ORDER 11

Where claimant believes there is no defence

1.

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

Delivery of extra copies

2.

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

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

Where there intends to defend

4.

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

(a) his statement of defence;

(b) depositions of his witnesses;

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

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

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

5.

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

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

(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.

Where defendant 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 brief

7.

Where provision is made for written briefs under these Rules, each  party shall be at liberty to advance before a Judge oral submission to expatiate his written brief.

ORDER 12

Summary order for account

1.

(1) Where a writ is endorsed with a claim for an account or a claim which necessarily involves taking an account, the Claimant may, at any time after the defendant has entered an appearance or after the time limited for appearing, apply for an order for an account under this rule,

(2) An application under this rule shall be made by summons and supported by affidavit or other evidence,

(3) On the hearing of the application, the Court may, unless satisfied by the defendant by affidavit or otherwise, that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order

Court may direct taking of accounts, etc.

2.

(1) The Court may, on application made by summons at any stage of the proceedings in a cause or matter, direct any necessary accounts or

inquiries to be taken or made.

(2) Every direction for the taking of an account or the ma king of an inquiry shall be numbered in the judgment or order so that, as far as may be, each distinct account and inquiry may be designated by a number.

Directions as to manner of taking account

3.

(1) Where the Court orders an account to be taken, it may by the same or subsequent order give directions with regard to the manner in which the account is to be taken if vouched

(2) Without prejudice to the generality of paragraph (1) the Court may direct that in taking the account the relevant books of account shall be evidence of the matters contained therein with liberty to the parties interested to take such objections thereto as they think fit.

Account to be made, verified, etc

4.

(1) Where an account has been ordered to be taken, the accounting party must make out his account and, unless the Court otherwise directs, verify it by an affidavit to which the account shall be exhibited,

(2) The items on each side of the account shall be numbered consecutiveIy.

(3) Unless the order for the taking of the account otherwise directs, the accounting party shall lodge the account with the Court and shall at the

same time notify the other parties that he has done so, and of the filing of any affidavit verifying the account, and of any supporting affidavit

Noticeof erroneous account

5.

Any party who seeks to charge an accounting party with an amount beyond that which he has by his account admitted to have received, or who alleges that any item in his account is erroneous in respect of amount or in any other respect, shall give him notice thereof stating, so far as he is able, the amount sought to be charged with brief particulars thereof or,as the case may be, the grounds for alleging that the item is erroneous.

Allowances

6.

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

Delay in prosecution of accounts, etc.

7.

(1) If it appears to the Court that there Is undue delay in the prosecution of any accounts or inquiries, or In any other proceedings under any judgment or order, the Court may require the party having the conduct of the proceedings or any other party to explain the delay and may then make such order or staying the proceedings or for expediting them or for the conduct thereof and for costs as the circumstances require.

(2) The Court may direct any party or legal practitioner to take over the conduct of proceedings in question and to carry out any directions made by an order under this rule and may make such order as It thinks fit as to the payment of legal practitioner’s costs.

Distribution of fund before all persons entitled are ascertained

8.

Where some of the persons entitled to share in a fund are ascertained, and difficulty or delay has occurred or is likely to occur in ascertaining the other persons so entitled, the Court may order or allow immediate payment of their shares to the persons ascertained without reserving any part of these shares to meet the subsequent costs of

ascertaining those other persons.

ORDER 13

Persons claiming jointly or severally

1.

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

Action in name of wrong claimant

2.

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

Misjoinder and counterclaim

3.

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

Any person 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 him.

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

Joinder of persons severally orjointly and severally liable

7.

A claimant may at his option 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.

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

8.

Where a claimant is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that the question as to which, if any, of the 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 relator, a written authority for that purpose signed by that person shall be filed in the registry.

Trustees, executors etc. may be sued as presenting the estate

11.

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

administrators in proceedings to enforce a security by foreclosure or otherwise.

Numerous persons

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 or 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 of 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, unless the Judge considers that the circumstances justify separate representation,not more than one set of costs of the hearing shall be allowed to these persons, and the judgment or order shall be framed accordingly.

(4) In this Rule, the word “class” includes the persons recognized by customary law as members of a family or as members of 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 representative, the Judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for the purpose of the proceeding, on such notice to such persons (if any) as the Judge shall deem fit, either specifically or generally by public advertisement, and the order so made and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased has been a party to the proceedings.

(2) Where a sole or sole surviving claimant or defendant in a proceedings dies and the cause of action survives but the person entitledto proceed fails to proceed, a Judge may on the application of either the deceased’s legal practitioner or the opposing party order any person to take the place of the said deceased and proceed with the suit,

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

Proceedings not defeated by misjoinder or nonjoinder

16.

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

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

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

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

(5) Every party whose name is added as defendant shall be served with the originating processes or notice in the manner prescribed in these rules or in such manner as may be prescribed by a Judge and the proceedings against such person shall be deemed to have begun on the service of such originating processes or notice.

Application to add or strike out

17.

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

(2) Where the application is to add a claimant or a defendant, the application shall be accompanied by the statement of claim or defence as the case may be, all the exhibits intended to be used and the depositions of all the witnesses:

Provided that where the application is to substitute a deceased party with another person, the application may not be accompanied by the documents specified above.

Where defendant is added

18.

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

Third parties may be joined by any of the parties

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 and existing processes shall be served on the Third Party within the time prescribed for delivering the defence.

Appearance by Third Party

20.

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

Default by Third Party

21.

If a Third Party duly served with the order and all existing processes does not enter an appearance or default in filing any pleading, he 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 he was joined and the expression “Third Party” shall apply to and include every person so joined.

Actions by and against firms

23.

Actions against Firms and Persons Carrying on business in names other than their own.

23. Any two or more persons claiming or alleged to be liable as partners and doing business with in 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

24.

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

(2) Where the claimants or their Legal Practitioners fail to comply with such demand, all 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 50 declared, the suit shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as claimants in the originating process, provided that the proceedings may continue in the name of the firm.

Appearance of partners

25.

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

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

Application of rules to actions between co-partners

26.

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 in common, provided such firm or firms carry on business within partners the jurisdiction.

Persons trading as firms

27.

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

Action not abated where cause of action survives

28.

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

29.

(1) Where by reason of death or bankruptcy, or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest of liability, or by reason of any person interested coming into existence after the commencement of the proceeding, it becomes necessary or desirable that any person not already a party should be made a party or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on

between the continuing parties and such new party or parties may be obtained ex parte upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence.

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

(3) Every person served who is not already a party to the proceedings shall where applicable enter an appearance thereto within the same time and in the same manner as if he had been served with the originating process. He shall thereupon be served with the originating and all existing processes.

(4) Any party served under this rule who was not already a party to the proceedings shall file his pleadings and other documents as if he had been an original party in the proceedings.

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

30.

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 the title has come or devolved. 

Application to discharge order by person under disability having a guardian

31.

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

By persons under disability having no guardian

32.

Where any person under any legal disability and not having a guardian in the proceedings is served with an order under Rule 30, such a person may apply to a Judge to discharge or vary such order at anytime within 14 days 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

33.

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

ORDER 14

All causes of actions may be joined

1.

(1) Subject to rule 3, a Claimant may in one action claim relief against the same defendant in respect of two or more causes of action-

(a) if the Claimant claims, and the defendant Is alleged to be liable in the same capacity in respect of all the causes of action; or

(b) if the Claimant claims, or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity with reference to the same estate in respect of the other or others; or

(c) with leave of court.

(2) An application for leave under this rule shall be made ex-parte motion before the writ or originating summons, as the case may be, is issued and the affidavit in support of the motion shall state the grounds of the application.

Counter-claim against claimant and co-defendant

2.

(1) Subject to rule 2(3), a defendant in any action who alleges that  he has any claim or is entitled to any relief or remedy against the Claimant in the action in respect of any matter (whenever and however arising) may instead of bringing a separate action, make a counter-claim in respect of that matter: and where he does so he shall add the counter-claim to his defence.

(2) A defendant who has a counter-claim against the claimant may in his counter- claim also make a claim against a co-defendant.

(3) Rule 1 shall apply in relation to a counter-claim as if the counter-claim were a separate action and as if the person making thecounter-claim were a claimant and the person against whom it is made a defendant .
(4) A Counter-claim may be proceeded with notwithstanding that judgment is given for the claimant in his action, or that the action is stayed, discontinued or dismissed.

Court may order separate trials, etc.

3.

(1) If claims in respect of two or more causes of action are included by a claimant in the same action or by a defendant in a counter-claim, or if two or more claimants or defendants are parties to the same action, and it appears.to the court that the joinder of such causes of action or of parties as the case maybe, may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials or make such other order as may be expedient.

(2) If it appears on the application of any party against whom a counter claim is made that the subject matter of the counter-claim ought for any reason to be disposed of by a separate action, the court may order it to be tried separately or make such other order as may be expedient

ORDER 15

Filing of pleadings

1.

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

(2) A defendant shall file his statement of defence, set off or counterclaim, if any, not later than 60 days after service on him of the claimant’s originating process and accompanying documents. A counterclaim shall have the same effect as a cross action, so as to enable the court pronounce a final judgment in the same proceedings. A set-off must be specifically pleaded.

(3) A claimant shall, within 30 days of service of the statement of defence and counter-claim in land matters and 14 days in all other matters, file his reply, if any, to such defence or counter-claim:

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

Pleadings to state material facts and not evidence

2.

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

Particulars to be given where necessary

3.

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

(2) In an action for libel or slander, if the claimant alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of his allegation.

Further and better statement or particulars

4.

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

Denial

5.

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

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

Conditions precedent

6.

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

Defence, reply, certain facts to be Specifically pleaded

7.

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

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

Pleadings to be consistent

8.

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

Joinder of issues

9.

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

Effect of documents to be stated

10.

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

Notice

11.

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

12.

Wherever 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, he may state the same in the alternative.

Presumptions of law

13.

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

Stated or settled account

14.

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

Technical objection

15.

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

Striking out of pleadings

16.

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

Defamation

17.

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

(2) Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privileged occasion, the claimant shall, if he intends to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matters from which such malice is to be inferred.

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

Where pleadings discloses no reasonable cause of action

18.

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

(a) It discloses no reasonable cause of action or defence, as the case may be; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the court, and may order the action stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on application under paragraph (1) (a).

(3) No proceedings shall be open to objection on the ground that only a declaratory judgment or order is sought thereby and a Judge may make a binding declaration of right whether any consequential relief is or could be claimed or not.

Close of pleadings

19.

(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), pleading 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 claimant files a defence to counterclaim, the statements of fact contained in such counterclaim shall at the expiration of 14 days from the service thereof or of such time (if any) as may by order be allowed for filing of a defence thereto be deemed to be admitted, but the Judge may at any subsequent time give leave to the claimant to file a defence to counterclaim

ORDER 16

The relief claimed to be stated

1.

(1) Every statement of claim or counter-claim shall state specifically the relief which the Claimant claims, either simply or in the alternative, and may also ask for general relief; and the same rule shall apply to any counter-claim made or relief claimed by the Defendant in his defence

(2) Where the claimant seeks relief in respect of several distinct claims or causes of complaints founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. 

ORDER 17

Statement of defence

1.

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

Evasive denial

2.

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

Denials generally

3.

(1) In an action for debt or liquidated demand, 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 claimant.

(3) In an action for goods sold and delivered,the defence must deny the order or contract, the delivery, or the amount claimed.

(4) In an action upon a bill of exchange, promissory note or cheque, a defence in denial must deny some matter of fact, e.g. the drawing, making, indorsing, accepting, presenting or notice of dishonour of the bill or note.

Persons in representative capacity

4.

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 shaII deny the same specifically.

Pleading to damages

5.

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

Set-off and counter-claim

6.

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

Title of counter-claim

7.

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

the claimant.

Claim against persons not party: Civil Form 12

8.

Where any such person as in Rule 7 of this Order is not a party to the action he shall be summoned to appear by being served with a copy of the defence and counterclaim, and such service shall be regulated by the same rules as those governing the service of the originating process, and every defence and counter claim so served shall be indorsed in Form 12 with such modifications or variations as circumstances may require.

Appearance by added parties

9.

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

Reply to counter-claim

10.

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

Discontinuance of the claimant’s claim

11.

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

Judgment for balance

12.

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

Grounds of defence after action Brought

13.

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

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

Concession to defence Civil Form 13

14.

Whenever any defendant in his defence alleges any ground of defence which has arisen after the commencement of the action, the claimant may concede to such defence (which concession may be in Form 13 with such modification as circumstances may require) and may thereupon obtain judgment up to the time of the pleading of such

defence, unless the Judge either before or after the delivery of such concession otherwise orders.

Defence to originating summons

15.

A Defendant to an Originating Summons shall file and serve a counter affidavit together with all the exhibits he intends to rely upon, and a written Address within 14 days after service of the Originating Summons or within such time as may be abridged or extended by the Court.

ORDER 18

Filing of reply

1.

(1) A party who files a reply shall be at liberty to file additional list  of witnesses, written statements and copies of documents as may be necessary.

Reply to counter-claim

2.

Where a counterclaim is pleaded, a reply thereto is called Defence to Counterclaim and shall be filed in accordance with the provisions of Order 15 Rule 1(3}

Time of filing.

3.

A Claimant in an Originating Summons may file a reply to the Defendant’s counter affidavit together with exhibits, if any, and a written Address on Points of law within 7 days or within such time as may be abridged or extended by the Court.

ORDER 19

Notice to admit facts

1.

A party to any proceedings may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party ..

Notice to admit 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 he shall be deemed to have admitted it unless a Judge otherwise orders.

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

(3) Where a party gives notice of non-admission and the document is proved at the trial the cost of proving the document 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 of admission of 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 facts mentioned in the notice and the party so served shall not later than 4 days after service give notice of admission or non-admission of the fact or facts failing which he shall be deemed to have admitted it unless a Judge otherwise orders.

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

(3) Where there is a refusal or neglect to admit the same within 4 days after service of such notice or within such further times 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.

The 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.

Costs 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.

ORDER 20

Claim for debt or liquidated

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, demand the claimant may, at the expiration of such time, apply for final judgment for the amount claimed with costs.

Several defendants: default of one

2.

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

Damages and detention of goods

3.

If the claimant’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 claimant 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 claimant may apply to a judge for interlocutory judgment against the defendant or defendants so making default and proceed with his action against the others. Insuch case the value and amount of damages against the defendant making default shall be assessed at the trial of the action or issues therein against the other defendants, unless the Judge

shall otherwise order

Debt or damages and detention of goods or damages

5.

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

Recovery of land

6.

In an action for the recovery of land, if the defendant makes default as mentioned in Rule 1, the claimant shall apply that the case be set down for trial.

Claim for mesne profits arrears or damages

7.

Where the claimant 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 a breach of contract or wrong or injury to the premises claimed upon a writ for the recovery of land, if the defendant makes defaults as mentioned in Rule 1, or if there be more than one defendant and some or one of the defendants make such default, the claimant may apply for final judgment against the defaulting defendant or defendants and proceed as mentioned

in Rules 3 and 4.

Where a defence is filed to part of claim only.

8.

If the claimant’s claim 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 claimant’s alleged cause of action, the claimant 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 claimant’s claim shall not issue 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 claimant may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the claimant to be entitled to.

One of several defendants in default

10.

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

Default of Third Party

11.

In any case in which issues arise in a proceeding other than between claimant and defendant, if any party to any such issue makes default in filing any pleading, the opposite party may apply to a Judge for such judgment, if any, as upon the pleadings he may appear to be 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, non-service or lack of jurisdiction upon such terms as the court may deem fit.

ORDER 21

Payment into and out of court

1.

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

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

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

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

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

(6) The notice shall be in Form 14 with such modifications or variations as circumstances may require. The receipt of the notice shall be acknowledged in writing by the claimant within 3 days. The notice may be modified or withdrawn or delivered in an amended form by leave of a Judge upon such terms as may be just.

(7) Where money is paid into Court with denial of liability, the claimant may proceed with the action in respect of the claim and if he succeeds, the amount paid shall be applied so far as is necessary in satisfaction of the claim, and the balance, if any, shall on the order of a Judge be repaid to the defendant. Where the defendant succeeds in respect of such claim, the whole amount paid into Court shall be repaid to him on the order of a judge.

(8) Payment into Court, whether made in satisfaction of the claimant’s claim generally or in satisfaction of some specific part thereof, operates unless the defendant in his defence denies liability, as an admission of liability to the extent of the amount paid in, and no more, and for no other purpose

Claimant may take out money; Civil Form 15

2.

(1) Where money is paid into Court under Rule 1, the claimant may within 14 days of the receipt of the notice of payment into Court, or where more than one payment into Court has been made, within 14 days of the receipt of the notice of the last payment into Court, accept the whole sum or 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 15 with such modifications or variations as

circumstances may require and thereupon shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.

(2) Payment shall be made to the claimant, or on his written authority to his Legal Practitioner and thereupon, proceedings in the action or in respect of the specified cause or causes of action (as case may be) shall abate.

(3) If the claimant accepts money paid into court in satisfaction of his claim, or if he accepts a.sum or sums paid in respect of one or more specified causes of action, and gives notice that he abandons the other causes or action, he may after 4 days from the date of payment to him, and unless a Judge otherwise orders, tax his costs incurred to the time of payment into court, and 48 hours after taxation may sign judgment for his taxed costs,

(4) Where in an action for libel or slander, the claimant accepts money paid into court, either party may apply by summons to a Judge for leave for the parties or either of them to make a statement in open court in terms approved by the Judge.

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 any time before, at or after trial.

Several defendants

4.

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

(2) If the claimant elects within 14 days after receipt of notice of Civil Form 16 payment into court to accept the sum or sums paid into court, he shall give notice as in Form 16 with such modifications or variations as circumstances may require to each defendant and thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as thecase may be) shall be stayed.

(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 claimant may within 14 days elect to accept the sum paid into court in satisfaction of his claim against the defendant making the payment and shall give notice to all the defendants as in Form 15 with such modifications or variations as circumstances may require. The claimant may tax his costs against the defendant who has made such payment in accordance with Rule 2(3) of

this Order and the action shall thereupon be stayed as against that defendant.

(5) The claimant may continue with the action against any other defendant but the sum paid into court shall be set off against any damages awarded to the claimant against the defendant or defendants

Counter-claim

5.

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

Persons under legal disability

6.

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

(2) No money (which expression for the purposes of this Rule includes damages) in any way recovered or adjudged Of ordered or awarded or agreed to be paid in any such proceedings in respect of the claims of any such person under legal disability whether by judgment, settlement, compromise, payment into court or otherwise, before, at or after the trial, shall be paid to the claimant or to the guardian of the claimant or to the claimant’s Legal Practitioner unless a Judge shall so direct.

(3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the Judge shall direct. The directions thus given may include any general or special directions that the Judge may deem fit to give, including directions on how the money is to be applied or dealt with and as to any payment to be made either directly or out of money paid into court to the claimant or to the guardian in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the person under legal disability or otherwise or to the claimant’s Legal Practitioner in respect of costs or of the difference between

party and party, and Legal Practitioner and client costs.

Payment into and withdrawal of money from court

7.

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

ORDER 22

Demurrer abolished

1. No demurrer shall be allowed.

Points of law may be raised by pleadings

2.

Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial.

Provided that by consent of the partles, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

Dismissal of action

3.

If in the opinion of the Court or a Judge, the decision on such point of law substantially disposes of the whole. action or of any distinct cause of action, ground of defence, set-off, counter-claim or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just.

Striking out pleading where no reasonable cause of action disclosed.

4.

The Court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

ORDER 23

Withdrawal of appearance

1.

A party who has entered an appearance in an action may withdraw the appearance at any time with leave of the Court.

Discontinuance of action without leave

2.

(1) The Claimant in an action may, without the leave of the court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than fourteen days after service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.

(2) A defendant may, without leave of the Court:

(a) Withdraw his defence or any part of it at any time;

(b) Discontinue a counter-claim, or withdraw any particular claim made by him therein, as against any or all of the parties against whom it is made, at any time not later than fourteen days after service on him of a defence to the counter-claim or, if the counter-claim is made against two or more parties, of the defence to the counter-claim

last served; by serving a notice to that effect on the plaintiff or other party concerned.

(3) Where there are two or more defendants to an action, not all of whom serve a defence on the Claimant, and the period fixed by or

under this rule for service by any of those defendants of his defence expires, after the latest date on which any other defendant serves his defence, sub-rule (1) shall have effect as if the reference therein to the service of the defence last served were a reference to the expiration of that period.

(4) Paragraph (3) shall apply in relation to counter-claim as it applies in relation to an action, with the substitution for references to a defence, to the Claimant, and to paragraph (l), of references to a defence or Counter claim, to the defendant and to paragraph (2) respectively.

(5) If all the parties to an action consent, the action may be withdrawn without leave of the Court at any time before trial by producing to the Registrar a written consent to the action being withdrawn signed by all the parties, and the action shall thereafter be struck out.

Discontinuance of action with leave

3.

(1) Except as provided by rule 2, a party may not discontinue an action or counter-claim, or withdraw any particular claim made by him therein without leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.

(2) An application for the grant of leave under this rule may be made by summons or motion on notice.

Effect of discontinuance

4.

Subject to any terms imposed by the Court in granting leave under rule 3, the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action.

Stay of subsequent action until costs paid

5.

Where a party has,discontinued an action or counter-claim or withdrawn any particular claim made by him therein, and he is liable to pay cost to any other party in the action or counter-claim or the costs occasioned to any other party by the claim withdrawn, then if, before payment of those costs, he subsequently brings an action, for the same or substantially the same causeof action, the Court may order the proceedings in that action to be stayed until those costs are paid

Withdrawal of summons

6.

A party who has taken out a summons or filed a motion in a pending cause or matter may not withdraw it without leave of the Court.

ORDER 24

Amendment of originating process and pleadings

1.

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

Application

2.

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

Form of Amendment

3.

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

Failure to amend after Order

4.

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 N100,000(One hundred Naira) for each day of default.

Filing and service of amended process

5.

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

Date of order and amendment to be displayed

6.

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

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

Clerical mistakes and accidental omissions

7.

A Judge may at any time correct clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission upon application, without any appeal being filed.

General power to amend

8.

Subject to the provisions of Rule 1 of this Order, a Judge may at anytime and on such terms as to costs or otherwise as may be just, amend any defect or error in any proceedings.

Deeming provision.

9.

Where an applicant has already filed an amended process, the Court may in appropriate cases deem such process properly filed and served in which situation Rule 6 above will be inapplicable

ORDER 25

Pre-trial conference notice

1.

(1) Within 14 days after close of pleadings, the claimant shall apply for the issuance of a pre-trial conference Notice, Form 17

(2) Upon application by a claimant under sub-rule 1 above, the Judge Civil Forms 17,18 shall cause to be issued to the parties and their Legal Practitioners (if any) a

pre-trial conference notice as in Form 17 accompanied by a pre-trial information sheet as in Form 18 for the purposes set out hereunder:

(a) disposal of matters which must or can be dealt with on interlocutory application;

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

(c) promoting amicable settlement of the case or adoption of alternative dispute resolution.

(3) If the claimant does not make the application in accordance with sub-rule 1 of this rule, the defendant(s) may do so or apply for an order to dismiss the action.

Presence of Parties.

2.

(1) Parties shall be present at the pre trial conference, unless the  Judge grants leave to the contrary.

(2) At the pre-trial conference, the Judge shall enter a scheduling Scheduling and planning Order for:

(a) joining other parties;

(b) amending pleadings or any other processes;

(c) filing motions; further pre-trial conferences;

(d) any other matters 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) hearing and determination of objections on point of law;

(g) giving orders or directions for separate trial of a claim,counterclaim, set-off, cross-claim or third party claim or of any particular issue in the case;

(h) settlement of issues, inquiries and accounts under Order27;

(i) securing statement of special case of law or facts under Order 28;

(J) determining the form and’ substance of the pre-trial order;

(k) such.other matters as may facilitate the just and speedy disposal of the action.

Time table

4.

Pre-trial conference or series of pre-trial conferences with respect to any case shall be completed within 3 months of its commencement, and the parties and their Legal Practitioners shall co-operate with the Judge in working within this timetable. 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 at the trial.

(2) The pre-trial conference Judge shall also be the trial Judge unless either of the parties apply, with good cause that the case be transferred to another Judge for trial.

Sanctions

6.

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

(a) in the case of the claimant strike out the claim;

(b) in the case of a defendant enter judgment against him.

Any decision given under this rule may be set aside upon an application made within 7 days of the decision 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 him effectively in dealing with the conference agenda

ORDER 26

Discovery by interrogatories

1.

In any cause or matter, the claimant or defendant may deliver interrogatories in writing for the examination of the opposite parties, or anyone 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 19

2.

Interrogatories shall be in Form 19 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, any opposite party may deliver interrogatories to any member or officer of such party.

Objection to interrogatories by answer

4.

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

Affidavit in answer, filing of

5.

Interrogatories shall be answered by affidavit to be filed within 7days, 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 20

6.

An affidavit in answer to interrogatories shall be in Form 20 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 him to answer or to answer further as the case may be

Application for discovery of documents

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 his possession, custody, power or control, relating to any matter in question in the case. Request for discovery shall be served within 7 days of

close of pleadings and shall form part of the agenda of pre-triaI conference.The party on whom such a request is served shall answer on oath completely

and truthfully within 7 days of the request or within such other time as the Judge may allow and it shall be dealt with at pre-trial conference.

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

(3) The affidavit to be made by any person in answer to a request for discovery of documents shall specify which, if any, of the listed documents he objects to producing, stating the grounds of his objection, and it shall be in Form 21 with such modifications or variations as 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, a 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, a 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, a Judge may order inspection of the book from which the copy was made.

(3) The Judge may upon application whether or not an affidavit of document has been ordered or filed, make an order requiring any party to state by affidavit whether any particular document or any class of documents is or has at any time been in his possession, custody, power or control, when he parted with the same and what has become of it.

Committal of party after service on Legal Practitioner

11.

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

Committal 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 hisclient, shall be liable to committal

Using answers to interrogatories at trial

13.

Any party may, at the trial of a cause, matter or issue, use in evidence anyone 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 his office, a Judge may, on application of either party, order that the affidavit to be made in answer either to interrogatories or to any order for discovery shall be made by the officer actually concerned

Order to apply to person under legal disability

15.

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

ORDER 27

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

Instructions to referee

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 his 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 he may deem most expedient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall, so far as practicable, proceed with the inquiry from day to day.

Evidence

5.

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

the same manner or as nearly as circumstances will admit as trials before a Court.

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

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

Reports made in made pursuance of reference under order

6.

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

the reference.

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

(3) On the receipt of a referee’s report, the Judge may:

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

(b) vary the report;

(c) require an explanation from him;

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

by him or any other referee;

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

additional evidence.

(4) When the report of the referee has been made, an application to vary the report or merit the whole or any part of the question or issue originally referred may be made on the hearing by the Judge for the further consideration of the cause or matter, after giving not less than 4 days notice thereof and any other application with respect to the report may be made on that hearing without notice.

(5) Where on a reference under this Order a Judge orders that the further consideration of the cause or matter in question shall not stand adjourned until the receipt of the referee’s report, the order may contain directions with respect to the proceedings on the receipt of the report and the foregoing provisions of this rule shall have effect subject to any such directions.

Special directions as to mode of taking account

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 primo jocie 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 his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by ‘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 he has by his account admitted to have received shall give notice to the accounting party, stating so far as he is able, the amount sought to be charged with particulars.

Accounts and inquires to be numbered; Civil Form 22

11.

Where by any judgment or order any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered so that as far as may be, each distinct account and inquiry may be designated by a number and such judgment or order shall be in Form 22 with such modifications or variations as the circumstances of the case may require.

Just allowances

12.

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

Expediting proceedings in case of undue delay

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 person whose attendance is required, and to conduct any proceeding and carry out any directions which may be given.

ORDER 28

Special case by consent

1.

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

Special case by order before trial

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 Judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

Special case to be signed

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 claimant or other party having conduct of the proceedings.

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

4.

An application to set down a special case in any cause or matter to which a person under legal disability is a party shall be supported by sufficient evidence that the statements contained in such case, so far as the same affects the interest of such 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, which shall not be subject to any stamp duty, that on the judgment of the court being given in the affirmative or negative on the questions of law raised by the special case, a sum of money fixed by the parties or to be ascertained by the Court or in such manner as the Court may direct, shall be paid by one of the parties, 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 29

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 25 Rule 3.

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

Pre-trial and weekly cause 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.

(2) Nothing in this rule shall preclude the Judge from making special arrangements, whenever necessary or convenient, for the disposal of causes and matters included in his 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 cause or matter fixed for hearing, a minute, recording the parties present and the step taken by the Registrar, shall be entered on the Court file

Notice boards

5.

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

ORDER 30

Non-appearance of both parties

1.

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

Default of appearance by defendant at trial

2.

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

Default of appearance by claimant

3.

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

Judgment by default may be set aside on terms

4.

(1) Where a cause is struck out under Rule 1 of this Order either party may apply that the cause be relisted on such terms as the Judge may

deem fit.

(2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge upon such terms as he may deem fit.

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

Adjournment of trial

5.

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

Times of commencement and termination of trial

6.

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

Order of proceedings

7.

The order of proceeding at the trial of a cause shall be as prescribed in the following rules.

Burden of proof by party to begin

8.

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

Documentary evidence

9.

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

AdditionaI statement on oath or additional witness

10.

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

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

Close of case of parties

11.

(1) A party shall close his case when he has concluded his evidence either the claimant or defendant may make oral application to have the case closed.
(2) Notwithstanding the provisions of sub-rule (1) above, the Judge may suo-motu where he considers that either party fails to conclude his case within a reasonable time, close the case for the party.

Exhibits during trial

12.

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

(2) The Registrar shall cause a list of all the exhibits in the action to be made.

(3) The list of exhibits when completed shall form part of the record of the action.

(4) For the purpose of this rule a bundle of documents may be treated and counted as one exhibit.

(5) In this rule a witness by whom an exhibit is proved includes a witness in the course of whose evidence the exhibit is put in.

Written address by party beginning where other party does not callevidence

13.

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

Written address by other party

14.

Where the other party calls evidence he shall within 21 days after

the close of evidence file a written address

Written address by party beginning where other party calls evidence

15.

Upon being served with other party’s written address the party

beginning shall within 21 days file his own written address.

Right of reply

16.

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

Custody of Exhibit after trial

17.

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

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

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

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

Office copy of list of exhibits

18.

(1) Any party may apply for and, on payment of the prescribed fee, obtain an office copy of the list of exhibits for the purpose of an appeal.(2) Where there is an appeal, an office copy of the list of exhibits shall be included amongst the documents supplied for the purpose of the appeal.

Indolent Prosecution

19.

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

ORDER 31

Application

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

Contents of Written Address

2.

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

(i) the claim or application on which the address is based;

(ii) a brief statement of the facts with reference to the exhibits attached to the application or tendered at the trial;

(iii) the issues arising from the evidence;

(iv) a succinct statement of argument on each issue incorporating the purport of the Authorities referred to together with full citation of each such authority.

Summation of address

3.

All written addresses shall be concluded with a numbered summary of the points raised and the party’s prayer. A list of all authorities referred to shall be submitted with the address. Where any unreported judgment is relied upon the certified true copy shall be submitted along with the written address

Oral argument

4.

(1) Oral argument of not more than twenty minutes shall be allowed only for a party who has filed a Written Address.

(2) If any party or legal practitioner appearing for him does not appear to present oral arguments the Written Address will be treated as having been duly adopted:

Provided that this sub Rule shall not apply in case of Applications where the Applicant is absent.

Copies of every address.

5.

Each party shall file at least two(2) copies of his final written address in court together with a soft copy, comprising the said Final Address and his final pleadings, and serve same on the other party

ORDER 32

Facts how proved

1.

This order shall be subject to the provisions of the Evidence Act or any other enactment relating to evidence.

Particular facts

2.

(1) Any fact required to be proved at the trial of any action shall be proved by written deposition and ora I examination of witnesses in open court.

(2) All agreed documents or other exhibits shall be tendered from the bar or by the party where he is not represented by a Legal Practitioner.

(3) The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.

Provided that a Judge may allow a witness on subpoena to lead oral evidence in examination in chief without having sworn a written statement in appropriate cases.

(4) Real evidence shall be tendered during the trial.

Limitation of medical and expert evidence

3.

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

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

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

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

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

(2) A Judge may, at or before the trial of an action, order or directthat the number of medical or expert witnesses who may be called at the trial be limited as specified by the order or direction

Limitation on use of documentary evidence

4.

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

Revocation and variation

5.

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

Examination of witnesses abroad

6.

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

(a) the party obtaining such order shall file in the Registry an undertaking in the Form 23 which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used; .

(b) such undertaking shall be accompanied by:

(i) a request in Form 24, with such modifications or variations as may be directed in the order for its issue, together with a translation in the language of the country in which it is to be executed (if not English);

(ii) a copy of the interrogatories (if any) to accompany the requests, with a translation if necessary;

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

Form of order for examination of witnesses abroad: Civil Form 25

7.

Where an order is made for the examination of witness or witnesses before the Nigerian Diplomatic Agent in any foreign country with which a Convention in that behalf has been made, the order shall be in Form 25.The form may be modified or varied as may be necessary to meet the circumstances of the particular case in which it is used.

Order for attendance of person to produce document

8.

The Judge may at any stage of any proceedings order the attendance of any person for the purpose of producing any writings of or other documents named in the order: Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

Disobedience to order for attendance

9.

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

Expenses of persons ordered to attend

10.

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

Contempt of court

11.

If any person duly summoned by subpoena to attend for examination shall refuse to atte nd or if having attended, he shall refuse to be sworn or to answer any lawful question he shall be in contempt of court and may be dealt with accordingly by the Judge

Examination of witnesses

12.

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

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

13.

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

Oaths

14.

Any officer of the court or other person directed to take the examination of any witness or person or any person nominated or appointed to take the examination of any witness or person pursuant to the provisions of any convention now made or which may hereafter be made with any foreign country, may administer oaths.

Attendance of witness under subpoena for examination or to produce documents

15.

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

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

16.

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

SpeciaI directions as to taking of evidence

17.

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

Evidence in proceedings subsequent to trial

18.

Subject to the provisions of Section 46 of the Evidence Act, all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter

Form of praecipe for a subpoena: Civil Form 26

19.

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

Form of subpoena: Civil as circumstances may require. Forms 27, 28, 29

20.

A subpoena shall be in one of Forms 27,28 or 29 with such variations as circumstances may require.

Subpoena for attendance of witness in Chambers

21.

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

Correction of errors in subpoena

22.

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

Personal service of subpoena

23.

A subpoena shall be served personally unless substituted service has been ordered by a Judge in a case where a person persistently evades service.

The provisions of Order 7 shall so far as possible apply to service and proof of service of a subpoena.

Duration of subpoena

24.

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

Action to perpetuate testimony

25.

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

perpetuate any testimony which may be material for establishing such right or claim.

Examination of witnesses to perpetuate testimony

26.

A witness shall not be examined to perpetuate his testimony unless an action hasbeen commenced for that purpose

Such action not to be set down for trial

27.

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

Recall of witness

28.

Upon application of either party to a suit, the court may recall any witnesswhere it deems fit in the interest of justice

ORDER 33

Evidence on motions, etc

1.

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

Title of affidavit

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 claimant or defendant, it shall be sufficient to state the full name-of the first claimant or defendant respectively, and that there are other claimants 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 misdescription 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.

Specific time for filing affidavits

4.

Where a specific 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 exparte 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 him 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 creditor’s 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 any 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, LFN

10.

The provisions of the Evidence Act governing affidavits shall be applicable under these Rules

ORDER 34

Non-suit abolished

1. Non-suit of parties is not applicable in Ogun State.

ORDER 35

Delivery of Judgment at or after trial

1.

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

Date of judgment pronounced in Court

2.

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

Date of judgment directed to be entered

3.

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

Provided that the order may direct that the judgment shall not be entered until a given date, in which case it shall take effect from that date.

Judge may direct time for payment or performance and interest

4.

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

Time to be stated for doing any act

5.

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

“If you, the within-named A.B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the said Judgment (or order)”  and same shall be served upon the person required to obey the judgment or order

Judgment by consent where defendant appears by a Legal Practitioner

6.

In any cause or matter where the defendant has appeared by Legal Practitioner, no order for entering judgment shall be made by consent unless the consent of the defendant is given by his Legal Practitioner or agent

Judgment by consent where defendant has no Legal Practitioner

7.

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

ORDER 36

Date of Order, when drawn up

1.

Every Order shall bear the date on which it was made and shall take effect accordingly unless the Judge otherwise directs

What orders need not be drawn up

2.

Where an Order has been made not embodying any special terms, nor including any special directions, but simply enlarging time for taking any proceeding or doing any act or giving leave

(a) for the issuance of any writ other than a writ of attachment;

(b) for the amendment of any writ or pleading;

(c) for the filing of any document; or

(d) for any act to be done by any officer of the Court other than a Legal Practitioner;

It shall not be necessary to draw up such Order unless the Judge otherwise directs; but the production of a note or memorandum of such order signed by a Judge shall be sufficient authority for such enlargement of time, issue, amendment, filing or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed to be a special direction within the meaning of this Rule.

Form of order

3.

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

ORDER 37

Order transferring proceedings to High Court

1.

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

Payment of filing fees

2.

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

(2) Such notification shall be effected by serving a notice personally on the party concerned, or, where an address for service has been given by such party, at that address

Duties of Registrar

3.

(1) The Registrar shall on payment of the prescribed fees, in any

case not later than 7 Days:

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

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

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

(2) The Registrar shall then give notice to the parties to attend in person or by counsel before a named Judge on the day and at the time specified in the notice. The fees for the service of this notice shall be borne in the first instance by the party who has paid the fees for filing as provided by Rule 2 of this Order.

Directions

4.

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

(a) hear the parties or their Legal Practitioners;

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

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

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

Party failing to attend

5.

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

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

Construction

6.

In the preceding rule of this Order, the references to the claimant and the defendant shaft, in relation to proceedings commenced otherwise than by writ, be construed as references to the applicant and the respondent.

Consolidation of actions

7.

(1) The Judge may on application consolidate several actions pending before him

(a) where it appears that the issues are the same in all the actions,and can therefore be properly tried and determined at the same

time; and

(b) where two or more actions are pending between the same claimant and the same defendant or between the same claimant and different defendants or between different claimants and the same defendant or between different claimants and different

defendants:

Provided that where the same claimant brings actions against different defendants, they will not be consolidated without the consent of all parties unless the issues to be tried are identical.

(2) Where actions are pending before different Judges, a party desiring consolidation shaII first apply to any Judge before whom any of the matters is pending,

(3) Where an order for consolidation has been made, it shall be drawn up at me expense or me party or parties who applied for consolidation and shall be recorded in the Cause Book.

ORDER 38

Preservation or interim custody of subject-matter of disputed contract

1.

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

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

Early trial of Cause

2.

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

Order for sale of perishable goods, etc

3.

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

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

4.

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

or evidence.

(2) Where an order for the inspection of any property or thing is made on an application under this rule (including an application made before any pleadings have been delivered in the action or matter) it appears that inspection was requested in writing by the applicant and was not given, then, unless the Judge is satisfied that the respondent did not unreasonably fail or refuse to permit the inspection, the Judge shall order the costs to be paid by the respondent in any event and except where the respondent is a “poor person” shall order the costs to be paid forthwith.

(3) The Judge by whom any action or matter may be heard or tried, may inspect any property or thing concerning which any question may arise therein

Sale of Property in possession of Court

5.

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

(2) The money paid after disposal of any goods or chattel shall be withdrawn from the bank by the successful party who shall present to the Chief Registrar a certified true copy of the enrollment of the judgment.

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

6.

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

as the Judge may direct and that upon such payment into Court being made, the property claimed be given to the party claiming it.

Allowance of income of property pendente lite

7.

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

Injunction against repetition of wrongful act for breach of contract

8.

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

Appointment of a receiver by way of equitable execution

9.

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

Receivers: security and remuneration: Civil Forms 30,31

10.

Where an order is made directing a receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give security, to be approved by the Judge, duly to account for what he shall receive as such receiver, and to pay the same as the Judge shaII direct; and the person so to be appointed shall, unless otherwise ordered be allowed a proper salary or allowance. The security to be given shall be by guarantee or by an undertaking in Forms 30 and 31 with such variations as circumstances may

require. The undertaking shaII be filed in the Registry and form part of the record of proceedings until it has been duly vacated.

Where receiver appointed in court: adjournment to give security

11.

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

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

12.

When a receiver Is appointed with a direction that he shall pass accounts, the Judge shall fix the days upon which he shall (quarterly or at shorter periods) leave and pass such accounts, and also the days upon which he shall pay the balances appearing due on the accounts so left, or such part of them as shall be certified as proper to be paid by him. With respect to any such receiver as neglects to leave and pass his accounts and pay the balances at the times fixed for the purpose as aforesaid, the Judge may from time to time, when his subsequent accounts are produced to be examined and passed, disallow the salary claimed by such receiver and may also charge

him with interest at a rate not exceeding twenty-five per cent per annum upon the balances so neglected to be paid by him during the time the same appears to have remained in his hands.

Form of receivers’ accounts: Civil Form 32

13.

Receivers’ accounts shall be in Form 32 with such variations as circumstances may require.

Leaving account at the Registry: Civil Form 33

14.

Every receiver shall deliver to the Registrar his account, together with an affidavit verifying the same in Form 33 with such variations as circumstances may require. An appointment shall thereupon be obtained by the claimant or person having the conduct of the action for the purpose of passing such account.

Consequences of default by receiver

15.

Where any receiver fails to leave any account or affidavit or to pass such account or to make any payment or otherwise, the receiver or the parties or any of them, may be required to show cause why such account passed or such payment was made or any proper proceedings taken and thereupon such directions as shall be proper may be given, including the discharge of any receiver and appointment of another and payment of costs.

Passing of guardians’ account.

16.

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

ORDER 39

Application by motion

1.

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

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

(3) Where the other party intends to oppose the application, he shall within 7 days of the service on him such application, file his written address and may accompany it with a counter affidavit.

(4) The applicant may, on being served with the written address of the opposing party file and serve an address in reply on points of law within 7 days of being served. Where a counter affidavit is served on the applicant he may file further affidavit with his reply.

When notice of motion should be given

2.

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

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

(3) An order of injunction made upon an application ex-parte shall abate after 7 days.

(4) A Judge may upon application extend the effective period of an order made ex parte if he is satisfied that 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

3.

(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 Court House whenever so established may by leave of a Judge be enforced in the same manner as a judgment or order of Court.

(4) An application to set aside or remit any award may be made at any time within 6 weeks after such award has been made, and published to the parties:

Provided that a Judge may by order extend the said time either before or after the same. has elapsed,

Motions may be struck out or adjour-ned where necessary notice not given

4.

If on the hearing of a motion or other application the 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 strike out 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 it fit to impose

Adjournment of hearing

5.

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

6.

The claimant may file any application along with an originating process and may serve both on any defendant simultaneously.

Account by Legal Practitioner

7.

Where the relationship of Legal Practitioner and client exists or has existed, a summons may be issued by the client or his representative for the delivery of a cash account or the payment of moneys or the delivery of securities, and a Judge may from time to time orderthe respondent to deliver to the applicant a list of the moneys or securities which he has in his custody or control on behalf of the applicant or to bring into court the whole or any part of the same, within such time as the Judge may order. In the event of

the respondent alleging that he has a claim for costs, the Judge may make such provision for the taxation and the payment or security thereof or the protection of the respondent’s lien (if any) as he may deem fit.

Interim certificate

8.

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

ORDER 40

Cases appropriate for application for judicial review

1.

(1) An application for:

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

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

(2) An application for a declaration or an injunction (not being an injunction in rule (1)(b) of this Rule) may be made by way of an application for judicial review and the Court may grant the declaration or injunction if it deems it just and convenient to grant it by way of judicial review, having regard to:

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order;

(c) all the circumstances of the case

Joinder of claims for relief

2.

On an application for judicial review any relief mentioned in Rule 1

may be claimed as an alternative or in addition to any other relief so

mentioned if it arises out of, relates to or is connected with the same

matter

Grant of leave to apply for judicial review

3.

(1) No application for judicial review shall be made unless the leave

of the court has been obtained in accordance with this Rule.

(2) An application for leave shall be made ex-parte to the Judge and

shall be supported by:

(a) a statement setting out the name and description of the applicant,

the reliefs sought and the grounds on which they are sought;

(b) an affidavit verifying the facts relied on and

(c) a written address in support of application for leave.

(3) The Judge hearing an application for leave may allow the

applicant’s statement to be amended, whether by specifying different or

additional grounds of relief or otherwise on such terms if any, as he deems

fit.

(4) The Judge shall not grant leave unless he considers that the applicant

has a sufficient interest in the matter to which the application relates.

(5) Where leave is sought to apply for an order of certiorari to remove

for the purpose of its being quashed any judgment, order, conviction or

other proceedings which is subject to appeal and a time is limited for the

bringing of the appeal, the Judge may adjourn the application for leave

until the appeal is determined or the time for appealing has expired.

(6) Where leave to apply for judicial review is granted, then:

(a) if the relief sought is an order of prohibition or certiorari and the

Judge so directs, the grant shall operate as a stay ofthe proceedings

to which the application relates until the determination of the

application or until the Judge otherwise orders;

(bllf any other relief is sought. the Judge may at anvtlme grant in the

proceedings such interim relief. as could be granted in an action

begun by writ; .

(c) the Judge may impose such terms as to costs and as to giving

security as he deems fit.

Time within which to bring application

4.

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

Mode of applying for judicial review

5.

(1) When leave has been granted and the Judge directs, the application  may be made by motion or by originating summons for judicial

review

(2) The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings before a Judge and the object of the application is either to compel the Judge or an officer of the court to do any act in relation to the proceedings, or to quash them or any order made therein, the notice or summons shall also be served on the Clerk or Registrar of the Court and where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the Judge granting leave has otherwise directed, there shall be at least 7 days between the service of the notice of motion or summons and the day named therein for the hearing.

(4) A motion shall be entered for hearing within 14 days after the grant of leave.

(5) An-affidavit giving the names and addresses of and the places and dates of service on all persons who have been served with the notice of motion or summons shall be filed before the motion or summons is entered for hearing and if any person who ought to be served under this rule has not been served, the affidavit shall state that fact and the reason for it and the affidavit shall be before the Judge on the hearing of the motion or

summons.

(6) if on the hearing of the motion or summons the Judge is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the judge may adjourn the hearing on such terms (if any) as he may direct in order that the notice or summons may be served on that person.

Statements and affidavits

6.

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

(2) The Judge may on the hearing of the motion or summons allow the applicant to amend his statement whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as he deems fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendments to every other party.

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

Claim for damages

7.

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

(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates and

(b) the Judge is satisfied that if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

Interlocutory application

8.

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

Hearing of application for judicial

9.

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

(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Judge hearing the motion or summons.

(3) Where an order of certiorari is made in any such case as is referred to in sub-rule 2, the order shall, subject to sub-rule 4, direct that the proceedings shall be quashed forthwith on their removal into court.

(4) Where the relief sought is an order of certiorari and the Judge is satisfied that there are grounds for quashing the decision to which the application relates, the Judge may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Judge.

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

Person acting in obedience to an order of mandamus

10.

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

Consolidation of appllcatlon

11.

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

ORDER 41

Chief Registrar

1.

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

Business to be transacted by Chief Registrar

2.

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

(a) applications for the taxation and delivery of bills of costs and applications for the delivery by any Legal Practitioner of deeds, documents and papers;

(b) the taking of an account in any case where a Judge has ordered that the account be taken by the Chief Registrar;

(c) the taxation of bills of costs;

(d) applications leading to the issue of the grant of probate of the Wills or Letters of Administration of the estates of deceased persons in non-contentious or common Form Probate business.

Chief Registrar may refer matters to the Chief Judge

3.

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

Appeal from order of Chief Registrar

4.

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

Chief Registrar’s lists

5.

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

Legal Practitioner may represent Party

6.

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

Certificate

7.

CHIEF REGISTRAR’S CERTIFICATE

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

Reference to judgment etc.

8.

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

Form of Certificate

9.

(1) In case of accounts and inquiries the certificate of the Chief  Registrar shall be in Form 34 with such variations as the circumstances may require.

(2) The certificate shall:

(a) state the result of the account and not set the same out by way of schedule;

(b) refer to the account verified by the affidavit filed

(c) specify by the numbers attached to the items in the account

which (if any) of such items have been disallowed or varied

(d) state what additions (if any) have been made by way of surcharge or otherwise;

(e) where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account so altered, such transcript may be required to be made by the party prosecuting the judgment or order and shall then be referred to by the certificate.

(f) The accounts and transcripts (if any) referred to by certificates shall be filed therewith.

When certificate becomes binding

10.

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

Bill of costs

11.

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

Discharge or variation of certificate after lapse of time

12.

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

ORDER 42

Application; How made

1.

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

(a) in vacation or at anytime when no Judge is sitting in Court it may be made to a Judge sitting otherwise than in court;

(b) in cases where the application is made on behalf of a child, it shall be made in the first instance to a Judge sitting otherwise than in court.

Affidavit to accompany exparte application

2.

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

(2) Where the person restrained is unable owing to the restraint to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person which shall state that the person restrained is unable to make the affidavit himself.

Power to issue order of release immediately

3.

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

(2) Where the application is made to a Judge sitting otherwise than in court he may direct the Order to issue or that an application therefor be made by notice of motion to the Judge or to a Judge.

(3) A Judge to whom the application is made may adjourn it so that notice thereof may be given to the jailer.

(4) Where the person detained is produced before a Judge he may discharge him immediately with or without conditions.

Service of notice

4.

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

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

Copies of affidavit

5.

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

Service of order to release

6.

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

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

Statement and verifying affidavit

7.

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

The statement shall be verified by an affidavit deposed to by the jailer

Procedure at hearing

8.

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

(2) Where the prisoner is not brought in accordance with the order, a Judge may upon the application of his Legal Practitioner order that he be discharged or make any other order

Committal for contempt of court

9.

(1) The power of the Court to punish for contempt of court may be exercised by an order of committal.

(2) An order of committal may be made by the Court where contempt of court:

(a) is committed in connection with-

(i) any proceedings before the Court

(ii) criminal proceedings;

(iii) proceedings in an inferior court.

(b) is committed in the face of the court, or consists of disobedience to an order of the court, or a breach of an undertaking to the court; or

(c) is committed otherwise than in connection with any proceedings

Application to Court

10.

The procedure for Committal for Contempt shall be as follows:
(1) The Registrar on the application of the Applicant shall issue a copy of the Order of Court Endorsed with a Notice in Form 35,and the copy so endorsed shall be served on the Respondent

(2) If the Respondent fails to obey the Order-

(a) The Registrar on the application of the Applicant shall issue a Notice in Form 36 Not less than two (2) clear days after service of the endorsed copy of the Order, and the Notice shall be served on the Respondent; and

(b) An application for an order of committal shall be made to the Court by motion on notice stating the grounds of the application and supported by an affidavit, and a Written Address,

(3) The requisite Forms and Notice of motion, affidavit and grounds shall be served personally on the person sought to be committed,

Provided that the Court may dispense with personal service where the justice of the case so demands,

Response

11.

Upon service of the application for committal issued in a case to which Rule 9 of this Order applies, the Respondent shall before the return date stated in the application file a Counter Affidavit stating the reasons why an order for attachment should not be issued, and a Written Address

Saving for power to commit without application for the purpose

12.

Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order of committal of its own motion against a person guilty of contempt of court.

Provisions as to hearing

13.

(1) Subject to paragraph (2), the Court hearing an application for an order of committal may sit in private in the following cases, that is to say-

(a) where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant or rights of access to an infant;

(b) where the application arises out of proceedings relating to a person suffering or appearing to be suffering from mental disorder;

(c) where the application arises out of proceedings in which a secret process, discovery or invention was in issue;

(d) where it appears to the Court that in the interests of the administration of justice or for reasons of national security the application should be heard in private; but except as aforesaid, the application shall be heard in open court.

(2) If the Court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in open court state-

(a) the name of the person;

(b) in general terms the nature of the contempt of court in respect

of which the order of committal is being made; and

(c) if he is being committed for a fixed period, the length of that period

(3) Except with the leave of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the ground set out in the statement under rule 10.

(4) If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf he shaII be entitled to do so.

Contempt in face of court: Saving for

14.

The foregoing provisions are without prejudice to the powers of the Court to commit for contempt committed in the face of the Court.

Power to suspend execution of committal order

15.

(1) The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.

(2) Where execution of an order of committal is suspended by an order under paragraph (1), the applicant for the order of committal shall, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph.

Discharge of person committed

16.

(1) The Court may, on the application of any person committed to prison for any contempt of court, discharge him.

(2) Where a person has been committed for failing to comply with a judgment or order requiring him to deliver anything to some other personor to deposit it in court or elsewhere and a writ of adqucstration has also been issued to enforce that judgment or order, then, if the thing is in the custody or power ofthe person committed, the sheriff may take possession of it as if it were the property of that person and, without prejudice to the generality of paragraph (1), the Court may discharge the person committed

and may give such directions for dealing with the thing taken by the Sheriff as it thinks fit.

Saving for other powers

17.

Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of any enactment in like manner as if he had been guilty of contempt of Court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.

Return

18.

Every order of committal issued in a case to which this Order applies shall be made returnable before the Court. If a return of non est inventus is made, one or more writs may be issued on the return of the previous writ.

ORDER 43

When relief by interpleader is granted

1.

Relief by way of interpleader maybe granted where the person seeking relief (“the applicant”) is under liability for any debt, money, goods, or chattels, for or in respect of which he is, or expects to be sued by two or more parties (“the claimants”) making adverse claims thereto or claims to have an interest in the subject matter of the interpleader.

Provided that where the applicant is a Sheriff or other officer charged with the execution of process by or under the authority of the High Court, the provisions of Section 34 of the Sheriffs and Civil Process Act and the Rules made under it shall apply.

Interpleader Summons

2.

(1) An Applicant seeking relief by way of interpleader shall file an Interpleader Summons supported by an affidavit calling on the Claimants to appear and state the nature and particulars of their claims, and either to maintain or relinquish them.

(2) The applicant must satisfy the Judge by affidavit or otherwise that he:

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

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

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

(3) Where the Applicant claims an interest in the subject matter of the Interpleader, sub-rule 2 of this Rule shall not be applicable.

Adverse titles of claimants

3.

The applicant shall not be disentitled to relief by reason only that the titles of the claimants have not a common origin, but are adverse to and independent of one another.

When application to be made by defendant

4.

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

Summons by applicant

5.

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

Stay of action

6.

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

Order upon summons

7.

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

Questions of law

8.

Where the question is a question of law and the facts are not in dispute, the Judge may either decide the questions without directing the trial of an issue or order that a special case be stated for the opinion of the Judge. If a special case is stated, Order 28 shall as far as applicable apply thereto.

Failure of claimant to appear, or neglect to obey summons

9.

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

Costs, etc.

10.

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

ORDER 44

Rules for computation of time

1.

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

(a) as excluding the day on which the order is made or on which the event occurs;

(b) where the last day of the period is a holiday, the time shall continue until the end of the next day following which is not a public holiday.

(c) where the act is required to be done within a period which does not exceed 6 days, holidays shall be left out of account in computing the period.

Holiday

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

Time of service

3.

No pleading, summons, motions, orders, originating process, documents and other processes shall be served before 6.00 a.m. or after 6.00 p.m. Service effected after 6′.00 p.m. shall be deemed to have been effected the following day, provided that service effected after 6.00 p.m. on Saturday shall be deemed to have been effected on the following Monday.

Court may extend time

4.

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

Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court an additional fee of N200.00 (two hundred naira) for each day of such default at the time of filing his application for extension of time and the performance of the act, whichever is later.

ORDER 45

Days of sitting

1.

Court Sittings and Vacation
Subject to the provision of the Law, the Judge may, in his discretion, appoint any day or days and any place or places from time to time for the hearing of causes as circumstances 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 dispatch of civil matters will be held on every week day except:

(a) on any public holidays;

(b) during the week beginning with Easter Monday;

(c) during the period beginning on Christmas eve and ending on the 2nd January next following;

(d) during the long vacation, i.e., the period commencing on such date in July and of such duration not less than six weeks as the Chief Judge may by notification appoint.

Vacation

5.

(1) Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a Judge during any of the periods mentioned in paragraphs (b), (c) or (d) of Rule 4 (except on a Sunday or public holiday) where such cause or matter is urgent or a Judge, at the request of all the parties concerned, agrees to hear a cause or matter.

(2) An application for an urgent hearing shall be made by motion ex-parte and the decision of the Judge on such an application shall be final.

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.

Recovery of penalties and costs

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 ma king 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 claimant 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 sufficiently addressed for execution by being directed to the Sheriff; but this provision shall not prevent any order or warrant from being addressed to a person by name or to a person named and to officers of Court generally or to a Local Government Authority.

No fees where proceedings by Govt. Dept

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.

Saving

13.

Where no provision is made by these rules or by any other written  law, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned.

ORDER 46

Defendant leaving Nigeria or removing property

1.

If in any suit the defendant Is about to leave Nigeria, or has disposed of or removed from the jurisdiction of the Court, his property or any part thereof, or is about to do so, the claimant may, either at the institution of the suit or at any time thereafter until final judgment, make an application to the Court that security be taken for the appearance of the defendant to answer and satisfy any judgment that may be passed against him in the suit.

Warrant to arrest

2.

If the Court, after making such investigation as it may consider necessary, shall be of the opinion that there is probable cause for believing that the defendant is about to leave Nigeria, or that he has disposed of or removed from the jurisdiction of the Court, his property, or any part thereof, or is about to do so, and that in either case by reason thereof the execution of any decree which may be made against him is likely to be obstructed or delayed, it shall be lawful for the Court to issue a warrant to bring the defendant before the Court, that he may show cause why he should not give good and sufficient bail for his appearance.

Bail for appearance or satisfaction

3.

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

Deposit in lieu of bail

4.

Should a defendant offer, in lieu of bail for his appearance, to deposit a sum of money, or other valuable property, sufficient to answer the claim against him with costs of the suit, the Court may accept such deposit.

Defendant may be committed to custody

5.

(1) In the event of the defendant neither furnishing security nor offering a sufficient deposit, he may be committed to custody until the decision of the

suit, or, if judgment be given against the defendant, until the execution of the decree, if the Court shall so order.

Provided that 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.

(2) The application may be made to the Court in any Judicial Division in which the defendant may be, and such Court may issue the warrant for detaining and bringing the defendant before the Court where the suit is pending, and may make such further order as shall seem just.

(3) In case the warrant shall be issued by a different Court from that in which the suit is pending, such Court shall, on the request of either of the parties, transmit the application and the evidence therein to the Court in which. the suit is pending and take sufficient security for the appearance of the defendant in that Court, or send him there in custody of an officer of Court, and the Court in which the suit is pending shall thereupon examine into and proceed in the application in accordance with the foregoing provisions in such manner as shall seem just

Cost of subsistence of persons arrested

6.

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

ORDER 47

Application

1.

This Order shall apply to proceedings ln 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 his means do not permit himto employ legal representation in the prosecution of his case and that he has reasonable grounds for suing or defending as the case may be

Conditions to be fulfilled

3.

(1) A person seeking relief under this Order shall write an application to the Chief Judge accompanied by an affidavit, signed and sworn to by the applicant himself, stating that by reason of poverty he is unable to afford the service 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 in forma pauperis may be remitted either in whole or in part as a Judge may deem fit and a person so admitted to sue or defend shall not, unless the Judge otherwise orders, be liable to pay or be entitled to receive any costs

Procedure to be followed

5.

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

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

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

Revocation of order, discontinuance, etc

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.

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

Payment to Legal Practitioner

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 his Legal Practitioner, shall be signed by his Legal Practitioner, who shall take care that no application or notice is made or given without reasonable cause.

Appeals

9.

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

ORDER 48

Legal Practitioner to conduct cause to 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 claimant or defendant as the case may be, by or for whom he shall have been so engaged until final judgement, 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 claimant or defendant or the Legal Practitioner as the case may be, not less than 3 clear days before the date fixed for hearing

Service of application by Legal Practitioner

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 outgoing Legal Practitioner if he is not the applicant.

Re-appearance of Legal Practitioner

4.

A Legal Practitioner who has withdrawn appearance for a party in a cause or matter may re-appear for the same party with leave of court.

ORDER 49

Principle to be observed in fixing costs

1.

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

(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the Judgement or making the order.

(3) When the Judge deems it to be impracticable to determine summarily the amount of any costs which he has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge to a taxing officer for taxation.

Security for costs

2.

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

Security for costs by claimant temporarily within jurisdiction

3.

A claimant ordinarily resident out of the jurisdiction may be ordered to give security for costs, though he may be temporarily resident within the Jurisdiction.

Action founded on judgment or bill of exchange

4.

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

Bond as security for costs

5.

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

Cost at discretion of court

6.

Subject to the provisions of any applicable law and these Rules, the costs of and incidental to all proceedings in the High Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.

Costs out of fund or property

7.

The Judge may order any costs to be paid out of any fund or property to which a suit or proceedings relates.

Stay of proceedings till costs paid

8.

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

Stage of proceedings at which costs to be dealt with

9.

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

(2) Costs when ordered becomes payable forthwith, and shall be paid within 7 days of the order, otherwise the defaulting party or his Legal Practitioner may be denied further audience in the proceedings.

When costs to follow the event

10.

In addition to any penalty payable for default under these rules, the costs of and occasioned by any application to extend the, time fixed by the rules or any direction or order thereunder, for delivering or filing any document or doing any other act (Including the costs of any Order made on the application) shall be borne by the party making the application unless the Judge otherwise orders.

Matters to be taken into account in exercising discretion

11.

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

Costs arising from misconduct or neglect

12.

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

(2) Without prejudice to the generality of sub-rule 1 of this rule, the Judge, shall for the purpose of that sub-rule have regard in particular to the following matter, that is to say

(a) the omission to do anything the doing of which would have  been calculated to save costs;

(b) the doing of anything calculated to occasion or in a manner or at a time calculated to occasion unnecessary costs;

(c) any unnecessary delay in the proceedings ..

(3) The Judge may instead of giving a direction under subrule 1 of this rule in relation to anything done or any omission made,direct the taxing officer to inquire into it and if it appears to him that such a direction as aforesaid should have been given in relation to it, to act as if

the appropriate direction had been given.

Personal liability of Legal Practitioner for costs

13.

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

(a) disallowing the costs as between the Legal Practitioner and his client; and

(b) directing the Legal Practitioner to pay to his client costs which the client has been ordered to pay to other parties to the proceedings; or

(c) directing the Legal Practitioner personally to indemnify such other parties against costs payable by them.

(2) The provisions of Rule 13 sub-rule 1 shall apply where proceedings in court cannot conveniently proceed or fails or are adjourned

without useful progress being made:

(a) because of the failure of the Legal Practitioner to attend in person or by a proper representative; or Matters to be taken into account in exercising discretion Costs arising from misconduct or neglect

(b) because of the failure of the Legal Practitioner to deliver any documentforthe use of the Court which ought to have been delivered or to be prep~red with any proper evidence or account or otherwise to proceed.

(3) No order under this rule shall be made against a Legal Practitioner unless he has been given a reasonable opportunity to appear before the Judge to show cause why the order should not be made. :

(4) The Judge may direct that notice of any proceedings or order against a Legal Practitioner under this rule shall be given to his client in such manner as may be specified in the direction.

(5) It on the taxation-of costs to be paid out of a fund, one-sixth or more of the amount of the bill for those costs is taxed off, the Legal Practitioner whose bill it is shall not be allowed the fees to which he would otherwise be entitled for drawing the bill and for attending the taxation.

Taxation of costs

14.

Every bill of costs (other than a bill delivered by a Legal Practitioner  to his client which falls to be taxed under the Legal Practitioners Act) shall be referred to the Registrar for taxation and may be taxed by him or such other taxing officer as the Chief Judge may appoint.

Notice to other party

15.

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

Power of taxing officer

16.

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

Supplementary powers of taxing officer

17.

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

(a) take an account of any dealings in money made in connection with the payment of the costs being taxed, if the Judge so directs;

(b) require any party represented jointly with any other party in any proceedings before him to be separately represented;

(c) examine any witness in those proceedings;

(d) direct the production of any document which may be relevant in connection with those proceedings

Extension of time

18.

(1) A taxing officer may:

(a) extend the period within which a party is required by or under these rules to begin proceedings for taxation or to do anything in or in connection with proceedings before that officer;

(b) where no period is specified by or under these rules or by the Judge for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done.

(2) Where an order of the Court specifies a period within which anything is to be done by or before a taxing officer, then, unless the Judge otherwise directs, the taxing officer may from time to time extend the period so specified on such terms (if any) as he deems fit.

(3) A taxing officer may extend any such period as is referred to in the foregoing provisions of this Rule although the application for extension is not made until after the expiration of that period.

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

19.

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

(a) tax the costs which that party is liable to pay and set off the amount allowed against the amount he is entitled to be paid and direct payment of any balance; or

(b) delay the issue of a certificate for the costs he is entitled to be paid until he has paid or tendered the amount he is liable to pay,

Mode of beginning proceedings for taxation

20.

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

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

Provision as to bills of costs

21.

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

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

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

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

Provisions as to taxation proceedings

22.

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

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

Certificate of taxing officer

23.

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

Fees on taxation

24.

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

Application for review

25.

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

Application by summons

26.

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

(2) Unless the Judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on taxation but,save as aforesaid, on the hearing of any such application the Judge may exercise all such powers and discretionas.are vested in the taxing officer in relation to the subject matter of the application

(3) On an application under this rule the Judge may make such order as the circumstances require and in particular may order the taxing officer’s decision to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the same or another taxing officer for taxation.

ORDER 50

Representation in Chambers

1.

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

Matters to be disposed in Chambers

2.

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

Evidence upon applications for appointment of guardians and for maintenance

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 chamber

4.

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

Further consideration of matter originating in Chambers

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 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.

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 any entry of orders Made in Chambers

7.

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

Costs

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.

Decisions given in Chambers, how set aside or varied

9.

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

(2) The notice of motion shall be filed not later than 7 days after the drawing up of the Order made in Chambers unless the Court grants an extension of time on good and sufficient reason being shown, and the motion shall be heard and determined by the Judge who has dealt with the matter in Chambers (unless this proves impossible or inconvenient owing to such Judge’s death or retirement or prolonged absence from Ogun State.

(3) This Rule shall apply in the case of decisions given by a Judge in Chambers on appeal from the Chief Registrar under Rule 4 of Order 41.

ORDER 51

FORECLOSURE AND REDEMPTION

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 money secured by the mortgage or charge;

(b) sale;

(c) foreclosure;

(d) delivery of possession (whether before or after foreclosure) to the mortgagee or person entitled to the charge, by the mortgagor or person having the property

subject to the charge, or by any other person in, or alleged to be in possession of the property;

(e) redemption;

(f) reconveyance;

(g) delivery of possession by the mortgagee

Civil Form 37, 38, 39

2.

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

Service and execution of judgment

3.

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

ORDER 52

Bringing in judgment etc directing accounts and inquiries

1.

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

Summons to proceed with accounts and inquiries: Directions

2.

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

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

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

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

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

Settling deed where parties differ

3.

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

Where service of notice of judgment or order dispensed with

4.

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

Stoppage of proceedings where parties have not been served with notice of judgment 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 judgment or order, directions may be given for advertisement for creditors, and for leaving the accounts in Chambers. Adjudication on creditors’ claims and the accounts are not to be proceeded with, and no other proceeding is to be taken, except for the purpose of ascertaining notice of the parties to be served, until all necessary parties shall have been served and until directions shall have been given as to the parties who are to attend the proceedings.

Documents: Copies for use of Judge

6.

Copies, abstracts, extracts of or from accounts, deeds or other Documents: 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.

Entry in Summons to Proceed Book

7.

                                                                                 Summons to Proceed Book

 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 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 summons is returnable.

ORDER 53

Application of this Order

1.

PROPERTY OCCUPIED BY SQUATTERS OR WITHOUT THE OWNER’S CONSENT
(1) This Order shall not apply where the person in occupation of land is:-

(a) a tenant; or

(b) a tenant holding over after termination of his tenancy; or

(c) a licensee of the owner or person entitled to possession; or

(d) a person who had the consent of the predecessor in title of the person who is entitled to possession

(2) Where a person claims possession of land which he alleges is occupied solely by a person other than those listed in sub-rule (1) above, proceedings may be brought by originating summons in accordance with the provisions of this Order

Form of originating summons: Civil Form 40

2.

The originating summons shall be in Form 40 and no acknowledgement of service shall be required.

Affidavit in support

3.

The claimant shall file in support of the originating summons a Written Address together with an affidavit stating:

(a) his interest in the land;

(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and

(c) that he does not know the name of any person occupying the land who is not named in the summons.

Service of originating Summons

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 him:

(a) personally or in accordance with Order 7 Rule 1 sub-rule (2); or

(b) by leaving a copy of the summons and of the affidavit or sending them to him at the premises; or

(c) in such other manner as the Judge may direct.

(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with sub-rule 1 of this Rule be served, unless the Judge otherwise directs by:

(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises; and

(b) if practicable, inserting through the letter box at the premises, a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to “the occupiers”.

(3) Every copy of an Originating Summons for service under sub-rule (1) or (2) of this Rule shall be sealed with the seal of the Court out of which the summons was issued.

Application by occupier to be made a party

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 41 with such variations as circumstances may require

(2) The Judge may forthwith order a Writ of Possession to issue.

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

Writ of possession

7.

(1) No writ of possession to enforce an order for possession under this Order shall be issued after the expiration of 3 months from the date of the order without the leave of the Judge.

(2) The application for leave may be made ex parte unless the Judge otherwise directs

Setting aside of Orders

8.

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

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

ORDER 54

Stay of proceedings or of execution pending appeal

1.

Where any application is made to the Court for a stay of execution or of proceedings under any judgment or decision appealed from, such application shaII 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 stay of execution of a judgment shall compile the record of appeal within 90 days from the date of filing a Notice of Appeal and where the record is not so complied, 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 an order for a stay of execution or of proceedings.

(2) An order for stay may be made subject to such conditions as shall appear just including the deposit in Court of any money adjudged due to any party in the judgment appealed from.

Formal order to be drawn up.

4.

Where any application is made to the Court under this Order, a formal order shall be drawn up embodying the terms of the decision of the court and bearing the date upon which the order is made.

ORDER 55

Notice of appeal

1.

Every appeal shall be brought by notice of appeal which shall be lodged in the lower court within 30 days of the decision appealed from and served on all other parties affected by the appeal within that period.

Contents etc, of notice of appeal

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, the notice of appeal shall specify the part complained of, otherwise the appeal shall be taken to be against the decision as a whole.

(3) The notice of appeal shall give an address within the Judicial Division in which is situated the lower Court appealed from, to which notices may be sent for the appellant, and such notices may be sent to him by registered post.

Copies of proceedings

3.

The Registrar of the lower Court shall, within three months of the decision appealed from, prepare 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 the preparation of such copies

Appeal to Judge of High Court

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 Judge of that Division

Party to be supplied with copy of proceedings

5.

When notifying a party of the day fixed for the hearing of the appeal, the Registrar of the Court shall send him a copy of the proceedings

Proceedings time

6.

The times prescribed in rules 1 to 4 may be 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 his application for the enlargement of time

Where time expires

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.

Constitution of Court hearing Appeals

8.

All civil appeals from lower courts shall be heard by one Judge of the Court

Time and place for hearing

9.

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

Provisions for Brief of appeal

10.

The appellant shall within twenty-one days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.

(1) The respondent shall within twenty-one days of the receipt of the appellant’s brief, file in the Court a written respondent’s brief, being a succinct statement of his answer to all material points of substance contained in the appellant’s brief and shall contain all points raised therein which the respondent wishes to concede as we If as reasons why the appeaI ought to be dismissed.

(2) The appellant may also, if necessary, within seven days of the service on him of the respondent’s brief but not later than three clear days before the date set down for the hearing of the appeal, file and serve on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.

(3) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which that argument is founded.

The reasons shall be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books and other legal journals. Reference shall also be made to all relevant documents or exhibits admitted at the Court below which

they propose to rely in argument.

(4) All parties, whose interests are identical or joint, shall file joint briefs, and separate brief may be filed only by those parties whose interests are separate or in conflict.

(5) A respondent may, without leave, include arguments in respect of a cross-appeal or a respondent’s notice in his brief for the original appeal and the cross-appeal or respondent’s notice.

(6) Where the appellant fails to file his brief within the time allowed by this Rule or such extended time by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court. Where the appellant fails to file a reply brief within the time allowed by this Rule or such extended time, he shall be deemed to have conceded all new points or issues arising from the respondent’s brief.

(7) The counsel to the parties shall be at liberty to advance before the Judge handling the appeal oral submissions to expatiate on the written brief and if on the day fixed for hearing, or any adjourned date that the hearing is fixed for, if any of the counsel is absent, the appeal shall be deemed as argued on the brief(s) filed provided such absent counsel was aware that the appeal was fixed for hearing for that day

Appeal limited to grounds given in notice

11.

On the hearing, it shall not be competent for the appellant to go into any other reasons for appeal than those set forth in his notice of grounds for 

appeal:

Provided that where, in the opinion of the Court, other grounds for appeal than those set forth in the memorandum of grounds for appeal should have been given, or the statement of grounds of appeal is defective, the Court, in its discretion, may allow such amendments of the memorandum of grounds for appeal upon such conditions as to service upon the respondent and as to costs as it may think fit.

Request to confirm Judgment on other grounds

12.

(1) The respondent may give notice that he intends at the hearing to ask the Court to confirm the judgment of the lower court on grounds other than those stated by that Judgement;

(2) The notice shall be accompanied by a clear statement of the grounds on which the respondent Intends to ask the Court to confirm the judgment of the lower court.

(3) Such notice and grounds shall be filed in Court within 14 days of service on the respondent of the notice and grounds for appeal, and shall be served on the appellant or his legal practitioner

Counter-Appeal

13.

(1) The respondent may file grounds for appeal against any part of the lower court.

(2) Such grounds shall be filed by the respondent within 14 days of service on him of the appellant’s notice and grounds for appeal, and shall be served on the appellant or his legal practitioner before the hearing.

Objections to form of grounds of appeal

14.

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

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

Defects in proceedings under appeal

15.

On any appeal from a decision of a lower Court, no objection shall be taken or allowed to any proceeding in such Court for any defect or error which might have been amended by that Court, or to any complaint, summons, warrant, or other process to or of such Court for any alleged defect therein in substance or in form, or for any variance between any complaint or summons and the evidence adduced in support thereof in such Court:

Provided, however, that if any error, defect, or variance mentioned in this rule appears to the Court at the hearing of any appeal to be such that the appellant has-been thereby deceived or misled, it shall be lawful for the Court either to refer the case back to the lower court with directions to re-hear and determine the same or to reverse the decision appealed from, or to make such other order for disposing of the case as justice may require.

Defects in notice of appeal or recognisance

16.

No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognisance entered into under this Order for the due prosecution of such appeaI 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 the same and, if it is expedient to do so, also to adjourn the further hearing of the appeal, the amendment and the

adjournment, if any, being made on such terms as the Court may deem just

Additional evidence

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 someday to be fixed in that behalf; or

(b) refer the case back to the lower court to take such evidence, and may in such case either direct the lower court to adjudicate afresh after taking such evidence, and subject to such directions in law, if any, as the Court may think fit to give, or direct it, after taking such evidence, to report specific findings of fact for the information of the Court, and on

any such reference the case shall, so far as may be practicable and necessary, be dealt with as if it were being heard in the first instance.

Mode of taking evidence

18.

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

(2) The appellant or his legal practitioner shall be present when the additional evidence is taken.

(3) Evidence taken in pursuance of rule 18 shall be taken as if it were evidence taken at the trial before the lower Court.

(4) When forwarding to the Court any additional evidence taken by a lower court in pursuance of rule 18, the lower court may express its opinion on the demeanour of the witnesses and of the value of their evidence and may also, if it is the same court against whose decision the appeal has been made, state whether or not it would have come to a different decision had the additional evidence been brought forward at the trial.

Fees, Part 1B First Schedule

19.

The fees in Part 1B of the First Schedule shall be chargeable in civil appeals save where the same would have to be paid by a Government officer acting in his 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 witnesses Part II First Schedule

20.

Allowances may be made to witnesses in accordance with the provisions of Part II of the First II First Schedule.

Stay of Execution

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 judgment appealed from, or give security to the satisfaction of the Court for the said sum;

(b) that the appellant shall deposit a sum equal to the amount of the costs allowed against him or give security to the satisfaction of the Court for the said sum;

(c) that the appellant shall, where the decision or judgment appealed from relates to possession of lands or houses, give security to the satisfaction of the Court for the performance of the decision or judgment in the event of the appeal being dismissed;

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

(e) that the appellant’s property shall be seized, and attached and sold and the net proceeds deposited In court pending determination of the appeal.

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

(3) An application for stay of execution under the enactment establishing the lower court may be made at any time after lodgment of the notice of appeal and shall in the first instance be made to the lower court:

Provided that where execution has been ordered by the Court the application shall not be made to the lower court but to the Court.

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

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

(6) Any party dissatisfied with an order made by the lower Court may apply to the Court by motion (original or interlocutory, as the case may require) With notice to the other party for a review of the order, and the court may thereupon make such order as may seem just.

(7) An appeal shall not operate as a stay of execution under the decision or judgment appealed from except so far as the lower court or the Court may order; and no intermediate act or proceeding shall be invalidated except so far as either court may direct

Cost

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 into or prosecuted

Service for Cost

23.

(1′) The Court may, in special circumstances, upon application on notice  by motion (original or interlocutory as the case may require), supported by affidavit, order the appellant to deposit such sum or give such security as may seem fit for the respondent’s costs of appeal including the costs incidental to the application.

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

(3) Where an appeal so stands dismissed, the respondent shall be entitled to all reasonable costs occasioned by the appeal and the amount of such costs may be stated in the order in anticipation or may be assessed at any time by the court of its own motion or on application made ex-parte or on notice, as the Court may seem fit

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

(5) Subject and without prejudice to the discretion of the Court to grant costs where it seems proper on an application made under paragraph (1), costs shall not normally be granted to the applicant save where the net proceeds of execution levied on the appellant’s goods are insufficient to satisfy the amount payable under the judgment or decision appealed from

Order of High Court to be certified to Magistrate’s Court

24.

(1) When a case is decided on appeal the Court shall certify its judgment or order to the lower court in which the decision appealed against was pronounced,

(2) The lower court to which the Court certified its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the Court, and, if necessary, the records shall be amended in accordance therewith,

Enforcement of Judgments

25.

After the pronouncement of the judgment 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 judgment which may have been pronounced by the Court, in the same manner in all respects as if such decision or judgment had been pronounced by itself.

Enforcement of orders

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.

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

Interpretation

28.

In this Order:

“the lower court” means the court, whose judgment is appealed against, and includes a Magistrate’s court but does not include an arbitrator, a referee or an auditor;

“judgment” includes an order or a ruling

ORDER 56

Petition to be made to Probate Registrar

1.

Grant of Probate or Administration in General.

 (1) Subject to the provisions of Rules 39 and 40, when any person subject to the jurisdiction of the Court dies, all petitions for the granting of any Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the Court at Abeokuta.

(2) In regard to any such application, the Chief Judge shall have power to request the Court of any Judicial Division to take measures and make such orders as may appear necessary or expedient for the interim preservation of the property of the deceased within such Judicial Division, for the discovery or preservation of the Will of the deceased or for any other purposes connected with the duties of the Court under this Order, and every Court shall carry out any such request as far as practicable and

report to the Chief Judge.

(3) No grant of administration with the Will annexed shall issue within seven days of the death of the deceased; and no grant of administration (not with the will annexed), shall issue within fourteen days of such death.

Preservation of property

2.

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

Unauthorised persons intermeddling with property

3.

If any person other than the person named executor or administrator, or an officer of the Court or person authorized by the Court, takes possession of and administers or otherwise deals with the property of any deceased person, he shall, besides the other liabilities he may incur, be liable to such fine not less than twenty-five thousand Naira

(N 25,000)as the Court thinks fit to impose, having regard to the condition of the person so interfering with the property and the other circumstances of the case.

Production of testamentary papers

4.

Any person having in his possession or under his control any paper or writing of any person deceased, being or purporting to be testamentary, shall forthwith deliver the original to the Probate Registrar of the Court. If any person fails to do so for fourteen days after having had knowledge of the death of the deceased, he shall be liable to such fine not exceeding five thousand naira as the Court thinks fit to impose having regard to the condition of such person so in default and the other circumstances of the case

Court may order production

5.

Where it appears that any paper of the deceased, being or purporting to be testamentary, is in the possession of, or under the control of any person, the Court may in a summary way, whether a suit or proceeding respecting probate or administration is pending or not, order him to produce the paper and bring it into Court

Examination respecting papers

6.

Where it appears that there are reasonable grounds for believing that any person has knowledge of any paper being or purporting to be testamentary (although it is not shown that the paper is in his possession or under his control), the Court may in a summary way, whether a suit or proceeding for probate or administration is pending or not, order that he may be examined respecting the same in Court, or on interrogatories, and that he does attend for that purpose, and after examination that he does produce the paper and bring it into Court.

Notice to executor to come in and prove

7.

The Court may of its own motion, or on the application of any person claiming an interest under a Will, give notice to the executors (if any) therein named, to come in and prove the Will, or to renounce probate, and they, or some or one of them, shall, within fourteen days after notice, come in and prove or renounce accordingly.

Liability of executor neglecting to apply for probate

8.

If any person named executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within one month after the death, or after the termination of any suit or dispute respecting probate or administration, he may, independently of any other liability, be deemed guilty of a contempt of court, and shall be liable to such fine, not less than twenty five thousand naira, as the Court thinks fit to impose.

Identity

9.

The Court shall require evidence, in addition to that offered by the applicant, where additional evidence in that behalf seems to the Court necessary or desirable, in regard to the identity of the deceased or of the applicant, or in regard to the relationship of the applicant to the deceased, or in regard to any person or persons in existence with a right equal or prior to that of the applicant to the grant of probate or administration sought by the applicant, or in regard to any other matter which may be considered by

the Court relevant to the question whether the applicant is the proper person to whom the grant should be made:

Provided that the Court may refuse the grant unless the applicant produces the required evidence on these points or any of them as required by the Court.

Court may refuse grant until all persons interested are given due notice

10.

Where it appears to the Court that some person or persons other than the applicant may have at least an equal right with the applicant to the grant sought, the Court may refuse the grant until due notice of the application has been given to such other person or persons and an opportunity given for such person or persons to be heard in regard to the application:

Provided that the Court may in its discretion refuse the grant unless and until all persons entitled to the grant in priority to the applicant shall have expressly renounced their prior right

Value of Property

11.

Every applicant for a grant of Letters of Administration shall file in the Court a true declaration of all the personal property of the deceased and the value thereof:

Provided that for the purpose of the fees payable on letters of administration,the value of the property in respect of which the grant is made shall be deemed not to include;

(a) any gratuity payable. by the Government of the Federation of Nigeria, or the Government of a State, to the estate of any person formerly employed by either of such Governments or by a Statutory Corporation;

(b) any sum of money payable to an estate from a Provident Fund established under the provisions of any written law

Answers required before grant

12.

In no case shall the Court issue Letters of Administration until all inquiries which the Court sees fit to institute have been answered to its satisfaction. The Court shall,however, afford as great a facility for the obtaining of Letters of Administration as is consistent with due regard to the prevention of error and fraud.

Notice to prohibit grant

13.

A notice to prohibit a grant of administration may be filed in the Court.

Effect of notice

14.

(1) The notice shall remain in force for three months only from the day of filing, but it may be renewed from time to time. The notice shall not affect a grant made on the day on which the notice is filed. The person filing the notice shall be warned by a warning in writing delivered at the place mentioned in the notice as his address.

(2) Notice in the nature of citations shall be given In such manner as the Court directs

Form of suits

15.

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

Testator may deposit Will

16.

Custody of Wills

Any person may, in his lifetime, deposit for safe custody in the Court at Abeokuta his own Will, sealed up under his own seal and the seal of the Court.

Custody of Wills of which probate granted

17.

Every original Will, of which Probate or Administration with Will annexed is granted, shall be filed and kept in the Probate Registry, in such manner as to secure at once the due preservation and convenient inspection of the same. A copy of every such Will, and of the Probate or Administration,shall be preserved in a book kept for the purpose in the Registry

Will not given out without order of Court

18.

No original Will shall be delivered out for any purpose without the direction in writing of the Court where the will is flied. A certified transcript,under the seal of the Court of the Probate of Administration with the Will annexed may be obtained from the Court.

Examination of Will as to its execution

19.

Probate or – Administration with Will annexed
(1) On receiving an application for administration with Will annexed,the Court shall inspect the Will, and see whether it appears to be signed by the testator, or by some other person in his presence, and by his direction, and to be subscribed by two witnesses according to the enactments relative thereto, and shall not proceed further if the Will does not appear to be so signed and subscribed.

(2) If the Will appears to be so signed and subscribed, the Court shall then refer to the attestation clause (if any), and consider whether the wording thereof states the Will to have been, in fact, executed in accordance with those enactments.

Proof of execution where attestation clause is defective

20.

If there is no attestation clause, or if the attestation clause is insufficient, the Court shall require an affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the Will was, in fact, executed in accordance with those enactments. The affidavit shall be engrossed and form part of the probate, so that the probate may

be a complete document on the face of it.

Where Will not executed according to law

21.

If on perusal of the affidavit it appears that the Will was not; in fact, executed in accordance with those enactments, the Court shall refuse probate.

Evidence on failure of attesting witnesses

22.

If both the subscribing witnesses are dead, or if from other

circumstances such an affidavit cannot be obtained from either of them,

. resort for such an affidavit shall be had to other persons (if any) present at

the execution of the Will; but if no such affidavit can be obtained, proof shall

be required of that fact, and of the handwriting of the deceased and of the

subscribing witnesses, and also of any circumstances raising a presumption

in favour of the due execution of the will

Will of blind or illiterate testator

23.

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

Interlineations, erasures, obliterations

24.

(1) The Court, on being satisfied that the Will was duly executed, shall carefully inspect it to see whether there are any interlineations or alterations, or erasures, or obliterations appearing in it and requiring to be accounted for.

(2) lnterllneatlons, alterations, erasures, and obliterations are invalid unless:

(a) they existed in the Will at the time of its execution; or

(b) if made afterwards they have been executed and attested in the mode required by the applicable law;or

(c) they have been made valid by the re-execution of the Will, or by the subsequent execution of some codicil thereto.

(3) Where interllneations, alterations, erasures, or obliterations appear in the Will (unless duly executed or recited in or otherwise identified by the attestation clause), an affidavit in proof of their having existed in the Will before its execution shall be filed.

(4) Where no satisfactory evidence is adduced respecting the time when an erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, and can, on inspection of the Will, be ascertained, they shall form part of the probate. Where any words have been erased which might have been of importance, an affidavit shall be required.

Documents referred to in a Will or annexed or attached

25.

(1) Where a Will contains a reference to any document of such  a nature as to raise the question-whether it ought or ought not to form a constituent part of the Will, the Court shall require the production of the  document, with a view to ascertaining whether or not it Is entitled toprobate; and if it is not produced, a satisfactory account of its nonproduction shall be given. A document cannot form part of a Will unless it was in existence at the time when the Will was executed.

(2) If there are vestiges of sealing wax or wafers, or other marks on the Will, leading to the inference that some documents have been at some time annexed or attached thereto, a satisfactory account of them shall be proved, or the production of the document shall be required,and if it is not produced, a satisfactory account of its non-production shall be proved.

Executor dying without proving or not appearing

26.

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

Marking of Will or copy sworn to

27.

(1) Every Will or copy of a Will to which an executor or an administrator with the will annexed is sworn shall be marked by theexecutor or administrator and by the person before whom he is sworn.

(2)The provisions respecting Wills shall apply equally to Codicils.

Viva voce examination of persons making affidavits

28.

In every case where evidence is directed or allowed to be given by affidavit, the Court may require the personal attendance of the deponent, if within the jurisdiction, before the Court, to be examined viva voce respecting the matter of his affidavit. The examination may take place before any affidavit has been sworn or prepared, if the Court thinks fit.

Form of administration not with Will annexed

29.

1 The court in granting Letters of Administration shall proceed as far as may be as in cases of probate.

2 The Court shall ascertain the time and place of the deceased’s death, and the value of the property to be covered by the administration.

Administration bond

30.

(1) The person to whom administration is granted shall give a bond,with two or more responsible sureties, to the Probate Registrar of the Court,conditioned for duly collecting, getting in, and administering the personal property of the deceased, such sureties to be to the satisfaction of the Probate Registrar.

(2) The Court may if it thinks fit, take one surety only.

(3) The bond shall be in a penalty of double the amount under which, the personal estate of the deceased is sworn, unless the Court in any case thinks it expedient to reduce the amount

(4) The Court may alsoin any case direct thatmore bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court thinks reasonable

Assignment of bond

31.

The Probate’ Registrar may, on being satisfied that the condition of the bond has been broken, assign the same to some person, and that person may thereupon sue on the bond in his own name, as if it had been originally given to him instead of the Probate Registrar, and may recover thereon, as trustee for persons interested, the full amount recoverable in respect of any breach of the bond.

Administration summons

32.

Administration of Property

32. Any person claiming to be a creditor or legatee, or the next-of-kin, or 

one of the next of kins, of a deceased, may apply for and obtain a summons 

from the Court requiring the executor or adm inistrator (as the case may

be) of the deceased to attend before the Court and show cause why an

order for the administration of the property of the deceased should not be

made.

Orders for Administration

33.

(1) On proof of service of the summons or on appearance of the executor or administrator, and on proof of all such other things (if any) as the Court may direct,the Court may, if it thinks fit, make an order for the administration of the property of the deceased.

(2) The Court shall have discretionary power to make or refuse any such order or to give any special directions respecting the carriage or execution of it, and in the case of applications for such an order by two or more different persons or classes of persons, to grant the same to such one or more of the claimants or classes of claimants, as the Court thinks fit.

(3) If the Court thinks fit the carriage of the order may subsequently be given to such person, and on such terms, as the Court thinks fit.

Orders relating to property

34.

On making such an order, or at any time afterwards, the Court may, if it thinks fit, make any further or other order which may appear requisite to secure the proper collection, recovery for safe-keeping and disposal of the property or any part thereof.

Administration may be granted to officer

35.

In a case of intestacy, where the special circumstances of the case appear to the Court so to require, the Court may, if it thinks fit, on the application of any person having interest in the estate of the deceased, or of its own motion, grant letters of administration to an officer of the Court, to a Consular Officer, or to a person in the service of the Government.

Officer to act under direction of court

36.

(1) The officer or person so appointed shall act under the direction of the Court, and shall be indemnified thereby.

(2) The Court shall require and compel him to file in the Court his accounts of his administration at intervals not exceeding three months.

Court may appoint person to be administrator

37.

Where a person has died intestate as to his personal estate or leaving a Will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate, or where the executor shall, at the time of the death of such person, be resident out of the jurisdiction, and it shall appear to the Court to be necessary or convenient in any such case to appoint some person to be the administrator of the personal estate of the deceased, or of any part thereof, the Court may appoint such person as it shall think fit to be such administrator upon his giving such security, if any, as the Court shall direct, and every such administration may be limited as the Court shall think fit.

Remuneration of administrators

38.

The Court may direct that any administrator (with or without the Will annexed) shall receive out of the personal and real estate of the deceased such reasonable remuneration as the court shall think fit, not exceeding ten percent on the amount of the realized property, or, when not converted into money, on the value of the property duly administered

and accounted for by him.

Provided that where the Court shall be satisfied that by reason of exceptional circumstances the administration of the property has required an extraordinary amount of labour to be bestowed on it, the Court may allow in respect of such property a higher rate of remuneration.

Securing and collection of estate

39.

     Administration of Estate of Foreign Citizens

(1) Where any citizen of any country other than Nigeria dies within the jurisdiction without leaving within the jurisdiction a widow or next of kin, then, if any such person dies within a Government station, or had his usual place of residence therein, the Magistrate having jurisdiction within such station, or if he does not die within a Government station, or had not his usual place of residence therein, then the Local Government Secretary in charge of the station in which he died, shall collect and secure all moneys

and other property belonging to the deceased, and shall then request the Secretary to the Government to inform the nearest Consular Officer of such country of the death of the deceased, and transmit to him a list of the moneyand property of the deceased.

(2) In the case last mentioned in which it is declared that a Local Government Secretary shall collect and secure all money and other property of the deceased, such Local Government Secretary may appoint any Administrative Officer attached to his Local Government or, with his consent,any Magistrate or any Administrative Officer attached to any other Local Government to act in his place

Application by consular officer or person authorised by him to administer estate

40.

Application may be made to the Court by any such consular officer, or by any person authorised by him in writing and under the consular seal, for leave to administer the estate of the deceased, and the Court may make such order as to security for payment of debts and the method of administration as the Court shall think fit, and vary such order when and so often as is expedient.

Accounts to be filed

41.

        Administration Generally

(1) Every person to whom a grant of probate or letters of administration shall have been made; and every administrator appointed by the Court shall, if called upon by the Court so to do, file in Court the accounts of his administration, and shall thereafter file such further periodic accounts as the Court may direct until the completion of the administration.

(2) Any such executor or administrator who fails within any such period to file his accounts as aforesaid shall be liable to such penalty not

exceeding fifty naira for everyday of default as the Court may think fit to impose. Every such fine shaII on non-payment be enforceable by distress, and failing sufficient distress, by imprisonment for a term not exceeding six months.

(3) When an account is filed in Court under this rule, the Court shall scrutinize such account and if it appears to the Court that by reason of improper, unvouched or unjustifiable entries or otherwise such account is not a full and proper account, the Court may give written notice to the person filing the account to remedy such defects as there may be within such time as to the Court may seem reasonable for the purpose; and on failure to remedy such defects within such time, the person who filed such

defective account shall be deemed to have failed to file an account within the meaning of this rule and proceedings may be taken against such person accordingly.

(4) The Court may, on the motion of any party interested, or of its own motion, summon any executor or administrator failing as aforesaid, to show cause why he should not be punished.

(5) The Court may for good cause shown extend the time for such filing of accounts.

(6) Any executor or administrator who has been granted an extension of time to file such accounts, and who fails within such extended time to file such accounts, shall be liable to the penalty set out above; and the procedure for bringing him before the Court shall be as set out above.

(7) It will be the duty of the Probate Registrar to bring to the notice of the Court the fact that any executor or administrator has failed to file his accounts as required by this rule.

(8) Such accounts shall be open free of charge to the inspection of all persons satisfying the Probate Registrar that they are interested in the administration.

(9) In this rule the word “accounts” shall mean and include an inventory, an account of the administration, the vouchers in the hands of the executor or administrator relating thereto, and an affidavit in verification.

Duties and powers to be performed and exercised by Probate Registrar

42.

The duties imposed and powers conferred upon the Court by rules 5,6,7.9,10,11,12,14,17,18,19,20,21,22,28,31,38,40, and 41 (i), (3), (5), (7) and (8) shall be performed and exercised by the Probate Registrar on behalf of the Court subject to any directions which the Chief Judge may give restricting or enlarging this delegation to the Probate Registrar of the duties and powers of the Court under this Order.

Provided always that the Court shall have power, either of its own motion,or on the application of any person interested, to review any exercise by the Probate Registrar of the powers delegated to him. On such review the Court shall have power to cancel anything which may have been done by the Probate Registrar in such exercise of his delegated powers or otherwise and make such order in the premises as may to the Court seem just.

Court may refuse application

43.

The Court may refuse to entertain any application under the last  preceeding rule if it considers that there has been unreasonable delay by the applicant in making his application.

Grant to be signed by Probate Registrar

44.

The grant of Letter of Administration under this Order shall be signed by the Probate Registrar on behalf of the Court.

ORDER 57

Production of testamentary papers

1.

Any person having in his possession or under his control any paper or writing of any deceased person, being or purporting to be testamentary, shall forthwith deliver the original to the Probate Registrar of the Court. If any person fails to do so for fourteen days after having had knowledge of the death of the deceased, he shall be liable to such fine not exceeding five thousand naira as the Court having regard to the condition of such person so in default and the other circumstances of the case, thinks fit to impose.

Court may order production

2.

Where it appears that any paper of the deceased, being or purporting to be testamentary, is in the possession, or under the control, of any person, the Court may in a summary way, whether a suit or proceeding respecting probate or administration is pending or not, order him to produce the paper and bring it into Court.

Examination respecting papers

3.

Where it appears that there are reasonable grounds for believing that any person has knowledge of any paper being or purporting to be testamentary (although it is not shown that the paper is in his possession or under his control) the Court may in a summary way, whether a suit or proceeding for probate or administration is pending or not, order that he may be examined respecting the same in Court, or on interrogatories and that he does attend for that purpose, and after examination that he does produce the paper and bring it into Court.

Notice to executor to come in and prove

4.

The court may by its own motion, or on the application of any person claiming an interest under a Will, give notice to the executors (if any) therein named, to come in and prove the Will, or to renounce probate, and they, or some or one of them, shall, within fourteen days after notice, come in and prove or renounce accordingly

Liability of executor to come in and prove

5.

If any person named executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within one month after the death, or after the termination of any suit or dispute respecting probate or administration, he may independently for any other liability, be deemed guilty of a contempt of court, and shall be liable to such fine, not less than twenty five thousand naira, as the Court thinks fit to impose

Petition to be made to Probate Registrar

6.

(1) When any person subject to the jurisdiction of the Court dies,all petitions for the grant of probate of his will and all applications on other matters connected with it shall be made to the Probate Registrar of the Court

at Abeokuta.

(2) In regard to any such application, the Chief Judge shall have power to request the Court or any Judicial Division to take measures and make such order as may appear necessary or expedient for the interim preservation of the property of the deceased within such Judicial Division,for the discovery or preservation of the will of the deceased or for any other  purposes connected with the duties of the Court under this Order, and every Court shall carry out any such request as far as practicable and report to the

Chief Judge.

Application for grants through Legal Practitioner

7.

(1) A person applying for a Grant through a Legal Practitioner may apply other wise than by post at the Probate Registry.

(2) Every legal practitioner through whom an application for a Grant is made shall give the address of his place of business within Jurisdiction

Personal applications

8.

(1) A personal applicant may apply for a grant otherwise than by post the Probate Registry.

(2) A personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.

(3) No personal application shall be received or proceeded with if:.

(a) It becomes necessary to bring the matter before the Court on motion or by action;

(b) an application has already been made by a legal practitioner on behalf of the applicant and has not been withdrawn;

(c) the Registrar otherwise directs.

(4) After a Will has been deposited in the Registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Registrar so directs.

(5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as the Registrar may approve.

(6) A personal applicant shall supply all Information necessary to enable the papers leading to the grant to be prepared in the Registry, or may himself prepare such papers and lodge them

(7) Unless the Registrar otherwise directs, every oath, affidavit or guarantee required of a personal application shall be sworn or executed by all the deponents or sureties before an authorized officer

Duty of Registrar on receiving application for grant

9.

(1) The Registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.

(2) The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the oath 

(3) No grant of probate or of administration with the Will annexed shall issue within seven days of the death of the deceased.

Oath in support of grant

10.

(1) Every application for a grant shall be supported by an oath in the form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the Registrar may require.

(2) Unless otherwise directed by the Registrar, the oath shall state where the deceased died domiciled.

Grant in additional name

11.

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

Marking of Wills

12.

Every Will in respect of which an ,application for a grant is made shall be marked by the signatures of the applicant and the person before whom the oath is sworn, and shall be exhibited to any affidavit which maybe required under this Order as to the validity, terms, condition or date of execution of the Will:

Provided that where the Registrar is satisfied that compliance with this rule might result in the loss of the Will, he may allow a photocopy thereof to be marked or exhibited in lieu of the original document.

Engrossment for purposes of record

13.

(1) Where the Registrar considers that in any particular case a photocopy of the original will would not be satisfactory for purposes of record he may require an engrossment suitable for photostat reproduction to be lodged.

(2) Where a Will contains alterations which are not admissible to proof, there shall be lodged an engrossment of the Will in the form in which it is to be proved.

(3) Any engrossment lodged under this rule shall reproduce the punctuation spacing and division into paragraphs of the Will and, if it is one to which paragraph (2) of this rule applies, it shall be made bookwise on durable paper following continuously from page to page.

(4) Where any pencil writing appears on a Will there shall be lodged a copy of the will or of the pages or sheets containing the pencil writing, in which there shall be underlined in red ink those portions which appear in pencil in the original.

Evidence as to due execution Will

14.

(1) Where a Will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the Will he shall before admitting it to proof, require an affidavit as to due execution from one or more of the of attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed.

(2) If no affidavit can be obtained in accordance with the last foregoing paragraph the Registrar may, if he thinks fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the Will, accept evidence on affidavit from any person he may think fit to show that the signature on the Will is the hand writing of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the Will.

(3) If the Registrar, after considering the evidence-

(a) is satisfied that the Will was not duly executed, he shall refuse probate and shall mark the Will accordingly;

(b) is doubtful whether the Will was duly executed, he may refer the matter to the court on motion.

Execution of Will of blind or illiterate testator

15.

Before admitting to proof a Will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the Will at the tIme of Its execution, the Registrar shall satisfy himself that the testator had such knowledge

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

16.

(1) Where there appears in a Will any obliteration, interlineation, 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 Registrar shall require evidence to show whether the alteration was present at the time the Will was executed and shall give directions as to the form in which the Will is to be proved:

Provided that this paragraph shall not apply to any alteration which appears to the Registrar to be of no practical importance.

(2) If from any mark on the Will it appears to the Registrar that some other document has been attached to the Will or if a Will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the Will the Registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may think fit.

(3) Where there is doubt as to the date on which a Will was executed, the Registrar may require such evidence as he thinks necessary to establish the date

Attempted revocation of Will

17.

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

Affidavit as to due execution, terms, etc of Will

18.

The Registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 15, 16, and 17, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a Will the deponent shall depose to the manner in which the Will was executed.

Wills of persons on military service and seamen

19.

If it appears to the Registrar that there is prim 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 Registrar is satisfied that it was made by the testator in accordance with the provisions of that section or enactment, as the case may be.

Evidence of foreign law

20.

Where evidence as to the law of any country or territory outside the State is required on any application for a grant the Registrar may accept an affidavit from any person whom having regard to the particulars of his knowledge or experience given in the affidavit, he regards as suitably qualified to give expert evidence of the law in question

Order of priority for grant where deceased left a Will

21.

Where the deceased died after the commencement of this Order, the person or persons entitled, to a grant of probate or administration with the Will annexed shall be determined in accordance with the following order of priority-

(1)The executor;

(2)any residuary legatee or devisee holding in trust for any other persons;

(3) any residuary legatee or devisee for life;

(4) the ultimate residuary legatee or devisee, including one entitled on the happening of any contingency, or, where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of or the personal representative of any such person:

Provided that:-

(a) unless the Registrar otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency; and

(b) where the residue is not in terms wholly disposed of, the Registrar 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 however to rule 53) 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.

(5) any specific legatee or devisee or any creditor or, subject to paragraph (3) of rule 14, the personal representative of any such person orwhere the estate is not wholly disposed of by will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion thereto;

(6) any specific legatee or devisee entitled on the happening of any contingency, or any person having no interest under the Will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.

Grants to attesting witnesses, etc.

22.

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

Value of Property

23.

Every applicant for a grant of Probate or Letters of Administration; with the Will attached shall file in the Court a true declaration of all the personal property of the deceased and the value thereof:

Provided that for the purpose of the fees payable on probate and such letters of administration the value of the property in respect of which the grant is made shall be deemed not to include:

(a) any gratuity payable by the Government of the Federation of Nigeria, or the Government of a State, to the estate of any person formerly employed by either of such Governments or by a Statutory Corporation;

(b) any sum of money payable to an estate from a Provident Fund established under the provisions of any written law.

Answers required before grant

24.

In no case shall the Court Issue probate or letters of administration required with the Will attached until all inquires which the Court sees fit to institute have been answered to its satisfaction. The Court shall, however, afford as great a facility for the obtaining of probate or such letters of administration as is consistent with due regard to the prevention of error and fraud.

Notice to prohibit grant

25.

A notice to prohibit a grant of probate or administration with the Will attached may be filed in the Court

Effect of Notice

26.

(1) The notice shall remain in force for three months only from the day of filing but it may be renewed from time to time. The notice shall not affect a grant made on the day on which the notice is filed. The person filing the notice shall be warned by a warning in writing delivered at the place mentioned in the notice as his address.

(2) Notices in the nature of citations shall be given in such manner as the Court directs

Form of suits

27.

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

Testator may deposit Will

28.

Any person may, in his lifetime, deposit for safe custody in the Court at Abeokuta his own Will, sealed up under his own seal and the seal of the Court

Custody of Wills of which probate granted

29.

Every original Will, of which probate or administration with Will annexed is granted, shall be filed and kept in the Probate Registry, in such manner as to secure at once the due preservation and convenient inspection of the same, A copy of every such Will, and of the probate or administration, shall be preserved in a book kept for the purpose in the Registry

Will not given out without order of Court

30.

No original Will shall be delivered out for any purpose without the direction in writing of the Court where the Will is filed. A certified transcript under the seal of the Court of the Probate or Administration with the Will annexed may be obtained from the Court.

Examination of Will as to its execution

31.

(1) On receiving an application for probate or for administration with Will annexed, the Court shall inspect the Will, and see whether it appears to be signed by the testator or by some other person in his presence, and by his direction, and to be subscribed by two witnesses according to the enactments relative thereto, and shall not proceed further if the Will does not appear to be so signed and subscribed.

(2) If the Will appears to be so signed and subscribed, the Court shall then refer to the attestation clause (if any), and consider whether the wording thereof states the will to have been, in fact, executed in accordance with those enactments

Proof of execution where attestation clause is defective

32.

If there is no attestation clause, or if the attestation clause is insufficient the Court shall require an affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the Will was, in fact executed in accordance with those enactments. The affidavit shall be engrossed and form part of the probate, so that the probate may be a complete document on the face of it.

Where Will not executed according to Law

33.

If on perusal of the affidavit it appears that the Will was not, in fact, executed in accordance with those enactments, the Court shall refuse probate

Evidence on failure of attesting witnesses

34.

If both the subscribing witnesses are dead, or if from other circumstances such an affidavit cannot be obtained from either of them, resort to such an affidavit shall be had to other persons (if any) present at the execution of the Will; but if no such affidavit can be obtained, proof shaII be required of that fact, and of the handwriting of the deceased and of the subscribing witnesses, and also of any circumstances raising a presumption in favour of the due execution of the Will.

Will of blind or illiterate testator

35.

Where the testator was blind or illiterate, the Court shall not grant probate of the Will, or administration with the Will annexed, unless the Court is first satisfied, by proof or by what appears on the face of the Will, that the Will was read over to the deceased before its execution, or that he had at that time knowledge of its contents

Interlineations, erasures, obliterations

36.

The Court, on being satisfied that the will was duly executed, shall carefully inspect it to see whether there are any interlineations or alterations, or erasures, or obliterations appearing in it, and requiring to be accounted for. Interlineations, alterations, erasures, and obliterations are invalid unless they existed in the Will at the time of its execution or unless, if made afterwards, they have been executed and attested in the mode required by the said enactments, or unless they have been made valid by the re-execution of the Will, or by the subsequent execution of some codicil thereto. Where interlineations, alterations, erasures, or obliterations appear in the Will

(unless duly executed or recited in or otherwise identified by the attestation clause), an affidavit in proof of their having existed in the Will before its execution shall be filed. If no satisfactory evidence is adduced respecting the time when an erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, and can, on inspection of the Will, be ascertained, they shall form part of the probate. Where any words have been erased which might have been of importance, an affidavit shall be required.

Documents referred to in a Will

37.

(1) Where a Will contains a reference to any document of such a nature as to raise a question whether it ought or ought not to form a constituent part of the Will, the Court shall require the production of the document, with a view to ascertaining whether or not it is entitled to probate, and if it is not produced, a satisfactory account of its non-production shall be proved. A document cannot form part of a Will unless it was in existence at the time when the will was executed.

(2) If there are vestiges of sealing wax or wafers, or other marks on the Will, leading to the inference that some document hasbeen at some time annexed or attached thereto, a satisfactory account of them shall be proved or the production of the document shall be required, and if not produced, a satisfactory account of its non-production shall be proved

Executor dying without proving or not appearing

38.

Where a person appointed executor In a Will survives the testator, but either dtes without having taken probate, or having been called on by the Court to take probate does not appear, his right In respect of the executorship wholly ceases, and, without further renunciation, the representation to the testator and the administration of his property may

go and be committed as if that person had not been appointed executor.

Marking of Will or copy swom to

39.

(1) Every Will or copy of a Will to which an executor or an administrator with the Will annexed is sworn shall be marked by the executor or administrator and by the person before whom he is sworn.

(2) The provisions respecting Will apply equally to Codicils

Viva voce examination of persons making affidavits

40.

In every case where evidence Is directed or allowed to be given by affidavit, the Court may require the personal attendance of the deponent, If within the jurisdiction, before the Court, to be examined viva voce respecting the matter of his affidavit. The examination may take place before any affidavit has been sworn or prepared, if the Court thinks fit.

Right of assignee to a grant

41.

(1) Where aII the persons entitled to the estate of the deceased under a Will have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace in the order of priority for a grant of probate the assignor or, if there are two or more assignors, the assignor with the highest priority, in the absence of a proving executor.

(2)Where there are two or more assignees, probate may be granted with the consent of the others to anyone or more (not exceeding four) of them.

(3) In any case where probate is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Registry

Joinder of administrator

42.

In the absence of a proving executor:

(1)  An application to join with a person entitled to a grant of  administration with the will attached a person in a lower degree shall, in default of renunciation by all persons entitled in priority to such last-mentioned person; be made to the Registrar and shall be supported by an affidavit by the person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the Registrar may require 

(2) An application to join with a person entitled to a grant of administration with the Will attached a person having no right thereto shall be made to the Registrar and shall be supported by an affidavit by the person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the Registrar may require.

Provided that there may without any such application be joined with a person entitled to administration with the Will attached-

(a) on the renunciation of all other persons entitled to join in the grant, any kin of the deceased having no beneficial interest in the estate;

(b) unless the Registrar otherwise directs, any person whom the guardian of an infant may nominate for the purpose;

(c) a trust corporation.

Additional personal representatives

43.

(1) An application to add a personal representative shall be made to the Registrar and shall be supported by an affidavit by the applicant, the consent of the person proposed to be added as personal representative and such other evidence as the Registrar may require.

(2) On any such application the Registrar may direct that a note shall be made on the original grant of the addition of a further personal representative or he may revoke the grant or make such other order as the circumstances of the case may require.

Grants where two or more persons

44.

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

(2) A dispute between persons entitled to a grant in the same degree shall be brought by application before the Registrar.

(3) If an application under this Rule is brought before the Registrar he shall not allow any grant to be sealed until such application is finally disposed of.

(4) Unless the Registrar otherwise directs, probate or administration with the Will attached shall be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree

Exceptions to Rules as to priority

45.

(1) Nothing in rules 21, 42 or 44 shall operate to prevent a grant being made to any person to whom a grant may, or may require to be made under any enactment.

(2) The rules mentioned in the last foregoing paragraph shall not apply where the deceased died domiciled outside the State, except in a case to which the provisos to Rule 47 applies

Grants to person having spes successions

46.

When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant of administration with the Will attached and has consented to such administration being granted to the person or persons who would be entitled to his estate if he himself died intestate, administration may be granted to such person or one or more (not exceeding four) of such persons:

Provided that a surviving spouse shall not be rega rded as a person in whom the estate has vested absolutely unless he would be entitled to the whole of the estate, whatever its value may be

Grants where deceased died domiciled outside the State

47.

Where the deceased died domiciled outside the State, the Registrar may order that a grant do issue:

(1) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;

(2) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;

(3) if there is no such person as is mentioned in paragraph (1) or (2) of this rule or if in the opinion of the Registrar the circumstances so require, to such person as the Registrar may direct;

(4) if a grant is required to be made to, or if the Registrar In his discretion’ considers that a grant. should, he made to, not less than two administrators, to such person as the Registrar may direct jointly with any such person as is mentioned In paragraph (1) or (2) of this rule or with any other person.

Provided that without any order as aforesaid-

(a) probate of any Will which Is admissible to proof may be granted .’

(i) if the Will is in English or in the local vernacular to the executor named therein;

(ii) if the Will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the Will, to that person;

(b) where the whole of the estate in the State consists of immovable property, a grant limited thereto may be made in accordance with the law which would have been

applicable if the deceased had died domiciled in the State.

Grants to Attorneys

48.

(1) Where a person entitled to a grant resides outside the State a

grant may be made to his lawfully constituted attorney for his use and benefit,

until such person shall obtain a grant or in such other way as the Registrar

may direct:

Provided that where the person so entitled is an Executor, administration shall not be granted to his attorney without notice to the other executors, if any.

(2) Where the Registrar is satisfied by affidavit that it is desirable for a grant to be made to the lawfully constituted attorney of a person entitled to a grant and resident in the State, he may direct that a grant be made to the attorney for the use and benefit of such person, limited until such person shall obtain a grant or in such other way as the Registrar may direct.

Grants on behalf of infants

49.

(1) Where the person to whom a grant would otherwise be made is an infant, a grant for his use and benefit until he attains the age of eighteen years shall subject to paragraphs (3) and (5) of this rule, be granted:

(a) to both parents of the infant jointly, or to any guardian appointed by a court of competent jurisdiction; or

(b) if there is no such guardian able and willing to act and the infant has attained the age of sixteen years, to any next of-kin nominated by the infant or, where the infant is a

married woman, to any such next-of-kin or to her husband if nominated by her.

(2) Any person nominated under sub-paragraph (b) of the last foregoing paragraph may represent any other infant whose next-of-kin he is, being an infant below the age of sixteen years entitled in the same degree as the infant who made the nomination.

(3) Notwithstanding anything in this rule, administration for the use and benefit of the infant until he attains the age of eighteen years may be granted to any person assigned as guardian by order of a court in default of or jointly with, or to the exclusion of, any such person as is mentioned in paragraph (1) of this rule; and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the court, an affidavit of fitness sworn by a

responsible person.

(4) Where a grant is required to be made to not less than two persons and there is only one person competent and willing to take a grant under the foregoing provisions of this rule, a grant may, unless the Registrar otherwise directs, be made to such person jointly with any other person nominated by him as a fit and proper person to take the grant.

(5) Where an infant who is sole executor has no interest in the residuary estate of the deceased, administration with the Will attached for the use and benefit of the infant until he attains the age of eighteen years shall, unless the Registrar otherwise directs, be granted to the person entitled to the residuary estate.

(6) An infant’s right to administration may be renounced only by a person assigned as guardian under paragraph (3) of this rule authorised to renounce by the Registrar.

Grants where infant co-executor

50.

(1) Where one of two or more executors is an infant, probate may be granted to the other executor or executors not under disability, with power reserved for making the like grant to the infant on his attaining the age of eighteen years, and administration for the use and benefit of the infant until he attains the age of eighteen years may be granted under rule 49 if and only if the executors who are not under disability renounce or, on being cited to accept or refuse a grant, fail to make an effective application therefor.

(2) An infant executor’s right to probate on attaining the age of eighteen years may not be renounced by any person on his behalf.

Grants in case of mental or physical lncapacity

51.

(1) Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs, a grant for his use and benefit, limited during his incapacity or in such other way as the Registrar may direct, may be made:

(a) in the case of mental incapacity, to the person authorised by the Court to apply for the grant; or

(b) where there is no person so authorised, or in the case of physical incapacity-

(i) if the person incapable is entitled as executor and has no interest in the residuary estate of the deceased, to the person entitled to such residuary estate;

(ii) if the person incapable is entitled otherwise than as executor or is an executor having an interest in the residuary estate of the deceased, to the person who would

be entitled to a grant in respect of his estate if he had died intestate; or to such other person as the Registrar may by order direct.

(2) Unless the Registrar otherwise directs, no grant shall be made under this rule unless all persons entitled in the same degree as the person incapable have been cleared off

(3) In the case of mental incapacity, notice of intended application for a grant under this rule shall, unless the Registrar otherwise directs, be given to the person alleged to be so incapable.

Renunciation of probate and administration

52.

(1) Renunciation of probate by an executor shall not operate as renunciation of an right which he may have to grant of administration in some other capacity unless he expressly renounces such right.

(2) Unless the Registrar otherwise directs, no person who has renounced a grant in one capacity may obtain a grant in some other capacity.

(3) A renunciation of probate or administration may be retracted at any time on the order of the Registrar:

Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree.

Notice to State of intended application for grant

53.

In any case in which it appears that the State is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant shall be given by the applicant to the Attorney-General, and the Registrar may direct that no grant shall issue within a specified time after the notice has been given

Guarantee

54.

(1) The Registrar shall not require a guarantee as a condition of making a grant except where it is proposed to make it:

(a) by virtue of rule 21(5) to a creditor or the personal representative of a creditor or to person who has no immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;

(b) under Rule 46 to a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate be entitled to his estate;

(c) under rule 48 to the attorney of a person entitled to a grant;

(d) under rule 49 for the use and benefit of a minor;

(e) under rule 51 for the use and benefit of a person who is by reason of mental or physical incapacity incapable of managing his affairs;

(f) to an applicant who appears to the Registrar to be resident elsewhere than in the State or

(g) except where the Registrar considers that there are special circumstances making it desirable to require a guarantee.

(2) Notwithstanding that it is proposed to make a grant as aforesaid, a guarantee shall not be required, except in special circumstances, on an application for administration where the applicant or one of the applicants is the Administrator-General or a trust corporation.

(3) Every guarantee entered into by a surety for the purposes of this order shall be in Form 207.

(4) Except where the surety is a corporation, the signature of the surety on every such guarantee shall be attested by an authorised officer, commissioner for oaths or other person authorised by law to administer an. 2014

(5) Unless the Registrar otherwise directs:

(a) if it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed one hundred naira or a corporation is a proposed surety, and in those cases one will suffice;

(b) no person shall be accepted as a surety unless he is resident in the State;

(c) no officer of the judiciary shall become a surety;

(d) the limit of the liability of the surety or sureties under a guarantee shall be the gross amount of the estate as sworn on the application for the grant;

(e) every surety, other than a corporation, shall justify.

(6) Where the proposed surety is a corporation, there shall be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the guarantee in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the

Registrar that its assets are sufficient to satisfy all claims which may be made against it under any guarantee which it has given or is likely to give.

Resealing

55.

( 1) An application for the resealing of probate or administration with the Will attached granted by the court or a place not within the State shall be made by the person to whom the grant was made or by any person authorised in writing to apply on his behalf.

(2) On any such application:

(a) an Inland Revenue affidavit shall be lodged as if the application were one for a grant in the State;

(b) the application shall be advertised in such manner as the Registrar may direct and shall be supported by an oath sworn by the person making the Application.

(3) On an application for the resealing of such a grant:

(a) the Registrar shall not require sureties except where it appears to him that the grant is made to a person or for a purpose mentioned in paragraph (a) to (g) of rule 54 (1) or except where he considers that there are special circumstances making it desirable to require sureties;

(b) rules 8 (4) and 54 (2), (4), (5) and (6) shall apply with any necessary modifications; and

(c) a guarantee entered into by a surety shall be in Form 208.

(4) Except by leave of the Registrar, no grant shall be resealed unless it was made to such a person as is mentioned in paragraph (1) or (2) of rule 47 or to a person to whom a grant could be made under a proviso to that rule.

(5) No limited or temporary grant shall be resealed except by leave of the Registrar.

(6) Every grant lodged for resealing shall include a copy of any will to which the grant relates or shall be accompanied by a copy thereof certified as correct by or under the authority of the court by which the grant was made.

(7) The Registrar shall send notice of the resealing to the court which made the grant.

(8) Where notice is received in the Registry from outside the State of the resealing of a grant made In the State, notice of any amendment or revocation of the grant shall be sent to the court by which it was

resealed

Amendment and revocation of grant

56.

If the Registrar is satisfied that a grant should be amended or revoked, he may make an order accordingly:

Provided that except in special circumstances no grant shall be amended or revoked under this rule except on the application or with the consent of the person to whom the grant was made.

Caveat

57.

(1) Any person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat in the Registry.

(2) Any person who wishes to enter a caveat (in this rule called lithe “caveator”) may do so by completing Form 209 in the appropriate book at the Registry and obtaining an acknowledgement of entry from the proper officer, or by sending through the post at his own risk a notice in Form 209 to the Registry in which he wishes the caveat to be entered .

(3) Where the caveat is entered by a legal practitioner on the caveator’s behalf, the name of the caveator shall be stated in Form 209.

(4) Except as otherwise provided by this rule, a caveat shall remain in force for six months from the date on which it is entered arid shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.

(5) The Registrar shall maintain an index of caveats entered in the Registry and on receiving an application for a grant in the Registry he shall cause the index tobe searched and shall notify the applicant in the event of a caveat having been entered against the sealing of a grant for which application has been made.

(6)The Registrar shall not allow any grant to be sealed if he has knowledge of an effective caveat in respect thereof:

Provided that no caveat shall operate to prevent the sealing of a grant on the day on which the caveat is entered.

(7) A caveator may be warned by the issue from the Registry of a warning in Form 210 at the instance of any person interested (in this rule called “the person warning”) which shall state his interest and, If he claims under a Will the date of the Will, and shall require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning or a copy thereof shall be served on the caveator.

(8) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the Registry and the caveat shall thereupon cease to have effect and, if he has been warned, the caveator shall forthwith give notice of withdrawal of the caveat to the person warning.

(9) A caveator having an interest contrary to that of the person warning may, within eight days of service of the warning upon him inclusive of the day of such service; or at any time thereafter if no affidavit has been filed under paragraph (11) of this rule, enter an appearance in the Registry by filing Form 211 and making an entry in the appropriate book, and shall forthwith thereafter serve on the person warning a copy of Form 211 sealed with the seal of the Registry.

(10) A caveator having no interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person may, within eight days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been

filed under paragraph (11) of this rule issue and serve a summons for directions, which shall be returnable before the Registrar.

(11) If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under the last foregoing paragraph, and thereupon the caveat shall cease to have effect.

(12) Upon the commencement of a probate action the Probate Registrar shall, ill respect of each caveat then in force (other than a caveat entered by the plaintiff), give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.

(13) Unless the Registrar otherwise directs:

(a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to paragraph (8) of this rule, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceedings, and upon such application any caveat

entered by a party who had notice of the proceedings shall cease to have effect;

(b) any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action;

(c) the commencement of aprobate, action shall whether or not any caveat has been entered, operate to prevent the sealing of a grant until application for a grant is made by the person shown to be entitled thereto by the decision of the court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under paragraph (12)

of this rule shall cease to have effect.

(14) Except with the leave of the Registrar, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (11) or (13) of this rule

Citations

58.

(1) Every citation shall be settled by the Registrar before being  issued,

(2) Every averment in a citation, and such other Information as the Registrar may require shall be verified by an affidavit sworn by the person Issuing the citation (in this Order called the citator) or, If there are two or more citators, by one of them;

Provided that the Registrar may in special circumstances accept an affidavit sworn by the citator’s legal practitioner.

(3) The citator shall enter a caveat before issuing a citation,

(4) Every citation shall be served personally on the person cited unless the Registrar, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.

(5) Every Will referred to in a citation shall be lodged in the Registry before the citation Is issued, except where the Will Is not In the cltor’s possession and the Registrar is satisfied that it is impracticable to require

it to be lodged,

(6) A person who has been cited to appear may, within eight days of service of the citation upon him inclusive of the day of such service, or at any time thereafter if no application has been made ‘by the citor under paragraph (5) of rule 59 or paragraph (2) of rule 60, enter an appearance in the Registry by filing Form 211 and making an entry in the appropriate book, and shall forthwith thereafter serve on the citor a copy of Form 211 sealed with the seal of the Registry

Citation to accept or refuse to take a grant

59.

(1) A Citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

(2) Where power to make a grant to an executor has been reserved,a citation calli~g on him to accept or refuse a grant may be issued at the instance of the executors who have proved the Will or the executors of the last survivor of deceased executors who have proved.

(3)A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of six months from the death of the deceased:

Provided that no citation to take a grant shall issue while proceedings as to the validity of the Will are pending.

(4) A person cited who is willing to accept or take a grant may apply ex-parte to the Registrar for an order for a grant on filing an affidavit showing that he has entered an appearance and that he has not been served by the citor with notice of any application for a grant to himself.

(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may (a) in the case of a citation under paragraph (1) of this rule apply to the Registrar for an order for a grant to himself;

(b) in the case of a citation under paragraph (2) of this rule,apply to the Registrar for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights in respect of the executorship have wholly ceased;

(c) in the case of a citation under paragraph (3) of this rule, apply to the Registrar by summons (which shall be served on the person cited) for an order requiring such person to take a grant within a specified time or for a grant to himself or some other person specified in the summons.

(6) An application under the last foregoing paragraph (5) shall be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.

(7) if the person cited has entered an appearance but has not applied for a grant under paragraph (4) or this rule, or has failed to prosecute his application with reasonable diligence, the citor may:

(a) in the case of a citation under paragraph (1) of this rule, apply by summons to the registrar for an order for a grant to himself,

(b) in the case of a citation under paragraph (2) of this rule, apply by summons to the Registrar for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in sub-paragraph (b) of paragraph (5) of this rule;

(c) in the case of a citation under paragraph (3) of this rule, apply by summons to the Registrar for an order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the summons; and the summons shall be served on the person cited in each case.

Citation to propound a Will

60.

(1) A citation to propose a Will shall be directed to the executors named in the Will and to all person interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.

(2) If the time limited for appearance has expired, the citor may:

(a) in the case where no person cited has entered an appearance, apply to the Registrar for an order for a grant as if the Will were invalid;

(b) in the case of a citation under paragraph (2) of rule 59, apply by summons to the Registrar for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in sub-paragraph (b) of paragraph (5) of rule 59;

(c) in the case of a citation under paragraph (3) of rule 59, apply by summons to the Registrar for an order requiring the person cited to take a grant within a specified time or for grant to himself or some other person specified in the summons; and the summons shall be served on the persons cited in each case.

Address for service

61.

All caveats, citations, warnings and appearances shall contain an address for service within the jurisdiction

Application for order to bring in a Will or to attend for examination

62.

(1) An application for an order requiring a person to bring in a Will or to attend for examination may, unless a probate action has been commenced, be made to the court by summons, which shall be served on every such person as aforesaid.

(2) An application for the issue by the Registrar of a subpoena to bring in a Will shall be supported by an affidavit setting out the ground of the application, and if any person served with the subpoena denies that the Will is in his possession or control he may file an affidavit to that effect.

Limited Grants

63.

An application for an order for a grant limited to part of an estate may be made to the Registrar and shall be supported by an affidavit stating:

(a) whether the application is made in respect of the real estate only or any part thereof, or real estate together with personal estate, or in respect of a trust estate only:

(b} whether the estate of the deceased is known to be insolvent:

(c) that the persons entitled to a grant in respect of the whole estate in priority to the applicant have been cleared off.

Grants ad colligenda bona

64.

An application for an order for grant of administration ad colligenda bona may be made to the Registrar, and shall be supported by an affidavit  setting out the grounds of the application.

Application for leave to swear to death

65.

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

Grants in respect of Codicils and copies of Wills

66.

(1) An application for an order admitting to proof a Codicil, or a Will contained in a copy,a completed draft, a reconstruction or other evidence of its content’s where the original Will is not available, may be made to the Registrar;

Provided that where a Will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the Will may be admitted to proof without any such order as aforesaid (2) The application shall be supported by an affidavit setting out the grounds of the application-and by such evidence on affidavit as the applicant can adduce as to –

(a) the due execution of the Will;

(b) its existence after the death of the testator; and

(e) the accuracy of the copy or other evidence of the contents of the Will; together with any consents in writing to the applicationgiven by any person not under, disability who would be prejudiced by the grant

Grants durante absentia

67.

An application, far an order far a grant of special administration where; a personal representative is residing outside the State shall be made to the Court on motion

Notice of election by surviving spouse to redeem life interest

68.

(1) Where a surviving spouse who is the sole personal representative of the deceased is entitled to a life interest in part of the residuary estate and elects to have the life interest redeemed, he may  give written notice of the election to the Registrar by filing a notice in Form 212 in the Registry,

(2) A notice filed under this rule shall be noted on the grant and the record and shall be open to inspection,

Issue of copies of original Wills and other documents

69.

(1) Where copies are required of original Wills or other documents deposited under the provisions of any written law, such copies may be photostat copies sealed with the seal at the Registry and issued as office copies and, where such office copies are available copies certified under the hand of a Registrar to be true copies shall be issued only if it is required that the seal of the Court be affixed thereto,

(2) Copies, not being photostat copies, of original Wills or other documents deposited as aforesaid shall be examined against the documents of which they purport to be copies if so required by the person demanding the copy and in such case the copy shall be certified under the hand ot a I”legistrar to be a true copy and may in addition be sealed with the seal of the Court

Taxation of costs

70.

(1) Every bill of costs (other than a bill delivered by a legal practitioner to his client which falls to be taxed under the Legal Practitioners Act) shall be referred to the Registrar for taxation and may be taxed by him or such other taxing officer as the Chief Judge may appoint.

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

(3) If any party entitled to be heard on the taxation does not attend within a reasonable time after the time appointed the taxing officer may proceed to tax the bill upon being satisfied that such party had due notice or the time appointed,

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

Power to require application to be made by summons or motion

71.

The Registrar may require any application to be made by motion or by  summons,

Exercise of power of Judge

72.

All powers exercisable under this Order by a Judge in Chambers may be exercised by the Registrar

Appeals from Registrars

73.

(1) Any person aggrieved by a decision or requirement of the Registrar may appeal by summons to a Judge,

(2) If, in the case of an appeal under the last foregoing paragraph any person besides the appellant appeared or was represented before the Registrar from whose decision or requirement the appeal is brought, the summons shall be issued within seven days-thereof for hearing on the first available day and shall be served on every such person concerned.

Service of notice of motion and summons

74.

(1) A Judge or the Registrar may direct that a notice of motion or summons for the service of which no other provisions is made in this Order shall be served on such person or persons as the Judge or Registrar motion and summons may direct.

(2) Where by the provisions of this Order or by any direction given under the last foregoing paragraph a notice of motion or summons is required to be served on any person it shall be served not less than five days before the hearing of the motion or summons.

Notices etc

75.

Unless the Registrar otherwise directs or this Order provides, any notice or other document req uired to be given or served on any person may  be given or served by leaving it at or by sending it by prepaid registered post to, that person’s address for service or, if he has no address for service, his last known address

Affidavits

76.

Every affidavit used in non-contentious probate business shall satisfy the requirements of Order 33.

Time

77.

The provisions of Order 44 shall apply to the computation, enlargement and abridgement of time under this Order.

Application to pending proceedings

78.

Subject in any particular case to any direction given by a Judge, this Order shall apply to any proceeding which is pending on the date on which these rules come into operation as well as to any proceeding commenced on or after that date:

Provided that where the deceased died before the commencement of these rules, the right to a grant shall, subject to the provisions of any enactment, be determined by the principles and rules in accordance with which the court would have acted at the date of the death.

Contentious probate: Form of suit

79.

Suits respecting probate shall be instituted and carried on as nearly as possible in the like manner and subject to the same rules of procedure as suits in respect of ordinary civil claims

Interpretation

80.

(1)The Interpretation Law shall apply to the interpretation of this order

(2) In this Order, unless the context otherwise requires

“authorised officer” means any officer of a registry who is for the time being authorised by law to administer any oath or to take any affidavit required for any purpose connected with his duties;

“gross value” in relation to any estate means the value of the estate without deduction for debts, encumbrances,funeral expenses or estate ‘duty;

“oath” means the oath required by this Order to be sworn by every applicant for grant;

“personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a legal practitioner and “personal application” has a

corresponding meaning;

“Registrar” means the Probate Registrar, being the Chief Registrar of the High Court of the State; “Registry” or

“Probate Registry” means the Probate Registry at Abeokuta, Ogun State.

“Will” includes a Codicil and any testamentary document or copy or reconstruction thereof.

(3) Unless the context otherwise requires, any reference in this Order to any rule or enactment shall be construed as a reference to that rule or enactment as amended, extended or applied by any other rule or enactment.

ORDER 58

Definition

1.

In this Order “petitioner” means a person applying for a legitimacy  declaration, and “petition” has a corresponding meaning.

Practice and rules

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

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 his birth; and

(ii) at the date of the marriage;

(c) whether there are living other issues of the parents of such person as aforesaid and the respective names and dates of the 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 his 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.

(3)If the petitioner is an infant or person of unsound mind, he shall petition by a next friend and the full names, occupation or description, and residence or place of business, of the next friend shall be stated in the petition and there shall be lodged by him 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 petitioner that the petitioner 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, in form to be approved by the Registrar, to be responsible for the costs shall be sufficient.

Persons to be respondents

6.

The respondents to a petition shall be the Attorney-General of the State: and all persons whose lnterests may be, affected by the legitimacy declaration asked for; and Court may at any time direct any person not made respondents to be made respondents 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

7.

The petition shall be accompanied by an affidavit made by the petitioner, or by his next friend (if any) verifying the facts of which he has personal knowledge and deposing as to his belief in the truth of the other facts alleged in the petition, and the affidavit shall be filed with the petition.

Copies of petition to be filed

8.

(1) There shall be filed with the petition as many copies of the 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 Attorney-General

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 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 him at Attorney-General’s Chambers, Ministry of Justice, Abeokuta.

Personal service on other respondents

10.

(1) A sealed copy of the petition and affidavit shall, unless the court otherwise directs, be served by a Bailiff or by a police constable, at least fifty-six days before the hearing, on every respondent (other than the Attorney-General) personally 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 whereon 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 him file an answer to the petition.

(2) Every answer which contains matter 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 as far as he has personal knowledge thereof, and deposing to his belief in the truth of the rest of 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 respondents.

Evidence

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 affidavlt.

Costs

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

Copy of order to be supplied

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 59

Fees 1st, 2nd, 3rd, 4th and 5th Schedules

1.

Subject to the provisions of any written law and of the foregoing Orders:

(1) The fees set out in the First, Second, Third, Fourth and Fifth Schedules hereunder shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in those Schedules.

(2) The allowances set out in the Third Schedule shall be payable to the various categories of witnesses 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 shall be paid out of public revenue

Regulations 6th Schedule.

2.

The regulations set out in the Sixth Schedule shall be observed by all officers of Court concerned with the rendering of services, and or collection of fees payable, under the provisions of the foregoing Order.