subject to the filing of such particulars as a Judge may direct before judgment in respect of that part of the claim.

Recovery of land

  1. If no appearance is entered within the time prescribed in the originating process in a claim for recovery of land or if appearance is entered but the defence is limited to part only, a plaintiff may apply to a Judge for judgment stating that the person whose title is asserted in the originating process shall recover possession of the land, or of that part of it to which the defence does not apply.

Mesne profits

  1. Where in an originating process for recovery of land a plaintiff claims mesne profits, arrears of rent, damages for breach of contract or wrong or injury to the premises, he may apply for judgment as in Rule 8 of this Order for the land, and may proceed to prove the other claims.

Judgment for costs: upon payment, satisfaction etc

  1. In any case to which Rules 3-8 of this Order do not apply and the defendant or all of several defendants fail to appear, but by reason of payment, satisfaction, abatement of nuisance, or any other reason, it is unnecessary for a plaintiff to proceed, he may apply to a Judge for judgment for costs:

Provided that such application shall be filed and served in the manner in which service of the originating process was affected or in such manner as a Judge shall direct.

Setting aside judgment

  1. Where judgment is entered pursuant to any of the preceding Rules of this Order, a Judge may set aside or vary such judgment on just terms upon an application by the defendant. The application shall be made within six days, showing a good defence to the claim and a just cause for the default.

Default of appearance in actions not otherwise specifically provided for

  1. In all claims not specifically provided for under this Order, where the party served with the originating process does not appear within the time prescribed in the originating process, a plaintiff may proceed as if appearance had been entered.

Compulsory service

  1. Notice of any application under this Order shall be served on the other party.

 

ORDER 15

THE UNDEFENDEND LIST

Undefended list affidavit

  1. Whenever an application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter suit for hearing in what shall be called the “Undefenced List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.

Where plaintiff believes there is no defence

  1. Where a plaintiff believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment, which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof.

Delivery of extra copies

  1. A plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are defendants.

Documents to accompany defence of suit

  1. Where a party served with the processes and documents referred to in Rule 2 of this Order intends to defend the suit he shall, not later than the time prescribed for defence, file:

(a)     his statement of defence,

(b)     deposition of his witnesses,

(c)     exhibits to be used in his defence; and

(d)     a written brief in reply to the application for summary judgment.

Where defendant has good defence, or has no good defence or has good defence to part of the claim

  1. (1) Where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.

(2)     Where it appears to a Judge that the defendant has no good defence the Judge may thereupon enter judgment for the plaintiff.

(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 claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.

Where defendant intends to defend

  1. Where there are several defendants and it appears to a Judge that any of the defendants has a good defence and ought to be permitted to defend the claim and other defendants have no good defence and ought not be permitted to defend, the former may be permitted to defend and the Judge shall enter judgment against the latter.

Where there are several defendants

  1. Where provision is made for written briefs under Rules, each party shall be at liberty to advance before a Judge oral submission of not more than ten minutes to expatiate his written brief.
  2. Oral submission on written brief

 

ORDER 16

Application for Account

Order for account

  1. Where in an originating process a plaintiff seeks an account under Order 8 Rules 5 or where the claim involves taking an account, if the defendant either fails to appear, or after appearance fails to satisfy a Judge that there is a preliminary question to be tried, the Judge shall, on application make an order for the proper accounts, with all necessary inquiries and directions.

Application how made

  1. An application for account shall be supported by an affidavit filed on a plaintiff‟s behalf, stating concisely the grounds of his claim to an account. The application may be made at any time after the time prescribed for defence.

Account may be taken by a judge or referee

  1. Where an order is made for account under this Order, the account may be taken by a Judge or a Referee appointed by the Judge.

 

ORDER 17

Parties Generally

Person claiming jointly or severally

  1. All persons may be joined in one action as plaintiffs in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such plaintiff(s) as may be found to be entitled to relief and for such relief as he or they may be entitled to, without any amendment.

Action in name of wrong plaintiff

  1. Where an action has been commenced in the name of the wrong person as plaintiff or where it is doubtful whether it has been commenced in the name of the right plaintiff, a judge may order the substitution or addition of any other person as plaintiff on such terms as may be just.

Misjoinder and counterclaim

  1. Where in commencing an action any person has been wrongly or improperly included as a plaintiff and a defendant has set up a counterclaim or set-off, such defendant may establish his set-off or counterclaim as against the parties other than a plaintiff so included, notwithstanding the inclusion of such plaintiff or any proceeding based thereon.

Any person may be joined as defendant

  1. Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

Action in name of wrong defendant

  1. Where an action has been incorrectly stated a Judge may upon application order a substitution or addition of any person as defendant or correction of any such name on any term as may be just.

Defendant need not be interested in all the relief sought

 

  1. (1) It shall not be necessary that every defendant shall be interested as to all the reliefs prayed for, or as to every cause of action included in any proceeding against him.

(2)     A Judge upon considering the defence filed by any defendant may on application by that defendant make such order as may appear just to prevent him from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

Joinder of persons severally or jointly and severally liable

  1. A plaintiff may at his opinion join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

Plaintiff in doubt as to persons from whom redress is to be sought

  1. Where a plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that the question as to which, if any, of the defendant is liable and to what extent, may be determined as between all parties.

Persons under legal disability

  1. Person under legal disability may sue by their guardian or defend by guardians appointed for that purpose.

Guardian

  1. Where any person’s name is to be used in any action as guardian of a person under legal disability or other party or as relator, a written authority for that purpose signed by that person shall be filed in the registry.

Trustees, executors etc, may be sued as representing the estate

  1. Trustees, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such person, but a Judge may, at any stage of the proceedings order any of such persons to be made parties in addition to or in lieu of the previously existing parties. This Rule shall apply to trustees, executors and administrators in proceedings to enforce a security by foreclosure or otherwise.

Numerous persons

  1. (1) Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.

(2)     Where there are numerous persons having the same interest in one suit and they seek to defend the action, a Judge may allow one or more of such persons to defend the action on behalf or for the benefit of all persons so interested.

Representation of persons or classes of persons in certain proceedings

  1. (1) Where in any proceedings concerning:

(a)     the administration of an estate or

(b)     property subject to a trust or

(c)     land held under customary law as family or community property or

(d)     the construction of any written instrument, including a statute, 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 may 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 owing community.

Power to approve compromise

  1. Where in any proceedings mentioned in sub-Rule (1) of Rule 13 of this Order, a compromise is proposed and some of the absent persons who are interested in or may be affected by the compromise are not parties to the proceedings (including unborn or unascertained persons) but where:

(i)      there are some other persons having the same interest before the Court who assent to the compromise or on whose behalf the court sanctions the compromise or

(ii)     the absent persons are represented by a person under Rule 13 of this Order who so assents;

a Judge if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that such compromise shall be binding on the absent persons, and they shall be found accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.

Where there is personal representative

  1. (1) If in any proceedings it appears to a Judge that any deceased person who was interested in the proceedings has no legal personal representative, the Judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for the purpose of the proceeding, on such notice to such persons (if any) as the Judge shall deem fit, either specifically or generally by public advertisement, and the order so made and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceedings.

(2)     Where a sole or sole surviving plaintiff or defendant in a proceedings dies and the cause of action survives but the person entitled to proceed fails to proceed, a Judge may on the application of either the deceased‟s Legal Practitioner or the opposing party order any person to take the place of the said deceased and proceed with the suit.

(3)     In default of such application or where the person substituted fails to proceed, judgment may be entered for the defendant, or as the case may be for the person against whom the proceedings might have been continued.

Proceedings not defeated by misjoinder or nonjoinder

  1. (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.

(2)     A Judge may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Judge to be just, order that the names of any parties improperly joined be struck out.

(3)     A Judge may order that the names of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added.

(4)     No person under legal disability shall be added as a plaintiff suing without a guardian and no person shall be added as a guardian of a plaintiff 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.

Application to add or strike out

  1. (1) Any application to add or strike out or substitute or vary the name of a plaintiff or defendant may be made to a Judge by motion.

(2)     Where the application is to add a plaintiff 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.

Where defendant is added

  1. Where a defendant is added or substituted the originating process shall be amended accordingly and the plaintiff shall unless otherwise ordered by a Judge file an amended originating process and cause the new defendant to be served in the same manner as the original defendant.

Third parties may be joined by any of the parties

  1. (1) Where it appears to a Judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the Judge may upon an ex parte application allow that person to be joined as a Third Party by any of the defendants. The application shall state the grounds for the applicant‟s belief that such Third Party may bear eventual liability.

(2)     The order and existing processes shall be served on the Third Party within the time prescribed for delivering the defence.

Appearance by third party

  1. Where a party is joined to any proceedings as a Third Party he may after service enter appearance within 8 days or within 30 days if he resides or carries on business outside jurisdiction or within such further time as a Judge may order.

Default by third party

  1. If a Third Party duly served with the order and all existing processes does not enter an appearance or makes default in filing any pleading, he shall be deemed to admit the validity of and shall be found by any judgment given in the action, whether by consent or otherwise.

Subsequent third party

  1. A party joined as a Third Party in any proceedings may join any other party in the same manner as he was joined and the expression “Third Party” shall apply to and include every person so joined.

Claim against co-defendant

  1. A Defendant may in his pleading make a claim against a co-defendant.

Actions by and against firms

  1. Any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firms, if any, of which they were partners when the cause of action arose and any party to an action may in such case apply to the Judge for a statement of the names and addresses of the persons who were partners in the firm when the cause of action arose, to be furnished in such manner, and verified on oath or otherwise as the Judge may direct.

Disclosure of partners‟ names

  1. (1) When an originating process is issued by partners in the name of their firm, the plaintiffs or their Legal Practitioners shall, on demand in writing by or on behalf of any defendant declare in writing the names and residential addresses of all the persons constituting the firm on whose behalf the action is brought.

(2)     Where the plaintiffs 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 plaintiffs in the originating process provided that the proceedings may continue in the name of the firm.

Appearance of partners

  1. (1) Where persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent proceedings shall continue in the name of the firm.

(2)     Where an originating process is served upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued.

Application to Rules to actions between co-partners

  1. The above Rules in this Part shall apply to proceedings between a firm and one or more partners and between firms having one or more partners in common, provided such firm or firms carry on business within the jurisdiction.

Persons trading as firms

  1. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.

Actions to abated where cause of action survives

  1. No proceedings shall abate by reason of death or bankruptcy of any of the parties, if the cause of action survives and shall not become defective by the assignment, creation or devolution of any estate or title pendent lite, and, whether the cause or action survives or not, there shall be no abatement by reason of the death of either party between the finding on issues of fact and judgment, but judgment may in such case be entered notwithstanding the death.

Order to carry on proceedings

  1. (1) Where by reason of death or bankruptcy, or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the proceeding, it becomes necessary or desirable that any person not already a party should be made a party or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and such new party or parties may be obtained ex parte upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence.

(2)     An order obtained under this Rule shall be served upon the continuing party or parties, or their Legal Practitioner(s) and also upon such new party unless the person making the application is the new party.

(3)     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 original party in the proceedings.

In case of assignment, creation or devolution of estate or title

  1. In case of an assignment, creation or devolution of any estate or title pendent lite, the cause or matter may be committed by or against the person to or upon whom such estate or title has come or developed.

Application to discharge order by person under disability having a guardian

  1. Where any person who is under no legal disability or being under any legal disability but having a guardian in the proceedings is served with an order under Rule 30, such person may apply to a Judge to discharge or vary such order at any time within 14 days from the service of the order.

Persons under disability having no guardian

  1. Where any person under any legal disability and not having a guardian in the proceedings is served with an order under Rule 30, such a person may apply to a Judge to discharge or vary such order at anytime within 14 days has expired, such order shall have no force or effect as against the person under legal disability.

Acts may be done by legal practitioner or agent.

  1. Where by these Rules any act may be done by any party in any proceedings, such act may be done either by the party in person, or by his Legal Practitioner, or by his agent (unless an agent is expressly barred under these Rules).

 

ORDER 18

Joinder of Causes of Action

All causes of action may be joined

  1. Subject to the following Rules of this Order, the plaintiff may unite in the same action several causes of action; but if it appears that they cannot be conveniently tried or disposed of together a Judge may order separate trials of any such causes of action or may make such order as may be necessary or expedient for the separate disposal thereof.

Recovery of land

  1. (1) An action for recovery of land may be joined with an action for declaration of title, mesne profits or arrears of rent, damages for breach of any contract under which the land or any part thereof is held, or for any wrong or injury to the premises.

(2)     An action for foreclosure or redemption may be joined with a claim for delivery of possession of the mortgaged property and a claim for payment of principal money or interest secured by or any other relief in respect of the mortgage of or charge on such land.

Executor and administrator

  1. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.

Claims by joint plaintiffs

  1. Claims by plaintiff jointly may be joined with claims by them or any of them separately against the same defendant.

 

ORDER 19

Pleadings

Filing of pleadings

  1. (1) A statement of claim shall include the relief or remedy to which a plaintiff claims to be entitled.

(2)     A defendant shall file his statement of defence, set off or counterclaim, if any, not later than 21 days after service on him of the plaintiff‟s originating process and accompanying documents. A counterclaim shall have the same effect as a cross action, so as to enable the court pronounce a final judgment in the same proceedings. A set-off must be specifically pleaded.

(3)     A plaintiff shall within 14 days of service of the statement of defence and counterclaim if any, file his reply, if any, to such defence or counterclaim:

Provided that where a defendant sets up a counterclaim, if a plaintiff or any other person named as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent proceeding, a Judge may at any time order that such counterclaim be excluded.

Pleadings to state material facts and not evidence

 

  1. Every pleading shall contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary be divided into paragraphs numbered consecutively. Dates, sums and numbers shall be expressed in figures. Pleadings shall be signed by a Legal Practitioner or by the party if he sues or defends in person.

Particulars to be given where necessary

  1. (1) In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases, in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings.

(2)     In an action for libel or slander if the plaintiff 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.

Further and better statement or particulars

  1. An application for a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading requiring particulars shall be made to a Judge at the first pre-trial conference. The Judge may grant such application upon such terms as may be just.

Denial

  1. (1) Every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.

(2)     A general denial in any pleadings shall not operate as denial of any specific fact in the pleadings of the opposing party.

Conditions precedent

  1. Each party shall specify distinctly in his pleadings any condition precedent, the performance or occurrence of which is intended to be contested.

Defence, certain facts raising surprise, to be specifically pleaded

  1. (1) All grounds of defence or reply which make an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the pleadings shall be specifically pleaded.

(2)     Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.

Pleadings to be consistent

  1. No pleading shall raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

Joinder of issue

  1. A party may by his pleadings join issues upon the pleadings of the opposing party and such joinder of issues shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined except any fact which the party may be willing to admit.

Effects of documents to be stated

  1. Wherever the contents of any documents are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

Notice

  1. Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred are material.

Implied contract or relation

  1. Wherever any contract or any relation between any persons is to be implied from a series of letters of conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. If in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

Presumptions of law

  1. A party may not allege in any pleadings any matter or fact the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied.

Stated or settled account

  1. In every case in which the cause of action is a stated or settled account the same shall be alleged with particulars but in every case in which a statement of account is relied on by way of evidence or admission or any other cause of action which is pleaded, the same shall not be alleged in the pleadings.

Technical objection

  1. No technical objection shall be raised to any pleading on the ground of any alleged want of form.

Striking out of pleadings

  1. A Judge may at the pre-trial conference in any proceedings order to be struck out or amended, any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action; and may in any such case, if the Judge shall deem fit, order costs of the application to be paid as between Legal Practitioner and client.

Defamation

  1. (1) Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

(2)     Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privileged occasion, the plaintiff 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 action for libel or slander the defendant alleges that in so far as the words complained of consist of statement of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the facts and matters he relies on in support of the allegation that the words are true.

Where pleading discloses no reasonable cause of action

  1. (1) The Judge may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:

(a)     it discloses no reasonable cause of action or defence, as the case 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 (1)(a).

(3)     This Rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, 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.

Close of pleading

  1. (1) Where a pleading subsequent to reply is not ordered, then, at the expiration of 7 days from the service of the defence or reply (if a reply has been filed) pleadings shall be deemed closed.

(2)     Where a pleading subsequent to reply is ordered, and the party who has been ordered or given leave to file the same fails to do so within the period limited for that purpose, then, at the expiration of the period so limited the pleadings shall be deemed closed:

Provided that this Rule shall not apply to a defence to counterclaim and unless the plaintiff 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 plaintiff to file a defence to counterclaim.

 

ORDER 20

Statement of Claim/Defence and Counter Claim/Reply

Statement of claim

  1. (1) Every statement of claim, defence or counterclaim shall state specifically the relief claimed either singly or in the alternative, and it shall not be necessary to ask for general or other relief, which may be given as a Judge may think just as if it had been asked for.

(2)     Where the plaintiff 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.

Claim beyond indorsement

  1. Whenever a statement of claim is filed, the plaintiff may alter, modify or extend his claim without any amendment of the indorsement of the writ:

Provided that the plaintiff may not completely change his cause of action indorsed on the writ without amending the writ.

Statement of defence

  1. The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath.

Evasive denial

  1. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but answer the point of substance, if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

Denials generally

  1. (1) In an action for debt or liquidated demand in money, a mere denial of the debt shall not be sufficient defence.

(2)     In an action for money had and received a defence in denial must deny the receipt of the money or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

(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 dishonor of the bill or note.

Persons in representative capacity

  1. If either party wishes to deny the right of any other party to claim as executor, or a trustee or in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically.

Pleading to damages

  1. No denial or defence shall be necessary as to damages claimed or their amount; they are deemed to be in issue in all cases, unless expressly admitted.

Set off and counterclaim

  1. Where any defendant seeks to rely upon any ground as supporting a right of set-off or counterclaim, he shall in his defence state specifically that he does so by way of supporting a right of set off or counterclaim.

Title of counterclaim

  1. Where a defendant by his defence sets up any counter-claim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all persons who, if such counterclaim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period which he is required to deliver it to the plaintiff.

Claim against person not party: Civil Form 14

  1. Where any such person as in Rule 7 of this Order is not a party to the action he shall be summoned to appear by being served with a copy of the defence and counterclaim, and such service shall be regulated by the same rules as those governing the service of the originating process, and every defence and counterclaim so served shall be indorsed as in Form 14 with such modifications or variations as circumstances may require.

Appearance by added parties

  1. Any person not already a party to the action, who is served with a defence and counterclaim as aforesaid, must appear thereto as if he had been served with an originating process to appear in an action.

Defence to counterclaim

  1. Any person not already a party to the action, who is named in a defence as a party to a counterclaim thereby made, shall deliver a defence in a mode and manner prescribed under this Order and the provisions of the Order shall apply to such a person.

Discontinuance of the plaintiff’s claim

  1. If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

Judgment for balance

  1. Where in an action, a set off or counterclaim is established as a defence against the plaintiff’s claim, the Judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

Grounds of defence after action brought

  1. (1) Any ground of defence which arises after the action has been filed, but before the defendant has delivered his defence, and before the time limited for doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence.

(2)     If after a defence has been delivered along with a set-off or counterclaim, any basis for answer or ground of defence arises to any such set-off or counterclaim respectively, it may be raised by the plaintiff in his reply (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.

Further defence or reply

  1. Where any ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired the defendant may, and where any ground of defence to any set-off or counterclaim arises after reply, or after the time limited for delivery of a reply has expired, the plaintiff may, within 8 days after such ground of defence has arisen or at any subsequent time by leave of a Judge deliver a further defence or further reply, as the case may be setting forth the same.

Concession to defence: Civil Form 15

  1. Whenever any defender in his defence or in any further defence pursuant to Rule 14 of this Order alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may concede to such defence (which concession may be as in Form 15 with such modification as circumstances may require) and may thereupon obtain judgment up to the time of the pleading of such defence, unless the Judge either before or after the delivery of such concession otherwise orders.

Defence to originating summons

  1. A respondent to an originating summons shall file a counter affidavit together with all the exhibits the intends to rely upon and a written address within 21 days after service of the originating summons.

Filing of reply

  1. Where the plaintiff desires to makes a reply, he shall file it within 14 days from the service of the defence.

Reply to counterclaim

  1. Where a counterclaim is pleaded, a reply thereto is called a defence to counterclaim and shall be subject to the rules applicable to defences.

 

ORDER 21

Admissions

Notice of admission of facts

  1. Any party to a proceeding may give notice by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

Notice to admit document

  1. (1) Either party may, not later than 7 days before the first pre-trial conference, by notice in writing filed and served, require any other party to admit any document and the party so served shall not later than 4 days after service give notice of admission of the document, failing which he shall be deemed to have admitted it unless a Judge otherwise orders.

(2)     When a party decides to challenge the authenticity of any document, he shall not later than 7 days of service of that document give notice that he does not admit the document and requires it to be proved at the trial.

(3)     Where a party gives notice of non-admission and the document is proved at the trial, the cost of proving the document 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.

Notice to admit facts

  1. (1) Either party may not later than 7 days before the first pre-trial conference by notice in writing filed and served require any other party to admit any specific fact or facts mentioned in the notice, and the party so served shall not later than 4 days after service give notice of admission or non-admission of the fact or facts failing which he shall be deemed to have admitted it unless a Judge otherwise orders.

(2)     Any admission made pursuant to such notice shall be deemed to be made only for the purpose of that particular proceeding and not as an admission to be used against the party or any other party giving the notice.

(3)     Where there is a 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, shall pay cost to the State, calculated at not less than N100.00 per day for the days the failure lasts, 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.

Judgment or order upon admission of facts

  1. The Judge may, on application, at a pre-trial conference or at any stage of the proceedings where admissions of facts have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.

Costs of notice where documents are unnecessary

  1. Where a notice to admit or produce comprises documents that are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

 

ORDER 22

Default of Pleading

Claim for debt or liquidated demand

  1. If the claim is only for a debt or liquidated demand, and the defendant does not within the time allowed for the purpose, file a defence, the plaintiff may, at the expiration of such time, apply for final judgment for the amount claimed with costs.

Several defendants: default of one

  1. When in any such action as in Rule 1 of this Order there are several defendants, if one them makes default as mentioned in Rule 1 of this Order, the plaintiff may apply for final judgment against the defendant making default and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants.

Damages and detention of goods

  1. If the plaintiff’s claim be for pecuniary damages or for detention of goods with or without a claim for pecuniary damages only, and the defendant or all the defendants, if more than one, make default as mentioned in Rule 1 of this Order, the plaintiff may apply to a Judge for interlocutory judgment against the defendant or defendants and the value of the goods and the damages, or the damages only as the case may be, shall be ascertained in any way which the Judge may order.

Default of one or more defendants

  1. When in any such action as in Rule 3 of this Order there are several defendants, if one or more of them make default as mentioned in Rule 1 of this Order, the plaintiff may apply to a Judge for interlocutory judgment against the defendant or defendants so making default and proceed with his action against the others. In such case the value and amount of damages against the defendant making default shall be assessed at the trial of the action or issues therein against the other defendants, unless the Judge shall otherwise order.

Debt or damages and detention of goods or damages

  1. Where the claim is for debt or liquidated demand and also for pecuniary damages or for detention of goods with or without a claim for pecuniary damages and includes a liquidated demand and any defendant makes default as mentioned in Rule 1, the plaintiff may apply to a Judge for final judgment for the debt or liquidated demand, and may also apply for interlocutory judgment for the value of the goods and damages, or the damages only as the case may be, and proceed as mentioned in Rule 3 and 4.

Recovery of land

  1. In an action for the recovery of land, if the defendant makes default as mentioned in Rule 1, the plaintiff may apply for a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land with his costs.

Claim for mesne profits, arrears or damages

  1. Where the plaintiff has indorsed a claim for mesne profits or arrears of rent in respect of the premises claimed, or any part of the profits, or damages for breach of contract or wrong or injury to the premises claimed upon a writ for the recovery of land, if the defendant makes default as mentioned in Rule 1, or if there be more than one defendant, some or one of the defendants make such default, the plaintiff may apply for final judgment against the defaulting defendant(s) and proceed as mention in Rules 3 and 4.

Where a defence is filled to part of claim only

  1. If the plaintiff’s claim is for a debt or liquidated demand or for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages or for any such matters, or for the recovery of land, and the defendant files a defence which purports to offer an answer to part only of the plaintiff’s alleged cause of action, the plaintiff may apply for a judgment, final or interlocutory, as the case may be, for the part unanswered;

Provided that the unanswered part consists of a separate cause of action or is severable from the rest, as in the case of part of a debt or liquidated demand:

Provided also that where there is a counterclaim, execution on any such judgment as above mentioned in respect of the plaintiff claim shall not issue without leave of the Judge.

Defendant in default

  1. In all actions other than those in the preceding Rules of this Order, if the defendant makes default in filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.

One of several defendants in default

  1. Where in any such action as mentioned in Rule 9 of this Order, there are several defendants, if one of such defendants makes such default as aforesaid, the plaintiff may apply for judgment against the defendant so making default, and proceed against the other defendants.

Default of third party

  1. In any case in which issues arise in a proceeding other than between plaintiff and defendant, if any party to any such issue makes default in filing any pleading, the opposite party may apply to a Judge for such judgment, if any as upon the pleadings he may appear to be entitle to and the judge may order judgment to be entered accordingly or may make such other order as may be necessary to do justice between the parties.

Setting aside judgment by default

  1. Any judgment by default whether under this Order or under any Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the court may deem fit.

 

ORDER 23

Payment into and out of Court

Payment into and out court

  1. (1) Where after service in any proceeding for debt or damages, a defendant envisages an intention to pay money into court in respect of the proceeding, he shall notify the Chief Registrar who will thereupon direct him to pay the money into an interest yielding account in a commercial bank and he shall file the teller for such payment with the Chief Registrar.

(2)     Where a teller for payment is filed with the Chief Registrar, he shall forthwith give notice of the payment to the plaintiff who may apply to a Judge for an order to withdraw the amount so paid.

(3)     Where a defence of tender before action is set up, the sum of money alleged to have been tendered shall be brought into court.

(4)     The defendant may without leave give a written notice to the Registrar of an intention to increase the amount of any sum paid into court.

(5)     Where the money is paid into Court in satisfaction of one or more of several causes of action, the notice shall specify the cause or causes of action in respect of which payment is made and the sum paid in respect of each such cause of action unless a Judge otherwise directs.

(6)     The notice shall be as in Form 16 with such modifications or variations as circumstances may require. The receipt of the notice shall be acknowledged in writing by the plaintiff within 3 days. The notice may be modified or withdrawn or delivered in an amended form by leave of a Judge upon such terms as may be just.

(7)     Where money is paid into Court with denial of liability the plaintiff 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.

Plaintiff may take out money: Civil Form 17

  1. (1) Where money is paid into Court under Rule 1, the plaintiff may within 14 days of the receipt of the notice of payment into Court, or where more than one payment into Court has been made, within 14 days of the receipt of the notice of the last payment into Court, accept the whole sum or any one or more of the specific sum in satisfaction of the cause or causes of action to which the specified sum or sums relate by giving notice to the defendant in Form 17 with such modifications or variations as circumstances may require and thereupon shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.

(2)     Payment shall be made to the plaintiff 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 plaintiff 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 into court, and 48 hours after taxation may sign judgment for his taxed costs.

(4)     Where in an action for libel or slander, the plaintiff 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.

Money remaining in Court

  1. If the whole of the money in court is not taken out under Rule 2, the money remaining in court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in pursuance of an order of a Judge which may be made at any time before, at or after trial.

Several defendants

  1. (1) Money may be paid into court under Rule 1 of this Order by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants.

(2)     If the plaintiffs 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 defendant pays money into court, the plaintiff may within 14 days elect to accept the sum paid into court in satisfaction of his claim against the defendant making the payment and shall give notice to all the defendants as in Form 18 with such modifications or variations as circumstances may require. The plaintiff may tax his costs against the defendant who has made such payment in accordance with Rule 2(3) of this Order and the actions shall abate against that defendant.

(5)     The plaintiff 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 plaintiff against the defendant or defendants against whom the action is continued.

Counterclaims

  1. A person made a defendant to a counterclaim may pay money into court in accordance with the foregoing Rules, with necessary modification.

Person under legal disability

  1. (1) In any proceeding in which money or damages is or are claimed by or on behalf of a person under legal disability suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into court, whether before, at or after the trial, shall as regards the claims of any such person be valid without the approval of a Judge.

(2)     No money (which expression for the purpose 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 plaintiff or to the guardian of the plaintiff or to the plaintiff‟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 plaintiff 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 plaintiff’s Legal Practitioner in respect of costs or of the difference between party and party and Legal Practitioner and client costs.

Payment into and withdrawal of money from court

  1. Every application or notice for payment into or transfer out of Court shall be made on notice to the other side.

 

ORDER 24

Proceedings in Lieu of Demurrer

Demurrer abolished

  1. No demurrer shall be allowed.

Points of law may be raised by pleadings

  1. (1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.

(2)     If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such decision as may be just.

ORDER 25

Discontinuance

Plaintiff may discontinue before defence

  1. (1) The plaintiff may at any time before receipt of the defence or after the receipt thereof, before taking any other step in the action, by notice in writing duly filed and served, wholly discontinue the claim against all or any or 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 plaintiff 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 plaintiff‟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.

Withdrawal by consent

  1. When a cause is ready for trial, it may be withdrawn by either plaintiff or defendant upon producing to the Registrar a consent in writing signed by the parties and thereupon a Judge shall strike out the matter without the necessity of attendance of the parties or their Legal Practitioners.

 

ORDER 26

Amendment

Amendment of originating process and pleadings

  1. A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before the close of the case.

Application

  1. Application to amend may be made to a Judge. Such application shall be supported by an exhibit of the proposed amendment and may be allowed upon such terms as to costs or otherwise as may be just.

Amendment of originating process

  1. Where any originating process and or a pleading is to be amended a list of any additional witness to be called together with his written statement on oath and a copy of any document to be relied upon consequent on such amendment shall be filed with the application.

Failure to amend after order

  1. If a party who has obtained an order to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within 7 days from the date of the order, such party shall pay an additional fee of N200.00 (two hundred naira) for each day of default.

Filing and service of amendment to be displayed

  1. Whenever any originating process or pleading is amended, a copy of the document as amended shall be filed in the Registry and additional copies served on all the parties to the action.

Clerical mistakes and accidental omissions

  1. Whenever any endorsement or pleading is amended, it shall be marked in the following manner:

“Amended ……………………….. day of ……………….. pursuant to Order of (name of Judge) dated the …………… day of ………………………..”

General power to amend

  1. A Judge may at anytime correct clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission upon application, without an appeal being filed.
  2. Subject to the provisions of Rule 1 of this Order, a Judge may at any time and on such terms as to costs or otherwise as may be just; amend any defeat or error in any proceedings.

 

ORDER 27

Pre-Trial Conference and Scheduling

Pre-trial conferences and scheduling

  1. (1) Within 14 days after close of pleadings, the plaintiff shall apply for the issuance of a pre-trial conference Notice as in Form 19.

(2)     Upon application by a plaintiff under sub-Rule 1 above, the Judge shall cause to be issued to the parties or their Legal Practitioners (if any) a pre-trial conference notice as in Form 19 accompanied by a pre-trial information sheet as in Form 20 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)     If the plaintiff(s) do(es) 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 strike out the action.

Scheduling and planning

  1. At the pre-trial conference, the Judge shall enter a Scheduling Order for:

(a)     joining other parties;

(b)     amending pleadings or any other processes;

(c)     filing motions;

(d)     further pre-trial conferences;

(e)     any other matter(s) appropriate in the circumstances of the case.

Agenda

  1. At the pre-trial conference, the Judge shall consider and make appropriate order(s) with respect to such of the following (or aspects of them) as may be necessary or desirable;

(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 participation at pre-trial conference or in any other manner;

(f)      hearing and determination or objections on point of law;

(g)     giving orders or directions for separate trial of claim, counterclaim, 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;

(i)      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.

Timetable

  1. The pre-trial conference or series of pre-trial conferences with respect to any case shall be completed within 3 months of its commencement, and the parties and their Legal Practitioners shall co-operate with the Judge in working within this time table. As far as practicable, pre-trial conferences shall be held from day to day or adjourned only for purposes of compliance with pre-trial conference orders, unless extended by the Chief Judge.

Report

  1. After a pre-trial conference or series of pre-trial conferences, the Judge shall issue a Report. This Report shall guide the subsequent course of the proceedings unless modified by the trial Judge.

Sanctions

  1. If a party or his Legal Practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith the Judge shall:

(a)     in the case of the plaintiff 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 6 days of the judgment 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.

Management

  1. The Judge shall direct the pre-trial conference with due regard to its purpose and agenda as provided under this Order, and shall require parties or their Legal Practitioners to co-operate with him effectively in dealing with the conference agenda.

Reference to mediation

  1. (1) Where, in the circumstances of a particular case or matter, a Judge is of the view that justice may best be served by so doing, the Judge in his discretion may refer the case to the Mediation Centre or for settlement out of Court.

(2)     Where a case was referred to the Mediation Centre by the Court, the notice of failure to reach an agreement shall be reported to the Court by the Mediator whereupon the Court may either extend time for mediation or vacate the order of stay of proceedings and proceed with the trial of the dispute.

 

ORDER 28

Discovery and Inspection

Discovery by interrogatories

  1. (1) In any cause or matter the plaintiff or defendant may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the end of it stating which of the interrogatories each person is required to answer. Interrogatories shall be delivered within 7 days of close of pleadings and shall form part of the agenda of pre-trial.

Interrogatories: Civil Form 21

  1. Interrogatories shall be as in Form 21 with such modifications or variations as circumstances may require.

Corporation or companies

  1. If any party to a cause or matter is a limited or unlimited company, body corporate, firm, enterprise, friendly society, association or any other body or group of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may deliver interrogatories to any member or officer of such party.

Objection to interrogatories by answer

  1. Any objection to answering any one or more of several interrogatories on the ground that it is or they are scandalous or irrelevant may be taken in the affidavit in answer at the pre-trial conference.

Affidavit in answer: filing of

  1. Interrogatories shall be answered by affidavit to be filed within 7 days, or within such other time as the Judge may allow, Two copies of the affidavit in answer shall be supplied to the Registrar.

Form of affidavit in answer: Civil Form 22

  1. An affidavit in answer to interrogatories shall be as in Form 22 with such modifications or variations as circumstances may require.

Order to answer or answer further

  1. If any person interrogated omits to answers or answer insufficiently, the pre-trial Judge shall on application issue an order requiring him to answer or to answer further as the case may be.

Application for discovery of documents

  1. (1) Any party may in writing request any other party to any cause or matter to make discovery on oath of the documents that are or have been in his possession, custody, power or control, relating to any matter in question in the case. Request for discovery shall be served within 7 days of close of pleadings and shall form part of the agenda of pre-trial conference. The party on whom such a request is served shall answer on oath completely and truthfully within 7 days of the request or within such other time as the Judge may allow and it shall be dealt with at pre-trial conference.

(2)     Every affidavit in answer to a request for discovery of documents shall be accompanied by office copies of documents referred to therein.

(3)     The affidavit to be made by 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 as in Form 23 with such modifications or variations as circumstances may require.

Processes filed after pre-trial conference

  1. (1) Any process to be filed after the pre-trial conference shall be accompanied by copies of documents referred to in the  process.

(2)     Where a process filed is not accompanied by a document referred to therein a Judge may on application strike out the process.

Verification of business books

  1. (1) Where any document required to be attached to any process or produced under this or any other rule is a business book a Judge may upon application order copy of any entry therein to be furnished and verified in an affidavit. Such affidavit shall be made by a person who keeps the book or under whose supervision the book is kept.

(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.

Attachment of party after service on legal practitioner

  1. An order for interrogatories or discovery or inspection made against any party if served on his Legal Practitioner shall be sufficient service to found an application for committal of a party for disobedience to the order.

Attachment of legal practitioner

  1. A Legal Practitioner upon whom an order against any party for interrogatories or discovery or inspection is served under the preceding Rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to committal.

Using answers to interrogatories at trial

  1. Any party may, at the trial of a cause, matter or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer:

Provided that the Judge may look at the whole of the answers and order that any of them may be put in.

Discovery against sheriff

  1. In any action against or by a Sheriff in respect of any matter connected with the execution of his office, a Judge may, on application of either party, order that the affidavit to be made in answer either to interrogatories or to any order for discovery shall be made by the officer actually concerned.

Order to apply to person under legal disability

  1. This Order shall apply to persons under legal disability and their guardians.

 

ORDER 29

Issues, Inquiries, Accounts and References to Referees

Issues of facts

  1. (1) In all proceedings, issues of facts in dispute shall be defined by each party and filed within 7 days after close of pleadings.

(2)     If the parties differ on the issues the pre-trial Judge may settle the issues.

Reference to referee

  1. In any legal proceeding the Judge may at any time order the whole cause or matter or any question or issue of facts arising therein, to be tried before an official referee or officer of the court, notwithstanding that it may appear that there is a special or other relief sought or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.

Instructions to referee

  1. In any case in which a matter is referred to a referee the Court shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties if necessary to attend upon the referee during the inquiry.

General power of referee

  1. The referee may, subject to the order of the Judge, hold the inquiry at or adjourn it to any place which he may deem most expedient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall, so far as practicable, proceed with the inquiry from day to day.

Evidence

  1. (1) Subject to any order made by the Judge ordering the inquiry, evidence shall be taken at any inquiry before a referee, and the attendance of witnesses to give evidence before a referee may be enforced by the Judge in the same manner as such attendance may be enforced before the Court; and every such inquiry shall be conducted in the same manner or as nearly as circumstances will admit as trials before a Court.

(2)     The referee shall have the same authority in the conduct of any inquiry as a Judge when presiding at any trial.

(3)     Nothing in these Rules shall authorize any referee to commit any person to prison or to enforce any order by attachment or otherwise; but the Judge may, in respect of matters before a referee, make such order of attachment or committal as he may consider necessary.

Reports made in pursuance of reference under order

  1. (1) The report made by a referee in pursuance of a reference under this Order shall be made to the Judge and notice thereof served on the parties to the reference.

(2)     A referee may by his report submit any question arising therein for the decision of the Judge or make a special statement of facts from which the Judge may draw such inferences as he deems fit.

(3)     on the receipt of a referee’s report, the Judge may;

(a)     adopt the report in whole or in part;

(b)     vary the report;

(c)     require an explanation from him;

(d)     remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee;

(e)     decide the question or issue originally referred to him on the evidence taken before him, either with or without additional evidence.

(4)     When the report of the referee has been made, an application to vary the report or remit the whole or any part of the question or issue originally referred may be made on the hearing by the Judge for the further consideration of the cause or matter, after giving not less than 4 days notice thereof and any other application with respect to the report may be made 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 and the foregoing provisions of this Rule shall have effect subject to any such directions.

Special directions as to mode of taking account

  1. The Judge may order or direct an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account, the books of accounts in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of their contents, with liberty to the interested parties to object.

Accounts be to verified by affidavit, numbered and left in the Registry

  1. Where any account is directed to be taken, the accounting party shall make out his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by affidavit as an exhibit and left in the Registry.

Mode of Vouching accounts

  1. Upon the taking of any account the Judge may direct that the voucher be produced at the chambers of the accounting party’s Legal Practitioner or at any other convenient place and that only such items as may be contested or surcharged shall be brought before the Judge.

Surcharge

  1. Any party seeking to charge any accounting party beyond what he has by his account admitted to have received shall give notice to the accounting party, stating so far as he is able, the amount sought to be charged with particulars.

Accounts and inquiries to be numbered: Civil Form 24

  1. Where by any judgment or order any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered so that as far as may be, each distinct account and inquiry may be designated by a number and such judgment or order shall be as in Form 24 with such modifications or variations as the circumstances of the case may require.

Just allowances

  1. In taking any account directed by any judgment or order, all just allowances shall be made without any direction for that purpose.

Expediting proceedings in case of undue delay

  1. If it shall appear to the Judge that there is any undue delay in the prosecution of any proceedings, the Judge may require the party having the conduct of the proceedings or any other party, to explain the delay and may thereupon make such order with regard to expediting the proceedings or the conduct thereof, or the stay thereof and as to the costs of the proceedings as the circumstances of the case may require; and for the purposes aforesaid, any party may be directed to summon the persons whose attendance is required, and to conduct any proceeding and carry out any directions which may be given.

 

ORDER 30

Special Case

Special case by consent

  1. At the pre-trial conference parties may concur in stating the questions of law arising in their case in the form of a special case for the opinion of the Judge. Every such special case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions. Upon the argument of such case the Judge and the parties may refer to all the contents of such documents and the Judge may draw from the facts and documents stated in any such special case, any inference, whether of fact or law, which might have been drawn from them if proved at a trial.

Special case by order before trial

  1. If at the pre-trial conference it appears to the Judge that there is in any cause or matter a question of law, which could be conveniently decided before any evidence is given or any question or issue of fact is tried, the Judge may make an order accordingly, and may raise such questions of law or direct them to be raised at the trial either by special case or in such other manner as the Judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

Special case to be signed

  1. Every special case agreed pursuant to Rule 1 shall be signed by the several parties or their Legal Practitioners and shall be filed by the plaintiff or other party having conduct of the proceedings.

Application to set down where a person under disability is a party

 

  1. An application to set down a special case in any cause or matter to which a person under legal disability is a party shall be supported by sufficient evidence that the statements contained in such case, so far as the same affects the interest of such person’s legal disability are true.

Agreement as to payment of money and costs

  1. (1) The parties to a special case may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, that on the judgment of the court being given in the affirmative or negative on the questions of law raised by the special case, a sum of money fixed by the parties or to be ascertained by the Court or in such manner as the Court may direct, shall be paid by one of the parties to the other either with or without costs as the case may be.

(2)     The judgment of the court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed or unless stayed on appeal.

Application of order

  1. This Order shall apply to every special case stated in a cause or matter and in any proceedings incidental thereto.

ORDER 31

Cause Lists

Lists of causes for hearing

 

  1. (1) The Registrar shall keep a list (hereinafter called the Pre-Trial List) of actions directed to be set down for pre-trial conference under Order 25 Rule 3.

(2)     The Registrar shall also keep a Weekly Cause List of all other actions which are ready for trial or hearing.

Pre-trial and weekly cause lists

  1. (1) The Registrar shall post up every Friday a Pre-Trial and Weekly Cause List which shall set out the arrangement of causes before the Judge sitting in Court during the following week.

(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.

Public cause list

  1. Where any Friday is a public holiday, the Pre-Trial List and Weekly caused list shall be posted up on the day last preceding which is not a public holiday.

Judge unable to sit 4.     On any day when a Judge shall be unable to sit in Court and deal with any cause or matter fixed for hearing, a minute, recording the parties present and the step taken by the Registrar, shall be entered on the Court file.

Notice board

  1. Pre-Trial Lists and Weekly Cause Lists and other such lists shall be posted up on one or more notice boards set up in such place or places within or near the Court premises as the Chief Judge may designate.

 

ORDER 32

Proceedings At Trial

Non-appearance of both parties

  1. When a cause on the Weekly Cause List has been called for hearing and neither party appears, the Judge shall, unless he sees good reason to the contrary, strike the cause out.

Default of appearance by defendant at trial

 

  1. When a cause is called for hearing if the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.

Default of appearance by plaintiff

  1. When a cause is called for hearing, if the defendant appears and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but if he has a counterclaim, then he may prove such counterclaim, so far as the burden of proof lies upon him.

Judgment by default may be set aside on terms

4        (1)     Where a cause is struck out under Rule 1 of this Order either party may apply that the cause be re-listed on the cause list on such terms as the Judge may deem fit.

(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)     An application to re-list a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such other larger period as the Judge may allow.

Adjournment of trial

  1. The Judge may, if he thinks it expedient in the interests of justice, postpone or adjourn a trial for such time and upon such terms, if any, as he shall deem fit.

Times of commencement and termination of trial

  1. The Registrar or other proper officer present at any trial or hearing shall make a note of the times at which the trial or hearing commences and terminates respectively and the time it actually occupies on each day it goes on for communication to the Assessing Officer if required.

Order of proceeding

  1. The order of proceedings at the trial of a cause shall be as prescribed in these Rules.

Burden of proof on party to begin

  1. The party on whom the burden of proof lies by the nature of the issues or questions between the parties shall begin.

Documentary evidence

  1. Documentary evidence shall be put in and may be read or taken as read by consent.

Additional witness

  1. (1) A party who desires to call any witness not being a witness whose deposition on oath accompanied his pleading shall apply to the Judge for leave to call such witness.

(2)     An application for leave on sub-Rule 1 above shall be accompanied by the deposition on oath of such witness.

Close of case of parties

  1. (1) A party shall close his case when he has concluded his evidence. Either the plaintiff 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.

Exhibits during trial

  1. (1) The Registrar shall take charge of every document or object put in as an exhibit during the trial of an action and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in (or where more convenient the witness by whom the exhibit is proved) and with a number, so that all the exhibits put in by a party (or proved by a witness) are numbered in one consecutive series.

(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.

Written address by party beginning

  1. When the party beginning has concluded his evidence, the Judge shall ask the other party if he intends to call evidence. If the other party does not intend to call evidence, the party beginning shall within 21 days after close of evidence file a written address. Upon being served with the written address, the other party shall within 21 days file his own written address.

Written address by the other party

  1. Where the other party calls evidence he shall within 21 days after the close of evidence file a written address.

Written address of party beginning

  1. Upon being served with the other party‟s written address the party beginning shall within 21 days file own written address.

Right of reply

  1. The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within 7 days after service of the other party‟s address.

Custody of Exhibit after trial

  1. (1) An exhibit shall not be released after the trial to the party who has put it in unless the period during which notice of appeal may be given has elapsed without such notice having been given, and then only if the trial Judge (or in his absence, another Judge) grants leave to release such exhibit on being satisfied:

(a)     that the exhibit will be kept duly marked and labeled and will be produced, if required, at the hearing of an appeal (if any such appeal is lodged), or

(b)     that the release of the exhibit will not in any way prejudice any other party.

(2)     After a notice of appeal has been filed, an exhibit produced at the trial shall not be released by the High Court unless leave to release such exhibit is granted by the Court of Appeal.

Office copy of lists of exhibits

  1. (1) Any party may apply for and on payment of the prescribed fee obtain an office copy of the list of exhibits.

(2)     Where there is an appeal an office copy of the list of exhibits shall be included amongst the documents supplied for the purpose of the appeal.

Indorsement prosecution

  1. A Judge may, suo motu or on application strike out any proceedings not being prosecuted diligently.

 

ORDER 33

Filing of Written Address

Application

  1. This Order shall apply to all applications and final addresses.

Content of written address

 

  1. A written address shall be printed on white opaque A4 size paper and set out in paragraphs numbered serially and shall contain:

(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 citation of each such authority.

Summation of address

  1. A written address, shall be concluded with a numbered summary of the points raised and the party‟s prayer. A list of all authorities referred to shall be submitted with the address. Where any unreported judgment is relied upon the Certified True Copy shall be submitted along with the written address.

Oral argument

  1. During adoption oral argument of not more than ten minutes shall be allowed for each party.

Copies of written address

  1. Each party shall file two copies of his written address in court and serve a copy thereof on every party ORDER 34

ORDER 34

Evidence Generally

Facts how proved 

  1. (1) Subject to these Rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open court.

(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.

Particular facts

  1. (1) A Judge may, at or before the trial of an action, order or direct that evidence or any particular fact be given at the trial in such manner as may be specified by the order or direction.

(2)     The power conferred by Sub-Rule 1 of this Rule extends in particular to ordering or directing that evidence of any particular fact be given at the trial:

(a)     by statement on oath of information or belief;

(b)     by the production of documents or entries in books;

(c)     by copies of documents or entries in books; or

(d)     in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.

Limitation of medical and expert evidence

  1. A Judge may, at or before the trial of an action order or direct that the number of expert witnesses who may be called at the trial be limited as specified by the order or direction.

Limitation on use of documentary evidence

  1. Unless, at or before trial, a Judge for special reasons otherwise orders or directs, no document, plan, photograph or model shall be receivable in evidence at the trial of an action unless it has been filed along with the pleadings of the parties under these Rules.

Revocation and variation

  1. Any order or direction under this Order may, on sufficient cause being shown, be removed or varied by a subsequent order or direction of a Judge made or given at or before the trial.

Office copies admissible in evidence

  1. Office copies of all writs, processes, records, pleadings, and documents filed in the High Court shall be admissible in evidence in all matters to the same extent as the original would be admissible.

Examination of witnesses abroad

  1. Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country with which a Convention in that behalf has been made, the following procedure shall be adopted:

(a)     the party obtaining such order shall file in the Registry an undertaking as in Form 25 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 as 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 where necessary;

(iii)    a copy of the cross-interrogatories (if any) with a translation where necessary.

Form of order for examination of witnesses abroad: Civil Form 27

  1. Where an order is made for the examination of a witness or witnesses before Nigerian Diplomatic Agent in any foreign country with which Convention in that behalf has been made the order shall be as in Form 27, the form may be modified or varied as may be necessary to meet the circumstances of the particular case in which it is used.

Order for attendance of person to produce document

  1. The Judge may at any stage of any proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order:

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.

Disobedience to order for attendance

  1. Any person willfully disobeying any order requiring his attendance for the purpose of being examined or producing any document shall be in contempt of court, and may be dealt with accordingly.

Expenses of persons ordered to attend

  1. Any person required to attend for the purpose of being examined or of producing any document, shall be entitled to payment by the person summoning him, for expenses, and loss of time occasioned by his attendance.

Contempt of court

  1. If any person duly summoned by subpoena to attend for examination and refuses to attend or if having attended, refuses to be sworn or to answer any lawful question shall be in contempt of court and may be dealt with accordingly.

Examination of witnesses

  1. When the examination of any witness before any examiner under Rule 7 above shall have been conducted, the original depositions authenticated by the signature of the examiner, shall be transmitted by him to the registry and filed.

Depositions not be given in evidence without consent or by leave of a judge

  1. Except where by this Order otherwise provided or directed by a Judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Judge is satisfied that the deponent is dead or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the hearing or trial, in any of which case the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to such certificate.

Oaths

  1. Any officer of the Court or other person directed to take the examination of any witness or person or any person nominated or appointed to take examination of any witness or person pursuant to the provisions of any Convention with any foreign country, may administer oaths.

Attendance of witness under subpoena for examination or to produce documents

  1. A party may by subpoena ad testificadum or duces tecum require the attendance of any witness before an officer of the court or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used in any proceeding in the cause or matter shall be bound on being so subpoenaed to attend before such officer or person for cross-examination.

Practice as to taking of evidence at any stage of cause or matter

  1. The practice with reference to the examination, cross-examination and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage.

Special directions as to taking of evidence

  1. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case.

Evidence in proceedings subsequent to trial

  1. Subject to the provisions of Section 34 of the Evidence Act, all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

Form of praecipe of a subpoena: Civil Form 28

  1. Where it is intended to issue out a subpoena a praecipe for that purpose as in Form 26 containing the name or firm and the place of business or residence of the Legal Practitioner intending to issue out the same, and where such Legal Practitioner is an agent only, then also the name or firm and place of business of residence of the principal Legal Practitioner, shall in all cases be delivered and filed at the Registry. No subpoena shall be issued unless all court fees have been paid (including fee for service) and unless sufficient conduct money on the prescribed scale is deposited to cover the first day‟s attendance.

Form of subpoena: Civil Form 29, 30, 31

  1. A subpoena shall be as in one of Forms 29, 30, or 31 with such variations as circumstances may require.

Subpoena for attendance of witness in chambers

  1. Where a subpoena is required for the attendance of a witness for the purpose of proceedings in Chambers, such subpoena shall issue from the Registry upon the Judge’s directive.

Correction of errors in subpoena

  1. In the interval between the issue and service of any subpoena the Legal Practitioner issuing it may correct any error in the names of parties or witnesses, and may have the writ resealed upon leaving a corrected praecipe of the subpoena marked with the words “altered and resealed”, with the signature, name and address of the Legal Practitioner.

Personal service of subpoena

  1. A subpoena shall be served personally unless substituted service has been ordered by a judge in a case where a person persistently evades service. The provisions of Order 7 shall so far as possible apply to service and proof of service of a subpoena.

Duration of subpoena

  1. Any subpoena shall remain in force from the date of issue until the trial of the action or matter in which it is issued.

Action to perpetuate testimony

  1. Any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity or office, or to any estate or interest in any property, real or personal the right or claim to which cannot be brought to trial by him before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim.

Examination of witnesses to perpetuate testimony

  1. A witness shall not be examined to perpetuate his testimony unless an action has been commenced for that purpose.

Action not to be set down for trial

  1. No action to perpetuate the testimony of a witness shall be set down for trial.

 

ORDER 35

Affidavits

Evidence on motions, etc

  1. Upon any motion, petition, summons, or other application, evidence may be given by affidavit, but the Judge may, suo motu or on application, order the attendance for cross-examination of the deponent and where, after such an order has been made the person in question does not attend, his affidavit shall not be used as evidence save by special leave.

Title of affidavit

 

  1. Every affidavit shall bear the title in the cause or matter in which it is sworn but in every case in which there is more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs or defendants, as the case may be.

Use of defective affidavit

  1. The Judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by mis-description of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that has been so received.

Special time for filing affidavits

  1. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Judge.

Affidavits in support of ex parte applications

  1. Except by leave of the Judge no order made ex-parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was based, was made before the order was applied for, and produced or filed at the time of making the application.

Notice of intention to use affidavit

  1. The party intending to use any affidavit in support of any application made by him shall give notice to the other parties concerned except made exparte.

Alterations in accounts to be initiated

  1. Every alteration in any account verified by affidavit shall be marked with the initials of the commissioner before whom the affidavit is sworn and such alterations shall not be made by erasure.

Exhibits

  1. Accounts, extracts from registers, particulars of creditors‟ debt, and other documents referred to by affidavit, shall not be annexed to the affidavit or referred to as annexed, but shall be referred to as exhibits.

Certificate of exhibit

  1. Every certificate on an exhibit referred to in an affidavit signed by the commissioner before whom the affidavit is sworn shall be marked with the short title of the cause or matter.

Application of Evidence Act (Cap. 112 LFN 1990)

  1. The provisions of sections 78 to 90 of the Evidence Act which set out provisions governing affidavits shall be applicable under these Rules.

 

ORDER 36

Non-Suit

Power of Court to non-suit

  1. Where satisfactory evidence is not given entitling the plaintiff or defendant to the judgment of the Court, the Judge may suo motu or on application non-suit the plaintiff, but the parties‟ Legal Practitioners shall have the right to make submissions about the propriety or otherwise of making such order.

Non-suit where no leave

  1. The Judge may upon a motion for a new trial or review of judgment, order a non-suit or judgment to be entered, although no leave has been reserved at the trial.

 

ORDER 37

Judgment, Entry of Judgment

Delivery of judgment at or after trial

  1. The Judge shall, at the pre-trial conference or after trial, deliver judgment in open court, to be entered and shall direct judgment to be entered.

Date of judgment pronounced in Court

  1. Where any judgment is pronounced by a Judge the judgment shall be dated as of the day on which such judgment is pronounced and shall take effect from that date unless the Judge otherwise orders.

Date of judgment directed to be entered

  1. When any judgment is directed to be entered by an order made on application, for judgment, the judgment shall, unless the Judge otherwise orders, be dated as of the day on which the order is made and take effect from that date:

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.

Judgment may direct time for payment or

  1. The Judge at the time of making any judgment or order or at any time afterwards, may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order, or from some other point of time, as the Judge deems fit and may order interest at a rate not less than 10% per annum to be paid upon any judgment.

Time to be stated for doing any act: Memorandum to be indorsed

  1. Every judgment or order made in any cause or matter requiring any person to do an act shall state the time or the time after service of the judgment or order, within which the act is to be done; there shall be indorsed on the judgment or order a memorandum by the Registrar in the following words, viz:

“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.

Judgment by consent where defendant appears by a Legal Practitioner

  1. In any cause or matter the defendant has appeared by Legal Practitioner, no order for entering judgment shall be made by consent by the defendant or by himself, his Legal Practitioner or representative.

Judgment by consent where defendant has no legal practitioner

  1. Where the defendant has no Legal Practitioner such order shall not be made unless the defendant gives his consent in person in open court.

 

ORDER 38

Drawing up of Orders

Date of order, when drawn

  1. Every order shall bear the date on which it was made, unless the Judge otherwise directs and shall take effect accordingly.

What orders need not be drawn up

  1. Where an order has been made not embodying any special terms, not including any special directions, but simply enlarging time for taking any proceeding or doing any act or giving leave for

(a)     the issue of any writ other than a writ of attachment;

(b)     the amendment of any writ or pleading;

(c)     the filing of any document; or

(d)     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 in any cause or matter shall not be deemed to be a special direction within the meaning of this Rule.

Form of orders

  1. An order shall be sealed, and shall be marked with the name of the Judge by whom it is made.

 

ORDER 39

Transfers and Consolidation

Order transferring proceedings to High Court

  1. Where the Chief Judge has in exercise of any powers conferred on him by any relevant law, ordered the transfer of any action or matter from a lower court to the High Court, a copy of the order duly certified by the Registrar shall forthwith be sent to the Registrar of the lower court and the latter shall forthwith transmit to the High Court the documents referred to in the relevant law and other necessary documents and processes.

Payment of filing fees

  1. (1) On receipt by the court of the relevant documents and processes, the Registrar shall notify the party who applied for the transfer, or where the transfer was not made on the application of any party, the plaintiff, to attend at the Registry and pay the fees for filing the document. Such payment shall be without prejudice to the question or how the costs shall ultimately be borne.

(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.

Duties of Registry

  1. (1) The Registrar shall on payment of the prescribed fees, in any case not later than 7 days:

(a)     file the documents received from the Lower Court;

(b)     make an entry of the filing in the Cause Book; and

(c)     transmit the documents to the Chief Judge or such other Judge appointed by the Chief Judge.

(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 filing as provided by Rule 2 of this Order.

Directions

  1. (1) The Chief Judge or such other judge appointed by him shall, not later than 14 days after receiving the documents referred to in Rule 3 of this Order:

(a)     hear the parties or their Legal Practitioners‟

(b)     take cognizance of the documents; and thereafter;

(c)     give directions for the trial or hearing of the action or matter.

(2)     Directions given under this Rule may include directions for the filing and service of pleadings.

Sale of property in possession of Court

 

  1. (1) If the plaintiff fails to attend in compliance with a notice given under sub-Rule 2 of Rule 3 of this Order, the Judge shall record his default and may, suo motu or on application, strike out the action or matter. Upon an application by a defendant to dismiss the action or matter, the Judge may either strike the action or matter upon such terms as may be just or make such other order on such terms as he deems fit.

(2)     If the defendant fails or all of several defendants fail to attend in compliance with a notice given under sub-Rule 2 of Rule 3, the plaintiff may apply for judgment with costs or obtain the order prayed for in the transferred proceedings.

Order for recovery of specific property other than land subject to lien etc

  1. In the preceding Rule of this Order, the reference to the plaintiff and the defendant shall, in relation to proceedings commenced otherwise than by writ, be construed as references to the applicant and the respondent.

Allowance of income of property pendente lite.

  1. (1) The Judge may on application consolidate several actions pending before him where it appears that the issues are the same in all the actions, and can therefore be properly tried and determined at the same time.

(2)     Where actions are pending before different Judges, a party desiring consolidation shall first apply to the Chief Judge 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 plaintiff and the same defendant or between the same plaintiff and different defendants or between different plaintiff and the same defendant or between different plaintiff and different defendants:

Provided that where the same plaintiff 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 expense of the party or parties who applied for consolidation and shall be recorded in the Cause Book.

 

ORDER 40

Interlocutory Orders, etc.

Preservation or interim custody of subject matter of disputed contract

  1. (1) When by any contract a prima facie case of liability is established and there is alleged as a manner of defence a right to be relieved wholly or partially from such liability, a Judge may make an order for the preservation or interim custody of the subject – matter of the litigation or may order that the amount in dispute be brought into Court or otherwise secured.

(2)     An application for an order under Rule 1 sub-Rule 1 of this Order may be made by the plaintiff at any time after his right thereto appears from the pleadings.

Early trial of cause

  1. Whenever an application shall be made before trial for an injunction or other order and on the opening of such application, or at any time during the hearing thereof, it shall appear to the Judge that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application, it shall be lawful for the Judge to make an order for such trial accordingly and in the meantime to make such order as the justice of the case may require.

Order for sale of perishable goods, etc.

  1. The Judge may upon the application of any party make any order for the sale by any person or persons named in such order and in such manner and on such terms as the Judge may deem desirable, of any goods, wares, or merchandise which may be of a perishable nature, or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to sell at once.

Detention, preservation or inspection of property, the subject of an action

  1. (1) A Judge may upon the application of any party to an action or matter and upon such terms as may be just, make any order for the detention, preservation or inspection of any property or thing, being the subject of such action or matter or as to which any question may arise therein, and for all or any of the purposes aforesaid authorize any person(s) to enter upon or into any land or building in the possession of any party in such action or matter, and for all or any of the purposes aforesaid authorize any samples to be taken or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.

(2)     Where an order for the inspection of any property or thing is made on an application under this Rule (including an 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 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.

Sale of property in possession of court

  1. (1) Where any property is in possession of the court either before or after judgment and it has remained so for a period of 12 months, a Judge may suo motu make an order for the sale of that property and the proceeds thereof to be paid into an interest yielding account in a commercial bank directed by the Judge for the benefit of the person that succeeds at the trial or on appeal.

(2)     The money paid after disposal of any goods or chattel shall be withdrawn from the bank by the Chief Registrar upon the presentation of a certified true copy of the enrolled judgment and paid to the successful party with any interest accrued thereon.

Order for recovery of specific property other than land subject to lien, etc.

 

  1. Where an action or counterclaim is filed to recover specific property and the party from whom such recovery is sought does not dispute title but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the Judge may at the pre-trial conference order that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed and such further sum, if any, for interest and costs as the Judge may direct and that upon such payment into Court being made, the property claimed be given up to the party claiming it.

Allowance of income of property pendent lite

  1. Where any real or personal estate or property forms the subject of any proceedings and the Judge is satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceedings, the Judge may at any time after the commencement of the proceedings, allow the parties interested therein or any one or more of them, the whole or part of the annual income of the real estate or a part of the personal estate or property or the whole or part of the income thereof, up to such time as the Judge shall direct.

Injunction against repetition of wrongful act for breach of contract

  1. In any action or matter in which an injunction has been or might have been claimed, the plaintiff may, before or after judgment, apply for an injunction to restrain the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of or from the commission of any injury relating to the same property or right or arising out of the same contract and the Judge may grant the injunction either upon or without terms as may be just.

Appointment of a receiver by way of equitable execution

  1. In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Judge in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver and to the probable costs of his appointment and may if the Judge deem fit, directs any inquiries on these or other matters before making the appointment.

Receivers, security and remuneration: Civil Forms 32,33

  1. Where an order is made directing a receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give security, to be approved by the Judge, duly to account for what he shall receive as such receiver, and to pay the same as the Judge shall direct; and the person so to be appointed shall, unless otherwise ordered be allowed a proper salary or allowance. The security to be given shall be by guarantee or by an undertaking as in Forms 32 and 33 with such variations as circumstances may require. The undertaking shall be filed in the Registry and form part of the record of proceedings until it has been duly vacated.

Where receiver appointed in court: Adjournment to give security

  1. Where any judgment or order is pronounced or made in court appointing a person therein named to be receiver the Court may adjourn the preceding then pending, in order that the person named as receiver may give security as in the last preceding Rule mentioned, and may thereupon direct such judgment or order to be drawn up.

Fixing days for receivers to leave and pass their accounts and pay in balances and neglect of receiver

  1. When a receiver is appointed with a direction that he shall pass accounts, the Judge shall fix the days upon which he shall (quarterly or at shorter periods) leave and pass such accounts, and also the days upon which he shall pay the balances appearing due on the accounts so left, or such part of them as shall be certified as proper to be paid by him. With respect to any such receiver as neglects to leave and pass his accounts and pay the balances at the times fixed for the purpose as aforesaid, the Judge may from time to time, when his subsequent accounts are produced to be examined and passed, disallow the salary claimed by such receiver and may also charge him with interest at a rate not exceeding twenty-five percent per annum upon the balances so neglected to be paid by him during the time the same appears to have remained in his hands.

Form of receivers‟ accounts: Civil Form 34

  1. Receivers‟ accounts shall be as in Form 34 with such variations as circumstances may require.

Leaving account at Registry: Civil Form 35

  1. Every receiver shall deliver to the Registrar his account, together with an affidavit verifying the same as in Form 35 with such variations as circumstances may require. An appointment shall thereupon be obtained by the plaintiff or person having the conduct of the action for the purpose of passing such account.

Consequences of default by receiver

  1. Where any receiver fails to leave any account or affidavit or to pass such account or to make any payment or otherwise, the receiver or the parties or any of them, may be required to show cause why such account failed or such payment was not made or any other proper proceedings not taken and thereupon such directions as shall be proper may be given, including the discharge of any receiver and appointment of another and payment of costs.

Passing of guardians‟ accounts

  1. The accounts of guardians shall be passed and verified in the same manner as is by this Order directed as to receiver’s accounts.

 

ORDER 41

Motions & Other Applications

Application by motion

 

  1. (1) Whereby these Rules any application is authorized to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.

(2)     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. And where he fails thereby, may only be heard in oral arguments on points of law only for ten minutes only.

When notice of motion should be given

  1. (1) Except where an application ex-parte is required or permitted under any law or rules, every motion shall be on notice to the other party.

(2)     No application for an injunction shall be made ex-parte unless the applicant files with it a motion on notice in respect of the application.

(3)     An order of 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 ex-parte if he is satisfied that the motion on notice has been served and that such extension 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; provided that the respondent may apply to discharge or vary the ex parte order upon good grounds shown.

Motion on arbitral award

  1. (1) Every motion on notice to set aside, remit or enforce an arbitral award shall state in general terms the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of an affidavit intended to be used shall be served with the notice of motion.

(2)     The party relying on an award, on applying for its enforcement, shall supply:

(a)     the duly authenticated original award of a duly certified copy thereof;

(b)     the original arbitration agreement or a duly certified copy thereof.

(3)     An award made 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 any time within 6 weeks after such award 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.

Special leave

  1. Unless a Judge grants special leave to the contrary, there shall be at least 2 clear days between the service of all processes in respect of a motion and the day named in the notice for hearing the motion.

Motions may be dismissed or adjourned where necessary notice not given

  1. If on the hearing of a motion or other application the Judge is of the opinion that any person to whom notice has not been given ought to have had such notice, the Judge may either strike out the motion or on application adjourn the hearing thereof, in order that such notice may be given upon such terms, if any, as the Judge may deem fit.

Adjournment of hearing

  1. The hearing of any motion or application may from time to time be adjourned upon such terms, if any as the Judge shall deem fit.

Service of motion with writ

  1. A plaintiff may file any application along with an originating process and may serve both on any defendant simultaneously. Provided that the application for adjournment at the request of a party shall not be made more than two times.

Account by Legal Practitioner

  1. Where the relationship of Legal Practitioner and client exists or has existed, a summons may be issued by the client or his representative for the delivery of a cash account or the payment of moneys or the delivery of securities, and a Judge may from time to time order the respondent to deliver to the applicant a list of the moneys or securities which he has in his custody or control on behalf of the applicant or to bring into court the whole or any part of the same, within such time as the Judge may order. In the event of the respondent alleging that he has a claim for costs, the Judge may make such provision for the taxation and the payment or security thereof or the protection of the respondent’s lien (if any) as he may deem fit.

Interim certificate

  1. If during the taxation of any bill of costs or the taking of any account between Legal Practitioner and client, it shall appear to the taxing officer that there must, in any event be moneys due from the Legal Practitioner to the client, the taxing officer may from time to time make an interim certificate as to the amount so payable by the Legal Practitioner. Upon the filing of such certificate, a Judge may order the moneys so certified to be forthwith paid to the client or brought into Court.

 

ORDER 42

Application for Judicial Review

Case appropriate for application for judicial review

  1. An application for:

(a)     an order of mandamus, prohibition or certiorari; or

(b)     an injunction restraining a person from acting in any office in which he is not entitled to act shall be made by way of an application for judicial review in accordance with the provisions of this Order.

(2)     An application for a declaration or an injunction (not being an injunction 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.

Joinder of claims for relief

  1. On an application for judicial review any relief mentioned in Rule 1 may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of, relates to or is connected with the same matter.

Grant of leave to apply for judicial review

  1. (1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this Rule.

(2)     An application for leave shall be made ex-parte to 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 in support of motion

(c)     an affidavit verifying the facts relied on, and

(d)     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 of the application or until the Judge otherwise orders;

(b)     if any other relief is sought, the Judge may at any time grant in the 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.

Time within which to bring application

 

  1. An application for judicial review shall be brought within 3 months of the date of occurrence of the subject of the application.

Mode of applying for judicial review

  1. (1) When leave has been granted the application shall be made by motion or by originating summons.

(2)     The notice of motion or summons shall be served 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.

Statements and affidavits

 

  1. (1) Copies of the statement in support of an application for leave under Rule 3 shall be served with the notice of motion or summons and subject to sub-Rule 2, no grounds shall be replied upon or any relief sought at the hearing except the grounds and relief set out in the statement.

(2)     The Judge may on the hearing of the motion or summons allow the applicant to amend his statement whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as he deems fit 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 amendment to every other party.

(4)     Each party to the application shall supply to every other party a copy of every affidavit which he proposes to use at the hearing including, in the case of the applicant, the affidavit in support of the application for leave under Rule 3.

Claim for damages

  1. On an application for judicial review the Judge may, subject to Rule 2, award damages to the applicant if:

(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.

Interlocutory application

  1. Any interlocutory application in proceedings on an application for judicial review may be made to the Judge.

Hearing of application for judicial review

  1. (1) On the hearing of any motion or summons under Rule 5, any person who desires to be heard on the motion or summons, and appears to the Judge to be a proper person to be heard, shall be heard notwithstanding that he has not been served with notice of the motion or the summons.

(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 has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Judge hearing the motion or summons.

(3)     Where an order of certiorari is made in any such case as is referred to in sub-Rule 2, 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 in accordance with the findings of the Judge.

(5)     Where the relief sought is a declaration, an injunction or damages and the Judge considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Judge may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ and order pleadings.

Person acting in obedience to an order of mandamus

  1. No action or proceeding shall be brought or prosecuted against any person in respect of anything done in obedience to an order of mandamus.

Consolidation of applications

  1. Where there is more than one application pending against several persons in respect of the same matter and on the same grounds, the Judge may order the applications to be consolidated.

 

ORDER 43

Jurisdiction of Chief Registrar

Chief Registrar

  1. In this Order, any reference to the Chief Registrar means the Chief Registrar of the High Court and includes the Deputy Chief Registrars.

Business to be transacted by Chief Registrar

  1. The Chief Registrar may transact all such business and exercise all such authority and jurisdiction as may be transacted or exercised by a Judge in respect of the following matters:

(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 Chief 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.

Chief Registrar may refer matter to the Chief Judge

  1. If any matter appears to the Chief Registrar proper for the decision of a Judge, he may refer the same to the Chief Judge or the Judge who referred the matter to the Chief Registrar. The Chief Judge or the Judge may either dispose of the matter or refer the same back to the Chief Registrar with such directions as he may deem fit.

Appeal form order of Chief Registrar

  1. Any person affected by an order or decision of the Chief Registrar in the exercise of the jurisdiction conferred upon him by his Order may appeal therefrom to a Judge. Such appeal shall be by notice in writing to attend before the Judge without a fresh summons within 5 days after the decision complained of or such further time as may be allowed by the Judge. Unless otherwise ordered, there shall be at least 2 clear days between service of the notice of appeal and the day of hearing. An appeal from the decision of the Chief Registrar shall not operate as a stay of proceedings unless so ordered by the Judge.

Chief Registrars‟ lists

  1. Lists of matters to be heard by the Chief Registrar shall be made out and published by being posted on the courts‟ notice boards.

Legal practitioner may represent party

  1. In any proceedings before the Chief Registrar under the jurisdiction vested in him by this Order, a Legal Practitioner may represent any party.

Certificate   

  1. Except as otherwise provided for in these Rules, the directions to be given for or concerning any proceedings before the Chief Registrar shall require no particular form, but the result of such proceedings shall be stated in a concise certificate.

Reference to judgment, etc

  1. The certificate of the Chief Registrar regarding accounts and inquiries shall not, unless the circumstances of the case render it necessary, set out the judgment or order or any documents or evidence or reasons but shall refer to the judgment or order, documents and evidence or particular paragraphs thereof, so that it may appear upon what the result stated in the certificate is founded.

Form of certificate: Civil Form 36

  1. (1) In case of accounts and inquiries the certificate of the Chief Registrar shall be as in Form 36 with such variations as the circumstances may require.

(2)     The certificate shall state the result of the account and not set the same out by way of schedule, but shall refer to the account verified by the affidavit filed and shall specify by the numbers attached to the items in the account 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, 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 the certificates shall be filed therewith.

When certificate becomes binding

  1. Every certificate with the accounts (if any) to be filed therewith shall be transmitted by the Chief Registrar to the Registry for filing and shall thenceforth be binding on all the parties to the proceedings unless discharged or varied upon an application made to a Judge before the expiration of 8 clear days after the filing of the certificate.

Bill of costs 

  1. When taxing a bill of costs the Chief Registrar shall insert in red ink against every item disallowed, reduced or altered by him the substance of the modification made by him and at the bottom of the bill of costs he shall certify the net result of the taxation. The bill of costs shall then be transmitted by the Chief Registrar to the Registry for filing and the provisions of Rule 10 of this Order shall apply in respect of such certificate.

Discharge or variation of certificate any time after lapse

  1. The Judge may, if the special circumstances of the case require, upon an application direct a certificate to be discharged or varied at any time after the same has become binding on the parties.

 

ORDER 44

Habeas Corpus, Attachment for Contempt

Application: how made

 

  1. An application for an Order of Habeas Corpus Ad Subjiciendum shall be made to the Court, except that:

(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.

Affidavit

2        (1)     The application may be made ex-parte and shall be accompanied by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

(2)     Where the person restrained is unable owing to the restrain to make 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.

Power to issue order of release immediately

  1. (1) A Judge to whom the application is made may make the order forthwith.

(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 thereof 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.

Service of notice

  1. (1) The summons or notice of motion aforesaid shall be served on the person(s) against whom the order is sought and on such other persons as the Judge may direct.

(2)     Unless the Judge otherwise directs, there shall be at least 2 clear days between the service of the notice and the date named for the hearing of the application.

Copies of affidavits

  1. Every party to the application shall supply to the other party or parties copies of the affidavits which he proposes to use at the hearing of the application.

Service of order to release

  1. (1) The order or notice of motion may be served personally or by courier on a jailer where the person is confined or restrained or on any other public official and copies of the order or motion may be served in like manner on each person connected with or having authority over the place of confinement or restraint.

(2)     The order shall contain the date on which the person restrained is to be brought before a Judge and that in default of obedience, proceedings for attachment of the party disobeying will be taken.

Statement and verifying affidavit

  1. Upon service of the order or notice of motion on the jailer, he shall within 2 days file a statement stating the reasons for the detention, the period of the detention and any other matter that may be directed by the Judge. The statement shall be verified by an affidavit deposed to by the jailer.

Procure at hearing

  1. (1) Where the prisoner is brought up in accordance with the order, his Legal Practitioner shall be heard first, then the Legal Practitioner for the State and then the Legal Practitioner for the prisoner in reply.

(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.

Procedure for attachment

  1. (1) The procedure in applications for attachment for contempt of court in cases to which this Rule applies shall be the same as for applications for an order for judicial review under Order 42 so far as may be applicable.

(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 Law, 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 a lower Court.

Provided that this Rule shall not apply where the contempt is committed in facie curiae.

Procedure on disobedience of court order

  1. When an order enforceable by committal has been made against a judgment debtor, and if the order is for delivery of goods without the option of paying their value or is in the nature of an injunction, the Registrar shall, when the order is drawn up, immediately endorse it as follows:

Notice of Consequence of Disobedience of Court Order.

To ………………………………. of ………………………

TAKE NOTICE that unless you obey the direction(s)

Contained in this order you will be guilty of contempt of court

and will be liable to be committed to prison.

Dated this …………….. day of ………………….. 20………

……………..

Registrar

Response

  1. Upon service of the application for committal issued in a case to which Rule 9 of this Order applies, the respondent shall before the return date stated in the application file a statement stating the reasons why an order for attachment should not be issued. The statement shall be verified by an affidavit deposed to by the respondent.

Return

  1. Every order of attachment issued in a case to which Rule 9 of this Order applies shall be made returnable before the Judge. If a return of non est inventus (not found) is made, a subsequent order or orders may be issued on the return of the previous order.

 

ORDER 45

Interpleader

When relief by interpleader is granted

 

  1. Relief by way of Interpleader may be granted where the person seeking relief (“the applicant”) is under liability for any debt, money, goods, or chattels, for or in respect of which he is, or expects to be sued by two or more parties (“the plaintiff”) making adverse claims thereto:

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 the Sheriff and Civil Process Law and the rules made under it shall apply.

Matter to be proved by application

  1. The applicant must satisfy the Judge by affidavit or otherwise that he:

(a)     claims no interest in the subject matter in dispute other than for charges or costs.

(b)     does not collude with any of the plaintiffs and

(c)     is willing to pay or transfer the subject matter into court or to dispose of it as the Judge may direct.

Adverse titles of plaintiffs

  1. The applicant shall not be disentitled to relief by reason only that the titles of the plaintiffs have no common origin, but are adverse to and independent of one another.

When application to be made by a defendant

  1. Where the applicant is a defendant, application for relief may be made at any time after service of the originating process.

Summons by applicant

  1. The applicant may take out a summons calling on the plaintiffs to appear and state the nature and particulars of their claims, and either to maintain or relinquish them.

Stay of action

  1. If the application is made by a defendant in an action the Judge may stay all further proceedings in the action.

Order upon summons

  1. If the plaintiffs appear in pursuance of the summons, the Judge may order either that any plaintiff be made a defendant in any action already commenced in respect of the subject matter in dispute in lieu of or in addition to the applicant or that an issue between the plaintiffs be stated and tried, and in the latter case may direct which of the plaintiffs is to be plaintiff and which is to be defendant.

Questions of law

  1. Where the question is a question of law and the facts are not in dispute, the Judge may either decide the questions without directing the trial of an issue or order that a special case be stated for the opinion of the Judge. If a special case is stated, Order 30 shall as far as applicable apply thereto.

Failure of plaintiff to appear, or neglect to obey summons

  1. If a plaintiff, having been duly served with a summons calling on him to appear and maintain or relinquish his claim, does not appear in pursuance of the summons or having appeared, neglects or refuses to comply with any order made after his appearance, the Judge may make an order declaring him and all persons claiming under him, perpetually barred against the applicant and persons claiming under him but the order shall not affect the rights of the plaintiffs as between themselves.

Costs, etc

  1. The Judge may, in or for the purposes of any interpleader proceedings, make all such orders as to costs and all other matters as may be just.

 

ORDER 46

Computation of Time

 

Rules for computation of time

  1. Where by any law or order made by a Judge a time is appointed or limited for the doing of any act, the period shall be reckoned:

(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.

Holiday

  1. In this Order holiday means a day which is a Sunday or a public holiday.

Time of service

  1. No pleading, summons, motions, orders, originating process documents and other processes, shall be served before 6:00a.m. or after 6:00p.m. Service effected after 6:00p.m. shall be deemed to have been effected the following day, provided that service effected after 6:00p.m. on Saturday shall be deemed to have been effected on the following Monday.

Court may extended time

  1. The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the court, extend or adjourn the time for doing any act or taking any proceedings:

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 47

Arrest of Absconding Defendant

Defendant leaving Nigeria

 

  1. If in any action the defendant is about to leave Nigeria the plaintiff may, either at the institution of the suit or at any time thereafter until final judgment, apply by ex-parte motion to the Judge for an order that the defendant do show cause why security should not be taken for his appearance to answer and satisfy any judgment that may be passed against him in the suit.

Warrant to arrest

  1. (1) If the Judge after making such investigation as he may consider necessary shall be of opinion that there is probable cause for believing that the defendant is about to leave Nigeria and that by reason thereof the execution of any judgment which may be made against him is likely to be obstructed or delayed, the Judge shall issue a warrant to bring the defendant before him, that he may show cause why he should not give good and sufficient bail for his appearance.

(2)     The defendant shall be brought to court within 2 days of the execution of the warrant.

Bail for appearance or satisfaction

  1. If the defendant fails to show cause, the Judge shall order him to bail for his appearance at any time when called upon while the suit is pending and until execution or satisfaction of any judgment that may be passed against him in the suit or to give bail for the satisfaction of such judgment; and the surety or sureties shall undertake in default of such appearance or satisfaction to pay any sum of money that may be adjudged against the defendant in the suit with costs.

Deposit in lieu of bail

  1. (1) Where a defendant offers to deposit a sum of money in lieu of bail for his appearance, sufficient to answer the claim against him, with costs of the suit, the Judge may accept such deposit and direct that the deposit be paid into an interest yielding account in a bank.

(2)     Where a defendant offers security other than money in lieu of bail for his appearance, sufficient to answer the claim against him, the Judge may accept such security and make such order as he may deem fit in the circumstances.

Committal in default      

  1. (1) If the defendant fails to furnish security or offer a sufficient deposit, the Judge may commit him into custody until the decision of the suit or if judgment has been given against the defendant until the execution of the judgment.

(2)     Committal to custody under this Rule shall not exceed a period of 6 months.

(3)     The Judge may at any time upon reasonable cause being shown and upon such terms as to security or otherwise as may seem just, release the defendant.

Costs of subsistence of person arrested

  1. The expenses incurred for the subsistence in prison of the person so arrested shall be paid by the plaintiff in the action in advance, and the amount so disbursed may be recovered by the plaintiff in the suit, unless the Judge shall otherwise order. The Judge may release the person so imprisoned on failure by the plaintiff to pay the subsistence money, or in case of serious illness order his removal to hospital.

 

ORDER 48

Proceedings in Forma Pauperis

Application

  1. This Order shall apply to proceedings in respect of which there is no statutory provision for Legal Aid.

Who may sue or defend in forma pauperis

  1. A Judge may admit a person to sue or defend in forma pauperis if satisfied that his means do not permit him to employ legal representation in the prosecution of his case and that he has reasonable grounds for suing or defending as the case may be.

Conditions to be fulfilled

  1. (1) A person seeking relief under this Order shall write an application to the Chief Judge accompanied by an affidavit, signed and sworn to by the applicant himself, stating that by reason of poverty he is unable to afford the services of a Legal Practitioner.

(2)     If in the opinion of the Chief Judge the application is worthy of consideration, the Chief Judge shall appoint a Legal Practitioner to act for the applicant.

(3)     Where a Legal Practitioner is so appointed the applicant shall not discharge the Legal Practitioner except with the leave of the Chief Judge.

Fees and costs

  1. Court fees payable by a person admitted to sue or defend in forma pauperis may be remitted either in whole or in part as a Judge may deem fit and a person so admitted to sue or defend shall not, unless the Judge otherwise orders, be liable to pay or be entitled to receive any costs.

Procedure to be followed

  1. (1) The Legal Practitioner shall not, except by leave of the Chief Judge, take or agree to take any payment whatsoever from the applicant or any other person connected with the applicant or the action taken or defended thereunder.

(2)     If the applicant pays or agrees to pay any money to any person whatsoever either in connection with his application or the action taken or defended thereunder, the order appointing the Legal Practitioner shall be revoked.

(3)     If the Legal Practitioner assigned to the applicant discovers that the applicant is possessed of means beyond those stated in the affidavit, if any, he shall at once report the matter in writing to the Chief Judge.

Revocation of order, discontinuance etc

  1. (1) The Chief Judge may at any time revoke the order granting the application and thereupon the applicant shall not be entitled to the benefit of this Order in any proceedings to which the application relates unless otherwise ordered.

(2)     Neither the applicant nor the Legal Practitioner assigned to him shall discontinue, settle or compromise the action without the leave of a Judge.

Payment to Legal practitioner

  1. The Judge may order payment to be made to the Legal Practitioner out of any money recovered by the applicant or may charge in favour of the Legal Practitioner upon any property recovered by the applicant, such sum as in all the circumstances may deem fit.

Duty of Legal practitioner

  1. Every order, notice or application on behalf of the applicant, except an application for the discharge of his Legal Practitioner, shall be signed by his Legal Practitioner, who shall take care that no application or notice is made or given without reasonable cause.

Appeals

  1. No person shall be permitted to appeal in forma pauperis except by leave of the trial or the appellate Court and then only on grounds of law; but if so permitted the provisions of this Order shall apply mutatis mutandis to all proceedings on the appeal.

 

ORDER 49

Change of Legal Practitioner

Legal practitioner to conduct cause or matter to final judgment

  1. Every Legal Practitioner who shall be engaged in any cause or matter shall be bound to conduct same on behalf of the plaintiff or defendant as the case may be, by or for whom he shall have been so engaged until final judgment, unless allowed for any special reason to cease acting therein.

Application for change of legal practitioner or withdrawal

  1. Notice for a change of Legal Practitioner or withdrawal may be made by the plaintiff or defendant or the Legal Practitioner as the case may be, not less than 3 clear days before the date fixed for hearing.

Service of application by legal practitioner

  1. Where the notice is made by a Legal Practitioner, it shall be served on all parties to the cause or matter and where applicable also on the outgoing Legal Practitioner if he is not the applicant.

 

ORDER 50

Costs

Principle to be observed in fixing costs

  1. (1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the proceedings, as well as compensated for his time and effort in coming to court. The Judge may take into account all the circumstances of the case.

(2)     When costs are ordered to be paid, the amount of such costs shall, if practicable to determined summarily 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 cost which he has adjudged or ordered to be paid, all questions relating there to shall be referred by the judge to a taxing officer for taxation.

Security for costs

 

  1. In any cause or matter in which security for costs is required, the security shall be of such amount and be given at such manner and form as the judge shall direct,

Security for costs by plaintiff temporarily with jurisdiction

  1. A plaintiff ordinarily resident out of the jurisdiction may be temporarily resident within the jurisdiction.

Action founded on judgment or bill of exchange

  1. In actions brought by persons resident our of the jurisdiction, when the plaintiff‟s claim is founded on a judgment or on a bill of exchange or other negotiable instrument, the power to require the plaintiff to give security for costs shall be exercised at the judge’s discretion.

Bond as security for costs

  1. Where a bond is to be given as security for costs it shall, unless the judge otherwise directs, be given to the party or person requiring the security and not an officer of the court.

Costs at discretion of court

  1. Subject to the provisions of any applicable law and these rules, the costs of and incidental to all proceedings in the high court, including the administration of estates and trusts, shall be at the discretion of the judge, and judge shall have full power to determine by whom and what extent the costs are to be paid.

Costs out of fund or property

  1. The judge may order any costs to be paid out of any fund or property to which a suit or processing relates.

Stay of proceedings till costs paid

  1. When the judge orders costs be paid or security to be given for costs by any party, the judge may order all proceedings by or on behalf of the party in the same suit or proceeding or connected with it, to be stayed until the costs are paid or security given accordingly, but such order shall not supersede the use of any other lawful method of enforcing payment.

Stage of proceedings at which costs to be dealt with

  1. (1) Costs may be dealt with by the judge at any stage of the proceedings.

(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.

When costs to follow the event

  1. in addition to any penalty payable for default under these Rules, the costs of and occasioned by application to extend the time fixed by the rules or any direction or order there under, for delivering or filing any document or doing any other act, including the costs of any order made on the application, shall be borne by the party making the application unless the judge otherwise orders.

Matters to be taken account in exercising discretion

  1. The judge in exercising his discretion as to costs shall take into account any offer or contribution made by any of the parties and any payment into court and the amount of such payment.

Costs arising from misconduct or neglect

  1. (1) Where in any cause or matter anything is done or omission is made improperly or unnecessarily by or on behalf of a party, the judge may direct that any costs to that party in respect of it shall not be allowed to him and that any costs occasioned by it to other parties shall be paid by him to them.

(2)     Without prejudice to the generality of sub-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 of 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 of giving a direction under sub-rule 1 of this rule I 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 head been given.

Personal liability of Legal practitioner for costs

  1. (1) Subject to the following provisions of this Rule, where in any proceedings costs are incurred improperly or without reasonable cause or are wasted by undue delay or any other misconduct or default, the judge may make against any Legal Practitioner whom he considers to be responsible, whether personally or through a servant or agent, an order:

(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 proceedings; or;

(c)     Directing the legal practitioner personally to indemnify such other parties against costs payable by them.

(2)     The provisions or Rule 13 sub-Rule I shall apply where proceedings in court cannot conveniently proceed or fails or 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 document for the us 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 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.

Taxation of costs

  1. Every bill of costs (other than a bill delivered by a Legal Practitioner to his client which falls to be taxed under the legal practitioners act) shall be referred to the registrar for taxation and may be taxed by him or such other taxing officer as the chief judge may appoint.

Notice to other party

  1. The party applying for taxation shall file the bill and give notice to any other parties entitled to be heard on the taxation, and shall at the same time, if he has not already done so, supply them with a copy of the bill.

Power of taxing officer

  1. A taxing officer shall have power to tax any costs the taxation of which is required by any law or directed by order of a Judge.

Supplementary powers of taxing officers

  1. A taxing officer may, in the discharge of his functions with respect to the taxation of costs:

(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.

Extension of time

  1. (1) A taxing officer may:

(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 a 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 officer 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 of that period.

Power of taxing officer where party entitled to be paid, liable to pay costs

 

  1. Where a party entitled to be paid costs is also liable to pay costs, the taxing officer may:

(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 rendered the amount he is liable to pay.

Mode of beginning proceedings for taxation

  1. (1) A party entitled to require any costs to be taxed shall begin proceedings for the taxation of those costs by filing in the registry a bill of costs and obtain a day and time for the taxation thereof. Such party shall give at least 7 days notice to every other party of the day and time appointed for taxation proceedings and at the same time serve a copy of his bill of costs to the other party if he has not already done so.

(2)     A notice under sub-Rule 1 of this Rule need not be given to any party who has not entered an appearance or taken any part in the proceedings which gave rise to the taxation proceedings.

Provisions as to bills of costs

  1. (1) In any bill of costs the professional charge and the disbursements shall be entered in separate columns and every column shall be cast before the bill is left for taxation.

(2)     Before a bill of costs is left for taxation it shall be indorsed with:

(a)     the name or firm and business address of the Legal Practitioner whose bill it is; and

(b)     if the Legal Practitioner is the agent of another, with the name or firm and business address of that other Legal Practitioner.

Provisions as to taxation proceedings

  1. (1) If any party entitled to be heard in any taxation proceedings does not attend within a reasonable time after the time appointed for the taxation, the taxing officer, if satisfied by affidavit or otherwise that the party had due notice of the time appointed, may proceed with the taxation.

(2)     The taxing officer by whom any taxation proceedings are being conducted may, if he deems it necessary, adjourn those proceedings from time to time.

Rate of taxation of costs

  1. (1) Subject to Rule 20, the rate of taxation of costs shall be 2% of the costs awarded.

Certificate of taxing officer

  1. Upon the completion of the taxation of any bill of costs the taxing officer shall certify the result of his taxation including the costs thereof.

Fees on taxation

  1. The fees payable on taxation shall be paid by the party on whose application the bill is taxed and shall be allowed as part of the bill.

Application for review

  1. Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by a taxing officer or with the amount allowed by a taxing officer in respect of any item, may apply to a Judge for an order to review the taxation as to that item.

Application by summons

  1. (1) An application under the preceding Rules shall be made by summons at any time within 14 days after the taxing officer’s certificate.

(2)     Unless 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 of 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 51

Proceeding in Chambers

Representation in chambers

  1. In any proceeding before a Judge in Chambers, any party may, if he so desires, be represented by a Legal Practitioner.

Matters to be disposed of in chambers

  1. Unless the opposite party or his counsel objects, the Judge may, on application, conduct any proceeding, except actual trial, in Chambers, and may also on application, adjourn any such proceeding from Court to Chambers or vice versa.

Evidence upon application for appointment of a guardian and for maintenance

  1. Upon application for the appointment of a guardian of an infant and allowance for maintenance, the evidence shall show;

(a)     the age of the infant;

(b)     the nature and amount of the infant’s fortune and income; and

(c)     what relations the infant has.

Guardian with reference to proceedings in chambers

  1. At any time during the proceeding under any judgment or order, the Judge may, if he deems fit, require a guardian to be appointed for any person under legal disability not adjudged a lunatic, who has been served with notice of such judgment or order.

Further consideration of matter originating in chambers

  1. Where any matter originating in Chambers shall, at the original or any subsequent hearing have been adjourned for further consideration in Chambers, such matter may, after the expiration of 8 days and within 14 days from the filing of the certificate, be brought on for further consideration by a summons to be taken out by the party having the conduct of the matter, and after the expiration of such 14 days by a summons to be taken out by any other party. Such summons shall be in the form following:

“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.

Notes of proceedings in chambers

  1. Notes shall be kept of all proceedings in the Judge‟s Chambers with proper dates, so that all such proceedings in any cause or matter may appear consecutively and in chronological order, with a short statement of the question or points decided or ruled at every hearing.

Drawing up any entry of orders made in chambers

  1. Orders made in Chambers shall, unless the Judge otherwise directs, be drawn up by the Registrar and signed by the Judge. Such orders shall be entered in the same manner as orders made in Court.

Costs

  1. Subject to the provisions of the law and of these Rules, the costs of, and incidental to all proceedings in Chambers shall be at the discretion of the Judge.

Decisions given in chambers, how set aside or varied

  1. (1) Where any party to the proceedings in Chambers does not intend to accept the decision of the Judge in Chambers as final, he shall forthwith request to have the summons adjourned into Court for argument. If such request is refused, the party may proceed by way of motion with notice in court to discharge, set aside or vary the order made or the judgment given or order made in Chambers.

(2)     The notice of motion shall be filed not later than 7 days after the 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 the 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 43.

ORDER 52

Foreclosure and Redemption

Originating Summons for foreclosure

  1. Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out an originating summons, for such relief of the nature or kind following as may be the summons be specified, and as the circumstances of the case may require; that is:

(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.

Orders for payment and possession: Civil Forms 37,38,39

  1. Orders for payment and for possession shall be as in Forms 37, 38 and 39 of these Rules with such variations as the circumstances of the case may require, and the like forms shall be used under corresponding circumstances in actions for the like relief commenced by writ.

Service and Execution of Judgment

  1. The Judge may give any special directions concerning the execution of the judgment, or the service thereof upon persons not parties to the cause or matter as he deems fit.

 

ORDER 53

Summons to Proceed

Bringing in judgment, etc

  1. Every judgment or order directing accounts or inquiries to be taken or made shall be brought to a Judge by the party entitled to prosecute the same within 10 days after such judgment or order shall have been entered or filed, and in default thereof any other party to the cause or matter shall be at liberty to bring in the same, and such party shall have the prosecution of such judgment or order unless the Judge shall otherwise direct.

Summons to proceed with accounts and inquiries

  1. Upon a copy of the judgment or order being left, a summons shall be issued to proceed with the accounts or inquiries directed, and upon the return of such summons the Judge, if satisfied by proper evidence that all necessary parties have been served with notice of the judgment or order, shall thereupon give directions as to:

(i)      the manner in which each of the accounts and inquiries is to be prosecuted;

(ii)     the evidence to be adduced in support thereof;

(iii)    the parties who are to attend on the several accounts and inquiries; and

(iv)    the time within which each proceeding is to be taken and a day or days may be appointed for the further attendance of the parties, and all such directions may afterwards be varied by addition thereto or otherwise, as may be found necessary.

Selling deed where parties differ

  1. Where by a judgment or order a deed is directed to be settled by a Judge in case the parties differ, a summons to proceed shall be issued, and upon the return of the summons the party entitled to prepare the draft deed shall be directed to deliver a copy thereof, within such time as the Judge shall deem fit, to the party entitled to object thereto, and the party so entitled to object shall be directed to deliver to the other party a statement in writing of his objections within 8 days after the delivery of such copy, and the proceeding shall be adjourned until after the expiration of the said period of 8 days.

Where service of notice of judgment or order dispensed with

  1. Where, upon the hearing of the summons to proceed, it appears to the Judge that by reason of absence, or for any other sufficient cause, the service of notice of the judgment or order upon any party cannot be made, the Judge may if he shall deem fit, order any substituted service or notice by advertisement or otherwise in lieu of such service.

Stoppage of proceedings where all necessary parties have not been served with notice of judgment or order

  1. If on the hearing of the summons to proceed it shall appear that all necessary parties are not parties to the action or have not been served with notice of the judgment or order, directions may be given for advertisement for creditors, and for leaving the accounts in Chambers. Adjudication on creditors‟ claims and the accounts are not to be proceeded with, and no other proceeding is to be taken, except for the purpose of ascertaining notice of the parties to be served, until all necessary parties shall have been served and until directions shall have been given as to the parties who are to attend the proceedings.

Documents: Copies for use of judge

  1. Copies, abstracts, extracts of or from accounts, deeds or other documents and pedigrees and concise statement shall, if directed, be supplied for the use of the Judge, and where so directed, copies shall be handed over to the other parties.

Provided that no copies shall be made of deeds or documents where the originals can be brought in unless the Judge shall otherwise direct.

Entry in Summons to Proceed Registrar

  1. At the time any summons to proceed is obtained, an entry thereof shall be made in the Summons Register, stating the date on which the summons issued, the name of the cause or matter, and by what party, and shortly for what purpose such summons is obtained, and at what time such summons is returnable.

 

ORDER 54

Summary Proceedings for Possession of Landed

Property occupied by squatters or without the owner’s consent.

Application of this order

  1. (1) This Order shall not apply where the person in occupation of land is:

(a)     a tenant; or

(b)     a tenant holding over after termination of his tenancy; or

(c)     a licensee of the owner or person entitled to possession; or

(d)     a person who had the consent of the predecessor in title of the person who is entitled to possession

(2)     Where a person claims possession of land 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.

Proceedings to be brought by originating summons: Civil Form 40

 

  1. The originating summons shall be as in Form 40 and no acknowledgment of service shall be required.

Affidavit

 

  1. The plaintiff shall file in support of the originating summons an affidavit stating:

(a)     his interest in the land;

(b)     the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and

(c)     that he does not know the name of any person occupying the land who is not named in the summons.

Service of originating summons

  1. (1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him:

(a)     personally or in accordance with Order 11 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 1 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 premises; 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.

Application by occupier to be made a party

  1. Without prejudice to Rule 16 of Order 17, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.

Order for possession: Civil Form 41

6        (1)     An order for possession in proceedings under this Order shall be as in Form 41 with such variations as circumstances may require.

(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 begun by writ.

Writ of possession

  1. (1) No writ of possession to enforce an order for possession under this Order shall be issued after the expiration of 3 months from the date of the order without the leave of the Judge.

(2)     The application for leave may be made ex parte unless the Judge otherwise directs.

Setting aside of order

  1. (1) The Judge may, on such terms as he deems fit, set aside or vary any order made in proceedings under this Order.

(2)     In this Order “Landed property” means land with or without any building thereon.

 

ORDER 55

Appeals to the High Court

Notice of appeal

 

  1. Every appeal shall be brought by notice of appeal which shall be lodged in the lower court within 30 days of the decision appealed from and served on all other parties affected by the appeal within that period.

Contents of notice of appeal etc.

  1. (1) The notice of appeal shall set out the reference number of the proceedings in which the decision complained of was given, the names of the parties, the date of such decision and the grounds for appeal in full.

(2)     Where the appellant complains only of a part of the decision, the notice of appeal shall specify the part complained of; otherwise the appeal shall be taken to be against the decision as a whole.

(3)     The notice of appeal shall give an address within the Judicial Division in which is situated the lower court appealed from, to which notices may be sent for the appellant, and such notices may be sent to him by registered posts.

Copies of proceedings

  1. The Registrar of the lower court shall, within three months of the decision appealed from, prepare as many certified copies of the proceedings required for the consideration of the appeal as there are parties on record. Save where the fees for preparing such copies are remitted, a deposit decided upon by the Registrar as like to cover such fees, shall be made by the appellant before the preparation of such copies.

Appeal to judge of High Court

  1. The Registrar of the lower court shall within 7 days of preparing the copies aforesaid send the same to the Registrar of the Court in the Judicial Division in which the lower courts situated, and the appeal shall be decided by the judge of that Division.

Respondent to be supply with copy of proceedings

  1. When notifying a party of the day fixed for the hearing of the appeal, the Registrar of the Court shall send him a copy of the proceedings.

Enlargement of proceedings time

  1. The times prescribed in rules 1 to 4 may be enlarged at any time by the Court on such terms (if any) as may deem fit, after notice given to the respondent by the appellant of his application for enlargement of time.

Where time expires

  1. Where the time available to the appellant for the taking of any step has expired before such step has been taken or completed, the respondent may, on notice to the appellant, apply to the Court to strike out the appeal, and the Court may strike out, or enlarge time for sufficient reason shown.

Constitution of court hearing appeals

  1. (1) All civil appeals from lower courts shall be heard by not less than two Judges of the Court.

Constitution of court hearing interlocutory

(2)     Every interlocutory application in connection with or for the purpose of any appeal or proposed appeal to be heard by the High Court may be heard and disposed of before a court constituted either of not less than two judges or a single judge.

Time and place for hearing of appeals

  1. The appeal shall come up for hearing at such time and at such place as the Registrar of the Court shall notify to the parties.

Where appellants fails to appear

  1. (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 order otherwise, but if the respondent does not appear, the costs of the appeal shall be at the discretion of the court.

Where appellant appears

  1. If, on the day of hearing and at any adjournment of the case, the appellant appears, the court shall, whether the respondent appears or not, proceed to the hearing or further hearing and determination of the appeal and shall give judgment according to the merits of the case without regarding any imperfection or defect of form:

Provided that if 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 confirm the decision, with or without costs of appeal against the appellant.

Appeal limited to grounds given in notice

  1. On the hearing, it shall not be competent for the appellant to go into any other reasons for appeal than those set forth in his notice of grounds for appeal: provided that 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 respondents and as to costs as it may think fit.

Request to confirm judgment on other grounds

  1. (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 for appeal, and shall be served on the appellant or his legal practitioner.

Counter appeal

  1. (1) The respondent may file grounds for appeal against any part of the judgment of the lower court.

(2)     Such grounds shall be filed by the respondent within 14 days of service on him of the appellant‟s notice and grounds of appeal, and shall be served on the appellant or his legal practitioner before the hearing.

Objection to form of ground of appeal

 

  1. (1) No objection on account of any defect in the form of setting forth any grounds 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 in to the 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.

Defects in proceedings under appeal

  1. On any appeal from a decision of a lower court, no objection shall be taken or allowed to any proceeding in such Court for any defect or error which might have been amended by that court, or to any complaint, summons, warrant, or other process to or of such Court for any alleged defect therein in substance or in form, or for any variance between any complaint or summons and the evidence adduced in support thereof in such Court: provided, however, that if any error, defect or variance mentioned in this rule appears to the court at the hearing of any appeal to be such that the appellant has been thereby deceived or misled, it shall be lawful for the Court either to refer the case back to the lower court with directions to re-hear and determine the same or to reverse the decision appealed from, or to make such other order for disposing of the case as justice may require.

Defect in notice of appeal or recognizance

  1. No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered in to under this Order for the due prosecution of such appeal for any alleged error or defect therein, but if any such error or defect appears to the Court to be such that the respondent on such appeals has been thereby deceived or misled, it shall be lawful for the Court to amend the same and, if it is expedient to do so, also to adjourn the further hearing of the appeal, the amendment and the adjournment, if any, being made on such terms as the Court may deem just.

Additional evidence

 

  1. The court may, in any case where it may consider it necessary that evidence should be adduced, either: –

(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 facts 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.

Mode of taking evidence

  1. (1) When additional evidence is to be taken by the lower court and specific findings of fact reported, it shall certify such evidence to the Court which shall thereupon proceed to dispose of the appeal.

(2)     The appellant or his legal practitioner shall be present when the additional evidence is taken.

(3)     Evidence taken in pursuance of rule 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 demeanour of the witnesses and of the value of their evidence and may also, if it is the same court against whose decision the appeal has been made, state whether or not it would have come to a different decision had the additional evidence been brought forward at the trial.

Stay of execution pending appeal

  1. Where any application is made to a Judge for a stay of execution or of proceedings under any judgment or decision appealed from, such application shall be made by notice of motion supported by affidavit setting forth the grounds upon which a sat of execution or of proceedings is sought.

Compilation of record

  1. An application for stay of execution of a judgment shall compile the records of appeal within 90 days from the date of filing a notice of appeal and where the record is not so compiled, the respondent may apply to strike out the application or discharge the order if already granted.

Formal order to be drawn up

  1. Where any application is made to the Judge under this Order, a formal order shall be drawn up embodying the terms of the decision of the Judge and bearing the date upon which the order is made.

Filing of brief by appellant

  1. The Appellant shall file brief of argument within 21 days upon receipt of the compiled records of the decision appealed against.

Filing of brief by respondent

  1. The Respondent shall file the Respondent’s brief of argument within 21 days of service of the Appellant’s brief together with the compiled records as well as the notice and grounds of appeal.

Appellant’s reply on points of law

  1. The Appellant shall be entitled to reply on points of law raised in the Respondent’s brief of argument within7 days of service of the Respondent’s brief.

When legal practitioner does not appear

  1. When an appeal is called and the parties have been duly served with the notice of hearing but if any party or Legal Practitioner appearing for the party does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal shall be deemed as duly argued.

Oral argument

  1. Where parties appear for the hearing of an appeal, oral argument of not more than ten minutes shall be allowed for each party.

 

ORDER 56

Appeals to the Court of Appeal

Stay of execution pending appeal

  1. Where any application is made to the Court for a stay of execution or of proceedings under any judgment or decision pending appeal to the Court of Appeal, such application shall be made by notice of motion supported by affidavit setting forth the grounds upon which a stay of execution or of proceedings is sought.

Court may grant or refuse order for stay

  1. (1) The Court may make or refuse an order for a stay of execution or of proceedings.

(2)     An order for stay may be made subject to such conditions as shall appear just, including the deposit in Court of any money adjudged due to any party in the judgment appealed from.

Formal order to be drawn up

  1. Where any application is made to the Court under this Order, a formal order shall be drawn up embodying the terms of the decision of the Court and bearing the date upon which the order is made.

 

ORDER 57

Fees and Charges

Fees and charges

  1. The amount of fees and charges for all processes and service in the High Court shall be as may from time to time be fixed by the High Court Rules Committee.

Fees to be paid before issue of process

2        No process shall, except by special order of Court, be issued until:-

(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.

Fees to be carried to account on process being issued

  1. All such fees shall be carried to account immediately the process is issued.

Documents to be indorsed with amount of fees and number of receipt

  1. Every document, for or in respect of which any fee or fees shall have been paid, shall bear an indorsement initiated by the Registrar or other officer showing the amount of the fee or fees so paid and the receipt referring to the payment, provided that when any form of process specifies the fees thereof, it shall be sufficient for the Registrar or other officer to initial the amount of such fees appearing thereon, and to quote the number of the receipt.

Payment into revenue

  1. All fees for service, execution and mileage shall be paid into revenue.

 

ORDER 58

Miscellaneous Provision

Days of sittings

 

  1. Subject to the provision of the Law, the Judge may, in his discretion, appoint any day or days and any place or places from time to time for the hearing of causes as circumstances may require.

Public or private sittings of the Court

  1. The sittings of the Judge for the hearing of causes shall ordinarily be public but subject to the provisions of the Constitution of the Federal Republic of Nigeria, the Judge may for special reasons, hear any particular cause or matter in the presence only of the parties, with their Legal Practitioners if any, and the officers of Court.

Office hours

  1. The several offices of the Court shall be open at such times as the Chief Judge shall direct.

Days of sittings and long vacation

  1. Subject to the directions of the Chief Judge, sittings of the High Court for the dispatch of civil matters will be held on every week day except:

(a)     on any public holidays;

(b)     during the week beginning with Easter Monday;

(c)     during the period beginning on Christmas eve and ending on the 2nd 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 weeks later as the Chief Judge may by notification in the Gazette appoint.

Vacation

  1. (1) Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a Judge during any of the periods mentioned in paragraphs (b), (c) or (d) of Rule 4 (except on a Sunday or public holiday) where such cause or matter is urgent or a Judge, at the request of all the parties concerned, agrees to hear a cause or matter.

(2)     An application for an urgent hearing may be made by motion ex-parte and the decision of the Judge on such an application shall be final.

Vacation not reckoned in time for pleadings

  1. The time for filing and service of pleadings shall not run during the annual vacation unless otherwise directed by the Judge.

Recovery of penalties and costs

  1. All fines, forfeitures, pecuniary penalties and costs ordered to be paid may be levied by distress, seizure and sale of the movable and immovable property of the person making default in payment.

Notice

  1. When the publication of any notice is required the same may be made by advertisement in the Gazette, unless otherwise provided in any particular case by any rule of Court or otherwise ordered by the Judge.

Filing

  1. A document shall not be filed unless it has indorsed on it the name and number of the cause, the date of filing and whether filed by plaintiff or defendant; and on being filed such indorsement shall be initial by the Registrar and recorded in the process Register.

How process addressed

  1. All warrants and orders of whatever description shall be sufficiently addressed for execution by being directed to the Sheriff; but this provision shall not prevent any order or warrant from being addressed to a person by name or to a person named and to officers of Court generally or to a Local Government Authority.

No fees where proceedings by Government Department

  1. No fees are to be taken in respect of any proceedings where such fees would be payable by any Governmental Department.

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.

Regulations

  1. The Regulations regarding fees shall govern the payment and disposal of fees and the duties of Court officers in regard thereto.

Saving

  1. Where no provision is made by these Rules or by any other written law, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned.

 

ORDER 59

Probate and Administration

Petition to be made to Probate Registrar

  1. (1) Subject to the provisions of Rules 46 and 47 of this Order when any person subject to the jurisdiction of the Court dies, all petitions for the granting of any Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the Court.

(2)     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.

Preservation of property 

  1. The Judge shall, when the circumstances of the case appear so to require, forthwith on the death of a person, or as soon after as may be, appoint and authorize an officer of the Court, or some other fit person, to take possession of his property within its jurisdiction, or put it under seal and so keep it until it can be dealt with according to law.

Unauthorized person intermeddling with property

  1. If any person other than the named executor or administrator, or an officer of the Court, or person authorized by the Judge, takes possession of and administers or otherwise deals with the property of any deceased person, he shall, besides the other liabilities he may incur, be liable to a fine of not less than N50,000.00 (fifty thousand naira) as the Judge, having regard to the condition of the person so interfering with the property and the other circumstances of the case, may deem fit to impose.

Production of testamentary papers

  1. Any person having in his possession or under his control any paper or writing of any deceased person, being or purporting to be testamentary, shall forthwith deliver the original to the Probate Registrar of the Court. If any person fails to do so within 14 days after having had knowledge of the death of the deceased, he may be liable to a fine of N5,000.00 (five thousand naira) as the Judge having regard to the condition of such person in default and other circumstances of the case may deem fit to impose.

Judge may order production

  1. Where it appears that any paper of the deceased, being or purporting to be testamentary is in the possession of, or under the control of any person, a Judge may upon an ex parte application, whether a suit or proceeding respecting probate or administration is pending or not, order him to produce the paper and bring it into Court.

Examination respecting papers

  1. Where it appears that there are reasonable grounds for believing that any person had knowledge of any paper being or purporting to be testamentary, although it is not shown that the paper is in his possession or under his control, a Judge may upon an application, whether a suit of proceedings in respect of probate or administration is pending or not, order that he be examined in respect of the same in Court, or on interrogatories, and that he attend for that purpose, and after examination and it is found that he is or possession then will order that he produce the paper and bring it into Court.

Notice to executor to come in and prove

  1. The Judge may on the application of any person claiming an interest under a Will, give notice to the executors therein named, to come in and prove the Will, or to renounce probate, and they, or some or one of them, shall within 21 days after notice, come in and prove or renounce accordingly.

Liability of executor neglecting to apply for probate

  1. If any named executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within 3 months after the death, or after the termination of any suit for or dispute in respect of probate or administration, he may, independent of any other liability be deemed to be in contempt of court, and shall be liable to a fine of not less than N50,000.00 (fifty thousand naira), as the Judge deems fit to impose.

Evidence of identity

  1. The Judge shall require evidence, in addition to that offered by the applicant, where additional evidence in that behalf seems to the Judge necessary or desirable, in regard to the identity of the deceased or of the applicant, or in regard to the relationship of the applicant to the deceased, or in regard to any person or persons in existence with a right equal or prior to that of the applicant to the grant of probate or administration sought by the applicant or in respect of any other matter which may be considered by the Judge relevant to the question whether the applicant is the proper person to whom the grant should be made:

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.

Judge may refuse grant until all persons interested are given due notice

  1. Where it appears to the Judge that some person or persons other than the applicant may have at least an equal right with the applicant to the grant sought, the Judge may refuse the grant until due notice of the application has been given to such other person or persons and an opportunity given for such person or persons to be heard in respect of the application:

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.

Value of property

  1. Every applicant for a grant of Letters of Administration shall file in the Court a true declaration of all the personal property of the deceased and the value thereof:

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 or of a Local Government, 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.

Answers required before grant

  1. All inquiries a Judge sees fit to institute shall be answered to his satisfaction before the issuance of Letters of Administration. The Judge shall afford as much a facility for the obtaining of Letters of Administration as is consistent with due regard to the prevention of error and fraud.

Forms of suits

  1. Suits in respect of administration shall be instituted and carried on as nearly as may be in the like manner and subject to the same rules of procedure as suits in respect of ordinary claims.

Testator may deposit will

  1. Any person may deposit his Will for safe custody in the Probate Registry, sealed under his own seal and the seal of the Court.

Custody of wills of which probate is granted

  1. Every original Will, of which probate of administration with Will annexed is granted, shall be filed and kept in the Probate Registry in such manner as to secure at once its due preservation and convenient inspection. A copy of every such Will and of the probate or administration shall be preserved in the Registry.

Will not to be given out without order of judge

  1. No original Will shall be given out for any purpose without the direction in writing of a Judge. A certified transcript under the seal of the court of the probate or administration with the Will annexed may be obtained from the Court.

Examination of Will as to its execution

  1. (1) On receiving an application for administration with Will annexed, a Judge shall inspect the Will, and see whether it appears to be signed by the testator or by some other person in his presence, and by his direction, and subscribed by two witnesses according to the applicable law, and shall not proceed further if the Will does not appear to be so signed and subscribed.

(2)     If the Will appears to be so signed and subscribed, the Judge shall refer to the attestation clause and consider whether the wording thereof states the Will to have been in fact executed in accordance with the relevant enactment.

Evidence as to due execution of will

  1. (1) Where a Will contains no attestation clause or the attestation 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 time the Will was executed.

(2)     If no affidavit can be obtained in accordance with the foregoing paragraph, the Judge may, if he deems fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may deem fit to show that the signature on the Will is the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the Will.

(3)     If the Judge, after considering the evidence is satisfied that the Will was not duly executed, he shall refuse probate and mark the Will accordingly.

Evidence on failure of attesting witnesses

  1. Where both subscribing witnesses are dead or if from other circumstances such an affidavit cannot be obtained from either of them, resort for such an affidavit shall be had to other persons present at the execution of the Will; but if no such affidavit can be obtained, proof shall be required of that fact, and of the handwriting of the deceased and of the subscribing witnesses, and also of any circumstances raising a presumption in favour of the due execution of the Will.

Evidence as to terms, conditions and date of execution of Will

  1. (1) Where in a Will, there is any obliteration, interlineations or other alteration which is not authenticated in the manner prescribed by law or by the re-execution of the Will or by the execution of a codicil, the Judge shall require evidence to show whether the alteration was present at the time the Will was executed and shall give directions as to the form in which the Will is to be proved:

Provided that this sub-Rule shall not apply to any alteration which appears to the 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.

Attempted revocation of a Will

  1. Any appearance of attempted revocation of a Will by burning, tearing or otherwise and every other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the satisfaction of the Judge.

Affidavit as to due execution, terms, etc of will

  1. The Judge may require an affidavit from any person he may deem fit for the purpose of satisfying himself as to any of the matters referred to in Rules 18,20 and 21. In any such affidavit sworn by an attesting witness or other person present at the time of the execution of a Will, the deponent shall depose to the manner in which the Will was executed.

Wills of persons in military service and seamen

  1. Where it appears to the Judge that there is prima facie evidence that a Will is one to which the Wills law or any provision of an equivalent enactment in force in the State applies, the Will may be admitted to proof if the Judge is satisfied that it was made by the testator in accordance with the provisions of that law or enactment as the case may be.

Evidence of foreign law

  1. Where evidence of foreign law is required on any application for a grant, the Judge may accept an affidavit from any person whom, having regard to the particulars of his knowledge or experience given in the affidavit, he regards as suitably qualified to give expert evidence of the law in question.

Order of priority for grant where deceased left a Will

  1. Where the deceased died after the commencement of this Order, the person or persons entitled to a grant of probate or administration with the Will annexed shall be determined in accordance with the following order of priority.

(a)     the executor;

(b)     any residuary legatee or devisee holding in trust for any other person;

(c)     any residuary legatee or devisee for life;

(d)     the ultimate residuary legatee or devisee, including one entitled on the happening of any contingency or where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person.

Provided that:

  1. i) unless the Judge otherwise directs, a residuary legatee or devisee whose legacy or device is vested in interest shall be preferred to one entitled on the happening of a contingency; and
  2. ii) where the residue is not in terms wholly disposed of, the Judge may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made subject to Rule 68 of this Order to any legatee or devicee entitled to, or to a share in the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the Will.

(e)     any specific legatee or devisee or any creditor or, subject to sub-Rule 3 of Rule 59, 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.

Joinder of administrator

  1. (1) An application to join with a person entitled to a grant of administration, a person entitled in a lower degree shall, in default of renunciation by all persons entitled in priority to the latter, 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.

(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 of a minor may nominate for the purpose;

(c)     a trust corporation.

Will of blind or illiterate testator

  1. Where the testator was blind or illiterate, the Judge shall not grant administration with the Will annexed, unless the Judge is first satisfied, by proof or by what appears on the face of the Will, that the Will was read over to the deceased before its execution or that he had at that time knowledge of its contents.

Interlineations, erasures, obliteration

  1. (1) The Judge, on being satisfied that the Will was duly executed, shall inspect it to see whether there are any interlineations, alterations, erasures, or obliterations appearing in it and requiring to be accounted for.

(2)     Interlineations, alterations, erasures, and obliterations are invalid unless they existed in the Will at the time of its execution or unless, if made afterwards, they have been executed and attested in the mode required by the relevant enactment; or unless they have been made valid by the re-execution of the Will or by the subsequent execution of some codicil thereto.

(3)     Where interlineations, alterations, erasures, or obliterations appear in the Will, unless duly executed or recited in or otherwise identified by the attestation clause, an affidavit in proof of their having existed in the Will before its execution shall be filed.

(4)     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 affected, 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.

Documents referred to in a Will or annexed or attached thereto

  1. (1) Where a Will contains a reference to any document of such a nature as to raise the question whether it ought or ought not to form a constituent part of the Will, the Judge shall require the production of the document, with a view to ascertaining whether or not it is entitled to probate; and if it is not produced, a satisfactory account of its non production shall be given. A document cannot form part of a Will unless it was in existence at the time when the Will was executed.

(2)     If there are vestiges of sealing wax or wafers, or other marks on the Will, leading to the inference that some document has been at sometime annexed or attached thereto, a satisfactory account of them shall be required, and if it is not produced, a satisfactory account of its non production shall be given.

Executor dying without proving or not appearing

  1. Where a person appointed executor in a Will survives the testator but either dies without having taken probate or having without been called on by the Court to take probate and does not appear, his right in respect of the executorship wholly ceases; and, without further renunciation, the representation to the testator and the administration of his property may go and be committed as if that person had not been appointed executor.

Marking of Wills

  1. Every Will in respect of which an application for a grant is made shall be marked by the signatures of the applicant and the person before whom the oath is sworn, and shall be exhibited to any affidavit which may be required under this Order as to the validity, terms, condition or date of execution of the Will.

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.

Viva Voce examination of persons making affidavits

  1. In every case where evidence is directed or allowed to be given by affidavit, the Judge may require the personal attendance of the deponent if within the jurisdiction, before the Court, to be examined viva voce respecting the content of his affidavit. The examination may take place before any affidavit has been sworn or prepared if the Judge deems fit.

Letters of Administration

  1. (1) A Judge in granting Letters of Administration shall proceed as far as may be as in cases of probate.

(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.

Administration bond

  1. (1) The person to whom administration is granted shall give a bond with two or more responsible sureties to the satisfaction of the Judge. The bond shall affirm that the administrator shall be duly conditioned to collect, getting in and administering the personal property of the deceased.

(2)     The 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.

Guarantee

  1. (1) The Judge shall not require a guarantee as a condition of making a grant where it is proposed to make it;

(a)     by virtue of Rule 25(e) 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, officer, commissioner for oaths or other person authorized by law to administer 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 offices 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.

Assignment of bond

  1. The judge may, on being satisfied that the condition of the bond has been broken, assign to some person, and that person may thereupon sue on the bond in his own name as if it had been originally given to him, and may recover thereon, as trustee for persons interested, the full amount recoverable in respect of any breach of the bond.

Administration summons

  1. Any person claiming to be a creditor or legatee or the next of kin or one of the next of kin of a deceased, may apply for and obtain a summons from the court requiring the executor or administrator, as the case may be, of the deceased to attend the court ands show cause why an order for the administration of the property of the deceased should not be made.

Order for administration

  1. (1) On proof of service of the summons or on appearance of the executor or administrator, and on proof of all such other things as the judge may direct, the judge may, if he deems fit, make an order for the administration of the property of the deceased.

(2)     The judge 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 plaintiffs or classes of plaintiffs, 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.

Order relating to property

  1. Where the judge makes such an order or at any time afterwards, he may, if he deems fit, make any further or other order which may appear requisite to secure the proper collection, recovery for safe-keeping and disposal of the property or any part thereof.

Administration may be granted to officer

  1. In a case of intestacy, where the special circumstances of the case require, the judge may, if he deems fit on the application of any person having interest in the estate of the decease or of his own notion, grant Letters of Administration to an officer of the court, to a consular officer or to a person in the service of the government.

Officer to act under the direction of judge

  1. (1) The officer or person so appointed shall act under the direction of the judge, and shall be indemnified thereby.

(2)     the judge shall require and compel him to file in court the accounts of his administration at intervals not exceeding 12 months.

Court may appoint person to be administrator

  1. Where a person has died intestate as to his personal estate or leaving a will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate or where the Executor shall, at the time of the death of such person, be resident out of the jurisdiction, and it shall appear to the judge to be necessary or convenient in any such cast to appoint some person as administrator of the estate of the deceased or of any part thereof, the judge may appoint such person as he shall deem fit to be such administrator upon his giving such security, if any as the judge shall direct, and every such every such administrator may be limited as the judge shall deem fit.

Remuneration of administrators

  1. The judge may direct that any administrator (with or without the will annexed) shall receive out of the personal and real estate of the deceased such reasonable remuneration as he shall deem fit not exceeding 10% on the amount of the realized property, or, when not converted into money, on the value of the property duly administered and accounted for by him:

Provided that where the judge is satisfied that by reason of exceptional circumstances the administration of the property has required an extraordinary amount of labour to be bestowed on it, he may allow in respect of such property a higher rate of remuneration.

Collection and security of estate

  1. Where any citizen of any foreign country dies within the jurisdiction without leaving within the jurisdiction a widower, widow or next of kin, the probate registrar shall collect and secure all moneys and other property belonging to the deceased, and shall then inform the nearest consular officer of such country of the death, and transmit to him a list of the money and property of the deceased.

Application by Consular Officer or person authorized by him to administer estate

  1. Application may be made to the court by any such consular officer or by any person authorized by him in writing and under the consular seal, for leave to administer the estate of the deceased, and the judge may make such order as to security for payment of debts and the method of administration as the judge shall deem fit, and vary such order when and so often as it is expedient.

Accounts to be filed

  1. (1) Every person to whom a grant of probate or Letter of Administration shall have been made, and every administrator appointed by the judge shall, file in court the accounts of his administration every 12 months from the date of the grant or the appointment until the completion of the administration.

(2)     Any executor or administrator who fails to file his accounts within the prescribed period as aforesaid shall be liable to a penalty of N100.00 (one hundred naira) for every day default. A fine for non-payment 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; and on failure to remedy such defects within such time, the person who filed such defective account shall be deemed to have failed to file an account within the meaning of this Rule and 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 punished.

(6)     The judge may for good cause shown extend the time for such filing of accounts.

(7)     Any executor or administrator who has been granted an extension of time to file such accounts, and who fails within such extended time to file such 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.

Court may refuse application to review

  1. The judge may refuse to entertain any application under Rule 2 of this Order if he considers that there has been unreasonable delay by the applicant in making the application.

Grant to be signed by probate Registrar

  1. The grant of letters of administration under this order shall be signed by the registrar on behalf of the court.

Application

  1. In this Part, Rules 1,4,5,6,7,8,11,12,14,15,16,17,19,26,27,28,2930,31,71 (1) and 72 (1) or (4) of this order shall also apply.

Application for grants through Legal Practitioners

  1. Every legal practitioner through whom an application for a grant is made shall give the address of his place of business within the jurisdiction.

Personal applications

  1. (1) An applicant for a grant may apply in person.

(2)     A personal applicant may not apply through an agent, whether paid or unpaid, and may not be represented by any person acting or appearing to act as his adviser.

(3)     No personal application shall be received or proceeded with if:

(a)     it becomes necessary to bring the matter before the court by motion or by action;

(b)     an application has already been made by a Legal Practitioner on behalf of the applicant and has not been withdrawn;

(c)     the 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 circumstances 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.

Duty of Registrar on receiving application for grant

  1. (1) The Judge shall not allow any grant to issue until all inquiries which he may deem fit to make have been answered to his satisfaction.

(2)     The 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.

Oath in support of grant

  1. (1) Every application for a grant shall be supported by an oath in the form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the Judge may require.

(2)     Unless otherwise directed by the Judge, the oath shall state where the deceased was domiciled at the time of death.

Grant in additional name

  1. Where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant shall state in the oath the true name of the deceased and shall depose that some part of the estate, specifying it, was held in the other name; or as to any other reason that there may be for the inclusion of the other name in the grant.

Engrossment for purpose of record

  1. (1) Where the Judge considers that in any particular case a photocopy of the original Will would not be satisfactory for purposes of record, he may require that an engrossment suitable for photo reproduction be lodged.

(2)     Where a Will contains alterations which are not admissible to proof, there shall be lodged an engrossment of the Will in the form in which it is to be proved.

(3)     Any engrossment lodged under this Rule shall reproduce the punctuation, spacing and division into paragraphs of the Will and, if it is one to which sub-Rule 2 of this Rule applies, it shall be made bookwise on durable paper following continuously from page to page.

(4)     Where any pencil writing appears on a Will, there shall be lodged a copy of the Will or of the pages or sheets containing the pencil writing in which there shall be underlined in red ink, those portions which appear in pencil in the original.

Grant to attesting witnesses, etc

  1. Where a gift to any person fails, by reason of the fact that he is an attesting witness or the spouse of an attesting witness, such person shall not have any right to a grant as a beneficiary named in the Will, without prejudice to his right to a grant in any other capacity.

Right of assignee to a grant

  1. (1) Where all the persons entitled to the estate of the deceased under a Will have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace in order of priority for a grant of probate the assignor or if there are two or more assignors, the assignors with the highest priority, in the absence of a proving executor.

(2)     Where there are two or more assignees, probate may be granted with the consent of the others to any one 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.

Additional personal representatives

  1. (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.

Grants where two or more persons entitled

  1. (1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same degree.

(2)     A dispute between persons entitled to a grant in the same degree shall be brought by application before the 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.

Prevention of grant

 

  1. (1) Nothing in Rules 57,60 or 62 shall operate to prevent a grant being made to any person to whom a grant may, or may require to be made under any enactment.

(2)     The Rules mentioned in the last foregoing paragraph shall not apply where the deceased died domiciled outside the State, except in a case to which the provisions of Rule 63 apply.

Grants to person having Spes successionis

  1. When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant of administration with the Will attached and has consented to such administration being granted to the person or person who would be entitled to his estate if he himself had died intestate, administration may be granted to such person or one or more but not exceeding four of such persons:

Provided that a surviving spouse shall not be regarded as person in whom the estate has vested absolutely unless he/she would be entitled to the whole of the estate, whatever its value may be.

Grants where deceased was domiciled outside the State

  1. Where the deceased was domiciled outside the State, the Judge may order that a grant should issue:

(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.

Grant to Attorney

  1. (1) Where a person entitled to a grant resides outside the State, a grant may be made to his lawful Attorney for his use and benefit, until such person shall obtain a grant or in such other way as the Judge may direct:

Provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any.

(2)     Where the 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 to be made to the Attorney for the use and benefit of such person, until such person obtains a grant or in such other way as the Judge may direct.

Grants on behalf of minors

  1. (1) Where the person to whom a grant would otherwise be made is a minor, a grant for his use and benefit until he attains the age of 18 years shall subject to sub-Rule 3 and 5 of this Rule, be granted.

(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 1(b) of this Rule may represent any other minor whose next of kin he is, being a minor below the age of 16 years entitled in the same degree as the minor who made the nomination.

(3)     Notwithstanding anything in this rule, administration for the use and benefit of the minor until he attains the age of 18 years may be granted to any person assigned as guardian by order of a Court in default of, or jointly with, or to the exclusion of any such person as is mentioned in sub-Rule 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 sub-Rule 3 of this Rule and authorized to renounce by the Judge.

Grant where minor is co-executor

  1. (1) Where one of several executors is a minor, probate may be granted to the adult executors, with power reserved for making the like grant to the minor on his attaining the age of 18 years and administration for the use and benefit of the minor until

 he attains the age of 18 years may be granted under Rule 64 only if the adult executors renounce or, on being cited to accept or refuse a grant, fail to make an effective application.

(2)     A minor executor’s right to probate on attaining the age of 18 years shall not be renounced by any person on his behalf.

Grants in case of metal or physical incapacity

  1. (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 grant under this Rule shall unless the Judge otherwise directs be given to the person alleged to be incapable.

Renunciation of probate and administration

  1. (1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.

(2)     Unless the 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.

Notice to State of intended application for grant

  1. Where the State is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant shall be given by the applicant to the State Attorney-General and the Judge may direct that no grant shall issue within a specified time after the notice has been given.

Resealing

  1. (1) An application for the resealing of probate or administration with the Will attached granted by a Court outside the State shall be made by the person to whom the grant was made or by any person authorized in writing to apply on his behalf.

(2)     On any such application;

(a)     an Inland Revenue Affidavit shall be lodged as if the application were one for a grant in the State;

(b)     the application shall be advertised in such manner as the 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.

(a)     the Judge shall not require sureties except where it appears to him that the grant is made to a person or for a purpose mentioned in paragraphs (a) to (f) of Rule 35(1) or except where he considers that there are special circumstances making it desirable to require sureties;

(b)     Rules 35(2), (4), (5), (6) and 51(4) shall apply with any necessary modifications; and

(c)     a guarantee entered into by a surety shall be as in probate Form 2 with such variations as circumstances may require.

(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 of 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.

Amendment and revocation of grant

  1. If a Judge is satisfied that a grant should be amended or revoked, he may make an order accordingly:

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.

Notice to prohibit grant, caveats

  1. (1) A notice to prohibit a grant of administration may be filed in Court.

(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 as 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 as 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 Registrar shall maintain an index of caveats entered in the Registry and on receiving an application for a grant in the Registry he shall cause the index to be searched and shall notify the applicant in the event of any caveat having been entered against the sealing of a grant for which application has been made.

(7)     The Registrar shall not allow any grant to be sealed if he has knowledge of an effective caveat in respect thereof:

Provided that no caveat shall operate to prevent the sealing of a grant on the day on which the caveat is entered.

(8)     A warning as 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 of any contrary interest which he may have in the estate of the deceased; and every warning or a copy thereof shall be served on the caveator.

(9)     A caveator having an interest contrary to that of the person warning may, within 8 days of service of the warning upon him inclusive of the day of such service; or at any time thereafter if no affidavit has been filed under sub-Rule 12 of this Rule, enter an appearance in the Registry by filing 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 Registrar;

(12)   If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under the last 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 plaintiff, give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveator 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 an appearance to a warning has been entered shall remain in force until the commencement of a probate action;

(c)     the commencement of a probate action shall whether or not any caveat has been entered, operate to prevent the sealing of a grant until application for a grant is made by the person shown to be entitled thereto by the decision of the Judge in such action, and pon such application any caveat entered by a party who had notice of the action, or by a caveat 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.

Citations

  1. (1) Notice in the nature of citation shall be given in such manner as the Judge directs.

(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, direct 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 6 and making an entry in the appropriate book, and shall thereafter serve on the citor a copy of Probate Form 5 sealed with the seal of the Registry.

Citation to accept or refuse a grant

  1. (1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

 (2)    Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the Will or the executors of the last survivor of deceased executors who have proved the will.

(3)     A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of 6 months from the death of the deceased.

Provided that no citation to take a grant shall issue while proceeding as to the validity of the Will is pending.

(4)     A person cited who is willing to accept or take a grant may apply ex parte to the Judge for an order for a grant on filing an affidavit showing that he has entered an appearance and that he has not been served by the citor with notice of any application for a grant to himself.

(5)     If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may:

(a)     in the case of a citation under sub-Rule 1 of this Rule apply to the Judge for an order for a grant to himself;

(b)     in the case of a citation under sub-Rule 2 of this Rule, apply to the Judge for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights or interest in respect thereof have ceased;

(c)     in the case of a citation under sub-Rule 3 of this Rule, apply to the Judge by summons, which shall be served on the person cited, for an order requiring such person to take a grant within a specified time or for a grant to himself or some other person specified in the summons.

(6)     An application under sub-Rule 5 of this Rule shall be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.

(7)     If the person cited has entered an appearance but has not applied for a grant under sub-Rule 4 of this Rule, or has failed to prosecute his application with reasonable diligence, the citor may:

(a)     in the case of a citation under sub-Rule 1 of this Rule, apply by summons to the Judge for an order for a grant to himself;

(b)     in the case of a citation under sub-Rule 2 of this Rule, apply by summons to the Judge for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in paragraph (b) of sub-Rule 5 of this Rule;

(c)     in the case of a citation under sub-Rule 3 of this Rule, apply by summons to the Judge for an order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the summons; and the summons shall be served on the person cited in each case.

Citation to propound a Will

  1. (1) A citation to propound a Will shall be directed to the executors named in the Will and to all persons interested thereunder, and may be issued at the instance of any citor having any interest contrary to that of the executors or such other persons.

(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 Judge for an order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the summons;

and the summons shall be served on the persons cited in each case.

Address for service

  1. All caveats, citations, warnings and appearances shall contain an address for service within the jurisdiction.

Application for order to bring or to attend for examination

  1. (1) An application for an order requiring a person to bring in a Will or to attend for examination may, unless a probate action has been commenced, be made to the Court by summons, which shall be served on every such person as aforesaid.

(2)     An application for the issue by the Judge of a subpoena to bring in a Will shall be supported by an affidavit setting out the grounds for the application, and if any person served with the subpoena denies that the Will is in his possession or control he may file an affidavit to that effect.

Limited grants

  1. An application for an order for a grant limited to part of an estate may be made to the Judge and shall be supported by an affidavit stating:

(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.

Grants ad colligenda bona

  1. An application for an order for grant of administration where the goods in the estate are of perishable nature may be made to the Judge, and shall be supported by an affidavit setting out the grounds of the application.

Application for leave to swear to death of a person

  1. An application for leave to swear to the death of a person in whose estate a grant is sought may be made to the Judge and shall be supported by an affidavit setting out the grounds of the application and containing particulars of any policies of insurance effected on the life of the presumed deceased.

Grants in respect of codicils and copies of Wills

  1. (1) An application for an order admitting to proof a codicil or a Will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original Will is not available may be made to the Judge.

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)     to due execution of the Will

(b)     its existence after 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.

Grants durants absentia

  1. An application for an order for a grant of special administration where a personal representative resides outside the State shall be made to the Judge by a motion.

Notice of election by surviving spouse to redeem life interest: Probate Form 7

  1. (1) Where a surviving spouse who is the sole personal representative of the deceased is entitled to a life interest in part of the residuary estate and elects to have the life interest redeemed, he may give written notice of the election to the Registrar by filing a notice as in Probate Form 7 with such variations as circumstances may require.

(2)     A notice filed under this Rule shall be notice on the grant and the record shall be open to inspection.

Photocopy of Wills or other documents may be certified and sealed

  1. (1) Where copies are required of original Wills or other documents deposited under the provisions of any written law such copies may be photocopied sealed with the seal of the Registry and issued as office copies and where such office copies are available copies certified under the hand of a Registrar to be true copies shall be issued only if it is required that the seal of the Court be affixed thereto.

(2)     Copies, not being photocopies of original Wills or other documents deposited as aforesaid shall be examined against the documents of which they purport to be copies if so required by the person demanding the copy, and in such cause 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.

Power to require application to be made by motion or summons

  1. The Registrar may require any application under this Order to be made by motion or summons to a Judge

Service of notice of motion or summons

  1. (1) A Judge may direct that a notice of motion or summons for the service of which no other provision is made in this Order shall be served on such person or persons as the Judge may direct.

(2)     Whereby the provision of 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.

Service of Notices etc at the person’s address

  1. Unless the Judge otherwise directs or this Order provides, any notice or other document required to be given or served on any person may be given or served by leaving it at, or by sending it by courier to that person‟s address for service, or if he has no address for service, his last known address.

Affidavit

  1. Every affidavit used in non-contentious probate business shall satisfy the requirements of Order 35.

Time

  1. The provisions of Order 46 shall apply to the computation, enlargement and abridgment of time under this Order.

Application

  1. Subject in any particular case to any direction given by a Judge, this Order shall apply to any proceeding which is pending on the date on which these Rules come into operation as well as to any proceeding commenced on or after that date:

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.

Contentious probate: Form of suits

  1. Suits in respect of probate shall be instituted and carried on as nearly as possible in the like manner and subject to the same rules of procedure as suits in respect of civil claims.

Probate actions

  1. In probate actions, the originating process shall state whether the plaintiff claims as creditor, executor, administrator, beneficiary, next of kin or in any other capacity.

Service of writ of summons

  1. In probate actions service of a writ of summons may by leave of a Judge be allowed out of Nigeria.

Pleadings and further actions

  1. In probate actions a party shall state with regard to every defence which is pleaded, what is the substance of the case on which it is intended to rely; and further where it is pleaded that the testator was not of sound mind, memory and understanding, particulars of any specific instances of delusion shall be delivered before the case is set down for trial and except by leave of a Judge no evidence shall be given of any other instances at the trial.

Where plaintiff disputes defendant’s interest

  1. In probate actions where the plaintiff disputes the interest of the defendant, he shall allege in his statement of claim that he denies the defendant’s interest.

Notice of position to Will

  1. In probate actions the party opposing a Will may, with his defence, give notice to the party setting up the Will that he merely insists upon the Will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the Will, and he shall thereupon be at liberty to do so and shall not in any event be liable to pay the costs of the other side unless the Judge finds that there was no reasonable ground for opposing the Will.

Inquiry as to outstanding personal state

  1. Every Judgment or order for a general account of the personal estate of a testator or intestate shall contain a direction for any inquiry as to what parts of such personal estate are outstanding or undisposed of, unless the Judge shall otherwise direct.

Discretion to order costs

  1. Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Judge otherwise orders be entitled to the costs of such proceedings in so far as they are not recovered from or paid by any other person out of the fund held by the trustee or personal representative or the mortgaged property, as the case may be; and the Judge may otherwise order only on theground that the trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the land.

Originating summons relating to deceased person

  1. The executors or administrators of a deceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, beneficiary, next of kin, heir-at-law of a deceased person, or as Cestui que trust under the trust of any deed or instrument, or as claiming by assignment or administration otherwise under any such creditor or other person as aforesaid, may take out, an originating summons for such relief as listed hereunder as may be specified by the summons and as the circumstances of the case may require; that is, the determination without an administration of the estate or trust of any of the following questions or matters.

(a)     any question affecting the rights or interests of the person claiming to be creditor, beneficiary, next of kin, or heir-at-law or cestui que trust;

(b)     the ascertainment of any class of creditors, beneficiary, next of kin, or others;

(c)     the furnishing of any particular accounts by the executors or administrators or trustees and the vouching, when necessary, of such accounts.

(d)     the payment into Court of any money in the hands of the executors or administrators or trustees;

(e)     directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees;

(f)      the approval of any sale, purchase, compromise, or other transaction;

(g)     the determination of any question arising in the administration of the estate or trust.

Order for administration of estate of deceased and of trust

  1. Any of the persons named in Rule 98 of this Order may in like manner apply for and obtain an order for;

(a)     the administration of the personal or real estate of the deceased;

(b)     the administration of the trust‟

(c)     any act to be done or step to be taken which the Judge could have ordered to be done or taken if any such administration order as aforesaid had previously been made.

Persons to be served

  1. The persons to be served with the summons under Rules 98 and 99 of this Order in the first instance shall be the following:

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 of this Order, the persons, or one of the persons, whose rights or interests, are sought to be affected.

(b)     for 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 the 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.

Judge not bound to order administration

  1. It shall not be obligatory on the Judge to pronounce or make judgment or order, whether on summons or otherwise for the administration of any trust or of the estate of any deceased person if the questions between the parties can be properly determined without such judgment or order.

Order which may be made on application for administration or execution of trust, where no account or insufficient accounts have been rendered

  1. Upon an application for administration or execution of trusts by a creditor or beneficiary under a Will, intestacy, or deed of trust, where no accounts or insufficient accounts have been rendered, the Judge may, in addition to the powers already existing:

(a)     order that the application shall stand over for a certain time, and that the executors, administrators or trustee in the meantime shall render to the applicant proper statement of 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 or order for administration with a proviso that no proceedings are to be taken under such judgment or order without leave of the Judge.

Interference with discretion of trustee

  1. The issue of a summons under Rule 98 of this Order shall not interfere with or control any power or discretion vested in any executor, administrator or trustee except so far as interference or control may necessarily be involved in the particular relief sought.

Application by summons

  1. Any of the following applications may be made by summons.

(a)     an application for the appointment of a new trustee with or without a vesting order 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 a recovering of any chose in action;

(d)     an application relating to a fund paid into Court in any case coming within the provisions of Rule 8 of this Order.

Interpretation Law

  1. (1) The provisions of the Interpretation Law shall apply to the interpretation 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 reference in this Order to any rule or enactment shall be construed as a reference to that rule or enactment as amended, extended or applied by any other rule or enactment.

 

HIGH COURT OF NASARAWASTATE

(CIVIL PROCEDURE) RULES

FORM 1

General Form of Writ of Summons

(0.3, R.3)

20……………..

(Here put the letter and number (see note (a) following this form)

In the High Court of Nasarawa State

In the……….……………………………………………………….. Judicial Division

Between:

A.B……………………………………………………………………………..Plaintiff

and

C.D……………………………………………………………………………Defendant

To C.D. of……………………… in the………………… of……………………………

You are hereby commanded that within eight days after the service of this writ on you, inclusive of the day of such service you do cause an appearance to be entered for you in an action at the suit A.B. and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.

DATED this………………………………….. day of………………………20…………..

……………………..

Judge

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.

Forms of Writ of Summons, etc – continued

The defendant may enter appearance personally or by Legal Practitioner either by handling 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 plaintiff‟s claim is for, etc (b)………………………………………………………..

…………………………………… agent for……………………………………………..

of………………………………… Legal Practitioner for the said plaintiff who resides at (d)

…………………………………………………………………………….…(mention the city, town or district and also the name of the street and number of the house of the plaintiff‟s residence, if any).

Indorsement to be made on copy of writ forthwith after service.

The writ was served by me at…………………………….on the defendant (here insert made 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 plaintiff sues, or defendant is sued, in a representative capacity, the indorsement must state in what capacity the plaintiff sues or the defendant is sued. If the claim is for a debt or liquidated demand only, the Indorsement, even though not special, must strictly comply with the provisions of 0.8.r.4, including a claim for four days‟ costs.

(c) Address for Service – see 0.8.r.6. The address must be within the jurisdiction.

(d) Address of plaintiff – In the case of a company in liquidation the plaintiff‟s address should run”……………………………………………..plaintiff, 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 plaintiffs‟ address should run thus;

“……………………………………………………………plaintiffs, 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)”.

128

(e) Indorsement of Service – See 0.11.r.13.

(f) Probate Actions – In these actions the indorsement of claim must show the nature of the plaintiff‟s interest, under which he claims (0.8.r.3); and the alleged interest f the defendant.

Before the writ is issued the following certificate must be indorsed on it:

The Registry, High Court of Nasarawa 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 the jurisdiction

(0.3, r.3)

To C.D. of ……….……………………………………………………….. you are hereby commended 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 ……………………………Judicial Divisions of the High Court of Nasarawa 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…………..

……………………..

Judge

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.

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 0.8.r.4(1), including a claim for costs.

See also notes to Form No. 1, supra.

 

FORM 3

General Form of Originating Summons

(0.3, R.3)

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 ……………………………………………………………………………..Plaintiff

Between:

A.B.……………………………………………………………………………..Plaintiff

and

C.D and E.F……………………………………………………………………Defendant

Let …………………………………….………………… of……………………………in

……………………………………………………………… within eight days after service of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons which is issued upon the application of…………………… of ………………………….. who claims to be (state the nature of the claim), for the determination of the following questions: (State the questions).

DATED this………………………………… day of………………………20…………..

This summons was taken out by………………………Legal Practitioners for the above- named ………………………………….

130

 

FORM 4

Originating Summons

(0.4, r.3)

No….…………………………………………of 20………………………..…………..

IN THE HIGH COURT OF NASARAWA STATE

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 NASARAWA STATE, 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).

Add, “And that the respondent do pay the costs of this application to be taxed.”

DATED this………………………………….. day of………………………20…………..

This summons was taken out by……………………………………………………………

Note:

It will not be necessary for you to enter an appearance in the HIGH COURT REGISTRY, but if you do not attend either in person or by your Legal Practitioner, at the time and place above mentioned (or at the time mentioned in the endorsement thereon), such order will be made and proceedings taken as the Judge may think just and expedient.

 

FORM 5

Form of ex parte Originating Summons

(0.4, r.3)

IN THE HIGH COURT OF NASARAWA 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, Nasarawa 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.

131

 

FORM 6

Form of Memorandum for Renewed Originating Process

(0.10, 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 indorsements)

 

FORM 7

General Form of Originating Motion

(ord. 5, r.3)

IN THE HIGH COURT OF NASARAWA STATE

In the matter of

Application to enforce

Fundamental Human Rights

Pursuant to section ….. of the constitution

Between:

A.B……………………………………………………………………………..Applicant

And

CD and EF…………………………………………………………………….Respondent

 

MOTION EXPARTE; OR MOTION ON NOTICE

TAKE NOTICE that this Hon. Court shall be moved on the ……………..day of …………..20……… at the hour of 9 o‟clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicant praying the court for the following orders

(State reliefs sought)

(State statement in support of Application)

(State affidavit in support) etc.

 

FORM 8

General Form of Petition

(Ord. 6, r.3)

IN THE HIGH COURT OF NASARAWA STATE

Between:

AB……………………………………………………………………………..Petitioner

And

CD and EF…………………………………………………………………….Respondent

NOTICE OF PETITIONER

To

CD and EF

TAKE NOTICE that a person has been presented to the above named court by AB instituting proceedings for (State kind of proceedings e.g. dissolution of marriage or election petition).

State grounds; Facts Relied on, orders sought

State affidavit of verification of facts

State acknowledgement of service

State certificate relating to reconciliation when it concern dissolution of marriage etc.

 

FORM 9

Request to Minister of Foreign Affairs to transmit

Writ to Foreign Government

(0.12, r.3(a))

The Chief Judge of Nasarawa 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 Nasarawa 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 Nasarawa 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 Nasarawa 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 the Government or Court of the said country be requested to certify the same to the High Court of Nasarawa State.

PREACIPE

FORM 10

Request for Service Abroad (Title as in Form No.4)

(0.12, 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 undertake to be responsible for all expenses incurred by the Ministry of 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 permanent Secretary of the Ministry of Foreign Affairs.

DATED this……………. day of………………………20…………..

…………….………..……………..

Signature of Legal Practitioner

FORM 11

Letter Forwarding Request for Substituted Service

(0.12, r.3(d))

The Chief Judge of Nasarawa 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 plaintiff has obtained an order of the…………………………..……………………Judicial Division of the High Court of Nasarawa 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 further 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 Nasarawa 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 12

Request to Minister of Foreign Affairs to transmit

Notice of writ to a Foreign Government

(0.12, r.4(1)(a))

The Chief Judge of Nasarawa 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 Nasarawa State, stating that the writ of summons has been delivered, and on what date.

 

FORM 13

Memorandum of Appearance

(0.13, r.1(1))

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No…………………………….

Between:

………………………………………………………………………………Plaintiff(s)

and

………………………………………………………………………………Defendant(s)

Please enter an appearance for 1(a)…………………………………………sued as 1(b)

……………………………………………………………………………………………..

……………………………………………………………………………………………..

In this action.

DATED this……………………………day of………………………20…………..

Sign:………………………………….

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: –

1(a) The defendant must give his or her full name.

(b) Give name by which the defendant is described in the writ if this differs from defendant‟s full name, otherwise delete words “such as”.

(c) A defendant appearing in person must give his residence or some other place within the Judicial Division of Nasarawa State to which communication for him should be sent. Where he appears by a Legal Practitioner, the Legal Practitioner‟s place of business.

  1. Where the defendant is a firm, the appearance must be entered by the individual partners by name with the description “Partner in the firm of……………….”
  2. Where the defendant is an individual trading in a name other than his own, the appearance must be entered by him his own name with the addition of the description “Trading as…………………………..”
  3. Where the defendant is a limited liability company, the appearance must be entered by a Legal Practitioner.
  4. Where the appearance is being entered by leave of the court, a copy of the order granting leave must accompany his form.
  5. Where the defendant has no defence or admits the plaintiff‟s claim, the entry of appearance will delay Judgment and may increase the costs payable by the defendant.
  6. Acknowledgment of service shall be as follows: –

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 14

Notice of Counterclaim

(0.20, r.10)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Between:

A.B.…………………………………………………………………………Plaintiff(s)

and

C.D.…………………………………………………………………………Defendant(s)

To the within-named X.Y.

Take notice that if you do not appear to the counterclaim of the within-named C.D., within 8 days from the service of this defence and counterclaim upon you, you will be liable to have judgment given against you in your absence.

Appearance to be entered at the…………………………………..Judicial Divisions, High Court Registry, Nasarawa State.

FORM 15

Concession to Defence

(0.20, r.18)

IN THE HIGH COURT OF NASARAWA STATE

In the…………………………………………………………………Judicial Division

Between:

A.B.………………………………………………………………………………Plaintiff

and

C.D., E.F., and G.H……………………………………………………………Defendant

The plaintiff concedes to the defence stated in paragraph………………….. of the defendant‟s defence (or, of the defendant‟s further defence).

 

FORM 16

Notice of Payment into Court

(0.23, r.1 (6))

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

137

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

Take notice that the defendant…………………………has paid into Court N=……………and says that (……………………………..part of) that sum is enough to satisfy the plaintiff‟s claim (for and N=………………..the other part of that sum is enough to satisfy the plaintiff‟s claim for……………………………………)

DATED this………………………day of …………………..20…………………..

………………………..………………………….

P.O., Legal Practitioner for the defendant, C.D.

To X.Y., the plaintiff‟s Legal Practitioner, and to Mr. R.S. Legal Practitioner for the defendant E.F.

To be filed in by the Cashier, High Court.

Received the above sum of ………………………..naira ……………………………. Kobo…………………………………….into court in this action.

Dated the……………….day of ………………..20……………..

 

FORM 17

Acceptance of Sum Paid into Court

(0.23, r.2 (1))

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

Take notice that the plaintiff 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 this……………day of ……………..20…………..

138

………………………..………………………….

X.Y., Plaintiff‟s Legal Practitioner

To

M.r. P.O. Legal Practitioner for the defendant C.D. and Mr. R.S. Legal Practitioner for the defendant E.F.

FORM 18

Acceptance of Sum Paid into Court

By one of Several Defendants

(0.23, r.4 (4))

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

Take notice that the plaintiff accepts the sum of N=…………………………paid by the defendant C.D. into Court in satisfaction of his claim against the defendant C.D.

DATED this………………day of ………….20…………….

………………………..………………………….

X.Y., 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 19

Hearing Notice for Pre-Trial Conference

(0.27, r.1)

IN THE HIGH COURT OF NASARAWA STATE

In the…………………………Judicial Division 20…………..

139

Between:

A.B.……………………………………………………………………………Plaintiff

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 Nasarawa 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:

  1. (a) disposal of non-contentious matters which must or can be dealt with on interlocutory application.

(b) giving such directions as to the future course of the action as appear best adopted to secure its just, expeditious and economical disposal;

(c) promoting amicable settlement of the case or adoption of alternative dispute resolution.

  1. 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 proceeding will be taken and such order will be made as the Judge may deem just and expedient.

Dated this………..ay of …………..20…………..

Sign ………………………….

Chief Registrar

To X.Y., the plaintiff‟s Legal Practitioner, and to Mr. R.S. Legal Practitioner for the defendant E.F.

 

FORM 20

Pre-Trial Information Sheet

(0.27, r.1)

IN THE HIGH COURT OF NASARAWA STATE

In the………………………………Judicial Division 20……..

Between:

B.B.……………………………………………………………………………Plaintiff

and

140

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. Application 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.

  1. Do you require that this action be consolidated with any other action(s)? if so give particulars.
  2. Are amendments to any originating or other process required?
  3. Are further and better particulars of any pleading required? If so, specify what particulars are required.
  4. Do you object to producing any document in respect of which a request for discovery has been made pursuant to Order 28 Rule 1 of the High Court (Civil Procedure) Rules? If so, state the grounds of such objection in compliance with Order 28 Rule 4 of the Rules.
  5. Do you object to producing any document in respect of which a request for discovery has been made pursuant to Order 28 Rule 8(1) of the High Court (Civil Procedure) Rules? If so, state the grounds of such objection in compliance with Order 28 Rule 8(3) of the Rules.
  6. If you intend to make any additional admissions, give details.
  7. Will interpreters be required for any witness? If so, state in what language
  8. Is this a case in which the use of a single or joint expert might be suitable? If not state reasons.
  9. Is there any way in which the court can assist the parties to resolve their dispute or particular issues in it without the need for a trial or full trial?
  10. Have you considered some form of Alternative Dispute Resolution (ADR) procedure to resolve or narrow the dispute or particular issues in it? If yes state the steps that have been taken. If not state reasons.
  11. State any question or questions of law arising in your case. If any, which you require to be stated in the form of a special case for the opinion of the Judge in accordance with Order 30 of this Rules.
  12. List the applications you wish to make at the Pre-Trial Conference.

DATED this……………day of………….20……………

141

Signed………………………………….

(Legal Practitioner for the……………..)

For service on:

……………………………

……………………………

 

FORM 21

Interrogatories

(0.28, r.2)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No………………………..

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

Interrogatories on behalf of the above- named (plaintiff or defendant C.D.) for the examination of the above-named (defendants E.F. and G.H. or Plaintiff).

  1. Did not, etc.
  2. Has not, etc.

(The defendant E.F., is required to answer the interrogatories numbered ……………………) (The Defendant G.H. is required to answer the interrogatories numbered…………………)

Dated the………………………..day of…………………20……………

FORM 22

Answer to Interrogatories

(0.28, r.6)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No………………………..

142

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

The answer of the above-named defendant E.F. to the interrogatories for his examination by the above-named plaintiff.

In answer to the said interrogatories, I the above-named E.F. make oath and state 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 23

Affidavit as to Documents

(0.28, r.8(3))

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No………………………..

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

I, the above- named defendant C.D., make oath and state as follows-

  1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
  2. I object to produce the said documents set forth in the second part of the said first schedule hereto (state grounds of objection).
  3. I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
  4. The last-mentioned documents were last in my possession or power on (state when, and what has become of them and in whose possession now are)
  5. To the best of my knowledge, information and belief I have not now, and never had in my possession, custody or power, or in the possession, custody or power of my Legal Practitioner or agent, or in the possession, custody or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract any such document

143

whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second schedule hereto.

Dated at ………………..this……………….day of…………….20……………

(ILLITERATE JURAT)

……………………………

 

FORM 24

Form of order for Accounts and Inquiries

(0.29, r.11)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No…………………………….………………………..of…………………………..

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, E.F, and G.H……………………………………………………………Defendant

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 25

Legal Practitioner’s Undertaking as to Expenses

(0.34, 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;

Plaintiff‟s Agent…………………………………of……………………………………………

Defendant‟s Agent………………………………of……………………………………………

DATED the…………………………….day of………………………..20……………….

…………………………..

Legal Practitioners for

……………………………

…………………………….

 

FORM 26

Letter of Request to take Evidence Abroad

(Convention Country)

(0.34, 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 Nasarawa State, Nigeria, in which…………………….is the Plaintiff and……………………………………….is the defendant. And in the said action the plaintiff claims.

And whereas it has been requested 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 are resident within your jurisdiction.

145

Now, I the Chief Judge of the High Court of Nasarawa 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 plaintiff 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 plaintiff 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 Plaintiff 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 witnesses 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 conditional viva voce questions, whether on examination cross-examination or re-examination 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 further pleased to authenticate such examination by the seal of your tribunal, or in such other way 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 Nasarawa State.

And I further beg to request that you will cause me, or the agents of the parties if approved, to be informed of the date and place where the examination is to take place.

DATED the……………day of……………………20……………….

 

FORM 27

Order for Appointment of the Nigerian Diplomatic Agent

As Special Examiner (In Convention Country)

(0.34, r.8)

(Heading as in Form No.1)

Upon hearing the Legal Practitioners 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

146

the examination, cross-examination, and re-examination, viva voce, on oath or affirmation, of……………………………………………………. Witnesses on the part of the……………………………at …………………………………aforesaid. The examiner shall be at liberty to invite the attendance of the said witnesses and the production of documents, but shall not exercise any compulsory powers, otherwise such examination shall be taken in accordance with the Nigerian High Court Procedure. The…………………………… Legal Practitioners to give to the ……………………………..Legal Practitioners send out this order to………………………….. for execution and that Practitioners for the Plaintiff‟s and defendants respectively do exchange the names of 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 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, Nasarawa 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 land 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.

 

FORM 28

Forms of Praecipe

(0.34, r.20)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No:………………………..

Between:

A.B.……………………………………………………………………………Plaintiff

and

C.D, and others……………………………………………………………Defendant

Seal Writ of Subpoena……………………………….on behalf of the……………direct

on ………………………………… returnable.

DATED this………………day of ………….20…………….

(Signed)………………………………

147

(Address)……………………………..

Legal Practitioner for the………………………………..

 

FORM 29

Subpoena ad Testificandum

(0.34, r.21)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No:………………………..

Between:

…………………………………………………………………………………Plaintiff

and

…………………..……………………………………………………………Defendant

To………………………………………. … of ………………………………………….

You are commanded in the name of the 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 30

Habeas Corpus ad Testificandum

(0.34, r.21)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No:…………………………………………………………………….20……………….

Between:

…………………………………………………………………………………..…Plaintiff

and

148

………………..…………………………………………………………………Defendant

………………………………………. The Controller of Prison, at……….……………….

You are commanded in the name of the State to have…………………………………… who it is said is detained to your custody in Prison, at…………………..before the court……………….at……………….on……………..the………………day……………………………..at …………………………o‟clock in the forenoon, and so from day to day till 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 31

Subpoena duces Tecum

(0.34, r.21)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Suit No:……………………………………………………………………………………

Between:

…………………………………………………………………………………Plaintiff

and

…………………..……………………………………………………………Defendant

To………………………………………. … of ………………………………………….

You are commanded in the name of the State to attend before this Court at……………on…………………..the……………….day of………………20……………..at the hour 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 32

Form of Guarantee for the Acts and Defaults of a Receiver

(0.40, r.10)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

PARTIES

Suit No:…………………………………………………………………………………….

Between:

Re:……………………………………………………………………………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 State. By an Order of the High Court of Nasarawa 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 this guarantee witnesses as follows –

  1. The Receiver and the Surety hereby jointly and severally covenant with the State and its successors that the Receiver shall and will from time to time duly account for what he has already received since the date of the said order appointing him and shall hereafter receive or for what since the date of the said order appointing him he has or shall hereafter be or become liable to pay or account for as such Receiver (and manager) as aforesaid including as well every sum of money or other property so received during the period for which he has been appointed as also every sum of money or other property so received in respect of any extended period for which he may be appointed and shall and will pay or deliver every such sum or property as the court or a Judge thereof may direct.
  2. Provided always that it is hereby mutually agreed as follows –

(a)     If the Receiver shall not for every successive twelve months to be computed from the date of his appointment as such Receiver as aforesaid or within fifteen days after the expiration of such twelve months pay at the office of the Surety the annual premium or sum of N=…………………………………..then the Surety shall be at liberty to apply by summons in the said action to be relieved from all further liability as such surety under this guarantee save and except in respect of any damage or loss occasioned by any act or default of the receiver in relation to his duties as such Receiver (and Manager) prior to the hearing and determination of such summons.

(b)     A statement order the hand of any Registrar of the High Court of Nasarawa State of the amount which the Receiver is liable to pay and has not paid under this guarantee and that the loss or damage has been incurred through the act or default of the Receiver shall be conclusive evidence in any action or information by the State against the Receiver of the truth of the contents of such statement and shall constitute a binding charge not only against the Receiver and his personal representatives but also against the Surety and his funds and property without being necessary for the State to take any legal or other proceedings against the receiver for the recovery thereof and without any further or other proof being given in that behalf in any action to enforce this guarantee.

(c)     The liability of the Surety under his guarantee is limited to the sum of N=…………………….Provided nevertheless that a Registrar of the High Court may by his signature to the indorsement on this guarantee (in the form printed thereon) reduce the said liability of the Surety still further or (but only with the consent of the Surety by an instrument in writing duly executed) increase such liability as may be necessary and upon such indorsement this guarantee shall continue in full force but in that case the premium shall be correspondingly reduced or increased.

  1. It is hereby further agreed between the Receiver and the Surety as follows –

(a)     The Receiver will on being discharged from his office on ceasing to act as such receiver (and Manager) as aforesaid forthwith give written notice thereof to the Surety by registered post and also within 7 days of such notice furnish to the surety free of charge an office copy of the order if any of the Judge discharging him.

(b)     The Receiver and his personal representative shall and will at all times hereafter indemnify the Surety and its property and funds against all loss, damage, costs and expenses which the Surety or its funds or property may or might otherwise sustain by reason of the Surety having executed this guarantee at his request.

In witness whereof the Receiver has hereunder set his hand and seal and the surety has caused its Common Seal to be affixed the ………………… day of………………… 20………………………….. In the matter of………………………. Increased Liability.

To be attached by way of Indorsement to Guarantee.

The liability of the Surety under the within written guarantee has with the consent of the Receiver and the Surety been increased from N=…………….. to ………………..N=……………………… in respect of any acts or omissions to which the 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 by the Receiver and the Surety respectively.

151

Signed, sealed and delivered by………………………………

The Receiver in the presence of………………………………

The Common Seal of the Surety was…………………………

Hereunder affixed in the presence of…………………………

 

FORM 33

Receiver’s Security by Understanding

(0.40, r.10)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

PARTIES

Suit No………………………………………………………………………………………

Re……………………………………………………………………………………………..

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 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 of sureties. In the case of a surety being a guarantee or other company, it must be sealed or otherwise duly executed.

 

FORM 34

Receiver’s Account

(0.40, r.13)

(Tide)

Suit No………………………….of 20……………………

The (………………………) account of A.B., Receiver appointed in this cause (or pursuant to an order made in this cause, dated the……To accord…………day of………..) to receiver the rents and profits of the real estate, and to collect and get in the outstanding personal estate of…….with the 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

Observation

N

N

N

N

N

PAYMENT 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 ………

Bills for repairs at house let to……

Allowance for a half –year‟s income

Tax, due………………………………………

Total payments

…………………………………………………N

RECEIPT ON ACCOUNT OF PERSONAL ESTATE PAYMENT AND ALLOWANCES ON PERSONAL

ACCOUNT 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 paid or allowed

For what purpose paid or allowed

Amount paid or allowed

153

SUMMARY

N N

Amount of balance due from receiver on account of real estate on last accou…………

Amount of receipt 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 on receiver on last account of personal estate…………………_________

Amount of receipts on the above of person estate……………………………………N________

Balance of last account into court …………………………………………………….

Amount of payment and allowances on the above account on 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 35

Affidavit Verifying Receiver’s Account

(0.40, r.14)

IN THE HIGH COURT OF NASARAWA STATE

In the……………………………………………………………………Judicial Division

Between:

A.B….……………………………………………………………………………Plaintiff

and

C.D. and E.F.……..……………………………………………………………Defendant

I ………………………………………. … of ………………………………the Receiver appointed …………………………………..in this cause, make oath and say as follows –

  1. The document now shown to me marked A is, as it purports to be specified.
  2. …………………………………….and………………….my Sureties named in the guarantee (or undertaking) dated…………20……………are both alive and neither of them has become bankrupt or insolvent.
  3. The…………………….Co. Ltd., my Surety named in the ………………Guarantee (or 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 cash are sometimes necessary.

154

FORM 36

Certificate of the Chief Registrar

(0.43, r.9(1))

In the………………………………………………………Nasarawa Judicial Division

Between:

A.B….……………………………………………………………………………Plaintiff

and

C.D. and E.F.……..……………………………………………………………Defendant

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 or order), in this cause dated the………………..day of…………………is as follows –

  1. The defendants…………….of………………………..have received the amount of N …………..and 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), the sum of N …………..on that account.
  2. The particulars of the above receipts and payments appear in the account marked …………………. verified by the affidavit of………………………..filed on the………………day of……………………. And which account is to 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 us 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…………………..

155

FORM 39

Order for Payment of Principal Money or

Interest secured by Mortgage or charge

(0.54, r.2)

In the………………………………………………………Nasarawa Judicial Division

Between:

A.B….……………………………………………………………………………Plaintiff

and

C.D. and E.F.……..……………………………………………………………Defendant

It is ordered that the plaintiff 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 …………..percent, 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 plaintiff the moneys ordered to be recovered and all other moneys (if any) secured to the plaintiff by the said mortgage (or charge) the plaintiff (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.

DATED at…………………this……………….day of………………….20

……………………….

Registrar

FORM 36

Order for Possession of Property forming a security

For payment to the plaintiff of any principal

Money or Interest

(0.55, r.2)

In the………………………………………………………Nasarawa Judicial Division

156

Between:

A.B….……………………………………………………………………………Plaintiff

and

C.D………………..……………………………………………………………Defendant

It is ordered that the defendant do give the Plaintiff 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 plaintiff 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 Plaintiff the moneys remaining due to the Plaintiff upon the security of the said mortgage (or charge) the plaintiff (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.

DATED at…………………this……………….day of………………….20

……………………….

Registrar

 

FORM 39

Order for Payment of Principal Money or Interest

Secured by Mortgage or Charge and for

Possession of Property Comprised therein

(0.54, r.2)

In the………………………………………………………Nasarawa Judicial Division

Between:

A.B….……………………………………………………………………………Plaintiff

and

C.D………………..……………………………………………………………Defendant

157

It is ordered that the Plaintiff 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=……………………..percent per annum less tax to the………………………….day of (date of order), and N=……………..for costs (or his costs of this summons to be taxed).

And it is ordered that the defendant to give the Plaintiff 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 Plaintiff the moneys hereby ordered to be recovered and all other moneys (if any) secured to the Plaintiff by the said mortgage (or charge) the Plaintiff (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.

DATED at…………………this……………….day of………………….20

……………………….

Registrar

 

FORM 40

Originating Summons for Possession

(0.55, r.2)

IN THE HIGH COURT OF NASARAWA STATE

In the………………………………………………………Nasarawa Judicial Division

Suit No………………………………………………………………………………

Between:

A.B….……………………………………………………………………………Plaintiff

and

C.D. and E.F.……..……………………………………………………………Defendant

(if any) whose name is known to the plaintiff

To (C.D. and) every (other) person in occupation of………………………………………

………………………………………………………………………………………………….Let all persons concerned attend before……………………………………………..at the High Court of the …………………………………………………..Judicial Divisions, Nasarawa State on………………………..the …………………………………day

158

of……………..20……………at…………………9 O‟clock in the forenoon for the………………. Hearing of an application by AB for an order that he do recover possession of……………………on the ground that he is entitled to possession and that the person(s) in occupation is (are) in occupation without his licence or consent.

Dated this………………..day of……………………….20………………..

This Summons was taken out by……………………….of……………………..

Legal Practitioner for the said Plaintiff whose address is…………………………

(or This Summon was taken out by……………………………………………….

of………………………….for ………………………………………………………

of…………………………………………………Legal Practitioner for the said Plaintiff whose address is…………………………………………………)

(or when the Plaintiff acts in person).

This Summons was taken out by the said Plaintiff who resides at………………………..and is (state occupation) and (if the Plaintiff 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 41

Order for Possession

(0.55, 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 plaintiff A.B. Do recover possession or 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 Plaintiff N=……………………costs (or costs to be taxed). (The above costs have been taxed and allowed at N=………………… as appear by a taxing officer‟s certificate dated the…………………………… day of………………….20………………..)

159

DATED the…………….day of ………………20……………….

…………………………

Judge

PROBATE FORM 1

(0.55, r.35(3))

Surety’s Guarantee

In the High Court of…………………………………………………………………State

Probate Registry Suit No…………………………………………………………………..

In the Estate of …………………………………………………….deceased.

Whereas …………………….of…………………….died on the ………………… day of…………………20……………and…………………….(and……………………) (hereinafter called “the Administrator” is/are the intended Administrator(s) of his estate).

Now thereof-

  1. I/We………………………………………………….of………………………..and

……………………………………..of …………………………….and…………….of

………………………………………..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,

  1. The giving of time to the Administrator(s) or any other forebearance or indulgence shall not in any way affect my/our liability under this guarantee.
  2. 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……………………

160

Signed, sealed and delivered by the above named in the presence of………………………. a Commissioner for Oaths, (or other person authorized by law to administered an oath).

(The Common Seal of…………………………………was hereunto affixed in the presence of……………………………).

 

PROBATE FORM 2

(0.55, 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 granted by the ………………………………. to …………………………… (and………………………….) and are about to be sealed in the State under the Succession Law;

Now thereof-

  1. I/We…………………………………………..of………………………………and 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

  1. The giving of time to the Administrator(s) or any other forebearance or indulgence shall not in any way affect my/our liability under this guarantee.
  2. 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 Oaths. (or other person authorized by law to administer an oath) The Common Seal of…………. was hereunto affixed in the presence of……………………….

161

PROBATE FORM 3

(0.55, r.71(3)

Notice to Prohibit Grant

IN THE MATTER OF…………………………………………………DECEASED

LET NOTING be done in the matter of………………………………………………..late

of ………………………………………..deceased, who died on the……………………… day of 20…………………..at ………………………….and had at the time of his death his fixed place of abode at………………………………………………………………………… within the jurisdiction of this court, without warning being given to……………………….. of ……………………………………………………..

DATED this………………………….day of…………………………..20………………..

………………………………..

Signature

PROBATE FORM 4

(0.55, 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

(0.55, r.71(8))

Warning to Caveator

162

In the High Court of…………………………………………………………………State

Probate Registry Suit No…………………………………………………………………..

To:……………..……………………………………………………………………….of. ……………………………. ………………………….a party who has entered a caveat in the estate of…………………………………………….deceased.

You are hereby warned within eight 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, country to that of the party at whose instance this warning is issued, or
  2. If you have no country interest but wish to show cause against the sealing of a grant to such party to issue and serve a summons for direction by the Registrar of the said registry.

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…………………

………………………………

Registry

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

(0.55, 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 (or Citor)……………………………………………………… ………………………………………………………………………………………………

163

Full name and address of Caveator (or person Cited):……………………………………..

………………………………………………………………………………………………

Date of will………………………………………………………………………………….

Interest of Caveator…………………………………………………………………………

Enter an appearance for the above named Caveator (or person cited) in this matter.

DATED this…………………day of…………………..20…………………

………………………………………….

Legal Practitioner or (“In person”)

 

FORM 7

(0.55, r.82(1)

Notice of Election to Redeem Life Interest

In the High Court of………………………………………………………………..State

Probate Registry No………………………………………………………………………

In the Estate of……………………..…………………………………………….Deceased

Whereas ……………… of …………………… died on the ………… day of………………………20…………….wholly/partially instate 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………………………..) and I am now the sole personal representative:

Now, I, the said………………………………………….hereby give notice that I elect to redeem the life interest to which I am entitled in the Estate of the late……………………… by retaining N………………………….. its capital value, and N…………………… be cost of the transaction.

DATED this…………………day of…………………..20…………………

(Signed)………………………………………….

    Find other laws of Nasarawa State, Nigeria HERE

 

 

LAWS OF THE FEDERATION OF NIGERIA 

 

error: Our Content is protected!! Contact us to get the resources...

Subscribe To Our Newsletter

Subscribe!