ORDER 1

Application

1.

(1) These Rules may be cited as the High Court (Civil Procedure) Rules of Katsina State, 2017.
(2) These Rules shall govern the procedure in all proceedings in the High Court of Katsina State.
(3) These Rules shall be construed, administered and employed by the Court and parties towards achieving just, efficient, speedy and inexpensive determination of civil proceedings.

Interpretation

2. (1) These rules shall be interpreted in accordance with The Interpretation Law, CAP 77 Laws of Katsina State 1991 or any re-enactment thereof.
(2) In these rules, unless the context otherwise requires, the following terms shall have the meanings assigned to them, namely;
“Plaintiff” shall mean the person who institutes an action and rules applying to him shall apply to a Defendant who has a counter claim.
“Court” means the High Court of Katsina State;
“Court “process” includes Writ of Summons, Originating Summons, originated process, notices, Petition, pleading, Orders, Motions, Summons, warrants and all documents or Written Communications;
“Decision” means any Order of the Court howsoever titled.
“Defendant” is the person responding to a claim and rules applying to him shall apply to a Plaintiff in a counter claim’
“Guardian” means any person who has for the time being the charge of or control over a person under legal disability and includes a person appointed to institute or defend an action on behalf of any person under legal disability;
“Minor” means a person who has not attained the age of 18 years
“Originating process” means any Court process by which a suit is initiated;
“Persons under legal disability” means person who lack capacity to institute or defend any proceedings by reason of age, insanity, unsoundness of mind or otherwise;
“Probate action” means an action for the grant of the will or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business;
“Registrar” means the Chief Registrar, Deputy Chief Registrar, Assistant Chief
Registrar or any other officer acting or performing the functions of a Registrar;
“Registry” means the Registry of the High Court of Katsina State in the appropriate judicial division:
”Taxing officer” means the Chief Registrar or such other Officer of the Court as the Chief Judge may appoint to tax costs.

ORDER 2

Suits relating to property

1.

1. Subject to the provisions of any Law prescribing otherwise or to subsequent provisions under this Order, all actions shall be instituted in the judicial division in which the cause of action arose or in which the Defendant resides or carries on business.

Suits relating to property (1) Suits relating to landed property shall be instituted in the judicial division wherein the land is situate and in the case of moveable property, where the act in relation to the property took place.

Suits against public officers

(2) 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 relating to contract 
(3)(a) All actions relating to contract shall be instituted in the judicial division in which the contract or part thereof is to be performed or in which the Defendant resides or carries on business.

Action against several Defendants

(b)Where there are several Defendants who reside or carry on business in different judicial divisions, the suit may be commenced in any of those judicial divisions subject to any Order or direction a Judge may make or give as to the most convenient forum.

Suits commenced in wrong Judicial Division

2.

2. If any suit is commenced in the wrong judicial division, it may be tried in that Division unless the Court otherwise directs.

3.

4.

5.

ORDER 3

Mode of beginning Court proceedings

1.

1. Except where otherwise prescribed by any other law in force or under this Rules, all civil proceedings shall be commenced by filing a Writ of Summons or Originating Summons, Originating Motions or Petitions.

Commencement by Writ of Summons (Form 1)

2.

(1) All proceedings in which the facts are in dispute or in which the Plaintiff makes a claim for relief or remedy or for damages or in which there is an allegation of fraud or a claim for breach of contract or breach of any duty either in tort or under any law shall be commenced by a Writ of Summons and shall be accompanied by;
a) Statement of Claim;
b) List of witnesses to be called at the trial;
c) Depositions of the witnesses, except those that are yet to be subpoenaed; and
d) Copies of every documentary evidence to be relied upon at the trial, except:
I. Evidence which was not available at the time of filing;
ii. Evidence which could not have been obtained with reasonable diligence;
iii. Evidence which is made subject to a motion for discovery.

(2) Any Writ of Summons unaccompanied by the requirements of Rule 2(1) shall not be accepted for filing and if inadvertently accepted, shall not be valid even though the filing fees may have been paid.
(3) A Writ of Summons shall be in Form 1 with such modifications or variations as the circumstance may require and any Writ of Summons for service outside Nigeria shall be in Form 2 with such modifications or variations as the circumstance may require.

Commencement by Originating Summons

3.

Commencement by Originating Summons
(1)Any proceedings in which the facts are not in dispute and the sole issue is one of construction of an enactment, a will, a deed, a contract, a Written instrument, or any other document or for declaration of rights under such instrument or some other question of law may be commenced by Originating Summons.

Documents to accompany Originating Summons
(2) An Originating Summons shall be accompanied by:
a. An affidavit setting out the facts relied upon;
b. All the exhibits to be relied upon;
c. A Written address in support of the Summons.

Forms 3,4 &5
(3) An Originating Summons shall be in Forms 3, 4 or 5 with such variations as circumstances may require. It shall be prepared by the Plaintiff or Plaintiff’s Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed, shall be deemed to be issued.

Discretion of the Court
(4) A Court shall not be bound to determine any such question of construction if in its opinion, it ought not to be determined on Originating Summons but may make any such Orders as it deems fit.

Defence to Originating Summons
(5) The person filing the Originating Summons shall leave at the Registry sufficient number of copies thereof together with the documents in Rule 3 (2) above for service on the Defendant or Defendants.

Time within which to respond to Originating Summons
(6) A Defendant in any proceedings commenced by Originating Summons shall within 21 days after service of the Originating Summons and accompanying documents, file a counter affidavit together with all the exhibits which the Defendant intends to rely upon and a Written address.

Service outside Katsina state Cap. S 6 LFN 2004

4.

Service outside Katsina state Cap. S 6 LFN 2004
 Subjects to the provisions of the Sheriffs and Civil Process Act, a Writ of Summons or other originating process issued by the Court for service in Nigeria outside Katsina 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 Katsina state of
Nigeria and in the …………………. State” 

Date and time of receipt of originating process.

5.

Date and time of receipt of originating process.
 (1) The Registrar shall indicate the date and time of receipt of every originating process presented to the Court for filling and shall arrange for service thereof to be effected. 

(2) An originating process which has been sealed shall not be altered except upon an application to Judge.

6.

7.

8.

9.

10.

ORDER 4

Endorsement

1.

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

Endorsement to show representative capacity

2.

2. Where a Plaintiff sues in a representative capacity or the Defendant is sued in a representative capacity, the originating process shall state that or those capacities.

Probate actions

3.

3. In probate actions the originating process shall state whether a Plaintiff claims as a creditor, an Executor, an Administrator, a beneficiary, a next-of-kin or in any other capacity.

Indorsement for a liquidated claim

4.

4. Where the claim is for debt or liquidated demand only, the originating process shall state the amount claimed for debt or in respect of such demands 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, that upon such payment, the proceedings shall terminate.

Ordinary accounts

5.

5. 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 legal practitioner

6.

 (1) A Plaintiff suing in person shall state on the originating process, an address for service within the state’s jurisdiction.
(2) Where a Plaintiff sues through a Legal Practitioner, the Legal Practitioner shall state on the originating process, his chambers’ address for service. Where the Legal Practitioner is based outside jurisdiction, the Legal Practitioner shall state a chambers’ address within the state’s jurisdiction as the address for service.

Indorsement of address

7.  An originating process shall state the address for service on a Defendant. Where it does not state an address for service, it shall not be accepted by the Registry for filing and where it accepted, it shall be treated as an irregularity which will not vitiate the proceedings but shall be regularized upon an application to the Judge.

ORDER 5

Non-compliance with Rules

1.

Non-compliance with Rules

 (1) Where in the beginning or purporting to begin any proceedings there is non-compliance with these rules, such proceedings shall be a nullity.
(2) Where at any stage after proceedings have been validly commenced and there is a subsequent failure to comply with the requirement of this Rule as to time, place, manner or form, the failure shall be treated as an irregularity and the Court may give any direction as it thinks fit to regularize such steps.

Wrong mode of commencement
(3) Where proceedings are begun by a process other than the one required by any of these rules, the Court shall not, on that ground, wholly set aside such proceedings.

Application to set aside for irregularity

2.

Application to set aside for irregularity
2. (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.

Mode of application to set aside
(2) An application under this rule may be made by Summons or Motion and the grounds of objection shall be stated in the Summons or notice of Motion.

3.

4.

ORDER 6

Preparing Originating Process

1.

1. Originating process shall be prepared by a Plaintiff or his Legal Practitioner and printed on a clear A4 paper of good quality.

Sealing of Originating Process

2.

Sealing of Originating Process
2. (1) The Registrar shall seal every originating process, whereupon it shall be deemed to be issued.

Copies to be presented for sealing
(2) On presenting any originating process for sealing, the Plaintiff or his Lawyer shall leave with the Registrar, copies of the process, one for each Defendant and one for endorsement of service on each Defendant.

What is to be done after sealing
(3) Each copy of the originating process shall be signed by the Plaintiff or his Lawyer and certified after verification by the Registrar as being a true copy of the original filed.

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3.

The Registrar shall then enter the filing in the cause book and identify the action with a suit number. The Registrar shall promptly arrange for personal service on each Defendants of a copy of the originating process and accompanying documents duly certified as provided by rule 2(3) of this Order.

Copies to be served

4.

4. The Registrar shall effect on each of the Defendants personal service of a copy of the originating process duly certified as provided by Rule2 (3) of this Order.

Affidavits in Probate Actions

5.

5. In originating process in probate actions, an affidavit verifying the contents of the process and sworn to by the Plaintiff shall accompany the process.

Duration of originating process

6.

 (1) Every originating process must be served within six months of issue.
(2) Before the expiration of the six months, an originating process which has not been served may be renewed upon a Motion of the Plaintiff to the Judge showing that it was impossible to serve within time. The Judge if satisfied shall renew the originating process for an additional term of three months.

Renewal of originating process Form 6
(3) A renewed originating process shall be in Form 6 with such modification or variations as circumstances may require.
(4) Every renewed originating process shall have endorsed upon it the fact of such renewal.

Loss of originating Process

7.

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

Concurrent originating process

8.

8. A Plaintiff may during the lifespan of an originating process cause to be issued, one or more concurrent originating processes, each to bear the same date as the initial process, marked ‘CONCURRENT’ with date of issue stated on it.  

Concurrent Originating Process for Service within and out of Jurisdiction

9.

9. An Originating Process for service within jurisdiction may be issued and marked as a concurrent originating process for service out of jurisdiction and an originating process for service out of jurisdiction may be issued and marked as a concurrent originating process for service within jurisdiction.  

10.

11.

ORDER 7

By whom service is to be effected

1.

(1) Service of originating process shall be made by a bailiff or any other officer of the Court appointed for that purpose.
(2)Where personal service is not required, a Legal Practitioner for a party may be served on behalf of such party.

Effecting Service of originating process etc,

2.

2. The process server shall serve an originating process by delivering to the party to be served a copy of the process.

When Originating Process need not be served personally

3.

 Where the Defendant has authorized in Writing his Legal Practitioner to accept service on his behalf and such authority is attached to the Memorandum of Appearance, personal service may be dispensed with.

Mode of service other than personal service

4.

4. Where personal service of an originating process is not required by these rules or any applicable law, service on any adult person resident or employed at the address for service given under Order of 4 rule 6(1) of these rules shall be sufficient.

Substituted service

5.

5. (1) Where personal service of an originating process is required and a prompt personal service cannot be effected, The Judge may, upon application by the Plaintiff, Order a substituted service.
(2) An application for substituted or other service shall be supported by an affidavit stating the grounds upon which the application is made.

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6.

 (1) Service on the guardian of a person under legal disability shall be deemed good and sufficient personal service, unless a Judge otherwise Orders. Personal service on a minor over 16 years of age living independently or doing business is also good and sufficient.
(2) The Judge may deem personal service on a person under legal disability good and sufficient.

Prisoner or detainee

7.

7. Where the Defendant is a detainee or prisoner, service on an officer in charge of the facility where the Defendant is, or on an officer of the agency in charge of the facility shall be deemed good and sufficient personal service.

Partners

8.

8. Where partners are sued in the name of their firm, the originating process shall be served on anyone or more of the partners or anyone in control at the principal place of business within the jurisdiction and such service deemed good service upon the firm whether any of the partners is out of the jurisdiction of the Court 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 of the Court against whom the Plaintiff commences the action.

Corporation or company

9.

9. In the absence of any statutory provision regulating service on a corporate body, any process requiring service may be served on the organization by delivery to an officer of the company at the registered office or place of business of the company. 

Foreign corporation or company Cap C 20LFN 2004

10.

10. When the suit is against a foreign 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 service may be served on the Principal Officer or Representative of such foreign company within the jurisdiction of the Court.

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

Service on local agent of principal who is out of jurisdiction

11.

11. Where service is to be made upon a person residing out of jurisdiction but carrying on business within the jurisdiction of the Court in his own name or under the name of a firm through an authorized agent, and the proceedings is limited to a cause of action which arose within the jurisdiction, the Writ or other documents may be equivalent to personal service.

Where violence is threatened

12.

12. Where a person to be served, whether alone or in concert with other resist 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

13.

13. After serving any process, the process server shall promptly depose to and file an affidavit setting out the facts, date, time, place and mode of service describing the process served and shall exhibit a copy of the process served. This affidavit shall be prima facie proof of service.

Expenses of service

14.

14. The party requiring service of any process shall pay the fees assessed for that purpose.

Time of service

15.

15. (1) Service of originating and other processes, Pleadings, Notice, 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 Sunday or on a public holiday.

Record of service

16. 16. A Registrar shall keep a record of service of all processes which shall contain the names of the parties, the title of the process, the mode of service, and the date of service and which record shall be prima facie evidence of any service or non service.

ORDER 8

Cases where service of originating process etc. are allowed out of Nigeria

1.

1. 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 claim is land and is situated within jurisdiction; or
b. Any Act, Deed, Will, Contract, obligation or liability affecting land or hereditaments situate within jurisdiction sought to be constructed, rectified, Set aside or enforced; or
c. Any relief sought against any person domiciled or ordinarily resident within jurisdiction; or
d. The claim is for 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 trust of any written instrument, which ought to be executed according to the law in force in Katsina 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 out of jurisdiction; and
(iii) Which by its term or by implication is to be governed by the applicable Law in Katsina 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 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 action properly brought against some other person duly served within jurisdiction; or
i. Claim is by a mortgagee or mortgagor in relation to a mortgaged property situate within jurisdiction and seeks relief such as: sale, foreclosure, delivery of possession; redemption, reconveyance; 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

2.

2. 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

3.

3. Where leave is granted to serve an originating process in any foreign country with which no convention on that behalf has been made, the following procedure maybe adopted:
(a) The process to be served shall be sealed with the seal of the Court for service out of Nigeria, together with a copy of the process translated into the language of that country if not English, and shall be transmitted to the Minister responsible for Foreign Affairs together with a request, as in Form 7 for its further transmission to the Ministry of Foreign Affairs in that country.
(b) A party wishing to serve a process under this rule shall file a praecipe in Form 8 with such modifications or variations as circumstances may require.
(c) A certificate, declaration, affidavit or other notification of due 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 Minister responsible for Foreign Affairs together with a request in Form 9 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, chose 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.

4.

4. (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 Convention in that behalf has been made, the following procedure shall, subject to any special provisions contained in the Convention, be adopted:
(a) The party desiring such service shall file in the Registry a request in Form 10 with such modifications or variations as circumstances may require and the request shall state the medium through which it is desired that service shall be effected, either:
(i) directly through diplomatic channels or
(ii) through the foreign judicial authority:
(b) The request shall be accompanied by the original document and a translation thereof in the language of the country in which service is to be effected, certified by or on behalf of the person making the request, and a copy of each for every person to be served and any further copies which the convention may require (unless the service is required to be made on a Nigerian subject directly through diplomatic channels, in which case the translation and copies thereof need not accompany the request, unless there is a provision in the Convention to the contrary);
(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 Minister responsible for Foreign Affairs for onward transmission to the foreign country;
(d) An official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a Nigerian diplomatic agent to the Court, establishing the fact and the date of the service of the process, 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 Processes

5.

5. Where in any civil matter pending before a Court or Tribunal of a foreign country a request for service of any process on a person within the jurisdiction is received by the Chief Judge from the
Consular or other authority of that country, the following procedure shall be adopted:
(a)The request for service shall be accompanied by a translation of the request in English Language; by two copies of the process to be served; and two copies of the process in English
Language;
(b) Service of the process 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 to be served, and one copy of the translation thereof in accordance with the
rules and practice of the Court regulating service;
(d) After service has been effected by the process server, he shall file an affidavit of service in which he shall furnish particulars of charges for the cost of effecting the service. The affidavit
shall be transmitted to the Chief Registrar with one copy of the process annexed;
(e)The Chief Registrar shall examine and verify the process server’s particulars of charges and may approve it or approve some lesser figure, whereupon the Chief Judge shall forward to the
Consular or other authority of the foreign country a request for service, the approved amount for service, evidence of service and a certificate appended to it.

Inapplicability of Rule 4

6.

6. 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

7.

7. 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 transmit to the appropriate foreign authority a Certificate establishing the fact and date of service, or indicating reasons for failure to serve, and also notify the authority as to the amount certified under paragraph (b) of this rule.

Substituted service of foreign process

8. (d) In appropriate cases, upon application, a Judge may Order substituted or other service of the foreign process.

ORDER 9

Mode of entry of appearance

1.

1. (1) A Defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the Registry the original and copy of a duly completed and signed Memorandum of Appearance as in Form 11 with such modifications or variations as circumstance may require.
(2) On receipt of the Memorandum of Appearance, the Registrar shall make entry thereof in the cause book and stamp the copy showing the date the Registrar received the process, and serve a copy thereof on Plaintiff or, as the case may be on the Plaintiffs Legal Practitioner.

Defendant appearing in person or represented by Legal Practitioner

2.

2. (1) A Defendant appearing in person shall state in the Memorandum of Appearance an address for service which shall be within Katsina 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 Katsina 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

3.

3. The Registrar shall not accept any Memorandum of Appearance, which does not contain an address for service within jurisdiction. If any such address is illusory, fictitious or misleading, the appearance may be set aside by a Judge on the application of the Plaintiff.

Defendants appearing through same Legal Practitioner

4.

4. 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

5.

5. If a Defendant files an appearance after the time prescribed in the originating process, the Defendant shall pay to the Court an additional fee of N200.00 (two hundred naira), for each day of default.

Intervener in probate matters

6.

6. In probate matters, any person not named in the originating process may intervene and appear in the matter on filing an affidavit showing the intervener’s interest in the estate of the deceased.

Recovery of land

7.

7. 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 the person who is seeking leave is in possession of the land either in person or through a tenant.

Landlord appearing

8.

8. Any person appearing to defend an action for the recovery of land as landlord, in respect of property of which the person is in possession only through a tenant, the person shall state in the Memorandum of Appearance that the person appears as landlord.

Person under legal disability appearing

9.

9. A person under legal disability shall enter an appearance by a guardian.

Tenant

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

ORDER 10

Default of appearance by person under legal disability

1.

1. Where no appearance has been entered for a person under legal disability, the 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.

Liquidated demand

2.

2. Where the claim in the originating process is a liquidated demand and the Defendant or all of several Defendants fail to appear, the Plaintiff may apply to a Judge for judgement for the claim
on the originating process or such lesser sum and interest as a Judge may Order.

Liquidated demand involving several Defendants

3.

3. 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 judgement against those who have not appeared and may execute the judgement without prejudice to the Plaintiff’s right to proceed with the action against those who have appeared.

Detention of goods

4.

4. 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, the Plaintiff may apply to a Judge for judgement. 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 judgement in respect of that part of the claim.

Detention of goods involving several defendants

5.

5. Where the claim in the originating process is as in Rule 4 of this Order and there are several Defendants, one or some of whom appear while another or others do not appear, the Plaintiff may apply for judgement 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 manner and subject to the filing of such particulars as a Judge may direct before judgement in respect of that part of the claim.

Detention of goods damages and liquidated demand

6.

6. 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 fail to appear, the 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

7.

7. 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, the 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

8.

8. Where in an originating process for recovery of land a Plaintiff claims mesne profits, arrears of rent, damages for breach of contract, wrong or injury to the premises, the Plaintiff may apply for judgment as in Rule 7 of this Order for the land and may proceed to prove the other claims.

Judgment for costs:

9.

9. In any case where the Defendant or Defendants fail to appear and the Plaintiff finds it unnecessary to proceed by reason that the Defendant shall have paid the debt, abated a nuisance or satisfied a claim, the Plaintiff may nonetheless apply to the Judge for costs.

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

Setting aside judgment

10.

10. 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 made by Motion on Notice by the Defendant.
The application shall be made within a reasonable time, showing a good defence to the claim and a just cause for the default.

Default of appearance in actions not otherwise specifically provided for

11. 11. 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, the Plaintiff may proceed as if appearance had been entered.

ORDER 11

Where Plaintiff believes there is no Defence

1. Where a Plaintiff believes that there is no defence to the claim, the Plaintiff shall file with the originating process the Statement of Claim, the exhibits, the depositions of the Plaintiff’s witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for the Plaintiffs belief and a Written address in respect thereof.

Delivery of extra copies

2. A Plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule I of this Order as there are Defendants.

Service

3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7 of these Rules.

Where Defendant intends to Defend

4. Where any Defendant served with the processes and documents referred to in Rule I of this Order intends to defend the suit, such Defendant shall, not later than the time prescribed by these Rules for filing a defence, file:
(a) A Statement of Defence;
(b) Depositions of witnesses;
(c) The exhibits to be used in the defence; and
(d) A written address in reply to the application for summary judgment.

Where Defendant has good defence or has no good defence or has good defence t part of the claim

5. (1) Where it appears to a Judge that a Defendant has a good defence and ought to be permitted to defend the claim, the Judge may grant the Defendant leave to defend the claim.

(2) Where any Defendant fails or neglects to comply with the provisions of Rule 4 of this Order or it appears to the Judge that the Defendant has no good defence to the claim, the Judge may 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 Judgement 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 there are several Defendants

6. 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 to be permitted to defend, the former may be permitted to defend and the Judge shall enter judgment against the latter.

Oral submission on Written Addresses

7. Under this Order the parties shall be at liberty to advance, before a Judge, oral submissions to expatiate their respective written addresses.

ORDER 12

Order for Account

1. Where in an originating process the Plaintiff seeks an account under Order 4 Rule 5 or where the claim involves taking an account if the Defendants 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.

Mode and time of Application

2. An application for account shall be supported by an affidavit filed on the Plaintiff’s behalf stating concisely the grounds of the 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

3. 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.

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12.

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ORDER 13

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 the Plaintiff or Plaintiffs may be entitled to without any amendment.

Action in name of wrong Plaintiff

2. 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 counter-claim

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

Any persons may be joined as Defendant

4. 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

5. Where an action has been instituted against a wrong Defendant or where the name of a Defendant 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 reliefs sought

6. (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 proceedings against the Defendant.

(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 the Defendant from being embarrassed or put to expense by being required to attend any proceedings in which the Defendant may have no interest.

Joinder of persons severally or jointly and severally liable

7. A Plaintiff may join as parties to the same action all or any of the persons, severally or jointly and severally, liable on anyone contract including parties to bills of exchange and promissory notes.

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

8. Where a Plaintiff is in doubt as to the person from whom the Plaintiff is entitled to redress, the Plaintiff 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 Defendants is liable and to what extent may be determined as between all parties.

Persons under legal disability

9. Persons under legal disability may sue by their guardians or defend by guardians appointed for that purpose.

Guardian

10. 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 relation, a written authority for that purpose signed by that person shall be filed in the Registry.

Trustees, Executors and Administrators

11. 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 person 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

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

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

Representation of persons or classes of persons in certain proceedings

13. (1) Where in any proceedings concerning:
a. The administration of an estate; or
b. Property subject to a trust; or
c. Land held under customary law as family or community property; or
d. The construction of any Written instrument including a statute, 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 Judgement or Order shall be framed accordingly.

(4) In this Rule, the word “class” includes the persons recognized by Customary Law as members of a family or as members of a land owning community.

Power to approve compromise

14. 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 bound accordingly except where the Order has been obtained by fraud or non-disclosure of material facts.

Where there is no personal representative

15. (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 the estate for the purpose of the proceedings, on such notice to such person (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.

Death of sole surviving party

(2) Where a sole surviving Plaintiff or Defendant in any 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, Judgement may be entered for the Defendant or as the case may be, for the person against whom the proceedings might have been continued.

Effect of misjoinder or nonjoinder

16. (1) No proceedings shall be defeated by reason of misjoinder 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 the Court.

(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 name of any party improperly joined be struck out.

(3) A Judge may order that the name of any person 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.  

Joinder of persons under legal disability 

(4) No person under legal disability shall be added as a Plaintiff suing, without a guardian and no person shall be added as the guardian of a Plaintiff under legal disability without the consent in writing of the person to be added.

(5) Every person whose name is added as Defendant shall be served with the originating processes or notice 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

17. (1) Any application to add or strike out or substitute 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.

Consequential Amendment

18. 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 Joinder

19. (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 of Joinder and all existing processes shall be served on the Third Party within the time prescribed for delivering the defence.

Appearance by Third Party

20. Where a person is joined to any proceedings as a Third Party, the person may, after service of the Order and all existing processes, enter appearance within 8 days, or within 30 days if the person resides or carries on business outside jurisdiction, or within such further time as a Judge may Order.

Default by Third Party

21. 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, the Third Party shall be deemed to admit the validity of and shall be bound by any judgment given in the action whether by consent or otherwise.

Subsequent Third Party

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

Claim against co-Defendant

23. A Defendant may in the defence make a claim against a co-Defendant.

Actions by and against firms

II. Actions by and against Firms and Persons carrying on Business In names other than their own

24. 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 firm, 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

25. (1) When an originating process is issued by partners in the name of their firm, the partners 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

26. (1) Where persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent 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 the person shall be necessary unless the person is a member of the firm sued.

Application of rules to actions between co-partners

27. The above rules in this Part shall apply to proceedings between a firm and one or more of its 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

28. Any person carrying on business within the jurisdiction in a name or style other than the person’s 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.

Action not abated where cause of action survives

III. Change of Parties by Death or Otherwise, etc

29. 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 pendente 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

30. (1) Where by reason of death or bankruptcy, or any other event occurring after the commencement of a proceedings 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 proceedings, 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 the person had been served with the originating process. The person 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 the appropriate pleadings and other documents as if the person had been an original party in the proceedings.

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

31. In case of an assignment, creation or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved.

Application to discharge Order by person under disability having a guardian

32. Where any person who is under no legal disability or being under any legal disability but having a guardian in the proceedings is the person 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 date of service of the Order.

By persons under disability having on guardian

33. Where any person under any legal disability and not having a disability having 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 any time within 14 days from the appointment of a guardian for such party, and until such period of 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 on behalf of parties

IV Legal Practitioners or Agents.

34. 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 the party’s Legal Practitioner, or by the party’s agent (unless an agent is expressly barred under these rules).

35.

36.

ORDER 14

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

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

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

Executor and Administrator

3. Claims by or against an Executor or Administrator as such may be joined with claims by or against the Executor or Administrator 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.

4. Claims by Plaintiffs jointly may be joined with claims by them or any of them separately against the same Defendant.

ORDER 15

Application by Motion or Summons

1. (1) Where, by these rules any application is authorized to be Motion or Summons made to a Judge, such application may be made by Motion which shall be supported by affidavit and shall state under what rule of Court or Law the application is brought.

(2) Every such application shall be accompanied by a written address in support of the relief sought.

(3) Where any party intends to oppose the application, that party shall within 7 days of the service of such application, file a 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 points of law within 7 days of being served. Where a counter affidavit is served, the Applicant may file a further affidavit with the reply.

Restriction on rule nisi and Order to show cause

2. No Motion or application for a rule nisi or Order to show cause shall be made in any action.

When notice of Motion should be given

3. (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 the Judge is satisfied 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 and the extension shall not be for a period exceeding 7 days from the day the extension is granted.

Motion on arbitral award

4. (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 any affidavit intended to be used shall be served with the notice of Motion.
(2) The party relying on an award, on applying for its enforcement shall supply:
(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original arbitration agreement or a duly certified copy thereof.
(3)An award made by an arbitrator or a decision reached at the Multi- Door Courthouse 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.

Duration of service and hearing of motion

5. Unless a Judge grants special leave to the contrary, there must 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

6. If on the hearing of a Motion or other application, a Judge shall be of opinion that any person to whom notice has not been given ought to have had such notice, the Judge may either dismiss the Motion or application or adjourn the hearing thereof in Order that such notice may be given upon such terms, if any, as the Judge may deem fit to impose.

Adjournment of hearing

7. 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, provided that application for adjournment at the request of a party shall not be made more than two times.

Service of Motion with Writ

8. A Plaintiff may file any application along with an originating process and may serve both on any Defendant simultaneously.

Account by Legal Practitioner

9. Where the relationship of Legal Practitioner and Client exists or has existed, a Summons may be issued by the Client or the Client’s representative for the delivery of a cash account or the payment of monies or the delivery of securities and a Judge may from time to time make an Order granting the Applicant a list of the monies or securities in the custody or control of the Respondent which are held 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 the Respondent 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 the Judge may deem fit.

Interim certificate

10. 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 monies 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 monies so certified to be forthwith paid to the Client or brought into Court.

ORDER 16

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 deponent does not attend, the deponent’s affidavit shall not be used as evidence save by special leave.

Title of affidavit

2. 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

3. 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 it has been so received.

Special time for filing affidavits

4. 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

5. 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

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

Alterations in accounts to be initialed

7. 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

8. 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

9. 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. E 14LFN

10. The provisions of Sections 79 to 90 of the Evidence Act which set out provisions governing affidavits, shall be applicable under these Rules.

ORDER 17

Statement of Claim

1. (1) Where an action is commenced by a Writ of Summons in accordance with Order 3, the Plaintiff must serve the Defendant with a Statement of Claim together with the Writ of Summons.

Statement of Defence

(2) A Defendant upon service of the Statement of Claim must file within 21 days of such service, a statement of his defence. The statement may contain his counter claim or his set off.

Plaintiff’s reply

(3) A Plaintiff shall, within 14 days of service of the Statement of Defence, file a reply where such statement of defence raises new issues of facts, except where a Plaintiff is contending that the new facts ought to be by way of independent action. 

Content of Pleadings

2. (1) Every pleading shall contain a succinct statement of the material facts upon which the party pleading relies for his claim or defence, but not the evidence by which such facts are to be proved.
(2) Every statement shall be cast in clear language, divided into consecutively numbered paragraphs and in chronological order with all endeavour to make it understandable by the adverse party and the Court.
(3) All pleadings shall be signed, sealed and dated by the Legal Practitioner who settled it and where the litigant is not represented, by such unrepresented litigant. It shall also have endorsed upon it, the names of the parties and their addresses for service.

Matters that must be specifically pleaded or which particulars must be given

3. (1) In all cases in which the party pleading relies on any fraud, breach of trust, willful default, it must be specifically pleaded with particulars set out.

Words in Defamatory sense

(2) In all cases of defamation, slander and libel, a Plaintiff alleging that words were used in a defamatory sense other than their ordinary meaning, must give particulars to support that other meaning.

Confession and avoidance

(3) In all cases where a statement of defence or a reply asserts that the case of the adverse party is not maintainable on grounds of performance, release, Statute of Limitation, fraud, illegality, such grounds are required to be specifically pleaded.

Conditions precedent

(4) A condition precedent necessary for the case of the Plaintiff or the Defendant is implied in a pleading except the party contesting them specifically pleads otherwise.

Pleading against Presumptions of law

(5) A party may not allege in any pleadings any matter or fact the law presumes in the party’s 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

(6) 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 relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings.

Admissions and Denials

4. (1) All allegations of facts made by a party in his pleadings are deemed admitted by the adverse party unless specifically denied in his pleadings or a joinder of issue under Rule 5 operates as a denial of it.

(2) A party is prohibited from denying allegations generally or evasively but is required where he does not admit to specifically deny the truth in every material allegation of the adverse party

Denial by Joinder of issue

5. A party may, by the 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 pleadings upon which issue is joined except any fact which the party may be willing to admit.

Effect of documents to be stated

6. Where the contents of any document are material, it shall be sufficient in any pleadings 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

7. 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

8. Where any contract or any relation between any persons is to be implied from a series of letters or 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, the person may state the same in the alternative.  

Technical objection

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

Further and better statement or particulars

10. 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 pleadings 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.  

Striking out of leadings

11. (1) A 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 on the grounds that:
a. It discloses no reasonable cause of action or defence; or
b. It is scandalous, frivolous or vexatious; or
c. It may tend to prejudice, embarrass or delay the fair trial of the action;
d. It is an abuse of the Court’s process and may in any such case order the action to be stayed or dismissed or enter judgment accordingly.
(2) Where the only ground on which the application is made is that the pleadings discloses no reasonable cause of action or defence, no evidence shall be admissible.
(3) This rule shall apply to the extent that is applicable to Originating Summons or other originating processes as though they were a pleading.  

Defamation

12. (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 an action for libel or slander the Defendant alleges that in so far as the words complained of consist of statement of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest or pleads to the like effect, the Defendant shall give particulars stating which of the facts and matters are relied upon in support of the allegation that the words are true.

Close of pleading

11. (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. 

14.

15.

16.

17.

18.

19.

20.

ORDER 19

Statement of Defence

1. The Statement of Defence shall be a statement in summary form and shall be supported by;
(a) List of witnesses to be called at the trial.
(b) Depositions of the witnesses, and
(c) Copies of every document to be relied upon at the trial.

Time to file defence

2. A Defendant shall, within 21 days of service of the originating process and the accompanying documents on the Defendant, deliver to the Plaintiff a Statement of Defence, along with the documents prescribed in Rule 1 of this Order.

3. (1) Where a party in any pleadings denies an allegation of fact in the pleadings of the opposite party, the denial shall not be done evasively but the party shall answer the point of substance.

(2) Where an allegation is made with diverse circumstances, it shall not be sufficient to deny the allegation along with those circumstances but a full and substantial answer shall be given.

 Denials generally

4. (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 cheques, 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

5. 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.

Pleadings to damages

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

 Set-off and counterclaim

7. Where any Defendant seeks to rely upon any ground as supporting a right of set-off or counter claim, the Defendant shall, in the defence, state specifically that the ground is relied upon by way of set off or counterclaim as the case may be, and the particulars of the set off or counterclaim shall be given.

 Title of counterclaim

8. Where a Defendant by a defence sets up any counter claim which raises questions between the Defendant and the Plaintiff along with any other persons, the Defendant shall add to the title of the 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 Defendant to such cross action, and shall deliver the defence to such of them as are parties to the action within the period which the Defendant is required to deliver the defence to the Plaintiff.

Claim against persons not party.

9. Where any such person as in Rule 8 of this Order is not a party to the action, the person shall be summoned to appear by being served with a of copy 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 counter claim so served shall be indorsed in Form 13 with such modifications or variations as circumstances may require.

Appearance by added parties

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

Reply to counterclaim.

11. 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 Plaintiff’s claim

12. 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

13. 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 the Defendant may be entitled to upon the merits of the case.

Grounds of Defence after action brought

14. (1) Any ground of defence which arises after the action has been filed, but before the Defendant has delivered a defence and before the time limited for doing so has expired, may be raised by the Defendant 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 grounds of defence arises to any such set-off or counterclaim respectively, it may be raised by the Plaintiff in the 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

15. (1) Where any grounds of defence arises after the Defendant has delivered a defence or after the time limited for delivering a defence has expired, the defendant 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 setting forth that ground of defence.

(2) Where any grounds of defence to any set-off or counterclaim arises after reply or after the time limited for delivering 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 setting forth that ground of defence.

Concession to defence

16. Whenever in any further defence pursuant to Rule 15 of this Order, the Defendant 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 in Form 12 with such modifications as the circumstances may require) and may thereupon obtain judgement up to the time of pleading of such defence, unless the Judge either before or after the delivery of such concession otherwise orders.

Filing of reply

17. Where the Plaintiff desires to make a reply, the Plaintiff shall file it within 7 days from the service of the defence.

ORDER 20

Nature of admission of facts

1. A party to a proceedings may give notice by the party’s pleadings or otherwise in writing, that the party admits the truth of the whole or any part of the case of any other party.

Notice to admit documents.

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

Notice of non-admission of documents

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

Cost of proving document

(3) Where a party gives notice of non-admission and the document is proved at the trial, the cost of proving the document, which shall not be less than a sum of five thousand naira, shall be paid by the party who has challenged it, unless at the trial or hearing the Judge shall certify that there were reasonable grounds for not admitting the authenticity of the document.

Notice to admit facts.

3. (1) Either party may, not later than 7 days before the first Pre-trial Conference, by notice in writing, filed and served, require any other party to admit any specific fact or tracts 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 the party so served shall be deemed to have admitted the fact or facts, unless a Judge otherwise orders.

Admission deemed only for purposes of the particular proceedings

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

Cost of proving facts arising out of neglect or refusal to admit

(3) Where there is a refusal or neglect to admit the fact or facts within 4 days after service of such notice or within such further time as may be allowed by the Judge, the cost of proving such fact or facts, which shall not be less than a sum of five thousand naira, shall be paid by the party so refusing or neglecting whatever the result of the proceedings, unless the Judge certifies that the refusal to admit was reasonable or unless the Judge at any time otherwise orders or directs.

Judgment or Order upon admission of facts

4. A Judge may, on application, at a Pre-trial Conference or at any other 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.

Cost of notice where documents unnecessary

5. Where a notice to admit or produce comprises documents that are not necessary, the costs occasioned thereby, which shall not be less than five thousand naira, shall be borne by the party giving such notice.

6.

7.

8.

9.

ORDER 21

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 Judgement for the amount claimed with costs.

Several Defendants: default of one or more

2. When in any such action as in Rule 1 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 for final judgment against the Defendant or Defendants making default and issue execution upon such judgment without prejudice to the Plaintiff’s right to proceed with the action against the other Defendant or Defendants.

Damages and detention of goods

3. 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.

4. 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 Judgement against the Defendant or Defendants so making default and proceed with the action against the others. In such case the value and amount of damages against the Defendant or Defendants 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

5. Where the claim is for debt or liquidated demand and also for pecuniary damages or for detention of goods with or without 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 debtor liquidated demand and may also apply for interlocutory judgment for the value of the goods and damages, only as the case may be and proceed as mentioned in Rules 3 and 4 of this Order.

Recovery of land.

6. In an action for the recovery of land, if the Defendant makes default as mentioned in Rule 1, the Plaintiff may apply for judgment that the person whose title is asserted in the Writ of Summons shall recover possession of the land with costs.

Claim for Mesne profits arrears or damages.

7. Where the Plaintiff has indorsed a claim for mesne profits or arrears of rent in respect of the premises claimed, or any part of them 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 I, 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 or Defendants and proceed as mentioned in Rules 3 and 4 of this Order.

Where a defence is filed to part of claim only

8. 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 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’s claim shall not be issued without leave of the Judge.

Defendant in default

9. 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 defaults

10. 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 and proceed against the other Defendants.

Default of third party

11. In any case in which issues arise in a proceedings 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 the party may appear to be entitled 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

12. 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 a Judge on grounds of fraud, nonservice or lack of jurisdiction upon such terms as the Court may deem fit.

ORDER 22

Payment into and out of Court

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

(2) Where a teller for payment is filed under Sub-Rule 1, the Chief Registrar, 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 Chief 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 of action in respect of which payment is made and the sum paid in respect of each such cause of action unless a Judge otherwise directs.

(6) The notice shall be in Form 13 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 the Plaintiff 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 the Defendant on the order of a Judge.

Plaintiff may take out money

2. (1) Where money is paid into Court under Rule I, the Plaintiff, 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 anyone 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 14 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.

Payment shall be made to the Plaintiff

(2) Payment shall be made to the Plaintiff or on the Plaintiff’s written authority, to the Plaintiffs Legal Practitioner and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed.

(3) If the Plaintiff accepts money paid into Court in satisfaction of the claim, or accepts a sum or sums paid in respect of one or more specified causes of action and gives notice of abandoning the other causes of action, the Plaintiff may after 4 days from payment out and unless a Judge otherwise orders, tax the Plaintiff’s costs incurred to the time of payment into Court and 48 hours after taxation may sign judgment for the taxed costs.

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

3 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

4. (1) Money may be paid into Court under Rule I 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 Plaintiff elects within 14 days after receipt of notice of payment into Court to accept the sum or sums paid into Court, the Plaintiff shall give notice as in Form 15 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 the claim against the Defendant making the payment and shall give notice to all the Defendants as in Form 14 with such modifications or variations as circumstances may require. The Plaintiff may tax the costs against the Defendant who has made such payment in accordance with Rule 2(3) of this Order and the action 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 continued.

Counterclaims

5. A person made a Defendant to a counter-claim may pay money into Court in accordance with the foregoing rules with necessary modifications.

Persons under legal disability

6. (1) In any proceedings 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 purposes of this Rule includes damages) in anyway recovered or adjudged or in respect of the claims of any such person under legal disability whether by judgement, 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 monies 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 monies 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’s costs.

Withdrawal of money from Court

7. Every application for the withdrawal of any money under this Order shall be made ex-parte.

8.

ORDER 23

Demurrer abolished

1. No demurrer shall be allowed.

Points of law may be raised by pleading.

2. (1) Any party may, by that party’s pleading, raise any point of law, and the Judge may dispose of the point so raised before, at or after the trial.

Decision on points raised

(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 24

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 proceedings in the action, by notice in writing, duly filed and served, wholly discontinue the claim against all or any of the Defendants or withdraw any part or parts of the claim. The Plaintiff 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 Plaintiff has, after receipt of the defence taken further action, the Plaintiff may, with the leave of the 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 that Plaintiff on the same or substantially the same facts until the terms imposed on the Plaintiff by the Judge have been fully complied with.

(5) The Judge may, upon the application of a Defendant, order the whole or any part of the alleged grounds of defence or counter claim to be withdrawn or struck out upon such terms and conditions as the Judge may order.

Withdrawal by consent

2. When a cause is ready for trial, it may be withdrawn by either Plaintiff or Defendant upon producing to the Registrar 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.

3.

ORDER 25

Amendment of originating process and pleadings

1. A party may, upon an application, amend the originating process and pleadings at any time before the close of Pre-trial Conference and not more than twice during the trial but before closing the case.

No amendment to raise new ground of claim.

2. No amendment shall be sought to introduce or raise any new ground of claim or contain any allegation of fact inconsistent with the pleadings of a party.

Application

3. Any application to amend shall be made to a Judge. Such application shall be supported by the proposed amendment and the amendment may be allowed upon such terms as to costs or otherwise as may be just.

Amendment of originating process

4. Where any originating process and/or a pleading is to be amended, a list of any additional witness to be called together with the depositions of the witness and copy or copies of any document or documents to be relied upon consequent on such amendment shall be filed with the application.

Amendment of originating process

5. 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 (two hundred naira) for each day of default.

Filing and service of amended process

6. Wherever 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.

General power to amend

7. 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 defect or error in any proceedings.

ORDER 26

Pre-trial Conference Notice

1. (1) Within 14 days after close of pleadings, the Plaintiff shall apply for the issuance of a Pre-trial Conference Notice.

(2) Upon application by the Plaintiff under Sub-Rule 1 above, the Judge shall cause to be issued to the parties and their Legal Practitioners (if any) a Pre-trial Conference Notice as in Form 16 accompanied by a Pre-trial Information sheet as in Form 17 for the purposes set out hereunder:

(a) Consideration of the legibility or otherwise of the processes filed by the parties in the action, and giving such directions as the Judge may deem fit.

(b) Disposal of non-contentious matters which must or can be dealt with on interlocutory applications:

(c) Giving such directions as to the future course of the action as appear best adapted, to secure its just, expeditious and economical disposal;

(d) Promoting amicable settlement of the case or adoption of alternative dispute resolution.

(3) If the Plaintiff does not make the application in accordance with Sub-Rule 1 of this rule, the Defendant may do so or apply for an Order to dismiss the action.

Scheduling and planning.

2. At the Pre-trial Conference, the Judge shall enter a Scheduling Order for:
(a) Joining other parties;
(b) Amending pleadings or other processes;
(c) Filing Motions;
(d) Further Pre-trial Conferences;
(e) Any other matter appropriate in the circumstances of the case.

Agenda

3. At the Pre-trial Conference, the Judge shall consider and take appropriate action 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) Eliciting preliminary objections on point of law;
(g) hearing and determination of non-contentious Motions;
(h) Giving Orders or directions for separate trial of a claim, counter-claim, set-off, cross-claim or third party claim or of any particular issue in the case;
(i) Settlement of issues, inquiries and accounts under Order 28;
(j) Securing statement of special case of law or facts under Order 29
(k) Determining the form and substance of the Pre-trial Order;
(l) Such other matters as may facilitate the just and speedy disposal of the action.

Time-table

4. The Pre-trial Conference or series of Pre-trial Conferences with respect to any case shall be completed within 45 days of close of pleadings and the parties and their Legal Practitioners shall cooperate 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.

Report

5. 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

6. If a party or the party’s 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 the Defendant, enter final judgment against the Defendant.
Any Judgment given under this Rule may be set aside upon an application made within 7 days of the judgment or such other period as the Pre-trial Judge may allow, not exceeding the Pre-trial Conference period. The application shall be accompanied by an undertaking to participate effectively in the Pre-trial Conference.

Management

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

ORDER 27

Discovery by Interrogatories

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 Conference.

Civil form 18.

2. Interrogatories shall be in Form 18 with such modifications or variations as circumstances may require.

Corporation or Companies

3. 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, an opposite party may deliver interrogatories to any member or officer of such party.

Objection to interrogatories answer

4. Any objection to answering any one or more of several by 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.

Filing of Affidavit in answer;

5. 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 19

6. An affidavit in answer to interrogatories shall be in Form 19 with such modifications or variations as circumstances may require.

Order to Answer or Answer Further

7. If any person interrogated omits to answer or answers insufficiently, the Pre-trial Judge shall, on application, issue an Order requiring the person to answer or to answer further as the case maybe.

Application for discovery of document

8. (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 the party’s 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 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 the person objects to producing, stating the grounds of the objection, and it shall be in Form 20 with such modifications or variations as the circumstances may require.

Processes filed after Pre-trial Conference

9. (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, the Judge may, on application, strike out the process.

Verification of business books

10. (1) Where any document required to be attached to any process or produced under this or any other Rule is a business book, the Judge may, upon application, order a 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, the 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 the party’s possession, custody, power or control, when the party parted with the same and what has become of it.

Attachment of party after service on Legal Practitioner

11. An Order for interrogatories or discovery or inspection made against any party if served on the party’s Legal Practitioner shall be sufficient service to found an application for attachment of a party for disobedience to the Order.

Attachment of Legal Practitioner

12. A Legal Practitioner upon whom an Order against any party for interrogatories or discovery or inspection is served under the last preceding Rule, who neglects without reasonable excuse to give notice thereof to the party, shall be liable to attachment.

Using answers to interrogatories at trial

13. 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

14. In any action against or by a Sheriff in respect of any matters connected with the execution of that 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 persons under legal disability

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

ORDER 28

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

2. In any legal proceedings, 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

3. 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 the referees’ guidance, and shall direct the parties if necessary to attend upon the referee during the inquiry.

General powers of referee

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

Evidence

5. (1) Subject to any Order made by the Judge ordering the inquiry, evidence shall be taken at any inquiry before a referee, and 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.

Referee with same authority as judge in the conduct of an inquiry

(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 commitment as the Judge may consider necessary.

Reports made in pursuance of reference under Order

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

(2) A referee may, by the referee’s 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 the Judge 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 the referee;
(d) Remit the whole or any part of the question or issue originally referred to the referee for further consideration by the referee or any other referee;
(e) Decide the question or issue originally referred to the referee on the evidence taken before the referee, 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 of 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

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

8. Where any account is directed to be taken, the accounting party shall make out the 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 the affidavit as an exhibit and left in the Registry.

Mode of vouching accounts

9. 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

10. Any party seeking to charge any accounting party beyond what the accounting party has by the account admitted to have received, shall give notice to the accounting party, stating the amount sought to be charged with particulars.

Accounts and inquiries to be numbered; Civil Form 21

11. Where by any judgment or order any account is 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 in Form 21 with such modifications or variations as the circumstances of the case may require.

Just allowances

12. In taking any account directed by any Judgement or Order, just allowances shall be made without any direction for that purpose

Expediting proceedings in case of undue delay

13. 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 proceedings and carry out any directions which may be given.

 14.

ORDER 29

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 crescent

2. 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, and may thereupon be stayed.

Special case to be signed

3. 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 legal disability are a party

4. An application to set down a special case in a 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 persons are true.

Agreement as to payment of money and costs

5. (1) The parties to a special case may, if they think fit, enter into an agreement in writing 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 of them, 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

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

ORDER 30

List 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 26 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 List

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

Power of court to make special arrangements

(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 Holidays

3. Where any Friday is a public holiday, the Pre-Trial list and Weekly Cause 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 case or matter fixed for hearing, a minute, recording the parties present and the step taken by the Registrar, shall be entered on the Court’s file.

Notice boards

5. Pre-Trial Lists and Weekly Case 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.

6.

ORDER 41

Rules for computation of tim

1. Where by any written Law or any special Order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceedings, and such time is not limited by hours, the following rules shall apply:
a. The limited time does not include the day of the happening of the event but commences at the begriming of the day next following that day;
b. The act or proceedings shall be done or taken latest on the last day of the limited time;
c. Where the time limited is less than five days, no public holiday shall be reckoned as part of the time;
d. When the time expires on a public holiday the act or proceedings shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being a public holiday.

Time of Service

2. No pleading, Summons, Motions, Orders, originating process, documents and other processes shall be served before 6.00 am or after 6.00 pm. Service effected after 6.00 pm, shall be deemed to have been effected the following day.

Court may extend time 3.

The Court may, as often as it deems fit, and either before or after the expiration of the time appointed by these Rules or by any Judgement 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 authorised by the Court or under these Rules shall at the time of compliance, pay to the Court an additional fee of N200.00 (two hundred naira) for each day of such default

ORDER 42

Days of sittings

1. Subject to the provisions of the Law, the Judge may appoint any day or days and any place or places from time to time for the hearing of causes as circumstances require.

Public or private sittings of the Court

2. 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

3. The several offices of the Court shall be open at such times as the Chief Judge shall direct.

Days of sittings and long vacation

4. Subject to the directions of the Chief Judge, sittings of the High Court for the despatch of civil matters shall be held on every week day except:
(i) On any public holiday;
(ii) During the week beginning with Easter Monday.
(iii) During the period beginning on 20th December of a given year and ending on the 6th January next following;
(iv) During an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may appoint.

Vacation

5. (1) Notwithstanding the provisions of Rule 4 of this Order, 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 of this Order (except on a Sunday or public holiday);
(a) Where such cause or matter is urgent; or to hear a cause or matter
(b) A Judge, at the request of all concerned, agrees.

Application for urgent hearing by motion ex-parte

(2) An application for an urgent hearing under Sub-Rule 1 (a) of this Rule shall 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

6. The time for filing and service of pleadings shall not run during the annual vacation unless otherwise directed by the Judge, for pleadings.

Recovery of penalties and costs

GENERAL

7. 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

8. 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

9. 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 initialed by the Registrar and recorded in the Process Register.

How process Addressed

10. All warrants and Orders of whatever description shall be addressed sufficiently 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

11. No fees are to be taken in respect of any proceedings where such fees would be payable by any Government 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

12. The Regulations regarding fees shall govern the payment and disposal of fees and the duties of Court officers in regard thereto.

Where no Rules exist

13. Where a matter arises in respect of which no provision or adequate 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, and the Court may make any Order which it considers necessary for doing justice in the circumstances.

Legible processes; opaque paper of good quality

14. All parties to any proceedings before the Court shall file legible processes, which shall be printed on white opaque paper of good quality.
The Registrar shall not accept any process that is not legible and printed on white opaque paper of good quality.

—

15. 15. The Registrar shall not accept any process that is not legible and printed on white opaque paper of good quality.

ORDER 43

Defendant leaving Katsina

1. If in any action the Defendant is about to leave the jurisdiction of the Court, or has disposed of or removed from the jurisdiction of the Court the Defendant’s property, the Plaintiff may, either at the institution of the suit or at any time thereafter until final Judgement, apply by ex-parte Motion to the Court for an Order that the Defendant do show cause why security should not be taken for the Defendant’s appearance to answer and satisfy any Judgement that may be passed against the Defendant in the suit.

Warrant to arrest

2. (1) If the Court, after making such investigation as it may consider necessary, shall be of opinion that there is probable cause for believing that the Defendant is about to leave the jurisdiction of the Court and that by reason thereof the execution of any Judgement which may be made against the Defendant is likely to be obstructed or delayed, the Court shall issue a warrant to bring the Defendant before it to show cause why the Defendant should not give good and sufficient bail for the Defendant’s appearance.

(2) The Defendant shall be brought to Court within 2 days of the execution of the warrant.

Bail for appearance or satisfaction

3. If the Defendant fails to show cause, the Court shall order the Defendant to give bail for the Defendant’s appearance at any time when called upon while the suit is pending and until execution or satisfaction any Judgement that may be passed against the Defendant in the suit or to give bail for the satisfaction of such Judgement; and the surety or sureties shall undertake in default of such appearance or satisfaction to pay any sum of money that may be a adjudged against the Defendant in the suit with costs.

Deposit In lieu of bail

4. (1) Where a Defendant offers to deposit a sum of money in lieu of bail for the Defendant’s appearance, sufficient to answer the claim against the Defendant, with costs of the suit, the Court 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 the Defendant’s appearance, sufficient to answer the claim against the Defendant, the Court may accept such security and make such Order as it may deem fit in the circumstance.

Committal in default

5. (1) If the Defendant fails to furnish security or offer a sufficient deposit, the Court may commit the Defendant into custody until the decision of the suit, or, if Judgement has been given against the Defendant, until the execution of the Judgement.

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

(3) The Court 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.

Cost of subsistence of person arrested 6.

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 Court shall otherwise order. The Court may release the person so imprisoned on failure by the Plaintiff to pay the subsistence money or in case of serious illness, order the removal of the person to hospital.

.ORDER 44

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

2. A Judge may admit a person to sue or defend in forma pauperis if satisfied that the person has no means to employ legal representation in the prosecution of the case and that the person has reasonable grounds for suing or defending as the case may be.

Conditions to be fulfilled

3. (1) A person seeking relief under this Order shall write an application to the Chief Judge accompanied by an affidavit, signed and sworn to by the Applicant, stating that by reason of poverty, the Applicant 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

4. Court fees payable by a person admitted to sue or defend informa 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.

Prohibition of payment

5. (1) The Legal Practitioner shall not, except by leave of the Chief Judge, take or agree to take any payment whatsoever from the Applicant or any 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 the 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, the Legal Practitioner shall at once report the matter in writing to the Registrar.

Discontinuance and revocation of order informa pauperis

6. (1) The Chief Judge may at any time revoke the Order granting the application and thereupon the Applicant shall not be entitled to the benefit of this Order in any proceedings to which the application relates unless otherwise ordered.
Neither the Applicant nor the Legal Practitioner assigned to the Applicant shall discontinue, settle or compromise the action without the leave of the Judge.

Payment to Legal Practitioner

7. 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

8. Every Order, notice or application on behalf of the Applicant, except an application for the discharge of the Applicant’s Legal Practitioner, shall be signed by the Legal Practitioner, who shall take care that no application or notice is made or given without reasonable cause.

ORDER 45

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 the Legal Practitioner 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

2. An application 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 7 clear days before the date fixed for hearing.

Services of application by Legal Practitioner

3.  Where the application is made by a Legal Practitioner, it shall be served on all parties to the cause or matter and where applicable, also on the out-going Legal Practitioner if the outgoing Practitioner is not the Applicant.

ORDER 47

Representation in Chambers

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

Matter to be disposed of in Chambers

2. Unless the opposite party or the Counsel to the opposite party objects, the Judge may, on application, conduct any proceedings (except actual trial) in Chambers and may also, on application, adjourn any such proceedings from Court to Chambers or vice versa.

Evidence upon applications for appointment of guardians and for maintenance

3.

II. PROCEEDINGS RELATING TO PERSONS UNDER LEGAL DISABILITY

3. Upon application for the appointment of guardians of infants and allowance for maintenance, the evidence shall show:
(a) The ages of the infants;
(b) The nature and amount of the infants’ fortunes and incomes; and
(c) What relations the infants have.

Guardian with reference to proceedings in chambers

4. At any time during the proceedings under any Judgement or Order, the Judge may, if the Judge 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 Judgement or Order.

Further consideration of matter originating in chambers

5.

III. FURTHER CONSIDERATION

5. 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

6.

IV. REGISTERING AND DRAWING UP OF ORDERS IN CHAMBERS COSTS
6. Notes shall be kept of all proceedings in the Judges’ Chambers with proper dates, so that all such proceedings in such 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 entry of Orders made in Chambers

7. Orders made in Chambers shall, unless the Judge otherwise direct, 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

8. Subject to the provisions of the Law and of these Rules, the costs of, and incident to all proceedings in Chambers shall be at the discretion of the Judge.

Application

9. This Rule shall apply in the case of decisions given by a Judge in Chamber on appeal from the Chief Registrar under Rule 4 of Order 40.

ORDER 48

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 by the Summons be specified, and as the circumstances of the case may require, that is:
(a) Payment of monies 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.

Civil Forms 34, 35, 36

2. Orders for payment and for possession shall be in Forms 34, 35 and 36 of these Rules with such variations as the circumstance of the case may require, and the like forms shall be used under corresponding circumstances in actions for the like relief commenced by the Writ.

Service and execution of judgment

3. The Court 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 it deems fit.

ORDER 49

Bringing in Judgement etc, directing accounts and inquiries

1.  Every Judgement 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 Judgement 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 Judgement or Order unless the Judge shall otherwise direct.

Summons to proceed with account and inquiries and Duration.

2. Upon a copy of the Judgement 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 Judgement or Order, shall thereupon give directions as to:
(i) The manner in which each of the accounts and inquires 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 proceedings 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.

Settling deed in case parties differ

3. Where by a Judgement or Order, a deed is directed to be settled by 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 the objections, if any, within 8 days after the delivery of such copy and the proceedings shall be adjourned until after the expiration of the said period of 8 days.

When service of notice of Judgments or Order may be dispensed with

4. 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 Judgement or Order upon any party cannot be made, the Judge may, if the Judge 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 Judgement or Order

5. 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 Judgement or Order, directions may be given for advertisement for creditors and for leaving the accounts in Chambers.

Adjudication on creditors’ claims and the accounts or Order are not to be proceeded with and no other proceedings is to be taken except for the purpose of ascertaining 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

6. Copies, abstracts, extracts of or from accounts; deeds or other documents and pedigrees and concise statements 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.

II. SUMMONS TO PROCEED BOOK

Entry in Summons to Proceed book

7.At the time any Summons to proceed is obtained, an entry thereof shall be made in the Summons Book, stating the date on which the Summons is 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 50

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 a 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 under this Order, proceedings may be brought by Originating Summons in accordance with the provisions of this Order.

Form 37

2. The Originating Summons shall be in Form 37 and no acknowledgement of service shall be required.

Affidavit in support

3. The Plaintiff shall file in support of the Originating Summons an affidavit stating:
(a) The Plaintiff’s interest in the land;
(b) The circumstances in which the land has been occupied without license or consent and in which the claim to possession arises; and
(c) That the Plaintiff does not know the name of any person occupying the land who is not named in the Summons.

Service of Originating Summons

4. (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 the person:
(a) Personally or in accordance with Order 7 Rule 1 Sub-Rule 2; or
(b) By leaving a copy of the Summons and of the affidavit or sending them to the person 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 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

5. Without prejudice to Rule 16 of Order 13, 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

6. (1) An Order for possession in proceedings under this Order shall be in Form 38 with such variations as circumstances may require.

(2) Nothing in this Order shall prevent the Judge from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by Writ.

Writ of possession

7. 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. An application for leave may be made ex parte unless the Judge otherwise directs.

Setting aside of Order

8. (1) The Judge may, on such terms as the Judge deems fit, set aside or vary any Order made in any proceedings under this Order.

(2) In this Order “landed property” means land with or without building thereon.

ORDER 51

Stay of execution pending appeal

1. Where any application is made to a Judge for a stay of execution pending appeal or of proceedings under any Judgement or decision appealed from, 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.

Compilation of record

2. An Applicant for an Order of stay of execution of a Judgement or stay of proceedings shall compile the records of appeal within 60 days from the day of Judgement or decision appealed from and where the record is not so compiled, the Respondent may apply to strike out the application or discharge the Order if already granted.

Court may grant or refuse Order for stay

3. (1) The Court may make or refuse to make an Order for stay or of execution proceedings.

Conditional stay

4. (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 Judgement or decision appealed from.

ORDER 52

Notice of appeal

1.

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, etc., of notice of appeal

2.

2. (1) The notice of appeal shall set out the reference number of the proceedings in which the decision complained of was given, the names of the parties, the date of such decision and the grounds for appeal in full.

(2) Where the appellant complains only of a part of the decision, 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 the lower Court appealed from, is situated to which notices may be sent to the appellant and such notices may be sent to the appellant by registered post.

Form 39

(4) The notice of appeal shall be in Form 39 in the appendix and may be varied to suit the circumstances of the case but so that no variation of substance shall be made.

Copies of proceedings

3.

3. 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 likely to cover such fees, shall be made by the appellant before preparation of such copies.

Time frame for remitting Records

4.

4. 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 Court is situated and the appeal shall be decided by the Court of that Division.

Respondent to be supplied with copy of proceedings

5.

5. When notifying a party of the day fixed for the hearing of the appeal, the Registrar of the Court shall send a copy of the proceedings to such party.

Enlargement of time

6.

6. The times prescribed in Rules 1 to 4 maybe enlarged at any time by the Court on such terms (if any) as may seem fit, after notice given to the Respondent by the appellant of an application for enlargement of time.

Lapse of time

7.

7. 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.

Time and place for hearing

8.

8. The appeal shall come on for hearing at such time and at such place as the Registrar of the Court shall notify to the parties.

Default of appearance

9.

9. (1) If on the day of hearing and 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 on any such case the Respondent appears, the Judgement shall be with costs of the appeal against the appellant unless the Court expressly orders otherwise; but if the Respondent does not appear, the costs of appeal shall be at the discretion of the Court.

Where appellant appears

10.

10. 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 judgement according to the merits of the case without regarding to 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 affirm the decision with or without costs of appeal against the appellant.

Scope of Appeal

11.

11. At the hearing of the appeal, it shall not be competent for the grounds given in appellant to go into any grounds of appeal other than those set forth in the notice of appeal:
Provided that where, in the opinion of the Court, other grounds of appeal than those set forth in the notice of appeal should have been given or the statement of grounds of appeal is defective, the Court in its discretion, may allow amendments of the notice of appeal upon such conditions as to service upon the Respondent and as to costs as it may think fit.

Request to confirm Judgement on other grounds

12.

12. (1) The Respondent may give notice that the Respondent intends at the hearing to ask the Court to confirm the Judgement of the lower Court on grounds other than those stated by the lower Court.

(2) The notice shall be accompanied by a clear statement of the grounds on which the Respondent intends to ask the Court to confirm the Judgement of the lower Court.

(3) Such notice and grounds shall be filed in Court within 14 days of service on the Respondent of the notice of appeal, and shall be served on the appellant or the appellant’s Legal Practitioner.

Cross appeal

13.

13. (1) The Respondent may file grounds of appeal against any part of the Judgement of the lower Court.

(2) Such grounds shall be filed by the Respondent within 14 days of service on the Respondent of the appellant’s notice of appeal, and shall be served on the appellant or the appellant’s Legal Practitioner before the hearing.

Objections to form of grounds of appeal

14.

14. (1) No objection on account of any defect in the form of setting forth any ground of appeal shall be allowed unless the Court is of the opinion that the ground of appeal is so imperfectly or incorrectly stated as to be insufficient to enable the Respondent to enquire into the subject matter thereof or to prepare for the hearing.

(2) In any case where the Court is of the opinion that any objection to any ground of appeal ought to prevail, the Court may if it thinks fit, cause the ground of appeal forthwith to be amended upon such terms and conditions, if any, as the Court may think just.

Defects in proceedings under appeal

15.

15. On any appeal from a decision of a lower Court, no objection shall be taken or allowed to any proceedings 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 rehear 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.

Defects in notice of appeal or recognizance

16.

16. No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered into 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 appeal has been thereby deceived or misled, it shall be lawful for the Court to amend it 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

17.

17. 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 the lower Court, after taking such evidence, to report specific findings of fact for the information of the Court, and on any such reference the case shall, so far as may be practicable and necessary, be dealt with as if it were being heard in the first instance.

Principles guiding additional evidence

18.

18. (1) When additional evidence is to be taken by the lower Court and specific findings of facts reported, it shall certify such evidence to the Court which shall thereupon proceed to dispose of the appeal.

(2) The appellant or the appellant’s Legal Practitioner shall be present when the additional evidence is being taken.

(3) Evidence taken in pursuance of Rule 17 shall be taken as if it were evidence taken at the trial before the lower Court.

(4) When forwarding to the Court any additional evidence taken by a lower Court in pursuance of Rule 17, the lower Court may express its opinion on the demeanour of the witnesses and of the value of their evidence and may also, if it is the same Court against whose decision the appeal has been made, state whether or not it would have come to a different decision had the additional evidence been brought forward at the trial.

Fees 1st Appendix

19.

19. The fees in the 1st Appendix shall be chargeable in civil appeals save where the same would have to be paid by a government officer acting in an official capacity or where the lower Court or the Court waives or remits the same on the ground of the poverty of the person chargeable therewith where it appears that there are substantial grounds of appeal.

Allowances to witness 2nd Appendix

20.

20. Allowances may be made to witnesses in accordance with the provisions of the 2nd Appendix.

Stay of execution

21.

21. (1) On application being made for stay of execution under any enactment establishing the lower Court, the lower Court or the Court may impose one or more of the following conditions: –
(a) That the appellant shall deposit a sum fixed by the Court not exceeding the amount of the money or the value of the property affected by the decision or Judgement appealed from or give security to the satisfaction of the; Court for the said sum;
(b) That the appellant shall deposit a sum equal to the amount of the costs allowed against the appellant or give security to the satisfaction of the Court for the said sum;
(c) That the appellant shall, where the decision or Judgement appealed from relates to possession of land or houses, give security to the satisfaction of the Court for the performance of the decision or Judgement in the event of the appeal being dismissed;

(d) That the appellant’s property shall be seized and attached pending the making of a deposit or the giving of security as aforesaid including a deposit or security for the
expenses incidental to the seizure and attachment.

(2) Any Order made on any such application shall limit the time, not being more than thirty days, for the performance of the conditions imposed and shall direct that in default of such performance within the time so limited, execution may issue or proceed.

Time to apply for stay of Execution

(3) An application for stay of execution under the enactment establishing the lower Court may be made at any time after lodging of the notice of appeal and shall in the first instance be made to the lower Court.
Provided that where the Court has ordered execution, the application shall not be made to the lower Court but to the Court.

Mode of application

(4) The application may be made ex-parte but the Court may direct notice thereof to be given to the other party to the appeal. Where an Order is made ex- parte, the Registrar of the Court shall notify the other party of the Order made.

(5) Where the appellant proposes to give security instead of making a deposit, the application shall state the nature of the security and the name of the surety proposed, if any.

(6) Any party dissatisfied with an Order made by the lower Court may apply to the Court by Motion with notice to the other party for a review of the Order and the Court may thereupon make such an Order as may seem just.

(7) An appeal shall not operate as a stay of execution under the decision or Judgement appealed from except so far as the lower Court or the Court may order.

COSTS

22.

22. The Court may make such Order as to the payment of costs by or to the appellant as it may deem to be just and such Order may be made also in any case where an appeal has not been entered or prosecuted.

Security for costs

23.

23. (1) The Court may, in special circumstances, upon an application by Motion on Notice
supported by affidavit, order the appellant to deposit such sum or give such security as may seem fit for the Respondent’s costs of appeal including the costs incidental to the application.

(2) The Order shall limit the time, not exceeding thirty days, within which the deposit or security shall be made or given and may direct that in default of its being made or given within the time so limited, the appeal shall, without further order, stand dismissed.

Costs for Respondent where appeal is dismissed(3) Where an appeal so stands dismissed, the Respondent shall be entitled to all reasonable costs occasioned by the appeal and the amount of such costs may be stated in the Order in anticipation or may be assessed at any time by the Court of its own motion or upon an application made ex parte or on notice as the Court may deem fit.

(4) Where an appeal so stands dismissed, the appellant shall take no further step or proceedings therein, save by leave of the Court for reinstatement of the appeal which may be granted on such terms, if any, as may seem just upon an application by Motion on Notice made within a month of such dismissal, but not otherwise.

(5) Without prejudice to the discretion of the Court to grant costs where it seems proper on an application made under Sub-Rule 1 of this rule, costs shall not normally be granted to the Applicant save where the net proceeds of execution levied on the Applicant’s goods are insufficient to satisfy the amount payable under the Judgement or decision appealed from.

Orders of High Court to be certified to District Court

24.

24. (1) When a case is decided on appeal, the Court shall certify its Judgement or Order to the lower Court in which the decision appealed against was pronounced.

(2) The lower Court to which the Court certifies its Judgement or Order shall thereupon make such Orders as are in conformity with the Judgement or Order of the Court and if necessary, the records shall be amended in accordance therewith.

Enforcing of Judgement

25.

25. After the pronouncement of the Judgement of the Court, the lower Court from which the appeal came shall have the same jurisdiction and power to enforce and shall enforce, any decision which may have been affirmed, modified, amended or substituted by the Court or any Judgement which may have been pronounced by the Court in the same manner in all respects as if such decision or Judgement had been pronounced by itself.

Enforcement of Orders

26.

26. Any Order given or made by the Court may be enforced by the Court or by the lower Court as may be most expedient.

High Court may enlarge time.

27.

27. The Court may, if it deems fit, enlarge any period of time prescribed by this Order.

Interpretation

28. 28. In this Order: –
“the lower Court” means the Court whose judgement is appealed against and includes a District Court but does not include an Arbitrator, a Referee or an Auditor;
“Judgement” includes an Order or a Ruling.

ORDER 53

Application

1.

1. This Order shall apply to any appeal to the Court from a decision of an Auditor made under the provisions of any written Law which confers the right to appeal to the High Court against any such decision.

Method of appeal

2.

2. An appeal to the Court from a decision of an Auditor shall be by Notice of Motion.

Evidence

3.

3. The evidence upon the hearing of the appeal shall be by affidavit except in so far as the Court at the hearing may direct oral evidence to be given.

Service

4.

4. The Notice of Motion shall be served, before the expiration of six weeks after the date of the decision to which it relates upon the Auditor in charge of the audit in respect of which the decision has been made and also upon the Local Government or other body in relation to whose accounts or to the accounts of whose officer the decision was given, if that Local government or other body is not the appellant.

Contents of notice and date of hearing

5.

5. The Notice of Motion shall state the grounds of appeal and the date of hearing. Date mentioned in the notice for the hearing of the appeal shall be not less than twenty-eight days after the service of the notice.

Reasons for appeal to be filed

6.

6. (1) The appellant shall within seven days after service on the Auditor of the Notice of Motion, file with the Registrar a copy of such notice and an affidavit or affidavits setting out the reasons stated by the Auditor for the Auditor’s decision and the facts upon which the appellant intends to rely at the hearing and thereupon the Motion shall be set down for hearing.

(2) If the Notice of Motion is not set down in accordance with this provision, either the Local Government or other body or the Auditor may apply to the Court, upon notice to the appellant for an Order discharging the Notice of Motion and for the costs of the application.

Copy of affidavits to be served on the parties

7.

7. The appellant shall deliver forthwith to the Local Government or be served on the other body and to the Auditor a copy of any affidavit filed under Rule 6 in support of the Motion and any person intending to oppose the Motion shall within four days at least before the hearing, deliver to the appellant a copy of any affidavit intended to be filed in opposition to the Motion.

Service on Auditor other than the auditor who gave the decision

8. 8. Where under Rule 4 the Notice of Motion is served on an Auditor other than the other than the Auditor who gave the decision, the Auditor who gave served with the Notice of Motion may appear in opposition thereto in all respects as the Auditor by whom the decision was given and these provisions shall apply accordingly.

ORDER 54

Definition

1.

In this Order “Petitioner” means a person applying for a legitimacy declaration and “Petition” has a corresponding meaning.

Practice and rules

2.

2. The practice and rules of the Court shall, so far as practicable, govern all proceedings under the Legitimacy Law subject nevertheless to the particular provisions of this Order.

Matters to be stated Forms 40, 42 and 43

3.

(1) A Petition shall be headed “In the matter of the Legitimacy Law and in the matter of (the person to be declared legitimated)” and shall be according to the prescribed form, with such variations and additions as the circumstances may require, and shall state among other matters: 
(a) The place and date of the marriage concerned;
(b) The status and residence of each of the parents and the occupation and domicile of the father of the person whose legitimacy the Court is asked to declare: –
(i) At the date of the person’s birth, and
(ii) At the date of the marriage;
(c) Whether there are other living issues of the parents of such person as aforesaid and the respective names and dates of birth of all such issues;
(d) The person, if any, affected by the legitimation of such person as aforesaid and the value so far as is known of the property, if any, thereby involved;
(e) Whether any and if so, what previous proceedings under the Legitimacy Law or
otherwise with reference to the paternity of such person as aforesaid or the validity of the marriage leading to the person’s legitimation have been taken in any Court;
(f) That there is no collusion.

(2) A Petition shall also include an undertaking by the Petitioner, if not an infant or person of unsound mind, to pay the costs of the Respondents if the Court shall so direct.

Where petitioner is a person of legal disability

(3) If the Petitioner is an infant or person of unsound mind, the Petition shall be made by a next friend or guardian ad litem and the full names, occupation or description and residence or place of business of the next friend or guardian ad litem shall be stated in the Petition, and there shall be lodged by the next friend or guardian ad litem with the Petition an undertaking to be responsible for costs.

Petitioner resident outside the State

4.

If the Petitioner does not reside in the State, the Petition shall state an address within the State at which the Petitioner may be served with any Summons, notice, Order of Court or other process.

Security for costs by Petitioner resident outside the State

5.

Where it appears on the presentation of a Petition that the does not reside in the state, the Petition shall not be filed until security for costs by deposit of money or otherwise has been given to the satisfaction of the Registrar.

Provided that where the Petition is filed through a Legal Practitioner, an undertaking by him, to be approved by the Registrar, to be responsible for the costs shall be sufficient.

Persons to be Respondents

6.

6. The Respondents to a Petition shall be the Attorney-General of the State and all persons whose interests may be affected by the legitimacy declaration asked for and the Court may at any time direct any person not made a Respondent to be made Respondent and to be served with the Petition and affidavit and may adjourn the hearing of the Petition for that purpose on such terms as to costs or otherwise as may be just.

Affidavit of verification in Form 4

7.

The Petition shall be accompanied by an affidavit made by the Petitioner, or by the next friend or guardian ad litem, if any, verifying the facts alleged in the Petition and the affidavit shall be filed with the Petition.

Copies of Petition to be filed

8.

8. (1) There shall be filed with the Petition as many copies of Petition and the affidavit as there are Respondents to be served and also two copies for the use of the Court.

(2) There shall be lodged with the Petition every birth, death or marriage certificate intended to be relied upon at the hearing.

Copies of papers to be sent to the Attorney- General Form 44

9.

(1) A copy of the Petition and a copy of the affidavit shall be delivered or sent by registered post by the Petitioner to the Attorney-General’s Chambers at least two months before the Petition is presented or filed.

(2) Any document or notice addressed to the Attorney General shall be addressed to the Attorney-General’s Chambers, Ministry of Justice, Katsina State.

Personal service on other Respondents

10.

10. (1) A sealed copy of the Petition and affidavit shall, unless the Court otherwise directs, be served personally on every Respondent other than the Attorney-General, by a bailiff or other officer of the Court at least fifty-six days before the date fixed for hearing of the Petition and the Petition and every copy to be served on a Respondent other than the Attorney-General, shall be endorsed with a notice in the prescribed form.

(2) At least fifty-six days’ notice of the day the Petition will first be heard shall be given by the Registrar to the Attorney- General.

Filing of answers

11.

(1) A Respondent may within twenty-eight days after service of the Petition upon that Respondent file an answer to the Petition.

Form 45

(2) Every answer which contains matters other than a simple denial of the facts stated in the Petition shall be accompanied by an affidavit made by the Respondent verifying such other matter.

(3) There shall be filed with the answer as many copies of the answer and the affidavit, if any, as there are other parties to be served and also two copies for the use of the Court.

(4) The Registrar shall within forty-eight hours of receiving them send by post, one sealed copy of the answer and the affidavit, if any, to the Petitioner, the Attorney-General and any other Respondent.

Evidence

12.

12. Evidence on the hearing of the Petition shall be given orally:

Provided that the Court or a Judge in Chambers may, on application made before or at the hearing, for good cause shown, direct that any particular fact or facts alleged in the Petition or answer may be proved by affidavit.

Costs

13.

The Court may make such Orders as to costs as it shall think just.

Copy of Order to be supplied Form 46

14. A copy of the Order made on the hearing of a Petition sealed with the seal of the Court shall be supplied by the Registrar to any party to the proceedings on payment of the prescribed fee.

ORDER 55

Application to be made to probate Registrar

1.

1. (1) Subject to the provisions of Rules 44 and 45 of this Order, when any person subject to the jurisdiction of the Court dies, all applications for the granting of any Letters of Administrationof the estate of the deceased person with or without a Will attached, and all applications on othermatters connected therewith shall be made to the Probate Registrar of the Court.
(2) TheChief Judge shall request a Judge of any Judicial Division to take measures and makesuch Orders as may appear necessary or expedient for the interim preservation of the property ofthe deceased within such Judicial Division, for the discovery or preservation of the Will of thedeceased or for any other purposes connected with the duties of the Judge under this Order andevery 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 attached shall issue within 7 days of the death ofthe deceased; and no grant of administration without the Will attached shall issue within 14 daysof such death.

Preservation of property

2.

2. The Judge shall, when the circumstances of the case appear so to require, forthwith on the deathof a person or as soon after as may be, appoint and authorize an officer of the Court or some otherfit person to take possession of the property of the deceased within its jurisdiction or put it underseal and so keep it until it can be dealt with according to law.

Unauthorized person Intermeddling with property

3.

3. If any person other than the named Executor or Administrator or an officer of the Court or aperson authorized by the Judge, takes possession of and administers or otherwise deals with theproperty of any deceased person, he shall, besides the other liabilities he may incur, be liable to afine of not less than N10,000:00 (ten thousand naira) as the Judge, having regard to the conditionof the person so interfering with the property and the other circumstances of the case, may deemfit to impose.

Production of testamentary papers

4.

4. Any person having in his possession or under his control any paper or writing of any deceasedperson, being or purporting to be testamentary, shall forthwith deliver the original to the ProbateRegistrar of the Court. If any person fails to do so within 3 months after having had knowledgeof the death of the deceased, he may be liable to a fine of N5,000:00 (five thousand naira) as theJudge, having regard to the condition of such person in default and other circumstances of thecase may deem fit to impose.

Judge may Order production

5.

5. Where it appears that any paper of the deceased, being or purporting to be testamentary is in thepossession of or under the control of any person, a Judge may, upon an ex parteapplicationwhether or not a suit or proceedings respecting probate or administration is pending, order himto produce the paper and bring it into Court.

Examination with respect to papers

6.

6. Where it appears that there are reasonable grounds for believing that any person had knowledgeof any paper being or purporting to be testamentary, although it is not shown that the paper is inhis possession or under his control, a Judge may upon an ex parte application, whether or not asuit or proceedings in respect of probate or administration is pending, order that he be examinedin respect of the same in Court or on interrogatories and that he attends Court for that purposeand after examination that he produces the paper and bring it into Court.

Notice to Executor to come in and prove

7.

7. The Judge may on the application of any person claiming an interest come in and prove under aWill, give notice to the Executors therein named to come in and prove the Will or to renounceprobate and they or some or one of them shall within 21days after notice, come in and prove orrenounce accordingly.

Liability of Executor neglecting to apply for probate

8.

8. If any named Executor in the Will of the deceased takes possession and administers or otherwisedeals with any part of the property of the deceased and does not apply for probate within 3months after the death of the deceased or after the termination of any suit for or dispute in respectof probate or administration, he may, independent of any other liability be deemed to be incontempt of Court and shall be liable to such fine of not less than N10,000:00 (ten thousandnaira) as the Judge may deem fit to impose.

Evidence of identity

9.

9. The Judge shall require evidence in addition to that offered by the Applicant where additionalevidence in that behalf seems to the Judge necessary or desirable, in regard to the identity of thedeceased or of the Applicant or in regard to the relationship of the Applicant to the deceased or inregard to any person or persons in existence with a right equal or prior to that of the Applicant tothe grant of probate or administration sought by the Applicant or in respect of any other matterwhich may be considered by the Judge relevant to the question whether the Applicant is theproper person to whom the grant should be made:
Provided that the Judge may refuse the grant unless the Applicant produces the requiredevidence on these points or any of them as required by the Judge.

Evidence of identity Judge may refuse grants until all persons interested are given due notice

10.

10.Where it appears to the Judge that some person or persons other than the Applicant may have atleast an equal right with the Applicant to the grant sought, the Judge may refuse the grant untildue notice of the application has been given to such person or persons and an opportunity givento 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 personsentitled to the grant in priority to the Applicant shall have expressly renounced their priorright.

Value of property

11.

11. Every Applicant for a grant of Probate or Letters of Administration shall file in the Court a truedeclaration of all the personal property of the deceased and the value thereof:
Provided that for the purpose of the fees payable on Probate or Letters of Administration, thevalue of the property in respect of which the grant is made shall be deemed not to include:
(a) Any gratuity payable by the Government of the Federation of Nigeria or of a State to theestate of any person formerly employed by either of such Government or by a StatutoryCorporation;
(b) Any sum of money payable to an estate from a Provident or Pensions Fund establishedunder the provisions of any applicable law.

Answers required

12.

12. All inquiries that a Judge sees fit to institute shall be answered to his satisfaction before theissuance of Letters of Administration. The Judge shall afford as great a facility for the obtainingof Letters of Administration as is consistent with due regard to the prevention of error and fraud.

Form of Suits

13.

13. Suits in respect of administration shall be instituted and carried on as nearly as may be practicable in the like manner and subject to the same rules of procedure as suits in respect of ordinary claims.

Testator may deposit will

14.

14.Any person may deposit his Will for safe custody in the Probate Registry, sealed under his ownseal and the seal of the Court.

Custody of Wills of without probate is granted

15.

15.Every original Will of which Probate or Administration with Will attached is granted shall befiled and kept in the Probate Registry in such manner as to secure at once its due preservationand convenient inspection. A copy of every such Will and of the probate or administration shallbe preserved in the Registry.

Will not given out without Order of Judge.

16.

16. No original Will shall be given out for any purpose without the direction in writing of a Judge. Acertified transcript under the seal of the Court of the Probate or Administration with the Willattached may be obtained from the Court.

Examination of Will as to its execution

17.

17. (1) On receiving an application for Administration with Will attached, a Judge shall inspect theWill and see whether it appears to be signed by the testator or by some other person in thepresence of the testator, and by the testator’s direction and subscribed by two witnessesaccording to the applicable law and shall not proceed further if the Will does not appear to be sosigned and subscribed.
(2) If the Will appears to be so signed and subscribed, the Judge shall refer to the attestationclause and consider whether the wordings thereof state the Will to have been in fact executed inaccordance with those enactments.

Evidence as to due execution of will

18.

18. (1) Where a Will contains no attestation clause or the attestation clause is insufficient or where itappears 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 waspresent at the time the Will was executed.
(2) If no affidavit can be obtained in accordance with the foregoing paragraph, the Judge may ifhe deems fit, having regard to the desirability of protecting the interest of any person who may beprejudiced by the Will, accept evidence on affidavit from any person he may deem fit to showthat the signature on the Will is the signature of the deceased or of any other matter which mayraise 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

19.

19. Where the witnesses who subscribed to the Will are dead or if from other circumstances such anaffidavit cannot be obtained from either of such witnesses, resort for such an affidavit shall behad 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 subscribingwitnesses, and also of other circumstances raising a presumption in favour of the due executionof the Will.

Evidence as to terms, conditions and date of execution of Will

20.

20.(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 waspresent 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 may deem necessary to establish the date.

Attempted revocation of will

21.

21. Any appearance of attempted revocation of a Will by burning, tearing or otherwise and every other circumstance leading to a presumption of revocation of the Will by the testator, shall be accounted for to the satisfaction of the Judge.

Affidavit as to due execution, terms,etc. of Will

22.

22. The Judge may require an affidavit from any person he may deem fit for the purpose of satisfying himself to any of the matters referred to in Rules 18, 20 and 21 of this Order. In any suchaffidavit sworn by an attesting witness or other person present at the time of the execution of theWill, the deponent shall depose to the manner in which the Will was executed.

Will of persons in military service and seamen

23.

23. Where it appears to the Judge that there is prima facie evidence that a Will is one to which Section 9 of the Wills Act 1837 or any provision of the 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 testatorin accordance with the provisions of that section or enactment as the case may be.

Evidence of foreign law

24.

24. Where evidence of foreign law is required on any application for a grant, the Judge may acceptan 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 thelaw in question.

Order of priority for grant where deceased left a Will

25.

25. Where the deceased died after commencement of this Order, the person or persons entitled to agrant of probate or administration with the Will attached shall be determined in accordance withthe 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 ofany contingency or where the residue is not wholly disposed of by the Will, any
person entitled to share in the residue not so disposed of or the personal representative of any such person:
Provided that:
(i) Unless the Judge otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency; and
(ii) Where the residue is 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 devisee entitled to or to a share in the estate so disposed of without regard to the persons entitled to share in any residue not disposed of by the Will.
(e) Any specific legatee or devisee or any creditor or subject to Sub-Rule 3 of Rule 59,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 issuch 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 anyperson having no interest under the Will he would have been entitled to a grant if the deceased had died wholly intestate.

Joinder of Administor

26.

26.(1) An application to join with a person entitled to a grant of administration, a person entitled in alower degree, shall, in default of remuneration by all persons entitled in priority to the latter, bemade to the Judge and shall be supported by an affidavit by the person entitled; the consent ofthe person proposed to be joined as personal representative and such other evidence as theJudge may require.
(2) An application to join with a person entitled to a grant of administration, a person having noright to it, shall be made to the Judge and shall be supported by an affidavit by the personentitled; the consent of the person proposed to be joined as personal representative and suchother 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 people 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

27.

27.Where the testator was blind or illiterate, the Judge shall not grant administration with the Will attached unless the Judge is satisfied by proof or by what appears on the face of the Will that theWill was read over to the deceased before its execution or that the deceased had at that time knowledge of its contents.

Interlineations,Erasures, obliterations

28.

28.(1) The Judge on being satisfied that the Will was duly executed, shall inspect it to see whetherthere are any interlineations, alterations, erasures, or obliterations appearing in it and requiringto be accounted for.
(2) Interlineations, alterations, erasures, and obliterations are invalid unless they existed in theWill at the time of its execution or unless, if made afterwards, they have been executed andattested in the mode required by the relevant enactments; or unless they have been made valid bythe 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 dulyexecuted or recited in or otherwise identified by the attestation clause, an affidavit in proof oftheir having existed in the Will before its execution shall be filed.
(4) Where no satisfactory evidence is adduced respecting the time when an alteration, erasure orobliteration was made and the words erased or obliterated are not entirely effaced and can, oninspection of the Will be ascertained, they shall form part of the probate. Where any words havebeen erased which might have been of importance, an affidavit shall be required.

Documents referred to in a Will or annexed or attached thereto

29.

29.(1) Where a Will contains a reference to any document of such nature as to raise the questionwhether it ought or ought not to form a constituent part of the Will, the Judge shall require theproduction of the document with a view to ascertaining whether or not it is entitled to probateand if it is not produced, a satisfactory account of its non-production shall be given. A documentcannot 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 theinference that some document has been at some time attached to the Will, a satisfactory accountof them shall be required and if this is not produced, a satisfactory account of its non-productionshall be given.

Executor dying without proving or not appearing

30.

30.Where a person appointed Executor in a Will survives the testator but either dies without havingtaken probate or having been called on by the Court to take probate and does not appear, his rightin respect of the Executorships wholly ceases; and further renunciation, the representation to thetestator and the administration of his property may go and be committed as if that person had notbeen appointed Executor.

Marking of Wills

31.

31.Every Will in respect of which an application for a grant is made shall be marked by the signature(s) of the Applicant(s) 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 bemarked or exhibited in lieu of the original document.

Viva voce examination of persons making affidavits

32.

32.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

33.

33.(1) A Judge in granting Letters of Administration shall proceed as far as may be as in cases ofprobate.
(2)The Judge shall ascertain the time and place of the deceased death and the value of theproperty to be covered by the administration.

Administration bond

34.

34.(1) The person to whom administration is to be 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 collecting, 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 docsnot exceed N250,000 (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 shall be 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 limitthe liability of any surety to such amount as the Judge deems reasonable.

Guarantee

35.

35.(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) of this Order to a creditor or the personal representative of acreditor or to a person who has no immediate beneficial interest in the estate of the
deceased but may have an interest in the event of an accretion to the estate;
(b) Under Rule 61 of this Order to a person or some of the persons who would, if theperson beneficially entitled to the whole of the estate died intestate be entitled to his estate;
(c) Under Rule 63 of this Order to the Attorney of a person entitled to a grant;
(d) Under Rule 64 of this Order for the use and benefit of a minor:
(e) Under Rule 66 of this Order for the use and benefit of a person who by reason ofmental or physical incapacity is incapable if managing his affairs:
(f) To an Applicant who appears to the Judge to be resident elsewhere than in the state.
(2) Notwithstanding that it is proposed to make a grant as aforesaid, a guarantee shall not berequired except in special circumstances, on an application for administration where theApplicant or one of the Applicants is the Administrator-General or a trust corporation.

Probate Form I
(3) Every guarantee entered into by a surety for the purpose of this Order shall be in ProbateForm Iwith such variations as circumstances may require.
(4)Except where the surety is a corporation, the signature of the surety on every such guaranteeshall be attested by an authorized officer, Commissioner for Oaths or other person authorized byLaw to administer an oath.
(5)Unless the Registrar otherwise directs:
(a) If it is decided to require a guarantee, it shall be given by two sureties, except wherethe gross value of the estate does not exceed N250.000 (two hundred and fiftythousand naira) or a corporation is a proposed surety and in those cases one willsuffice;
(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 grossamount 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 properofficer of the corporation to the effect that it has power to act as surety and has executed theguarantee in the manner prescribed by its constitution or articles of association, and containingsufficient information as to the financial position of the corporation to satisfy the Judge thatits assets are sufficient to satisfy all claims which may be made against it under any guaranteewhich it has given or is likely to give.

Assignment of bond

36.

36.The Judge may, on being satisfied that the condition of the bond has been broken, assign to some person and that person may there upon 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 fall amount recoverable in respect of any breach of the bond.

Administration Summons

37.

37. 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 and show cause why an Order for the administration of the property of the deceased should not be made.

Order for Administration

38.

38.(1) On proof of service of the Summons or on appearance of the Executor or Administrator andon proof of all such other things as the Judge may direct, the Judge may, if he deems fit, make anOrder for the administration of the property of the deceased.

Power of the judge to make or refuse order
(2)The Judge may make or refuse any such Order or give any special directions in respect of thecarriage or execution of it and where there are applications for such an Order by two or moredifferent persons or classes of persons, to grant the same to such one or more of the Plaintiffs orclasses of Plaintiffs, as the Judge deems fit.
(3)Where the Judge deems fit, the carriage of the Order may subsequently be given to suchperson and on such terms as he may direct.

Order relating to property

39.

39. Where the Judge makes such an Order or at any time afterwards, he may, if he deems fit, makeany further or other Order which may appear requisite to secure the proper collection, recovery forsafekeeping and disposal of the property or any part thereof.

Administration may be granted to officer

40.

40.In a case of intestacy, where the special circumstances of the case require, the Judge may, if hedeems fit on the application of any person having interest in the estate of the deceased or of hisown Motion, grant Letters of Administration to an officer of the Court, to a Consular Officer orto aperson in the service of the Government.

Officer to act under the direction of Judge

41.

41.(1) The officer or person so appointed shall act under the direction of the Judge and shall beindemnified thereby.
(2) The Judge shall require and compel him to file in Court the accounts of his administration atintervals not exceeding 12 months.

Court may appoint person to be Administrator

42.

42.Where a person has died intestate as to his personal estate or leaving a Will affecting personalestate but without having appointed an Executor thereof willing and competent to take probateor where the Executor shall, at the time of the death of such person, be resident out of thejurisdiction and it shall appear to the Judge to be necessary or convenient in any such case toappoint some person as Administrator of the estate of the deceased or of any part thereof, theJudge may appoint such person as he shall deem fit to be such Administrator upon his givingsuch security, if any, as the Judge shall direct and every such Administrator may be limited as the
Judge shall deem fit.

Remuneration of Administrators

43.

43.The Judge may direct that any Administrator (with or without the Will attached) shall receive outof the personal and real estate of the deceased such reasonable remuneration as he shall deem fitnot exceeding 10% percent on the amount of the realized property or when not converted intomoney, on the value of the property duly administered and accounted for by him: Provided thatwhere the Judge is satisfied that by reason of exceptional circumstances the administration ofthe property has required an extraordinary amount of labour to be bestowed on it, he may allowin respect of such property a higher rate of remuneration.

Security and collection of state

44.

44.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 monies 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 authorized by him to administer or person

45.

45.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

46.

46.(1) Every person to whom a grant of Probate or Letters 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.

Penalty for failure to file accounts
(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 of default. Afine for non-payment shall be enforceable by distress and failing sufficient distress, byimprisonment for a term not exceeding 6 months.
(3)When an account is filed in Court under this rule, the Judge shall scrutinize such account andif it appears to the Judge that by reason of improper, un-vouched or unjustifiable entries orotherwise such account is not a full and proper account, the Judge shall require the person filingthe account to remedy such defects as there may be within such time as the Judge may deemreasonable 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 themeaning 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 orAdministrator 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 orAdministrator failing as aforesaid, to show cause why he should not be punished.
(6) The Judge may for good cause shown extend the time for such filing of accounts.
(7) An Executor or Administrator who has been granted an extension of time to file such accounts and who fails within such extended time to file such accounts shall he liable to thepenalty set out in Sub-Rule 2 of this rule.
(8) The accounts shall be open to the inspection of any person who satisfies the Registrar that heis 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 andan affidavit in verification.

Grant to be signed by Probate Registrar

47.

47.The grant of Letters of Administration under this Order shall be signed by the Registrar on behalfof the Court.

II. PROBATE (NON-CONTENTIOUS) PROCEDURE

Application

48.

II. PROBATE (NON-CONTENTIOUS) PROCEDURE

48.In this Part, Rules 1,4.5,6, 7,8, 11, 12,14, 15,16, 17,19, 26, 27,28, 29, 30, 31, 71(1) and 72(1) or(4) of this Order shall also apply.

Application for grants through Legal Practitioners

49.

49.Application for a grant may be made through a Legal Practitioner, and 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

50.

50.(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.

Exceptions to personal application
(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 the Will has been deposited in the Registry by a personal Applicant, it may not bedelivered to the Applicant or to any other person unless special circumstances and the Judge sodirect.
(5)A personal Applicant shall produce a certificate of the death of the deceased or such otherevidence of the death as the Judge may approve.
(6)A personal Applicant shall supply all information necessary to enable the papers leading tothe grant to be prepared in the Registry or he may prepare such papers and lodge them unsworn.
(7) Unless the Judge otherwise directs, every oath, affidavit or guarantee required of a personal application shall be sworn or executed by all the deponents or sureties before an authorized officer.

Duty of Registrar on receiving application for grant

51.

51.(1) The Judge shall not allow any grant to issue until all inquires, 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 grantbeyond those contained in the Oath.
(3) No grant of Probate or of Administration with the Will attached shall issue within 3 monthsof the death of the deceased; and no grant of administration (not with the will attached shall issuewithin 3 months of such death.

Oath in support of grant

52.

52.(1) Every application for a grant shall be supported by an oath in the form applicable to thecircumstances of the case which shall be contained in an affidavit sworn by the Applicant and bysuch other papers as the Judge may require.
(2) Unless otherwise directed by the Judge, the oath shall state where the deceased wasdomiciled at the time of death.

Grant in additional name

53.

53. Where it is necessary to describe the deceased in a grant by some name in addition to his truename, the Applicant shall state in the oath the true name of the deceased and shall depose thatsome part of the estate, specifying it, was held in the other name; or as to any other reason thatthere may be for the inclusion of the other name in the grant.

Engrossment for purposes of record

54.

54.(1) Where the Judge considers that in any particular case a photocopy of the original Will wouldnot be satisfactory for purposes of record, he may require that an engrossment suitable for photoreproduction be lodged.
(2)Where a Will contains alterations which are not admissible to proof: there shall be lodged anengrossment 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 anddivision into paragraphs of the Will and if it is one to which sub-rule 2 of this rule applies, it shallbe made book-wise on durable paper following continuously from page to page.
(4)Where any pencil writing appears on a Will, there shall be lodged a copy of the Will or of thepages or sheets containing the pencil writing in which there shall be underlined in red ink thoseportions which appear in pencil in the original.

Grants to attesting witnesses e.t.c.

55.

55.Where a gift to any person fails by reason of the fact that he is an attesting witness or the spouse ofan attesting witness, such person shall not have any right to a grant as a beneficiary named in theWill without prejudice to his right to a grant in any other capacity.

Right of Assignee to a grant

56.

56.(1) Where all the persons entitled to the estate of the deceased under a Will have assigned theirwhole interest in the estate to one or more persons, the assignee or assignees shall replace inorder of priority for a grant of probate the assignor or if there are two or more assignors, theassignors 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 othersto 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 ofassignment shall be lodged in the Registry.

Additional personal representatives

57.

57.(1) An application to add a personal representative shall be made to the Judge and shall besupported by: an affidavit by the personal Applicant; the consent of the person proposed to beadded 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 grantof the addition of a further personal representative or he may impound or revoke the grant ormake such Order as the circumstances of the case may require.

Grant where two or more persons entitled in the same degree

58.

58.(1) A grant may be made to any person entitled thereto without notice to other persons entitled inthe same degree.

Dispute between persons entitled in the same degree
(2) A dispute between persons entitled to a grant in the same degree shall be brought byapplication before the Judge.
(3) If an application under this rule is brought before the Judge, he shall not allow any grant to besealed until such application is finally disposed of.
(4) Unless the Judge otherwise directs, administration shall be granted to a living person inpreference to the personal representative of a deceased person who would, if living, be entitledin the same degree and to a person not under disability in preference to an infant entitled in thesame degree.

Prevention of grant

59.

59.(1) Nothing in Rules 56, 59 and 61 shall operate to prevent a grant being made to any person towhom a grant may, or may required to be made under any enactment.
(2) The Rules mentioned in Sub-Rule 1 of this Rule shall not apply where the deceased dieddomiciled outside the State, except in a case to which the provisions of Rule 62 apply.

Grants to person having spessuccessionis

60.

60.When the beneficial interest in the whole estate of the deceased invested 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 oneor more but not exceeding four of such persons:
Provided that a surviving spouse shall not be regarded as person whom the estate has vested absolutely unless he would be entitled to the whole of the estate, whatever its value maybe.

Grants where deceased was domiciled outside the State

61.

61.Where the deceased was domiciled outside the State, the Judge may order that a grant shouldissue:
(a) To the person entrusted with the administration of the estate by the Court havingjurisdiction at the place where the deceased died domiciled:
(b) To the person entitled to administer the estate by the law of the place where thedeceased died domiciled;
(c) If there is no such person as is mentioned in paragraph (a) or (b) of this rule or if in theopinion of the Judge the circumstances so require, to such person as the Judge maydirect;
(d) If a grant required to be made to or if the Judge in his discretion considers that a grantshould be made to not less than two Administrators; to such person as the Judge maydirect jointly with any such person as is mentioned in paragraph (a) or (b) of this ruleor 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 describes the duties of a named person in terms sufficient toconstitute 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, agrant limited thereto may be made in accordance with the Law that would havebeen applicable if the deceased had died domiciled in the State.

Grant to Attorney

62.

62.(1) Where a person entitled to a grant resides outside the State, a grant may be made to his lawfulattorney for his use and benefit until such person shall obtain a grant or in such other way as theJudge may direct:
Provided that where the person so entitled is an Executor, administration shall not be granted tohis 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 thelawful Attorney of a person entitled to a grant and resident in the State, he may direct the grant tobe made to the Attorney for the use and benefit of such person until such person obtains a grantor in such other way as the Judge may direct.

Grants on behalf of minors

63.

63.(1) Where the person to whom a grant would otherwise be made is a minor, a grant for his useand benefit until he attains the age of 18 years shall, subject to Sub-Rules 3 and 5 of this Rule, begranted.
(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 theage of 16 years, to any next of kin nominated by the minor or where the minor is amarried 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 minorwhose next of kin he is, being a minor below the age of 16 years entitled in the same degree asthe 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 anOrder of a Court in default of or jointly with or to the exclusion of any such person as is mentioned in sub-rule I of this rule: and such an Order may be made on application by theintended guardian who shall file 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 personcompetent and willing to take a grant under the foregoing provisions of this rule, a grant mayunless the Judge otherwise directs, be made to such person jointly with any other personnominated by him as a fit and proper person to take the grant.
(5) Where a minor who is a sole Executor has 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 ageof 18 years shall, unless the Judge otherwise directs, be granted to the person entitled to the residuary estate.

Renunciation of minor’s right to administration: by whom

(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.

Grants where minor is Co-Executor

64.

64. (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 yearsand administration for the use and benefit of the minor until he attains the age of 18 years may begranted under Rule 63 only if the adult Executors renounce or on being cited to accept or refuse agrant, 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 byany person on his behalf.

Grants in cases of mental or physical incapacity

65.

65.(1) Where the Judge is satisfied that a person entitled to a grant is by reason of mental or physicalinfirmity incapable of managing his affairs, a grant for his use and benefit during his incapacitymay be made:
(a) In the case of mental incapacity, to the person authorized by the Judge to apply forthe 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 residuaryestate of the deceased, to the person entitled to such residuary estate;
(ii) Where the person incapable is entitled otherwise than as an Executor or is anExecutor having an interest in the residuary Estate of the deceased, to the personwho would be entitled to a grant in respect of his estate if he had died intestate; or tosuch 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 personsentitled 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 of the person entitled toa grant notice of intended application for a grant under this rule shall, unless the Judge otherwisedirects, be given to his guardian.
(4)Where there is physical disability, notice of intended application of a grant under this ruleshall, unless the Judge otherwise directs, be given to the person alleged to be incapable.

Renunciation of probate and administration

66.

66.(1) Renunciation of probate by an Executor shall not operate as renunciation of any right whichhe may have to a grant of administration in some other capacity unless he expressly renouncessuch right.
(2) Unless the Judge otherwise directs, no person who has renounced a grant in one capacitymay obtain a grant in some other capacity.
(3) Arenunciation of probate or administration may be retracted at any time on the Order of theJudge:
Provided that only in exceptional circumstances may leave be given to an Executor to retract arenunciation of probate after a grant has been made to such other person entitled in a lowerdegree.

Notice to State of intended application

67.

67.Where the state is or may be beneficially interested in the estate of a deceased person, notice ofintended application of grant shall be given by the Applicant to the Katsina State AttorneyGeneral and the Judge may direct that no grant shall issue within a specified time after the noticehas been given.

Resealing

68.

68.(1) An application for the resealing of probate or administration with the Will attached grantedby a Court outside the State shall be made by the person to whom the grant was made or by anyperson 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 grantin the State.
(b) The application shall be advertised in such manner as the Judge may direct and shallbe 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 ismade to a person or for a purpose mentioned in paragraphs (a) to (f) of Rule 35(1) ofthis Order or except where he considers that there are special circumstances making itdesirable to require sureties;
(b) Rules 35(2), (4), (5), (6) and 51(4) of this Order shall apply with any necessarymodifications; and

Probate Form 2
(c)A guarantee entered into by a surety shall be in Probate Form 2with such variations ascircumstances may require.
(4) Except by leave of the Judge, no grant shall be resealed unless it was made to such a person asis mentioned in paragraph (a) or (b) of Rule 61 of this Order or to a person to whom a grant couldbe made under a provision 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 orshall be accompanied by a copy certified as correct by or under the authority of the Court bywhich 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 by the Registry from outside the state in respect of the resealing of agrant made by the Court, notice of any amendment or revocation of the grant shall be sent to theCourt outside the state for the purpose of such resealing.

Amendment and revocation of grant

69.

69.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 revokedunder this rule except on the application or with the consent of the person to whom thegrant was made.

Notice to prohibit grant

70.

70.(1) A notice to prohibit a grant of administration may be filed in Court.

Caveats
(2) All persons who wish to ensure that no grant is sealed without notice to themselves may entera caveat in the Registry.

Probate Form 3
(3) Any person who wishes to enter a caveat in this rule called “the Caveator” may do so bycompleting probate Form 3in the appropriate book at the Registry and obtaining anacknowledgement of entry from the proper officer or by sending through the post at his own riska notice in probate Form 3to the Registry in which he wishes the caveat to be entered.

Probate Form 4
(4) Where the caveat is entered by a Legal Practitioner on behalf of the Caveator, the name of theCaveator shall be stated in Probate Form 4.
(5) Except as otherwise provided by this rule, a caveat shall remain in force for 3 months from thedate on which it is entered and shall then cease to have effect without prejudice to the entry of afurther caveat or caveats.
(6) The Registrar shall maintain an index of caveats entered in the Registry and on receiving anapplication for a grant in the Registry, he shall cause the index to be searched and shall notify theApplicant in the event of any caveat having been entered against the sealing of a grant for whichapplication has been made.
(7) The Registrar shall not allow any grant to be sealed if he has knowledge of a defective caveatin respect thereof.
Provided that no caveat shall operate to prevent the sealing of a grant on the day on which thecaveat is entered.

Probate Form 5
(8) A warning in Probate Form 5 may issue from the Registry against a Caveator at the instanceof any person interested in this rule called “the person warning”, which shall state his interest andif he claims under a Will, the date of the Will and shall require the Caveator to give particulars ofany contrary interest which he may have in the estate of the deceased: and every warning or acopy thereof shall be served on the Caveator.

Probate Form J
(9) A Caveator having an interest contrary to that of the person warning may, within 8 days ofservice of the warning upon him inclusive of the day of such service: or at any time thereafter ifno affidavit has been filed under Sub-Rule 2 of this Rule, enter an appearance in the Registry byfiling Probate Form 6 and making an entry in the appropriate book and shall forth with serve onthe 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 hiscaveat by giving notice at the Registry and the caveat shall then cease to have effect and if he has been warned, the creator 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 showcause against the sealing of a grant to that person may, within 8 days of service of the warningupon him inclusive of the day of such service or at any time thereafter if no affidavit has been filed under Sub Rule 12 of this Rule, issue and serve a Summons for directions which shall be returnable before the Registrar.
(12) If the time stipulated 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 Sub-Rule 11 andthereupon the caveat shall cease to have effect.
(13) Upon commencement of a probate action, the Probate Registrar shall, if caveat is in force other than a caveat entered by the Plaintiff, give to the Caveator notice of the commencement ofthe action and upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the Caveator of the existence of the action.
(14) Unless the Judge otherwise directs:
(a) Any caveat in force at the commencement of proceedings by way of citation orMotion shall, unless withdrawn pursuant to Sub-Rule 9 of this Rule, remain in forceuntil an application for grant is made by the person shown to be entitled thereto bythe 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 upon such application any caveat entered by a party who had notice of the action,
or by a Caveator who was given notice under Sub-Rule 13 of this Rule, shall cease tohave 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

71.

71. (1) Notices 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 “theCitor” or if there are two or more Citors, by one of them: Provided that the Registrar may inspecial 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 shownby affidavit, directs some other mode of service which may include notice by advertisement.
(6)Every Will referred to in a citation shall be lodged in the Registry before the citation is issuedexcept 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 himinclusive of the day of such service or at any time thereafter, if no application has been made bythe 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 Form 5sealed with the seal of theRegistry.

Citations to accept or refuse a grant

72.

72.(1) A citation to accept or refuse a grant may be issued at the instance of any person who wouldhimself be entitled to a grant in the event of the person citedrenouncing his right thereto.
(2)Where power to make a grant to an Executor has been reserved, a citation calling on him toaccept or refuse a grant may be issued at the instance of any person who would himself beentitled to a grant in the event of the person cited renouncing his right thereto.
(3)A citation calling on an Executor who has intermeddled in the estate of the deceased to showcause why he should not be ordered to take a grant may be issued at the instance of any personinterested in the estate at any time after the expiration of 6 months from the death of thedeceased:
Provided that no citation to take a grant shall issue while proceedings as to the validity of theWill is pending.

(4) A person cited who is willing to accept or take a grant may apply ex parteto the Judge for anOrder for a grant on filing an affidavit showing that he has entered an appearance and that he hasnot been served by the Citor with notice of an application for a grant to himself.

Where appearance time has expired
(5) If the time limited for appearance has expired and the person cited has not entered anappearance, the Citor may:
(a) In the case of a citation under Sub-Rule 1 of this Rule, apply to the Judge for an Orderfor a grant to himself;
(b) In the case of a citation under Sub-Rule 2 of this Rule, apply to the Judge for an Orderthat note be made on the grant that the Executor in respect or whom power was
reserved has been duly cited and has not appeared and that all his rights or interest inrespect thereof have ceased;
(c) In the case of a citation under Sub-Rule 3 of this Rule, apply to the Judge bySummons, which shall be served on the person cited for an Order requiring suchperson totake a grant within a specified time or for a grant to himself or some otherperson specified in the Summons.
(6) An application under Sub-Rule 5 of this Rule shall be supported by an affidavit showing thatthe citation was duly served and that the person cited has not entered an appearance.

Where appearance is entered, but no application for grant is made
(7) If the person cited has entered an appearance but has not applied for a grant under Sub-Rule 4of 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 I of this Rule, apply by Summons to theJudge 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 theJudge for an Order striking out the appearance and for the endorsement on the grantof 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 theJudge for an Order requiring the person cited to take a grant within a specified time orfor a grant to himself or some other person specified in the Summons; and theSummons shall be served on the person cited in each case.

Citation to propound a Will

73.

73.(l) A citation to propound a Will shall be directed to the Executors named in the Will and to allpersons interested thereunder and may be issued at the instance of any Citor having any interestcontrary 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 fora grant as if the Will were invalid;
(b) In the case of a citation under Sub-Rule 2 of Rule 72 of this Order apply by Summonsto the Judge for an Order striking out the appearance and for endorsement on thegrant of such a note as mentioned in paragraph (b) of Sub-Rule 5 of Rule 72 of thisOrder;
(c) In the case of a citation under Sub-Rule 3 of Rule 72 of this Order apply bySummons to the Judge for an Order requiring the person cited to take a grantwithin a specified time in the Summons; and the Summons shall be served on thepersons cited in each case.

Address for service

74.

74.All caveats, citations, warnings and appearances shall be served in an address for servicewithin the jurisdiction.

Application for Order to bring or to attend for examination

75.

75. (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 whichshall be served on every such person as aforesaid.

Application for issue of Subpoena and affidavit in support
(2) An application for the issue by the Judge of a subpoenato bring in a Will shall be supportedby an affidavit setting out the grounds for the application and if any person served with thesubpoenadenies that the Will is in his possession or control he may file an affidavit to that effect.

Limited grants

76.

76.An application for an Order for a grant limited to part of an estate may be made to the Judge andshall be supported by an affidavit stating;
(a) Whether the application is made in respect of the real estate only or any part thereofor 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 theApplicant have been considered and excluded.

Grants ad colligenda bona

77.

77. An application for an Order for grant of administration where the goods in the estate are ofperishable nature may be made to the Judge and shall be supported by an affidavit setting out thegrounds of the application.

Application for leave to swear to death of a person

78.

78.An application for leave to swear to the death of a person in whose estate a grant is sought maybe made to the Judge and shall be supported by an affidavit setting out the grounds of theapplication and containing particulars of any policies of insurance effected on the life of thepresumed deceased.

Grants in respect of codicils and copies of Wills

79.

79.(1) An application for an Order admitting to proof, a codicil or a Will contained in a copy, acompleted draft, a reconstruction of other evidence of its contents where the original Will is notavailable may be made to the Judge.
Provided that where a Will is not available owing to its being retained in the custody of aforeign Court or official, a duly certified copy of the Will may be admitted to proof withoutany such Order as aforesaid.

Application and affidavit in support
(2) The application shall be supported by an affidavit setting out the grounds of the applicationand by such evidence on affidavit as the Applicant can adduce as to:
(a) The due execution of the Will;
(b) Its existence after the death of the testator; and
(c) The accuracy of the copy or other evidence of the contents of the Will togetherwith any consent in writing to the application given by any person not underdisability who would be prejudiced by the grant.

Grants durants absentia

80.

80.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

81.

81.(1) Where a surviving spouse who is the sole personal representative of the deceased is entitledto a life interest in part of the residuary estate and elects to have the life interest redeemed, hemay give written notice of the election to the Registrar by filing a notice in Probate Form 7withsuch Probate Form variations as circumstances may require.
(2) A notice filed under this rule shall be notice on the grant and the record shall be open toinspection.

Photocopy of Wills or other documents may be certified and sealed

82.

82.(1) Where copies are required of original Wills or other documents deposited under the provisions of any written Law such copies may be photocopies sealed with the seal of the Registry and issued as office copies and where such office copies are available copies certified under the hand of a Registrar to be true copies shall be issued only if it is required that the seal ofthe 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 theperson demanding the copy and in such case the copy shall be certified under the hand of a Registrar to be a true copy and may in addition be sealed with the seal of the Court.

Power to require application to be made by Summons or Motions

83.

83.The Registrar may require any application under this Order to be made by Motion or Summons to a Judge.

Service of notice of Motion and Summons

84.

84.(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 provisions of this Order or by any direction given under Sub-Rule 1 of this Rulea notice of Motion or Summons is required to be served on any person, it shall be served not lessthan 5 days, before the hearing of the Motion or Summons.

Service of Notices

85.

85.Unless the Judge otherwise directs or this Order provides, any notice or other document requiredto be given or served on any person may be given or served by leaving it at or by sending it bycourier to that person’s address for service or if he has no address for service, his last knownaddress.

Affidavit

86.

86.Every affidavit used in non-contentious probate business shall satisfy the requirements of Order16 of these Rules.

Time

87.

87.The provisions of Order 41 of these Rules shall apply to the computation, enlargement andabridgement of time under this Order.

Application

88.

88.Subject in any particular case to any direction given by a Judge, this Order shall apply to anyproceedings which is pending on the date on which these Rules come into operation as well as toany proceedings commenced on or after that date:
Provided that where the deceased died before the commencement of these Rules, the right toa grant shall, subject to the provisions of any enactment be determined by the principles andrules in accordance with which the Court would have acted at the date of the death.

Contentious probate; form of suits

89.

89.Suits in respect of probate shall be instituted and carried on as nearly as practicable in the likemanner and subject to the same rules of procedure as suits in respect of civil claims.

III. PROCEEDINGS GENERALLY

Probate actions

90.

III. PROCEEDINGS GENERALLY

90.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

91.

91.In probate actions, service of a Writ of Summons may by leave of a Judge be allowed out ofNigeria.

Pleadings and further actions

92.

92.In probate actions, a party shall state with regard to every defence which is pleaded, what is thesubstance of the case on which it is intended to rely; and further, where it is pleaded that thetestator was not of sound mind, memory and understanding, particulars of any specific instancesof delusion shall be delivered before the case is setdown for trial and except by leave of a Judge,no evidence shall be given of any other instances at the trial.

Where Plaintiff disputes Defendants interest

93.

93.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 opposition to Will

94.

94.In probate actions, the party opposing a Will may, with his defence, give notice to the partysetting up the Will that he merely insists upon the Will being proved in solemn form of law andonly intends to cross-examine the witnesses produced in support of the Will and he shallthereupon be at liberty to do so and shall not in any event be liable to pay the costs of the otherside unless the Judge finds that there was no reasonable ground for opposing the Will.

Inquiry as to outstanding personal estate

95.

95.Every Judgment or Order for a general account of the personal estate of a testator or upon intestacy 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

96.

96.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 ofthe fund held by the trustee or personal representative or the mortgaged property, as the casemay be; and the Judge may otherwise order only on the ground that the trustee, personal representative or mortgagee has acted unreasonably or in the case of a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund.

Originating

97.

97.The Executors or Administrators of a deceased person’s estate or any of them and the trusteesunder any deed or instrument or any of them and any person claiming to be interested in therelief sought as creditor, beneficiary, next of kin, heir-at-law of a deceased person, or as Cestuique 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 anadministration 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 ortrustees and the vouching, when necessary, of such accounts;
(d) The payment into Court of any money in the hands of the Executors orAdministrators 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

98.

98.Any of the persons named in Rule 97 of this Order may in like manner apply for and obtain anOrder 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 bedone or taken if any such administration Order as aforesaid had previously beenmade.

Persons to be served

99.

99.The person to be served with the Summons under Rules 97 and 98 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 97of this Order, the persons or one of the persons whose rights or interests are soughtto be affected;
(b) For the determination of any question, under paragraph (b) of Rule 97 of this Orderany member or alleged member of the class;
(c) For the determination of any question under paragraph (c) of Rule 97 of this Order,any person interested in taking such accounts;
(d) For the determination of any question under paragraph (d) of Rule 97 of this Order,any person interested in taking such money;
(e) For relief under paragraph (a) or Rule 98 of this Order, the residuary legatees or nextof kin or some of them or the residuary devisees or heirs or some of them as the casemay be;
(f) For relief under paragraph (b) or Rule 98 of this Order, the Cestui que trustor someof them; 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.

Where Summons are taken out by any other person
(g) Where the Summons is taken out by any person other than the Executors, Administrators orTrustees, the Executors, Administrators or Trustees or some of them must he served.

Judge not bound to Order administration

100.

100.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 Judgmentor Order.

Order which may be made on application for administration or execution of trusts, where no account or insufficient accounts have been rendered

101.

101.Upon an application for administration or execution of trusts by a creditor or beneficiary under aWill, 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 trustees in the meantime shall render to the Applicant proper statement oftheir accounts with an intimation that if this is not done they may be made to pay the costs of theproceedings;
(b) When necessary, to prevent proceedings by other creditors or by persons beneficiallyinterested, make the usual judgment or Order for administration with a provision that noproceedings are to be taken under such judgment or Order without leave of the Judge.

Interference with discretion of Trustee

102.

102.The issue of a Summons under Rule 97 of this Order shall not interfere with or control anypower or discretion vested in any Executor, Administrator or Trustee except so far as suchinterference or control may necessarily be involved in the particular relief sought.

Application by Summons

103.

103.Any of the following applications may be made by Summons:

Appointment of new trustees and vesting Order
(a) An application for the appointment of a new trustee with or without a vesting orother consequential Order;
(b) An application for a vesting Order or other Order consequential on theappointment of a new trustee where the appointment is made by a Judge.

Vesting Order on sale etc
(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 ofany land or stock or the suing for or recovering any chose in action;

Payment out of Court
(d) An application relating to a fund paid into Court in any case coming within theprovisions of Rule 8 of this Order.

Interpretation of Law Cap 77 Laws of Kaduna State

104.

104.(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 bylaw to administer any oath or to take any affidavit required for any purpose connected with hisduties;

“Gross value” in relation to any estate means the value of the estate without deduction fordebts, 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 agrant 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;
Unless the context otherwise requires, any reference in this Order to any Rule or enactmentshall be construed as a reference to that Rule or enactment as amended, extended or appliedby any other rule or enactment.

ORDER 56

Multi Door Courthouse

1.

1. The Multi-Door Courthouse is by this Rule established and shall have the responsibility to settle matters by Arbitration, Conciliation, Mediation or any other method of dispute resolution and the Chief Judge shall from time to time make practice directions for this purpose.

Designation as ADR Judges

2.

2.(1) The Chief Judge may designate as ADR Judges who shall preside over the Multi-Door Courthouses together with other members of the Multi-Door Courthouse.

Advising ADR

(2) The Registrar at the time of filing a suit shall, where he considers the case to be appropriate for ADR, advice the parties accordingly and if all parties give their consent, the suit may be referred to the Multi-Door Courthouse.

—

3.

Without prejudice to Rule 2(2) of this Order, parties or their Legal Practitioners may request their suit to be first heard by the Multi-Door Courthouse.

Referral to the Multi Door Courthouse

4.

Case management and costs
(1) Where a case has not been referred to the Multi-Door Courthouse by the Registrar under Rule 2(2) of this Order or by the parties under Rule 3 of this Order, the trial Judge may nonetheless refer the case, subject to the consent of the parties, to the Multi-Door Courthouse at the Pre-trial Conference or at any stage of the proceedings if he considers that the dispute would be more appropriately settled by ADR.
(2) The Judge may take into account, the refusal of a party to consent to ADR in awarding costs if the ultimate result in the case vindicates the suitability of ADR.

ADR Settlement as consent judgment

5. The settlement reached at the Multi-Door Courthouse shall be adopted as Consent Judgment for the parties in the suit.

ORDER 57

Fees 1st, 2nd, 4th and 5th appendices

1.

Subject to the provisions of any written Law and of the foregoing Orders:-
(1) The fees set out in the 1st, 2nd, 4th and 5th appendices shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in those appendices.

Allowances 2nd Appendix

2.

(2) The allowances set out in the 2nd appendix shall be payable to the various categories ofwitnesses mentioned therein by any person at whose instance they testify:
Provided that a witness who testifies at the instance of the Court acting on its own motion shallbe paid out of public revenue.

Regulations, 3rd appendix

3. The regulations set out in the 3rd appendix shall be observed by all officers of Court concerned with the rendering of services and or collection of fees payable, under the provisions of these Rules.