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KWARA STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2021

2021

(Orders)

ORDER 1

Title

1.

1. (1) These rules may be cited as the High Court of Justice of Kwara State (Civil Procedure) Rules 2021
(2) The Kwara State High Court (Civil Procedure) rules 2005 is hereby revoked.
(3) The Provisions contained in these Rules shall be the Rules of Civil Procedure to be followed in the High Court of Justice of the State.

 

Where no rules exist.

2.

2. Where a matter arises in respect of which no provisions are made in the rules, the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.

Construction of reference to law, rules etc.

3.

3. (1) Any reference in these rules to any thing done under these rules includes a reference to the thing done before the commencement of these rules under any corresponding law or rules of court ceasing to have effect on the commencement of these rules.
(2) Except where the context otherwise requires, any reference in these rules to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment.

Application

4.

4.(1) These rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters.
(2) Application of these rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.

Interpretation of terms. Cap. 15

5.

5. (1) These rules shall be interpreted in accordance with the Interpretation law or any modification or re-enactment thereof.
(2) In these rules, unless the context otherwise requires:
“Chief Judge” means the Chief Judge of the High Court of Justice of the State;
“Claimant” shall include a claimant in a counter-claim;
“Court” means the High Court of Justice of Kwara State of Nigeria;
“Court” means the High Court of Justice of Kwara State of Nigeria;
“Court Process” or “Processes” shall include writ of summons, originating summons, notices, petitions, pleadings, orders, motions, originating motions, summons, warrants and all documents or written communication of which service is required;
“Decision” means any decision of a court and includes judgment, ruling, decree, order, conviction, sentence or recommendation;
“Defendant” shall include a defendant to a counter-claim;
“Governor” means the Governor of Kwara State;
“Government” means Federal, State and Local Governments.
“Guardian” means any person who has for the time being, in charge of or control over a person under legal disability and includes a person appointed to institute or defend an action on behalf of any person under legal disability;
“Law” means the High court law or any modification or re-enactment thereof;
“Minor” means a person who has attained the age of 7 years but not the age of 14 years.
“Originating process” means any court process by which a suit is initiated;
“Person under legal disability” means any person who lacks capacity to institute or defend any proceedings by reason of age, unsoundness of mind or otherwise;
“Probate action” means an action for the grant of probate of the will or letters of administration of the estate of a deceased person or for the revocation of such a grant, or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business;
“Registrar” means the Chief Registrar, Deputy Chief Registrar, Assistant Chief Registrar, Principal Registrar, Senior Registrar, Higher Registrar, or any other officer acting or performing the functions of a Registrar;
“Registry” means the Registry of the High Court of Kwara State in the appropriate Judicial Division;
“Return date” means the date endorsed on the process for the first appearance of the parties before a court or any other date as the court may appoint and in the case of the Undefended list, it is the date fixed for hearing.
“State” means Kwara State of Nigeria;
“Taxing Officer” means the Chief Registrar or such other officer of the court as the Chief Judge may appoint to tax costs;
“Young Person” means a person who has attained the age of 14 years but not the age of 18 years.

 

ORDER 2

Mode of beginning civil proceedings

1.

1. Subject to the provisions of any enactment, civil proceedings may be begun by a writ of summons, originating summons, originating motion or petition, as herein after provided.

Proceedings which must be begun by writ.

2.

2. (1) Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than by a writ, a writ of summons shall be the form of commencing all proceedings:
(a) where a claimant claims:
(i) any relief or remedy for any civil wrong; or
(ii) damages for breach of duty, whether contractual, statutory or otherwise; or
(iii) damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or in respect of damage or injury to any property;
(b) where the claim is based on or includes an allegation of fraud; or
(c) where an interested person claims a declaration.

(2) Except where Order 23 applies, every writ of summons shall be accompanied by:
(a) a statement of claim;
(b) a list of witnesses to be called at the trial;
(c) written statement on oath of each witness; and
(d) copies of every document to be relied on at the trial.
(e) certificate of pre-action counseling as in Form 1(a)
(f) where a claimant fails to comply with this rule , his process shall not be accepted by the registry for filing.

 

Form of writ. Form 1.

3.

3. Except in cases in which any different Forms are provided in these rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.

Form of writ for service out of Nigeria. Form 2.

4.

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

Proceedings which may be begun by originating summons.

5.

5. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

Construction of enactment.

6.

  1. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.

Discretion of the Judge

7.

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

Forms of Originating Summons Forms 3, 4 and 5

8.

  1. (1) An originating summons shall be in Forms 3, 4 or 5, with such variations as circumstances may require. It shall be prepared by the applicant or his legal practitioner, and shall be sealed and filed in the registry, and when so sealed and filed shall be deemed to be issued.
    (2) An originating summons shall be accompanied by:
    (a) an affidavit setting out the facts relied upon;
    (b) all the exhibits to be relied upon; and
    (c) a written address in support of the summons.
    (d) a certificate of pre-action counseling in Form 1a
    (3) The person filing the originating summons shall leave at the registry sufficient number of copies thereof together with the documents referred to in sub-rule (2) for service on the defendant(s).

Service outside Kwara State Cap. S6 LFN 2004.

9.

  1. Subject to the provisions of the Sheriffs and Civil Process Act, a writ of summons or other originating process issued by the court for service in Nigeria outside Kwara State shall be endorsed by the claimant with the following notice:
    “This summons (or as the case may be) is to be served out of Kwara State of Nigeria and in …………….State and or the Federal Capital Territory”.

 

Originating process to be tested by its date

10.

  1. (1) The registrar shall indicate the date and time of presentation for filing on every originating process presented to him and shall arrange for service thereof to be effected.
    (2) An originating process shall not be altered after it is sealed except upon application to a judge.

Proceedings to be begun by motion or petition

11.

  1. Proceedings may be commenced by originating motion or petition where these rules or any written law so provide.

12.

  1. A certificate of pre-action counseling signed by counsel and the litigant shall be filed along with the originating processes where proceedings are initiated by counsel showing that the parties have been advised as to the relative strength and weaknesses of their respective cases, and counsel shall be personally liable to pay the costs of proceedings which turns out to be frivolous.

13.

  1. All processes filed at the registry shall bear the Nigerian Bar Association seal, showing that the counsel filing the process is fully enrolled as a legal practitioner and qualified to practice in Nigeria.

 

ORDER 3

Place for trial of suits

1.

  1. Subject to the provisions of any law with respect to transfer of suits or to specific subject matters, the place for the trial of any suit or matter shall be as provided in this Order.

Suits relating to land and property distrained or seized

2.

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

 

Suits for recovery of penalties, etc.

3.

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

Suits upon contract

4.

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

Other suits

5.

  1. All other suits shall be commenced and determined in the Judicial Division in which the defendant resides or carries on business or in which the cause of action arose.

6.

  1. Where there are several defendants who reside and carry on business in different judicial divisions, the suit may be commenced in any one of those judicial divisions subject to any order or direction the court may make or give as to the most convenient venue for the trial of the suit.

Suit commenced in wrong Division

7.

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

8.

  1. Suits and interlocutory applications may be filed and served by Counsel vide electronic means .The Chief Judge shall issue practice directions for the modalities and operation of electronically filed processes.

 

ORDER 4

Effect of non-compliance

1.

  1. (1) Failure to comply with the requirement of these rules as to time place, manner, and form in connection with any proceedings shall be treated as an irregularity and may not nullify any action taken at any stage of the proceedings.
    (2) Where any proceedings are commenced by an originating process other than the process prescribed by these rules, the Judge shall not wholly set aside the proceedings or originating process.
    (3) Without prejudice to the provisions of sub rules (1) and
    (2), the Judge may give any direction as he thinks fit to regularize the error, act or omission.

 

Application to set aside for irregularity

2.

  1. (1) An application to set aside any step taken in the course of any proceedings for irregularity may be allowed within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
    (2) An application under this rule shall be made by motion and the grounds of the objection shall be stated in the motion.

 

ORDER 5

Endorsement

1.

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

Endorsement to show representative capacity

2.

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

 

Probate actions

3.

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

 

What is endorsed where the claim is liquidated

4.

  1. (1) Where the claim is for debt or liquidated demand only, the originating process shall state the amount claimed for debt and in respect of such demand with costs and shall further state that the defendant may pay the amount with costs to the claimant’s legal practitioner within the time allowed for appearance and that upon such payment the proceedings shall terminate.
    (2) The defendant may notwithstanding payment under this rule, have the costs taxed and if more than one sixth of the costs shall be allowed, the claimant’s legal practitioner shall pay the costs of taxation.

Ordinary account

5.

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

Endorsement of address by Claimant or by Legal Practitioner

6.

  1. (1) Where a claimant sues in person, the originating process shall be endorsed with his residential or business address as his address for service and, where available, his electronic mail address and mobile telephone number.
    (2) If a claimant lives and carries on business outside the jurisdiction he shall state an address within the jurisdiction as his address for service.
    (3) Where a claimant sues by a legal practitioner, the legal practitioner shall state on the originating process his names and a Chambers address within the jurisdiction as his address for service and his electronic mail address and mobile telephone number.

Endorsement of address

7.

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

Originating Process without an address or with fictitious address

8.

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

 

ORDER 6

Preparing originating process

1.

  1. Originating process shall be prepared by a claimant or his legal practitioner, and shall be clearly printed on opaque foolscap size paper of good quality.

Sealing of originating process

2.

  1. (1) The registrar shall seal every originating process whereupon it shall be deemed to be issued.
    (2) A claimant or his legal practitioner shall, on presenting any originating process for sealing, leave with the registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
    (3) Each copy shall be signed by the legal practitioner or by a claimant where he sues in person and shall be certified after verification by the registrar as being a true copy of the original process filed.

What is to be done after sealing

3.

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

Copies to be served

4.

  1. The registrar shall promptly arrange for personal service on such defendant of a copy of the originating process and accompanying documents duly certified as provided by rule 2(3).

Probate Actions: affidavit with originating process

5.

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

Renewal of originating process; Form 6

6.

  1. (1) the life span of every originating process shall be 6 months.
    (2) If the court is satisfied that it has proved impossible to serve an originating process on any defendant within its life span and a claimant applies before its expiration for renewal of the process, the court may renew the original or concurrent process for 3 months from the date of such renewal. A renewed originating process shall be in Form 6 with such modifications or variations as circumstances may require.

Endorsement of renewal

7.

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

 

Loss of originating process

8.

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

Concurrent originating process

9.

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

 

Concurrent originating process for service within and out of jurisdiction

10.

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

 

ORDER 7

By whom service is to be effected

1.

  1. (1) Service of originating process shall be made by a Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officer of the court. The Chief Judge may also appoint and register any Law Chambers, Courier company or any other person to serve court processes and such person shall be called process server.
    (2) When a party is represented by a legal practitioner service of court process of which personal service is not required may be made on such legal practitioner or on a person under his control.

Service of originating process etc, how effected

2.

  1. The process server shall serve an originating process by delivering to the party to be served a copy of the process duly certified as prescribed by Order 2, rule 8 (1).

When originating process need not be served personally

3.

  1. No personal service of an originating process shall be required where the defendant has authorized his legal practitioner in writing to accept service and such legal practitioner enters appearance.

Mode of service when not personal

4.

  1. All processes in respect of which personal service is not expressly required by these Rules or any applicable law shall be sufficiently served if left with an adult person resident or employed at the address for service given under Order 5, rule 6.

Substituted service

5.

  1. (1) Where it appears to the court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, but that there is a reasonable probability that the document will come to the knowledge of the person to be served, the court may order that service be effected either:
    (a) by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served; or
    (b) by delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served; or
    (c) by advertising in the State Gazette or in some newspapers circulating within the jurisdiction; or
    (d) by notice put up at the principal court house of, or some other place of public resort in, the Judicial Division wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode, or of business, of the person to be served.

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

Persons under legal disability

6.

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

Prisoner or detainee

7.

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

Partners

8.

  1. Where persons are sued as partners in the name of their firm the originating process shall be served upon any one or more of the partners at the principal place of business within the jurisdiction or upon any person having control or management of the partnership business there; and such service shall be deemed good service upon the firm whether any of the members are out of the jurisdiction or not, and no leave to issue an originating process against them shall be necessary: Provided that in the case of a partnership that has been dissolved to the knowledge of the claimant before the commencement of an action, the originating process shall be served upon every person within the jurisdiction sought to be made liable.

Corporation or Company

9.

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

Foreign Corporation or Company Cap C20 LFN 2004

10.

  1. When the suit is against a foreign corporation or company within the meaning of Section 78 of the Companies and Allied Matters Act, 2020, having an office and carrying on business within the jurisdiction, and such suit is limited to a cause of action which arose within the jurisdiction, the originating process or other documents requiring personal service may be served on the principal officer or representative of such foreign corporation or company within the jurisdiction:
    Provided that where a foreign company has complied with the provision of Chapter 3 of the Companies and Allied Matters Act, personal service shall be effected on one of the persons authorized to accept service on behalf of such company.

Local agent of principal who is out of jurisdiction

11.

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

Where violence threatened

12.

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

Proof of service generally

13.

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

Expenses of service

14.

  1. (1) The party requiring service of any process shall pay in advance all costs and expenses of and incidental to service.
    (2) The rate payable for service shall be as directed by the Chief Judge from time to time.

Time of service on certain days

15.

  1. (1) Service of originating and other processes, pleadings, notices, summons, orders, and documents whatsoever shall be effected between the hours of six in the morning and six in the evening.
    (2) Except in exceptional circumstances and as may be authorized by the court, service shall not be effected on a Sunday or on a public holiday.

Recording of service

16.

  1. (1) A register shall be kept at the registry in such form as the Chief Judge may direct for recording service of processes by any process server. The registrar shall record therein the names of the claimant and defendant, the method of service, whether personal or otherwise, and the manner used to ascertain that the right person was served.
    (2) Where any process was not served the cause of failure shall be recorded in the register. Every entry in such register or certified copy thereof shall be prima facie evidence of the matters stated therein.
  2. Where parties are represented by counsel, advance copies of processes other than originating process may be served by email.
  3. The court may serve hearing notices via email and/or SMS except as otherwise directed by the Judge.

 

ORDER 8

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

1.

  1. The court may allow any originating or other process to be served outside Nigeria where:
    (a) the whole subject matter of the claim is land situate within jurisdiction; or
    (b) any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within jurisdiction, is ought to be construed, rectified, set aside or enforced; or
    (c) any relief is sought against any person domiciled or ordinarily resident within jurisdiction; or
    (d) the claim is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within jurisdiction or for the execution (as to property situate within jurisdiction) of the trusts of any written instrument, which ought to be executed according to the law in force in Kwara State; or
    (e) the claim is brought against the defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of a contract:
    (i) made within jurisdiction; or
    (ii) made by or through an agent residing or carrying on business within jurisdiction on behalf of a principal residing or carrying on business out of jurisdiction; and
    (iii) which by its terms or by implication is to be governed by the applicable law in Kwara State, or the parties have agreed that the court shall have jurisdiction to entertain any claim in respect of such contract, or is brought against the defendant in respect of a breach committed within jurisdiction, of a contract wherever made notwithstanding that such breach was preceded or accompanied by a breach out of jurisdiction which rendered impossible the performance of the contract which ought to have been performed within jurisdiction;
    (f) the claim is founded on a tort committed within jurisdiction; or
    (g) an injunction is sought as to anything to be done within jurisdiction, or any nuisance within jurisdiction is sought to be prevented or removed, whether or not damages are sought in respect thereof; or
    (h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within jurisdiction; or
    (i) the claim is by a mortgagee or mortgagor in relation to a mortgage or property situate within jurisdiction and seeks relief of the nature or kind following, that is: sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under paragraph (e)) any judgment or order for payment of any monies due under the mortgage; or
    (j) the proceedings relate to a person under legal disability; or
    (k) the proceedings relate to probate matters; or
    (l) where any proceedings under any law or rule of court have been instituted by any originating process.

 

Agreement as to service

2.

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

Service abroad by letter of request. Forms 7, 8 and 9

3.

  1. (1) where leave is granted to serve an originating process in any foreign country with which no convention in that behalf has been made, the following procedure may be adopted:
    (a) the process to be served shall be sealed with the seal of the Court for service out of Nigeria, and shall be transmitted to the Solicitor- General of the federation by the registrar together with a copy translated into the language of that country if not English, and with a request for its further transmission to the appropriate authority in that country. The request shall be in Form 7 with such modifications or variations as circumstances may require;
    (b) a party wishing to serve a process under this rule shall file a praecipe in Form 8 with such modifications or variations as circumstances may require;
    (c) a certificate, declaration, affidavit or other notification of due service transmitted through diplomatic channels by a court or other appropriate authority of the foreign country, to the Court, shall be deemed good and sufficient proof of service;
    (d) where a certificate, declaration, affidavit or other notification transmitted as aforesaid states that efforts to serve a process have failed, the court may, on an ex parte application, order substituted service whereupon the process and a copy as well as the order for substituted service shall be sealed and transmitted to the Solicitor- General of the federation together with a request in Form 9 with such modifications or variations as circumstances may require: Provided that notwithstanding the foregoing provisions, a claimant may with leave of the court serve any originating process by courier.

(2) Nothing herein contained shall in any way affect any power of the court in cases where land, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected. The court may, without assuming jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

Where leave is granted or not required. Form 10

4.

  1. (1) Where leave is granted or is not required in a civil suit and it is desired to serve any process in a foreign country with which a convention in that behalf has been made, the following procedure shall, subject to any special provisions contained in the convention, be adopted:
    (a) the party desiring such service shall file in the registry a request in Form 10 with such modifications or variations as circumstances may require and the request shall state the medium through which it is desired that service shall be effected, either:
    (i) directly through diplomatic channels; or
    (ii) through the foreign judicial authority;
    (b) the request shall be accompanied by the original document and a translation thereof in the language of the country in which service is to be effected certified by or on behalf of the person making the request, and a copy of each for every person to be served and any further copies which the convention may require (unless the service is required to be made on a Nigerian subject directly through diplomatic channels in which case the translation and copies thereof need not accompany the request unless the convention expressly requires that they should do so);
    (c) the documents to be served shall be sealed with the seal of the court for use out of the jurisdiction and shall be forwarded by the registrar to the permanent secretary, Federal ministry of foreign affairs for onward transmission to the foreign country;
    (d) an official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a Nigerian diplomatic agent to the court, establishing the fact and the date of the service of the document, shall be deemed to be sufficient proof of service within the requirements of these Rules.

(2) The court, in granting leave to serve a process out of jurisdiction under this order, may upon request thereof in appropriate cases direct that courier shall be used by the party effecting service.

Service of foreign processes

5.

  1. Where in any civil or commercial matter pending before a Court or tribunal of a foreign country a letter of request from such court or tribunal for service on any person or citation in such matter is transmitted to the court by the Kwara state Attorney-general with intimation that it is desirable that effect be given to the same, the following procedure shall be adopted:
    (a) the letter of request for service shall be accompanied by a translation in the English language, and by two copies of the process or citation to be served, and two copies thereof in English language;
    (b) service of the process or citation shall be effected by a process sever unless the judge otherwise directs;
    (c) such service shall be effected by delivering to and leaving with the person to be served one copy of the process or citation to be served, and one copy of the translation thereof in accordance with the rules and practice of the court regulating service;
    (d) after service has been effected by the process server he shall file an affidavit of service in which he shall furnish particulars of charges for the cost of effecting the service. The affidavit shall be transmitted to the registrar with one copy of the process annexed;
    (e) the registrar shall examine and verify the process server’s particulars of charges and may approve it or approve some lesser figure, whereupon the Chief Judge shall forward to the Attorney-General a letter of request for service, the approved amount for service, evidence of service and a certificate appended to it.

Inapplicability of rule 4

6.

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

Service on behalf of foreign tribunals

7.

  1. Where in any civil suit pending before a court or tribunal in a foreign country with which a convention in that behalf has been made, request for service of any process or document on any person within the jurisdiction is received by the Chief Judge from the appropriate authority in that country, the following procedure shall, subject to any special provisions in the convention, be adopted:
    (a) the process server shall deliver the original or a copy thereof, along with a copy of its translation to the party to be served;
    (b) the process server shall submit the particulars of the costs and expenses of service to the registrar who shall certify the amount payable in respect of the service;
    (c) the registrar shall transmit to the appropriate foreign authority a certificate establishing the fact and date of service, or indicating reasons for failure to serve, and also notify the authority as to the amount certified under paragraph (b).

Substituted service of foreign process

8.

  1. In appropriate cases, upon application, the court may order substituted or other service of the foreign process.

 

ORDER 9

Days of sittings

1.

  1. Subject to the provisions of the High Court Law, Cap. H2 of the Laws of Kwara State, 2006 the court may, at its discretion, appoint any day or days and any place or places from time to time for the hearing of actions as circumstances require.

Public or private sittings of court

2.

  1. The sittings of the court for the hearing of causes shall ordinarily be public but subject to the provisions of the Constitution of Federal Republic of Nigeria, the court 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.

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

Days of sittings: Court vacation

4.

  1. (1) the sittings of the court for the dispatch of causes shall be held on every week-day except that the court shall not sit:
    (a) on any public holiday;
    (b) during the week beginning with Easter Monday;
    (c) during the period beginning three days before Christmas and ending on 2nd January next following;
    (d) during the period of 5 days beginning on the eve of Eid-el-fitr and Eid-el-kabir.

(2) There shall be an annual vacation of the court to commence on such date and of such duration not less than six weeks as the Chief Judge may by notification in writing appoint.

Long vacation

5.

  1. (1) Notwithstanding the provisions of rule 4, any action may be heard by a Judge in court during any of the periods mentioned in sub-rule (1) (b), (c) or (d) of rule 4 or sub-rule (2) where the action is urgent or where the presiding Judge is a Vacation Judge.
    (2) An application for an urgent hearing shall be made by motion ex-parte, and the decision of the judge on the application shall be final.

Chambers

6.

  1. No business shall be transacted in chambers on Sundays and public holidays.

 

ORDER 10

Rules for computation of time

1.

  1. Where by any law or order made by the court a time is appointed or limited for the doing of any act, the period shall be reckoned without prejudice to paragraph a to e here-under and the period of annual vacation of the court under Order 9 rule 4(2):
    (a) as excluding the day on which the order is made or on which the event occurs;
    (b) the act or proceeding shall be done or taken at least on the last day of the limited time;
    (c) 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 time limited is less than 5 days, no public holiday, Saturday or Sunday shall be reckoned as part of the time;
    (d) when the time expires on a public holiday, Saturday or Sunday the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterward not being a public holiday, Saturday or Sunday.

Holiday

2.

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

Time of service

3.

  1. (a) Where pleadings, summonses, motions, orders, originating processes, documents and other processes are served after 6.00p.m. such service shall be deemed to have been effected the following day, which is not a Saturday, Sunday or a public holiday.
    (b) Service before 6.00a.m. shall for the purposes of these rules be deemed defective service.

No enlargement of time by consent of parties

4.

  1. The parties shall not by consent enlarge or abridge any of the times fixed by these rules for taking any step, filing any document, or giving any notice.

Court may extend time

5.

  1. The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules or by any judgment, order or direction to do any act in any proceedings: Provided that a party who defaults in performing an act within the time authorized by the court or under these rules, shall pay to the court an additional fee of N200.00 for each day of such default at the time of filing his application for extension of time except where the default is occasioned by reason of an unexpected closure of the High Court Registry.

Time will not run

6.

  1. Time will not run during the occurrence of any event which disrupts the normal conduct of the business of the Court.

 

ORDER 11

Time to apply

1.

  1. MOTIONS GENERALLY
  2. Subject to these Rules, interlocutory applications may be made at any stage of an action.

Application by motion

2.

2.(1) Where by these Rules any application is authorized to be made to a Judge, such application shall be made by motion except otherwise ordered by the judge.

(2) Every such motion shall be supported with an affidavit and accompanied with a written address.

Affidavit and written address
(3) Where the other party intends to oppose the motion, he shall within 5 days of the service on him of such motion, 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 3 days of being served.

 

Motion list

3.

  1. The registrar shall make up, for each day on which there are motions to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving and the terms of the order sought.

Hearing of motions

5.

  1. A motion may be heard at any time while the court is sitting or by a judge in chambers.

Adjournment

6.

  1. The hearing of any motion may from time to time be adjourned upon such terms as the court may deem fit.

Motion to be on notice except in emergency

7.

  1. No motion shall be made without previous notice to the parties affected thereby; but the court if satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damage or serious mischief to the party moving may make an order ex parte upon such terms as to costs or otherwise and subject to rule 11 (1) and such undertakings, if any, as the justice of the case demands.

Mode of filing motion Ex parte

8.

  1. EXPARTE MOTIONS
  2. (1) No motion ex-parte for injunction shall be made except the applicant files with it a motion on notice in respect of the application.
    (2) Every motion ex parte shall in addition to the requirements of rule 2, sub-rules (1) and (2) state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving.

Arguments on motion

9.

  1. Any party moving the court ex parte shall file a written address in support his motion and no party to the suit or proceedings, although present, other than party moving, shall be entitled to be heard.

Orders on ex-parte motions

10.

  1. Where a motion is made ex parte, the court may make or refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may direct the motion to be made on notice to the parties to be affected thereby.

Duration of ex parte order

11.

  1. (1) An order of injunction made upon an ex parte application shall abate after 7 days.
    (2) The Court may upon application extend the effective period of an order made ex parte if it 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.

Return-day to be specified

12.

III. ORDERS TO SHOW CAUSE

  1. An order to show cause shall specify a day when cause is to be shown, to be called the return-date to the order, which shall ordinarily be not less than 3 days after service.

Counter-evidence

13.

  1. A person served with an order to show cause may, before the return-day, produce evidence to contradict the evidence used in obtaining the order, or setting forth other facts on which he relies to induce the court to discharge or vary such order.

Further service in certain cases

14.

  1. On the return-date, if the person served does not appear and it appears to the court that the service on all proper parties has not been duly effected, the court may enlarge the time and direct further service or make such other order as seems just.

Appearance or proof of service

15.

  1. If the person served appears, or the court is satisfied that service has been duly effected, the court may proceed with the matter.

General Powers as to orders

16.

  1. The court may either discharge the order or make it absolute, or adjourn the consideration thereof, or permit further evidence to be produced in support of or against the order, and may modify the terms of the order so as to meet the merit of the case.

Notice of motion

17.

  1. NOTICE OF MOTION
  2. Unless the Court gives special leave to the contrary, there shall be at least 2 clear days between the service of a motion and the day named in the notice for hearing the motion.

Service of notice

18.

  1. Notice of motion may be served by any person duly authorized by the registrar, notwithstanding that such person is not an officer of the court.

Service on Legal Practitioner

19.

  1. Where a party acts by a legal practitioner, service of notice of motion on the legal practitioner shall be deemed good service on that party.

Copy of affidavit to be served with notice

20.

  1. There shall be served along with the notice of motion a copy of any affidavit on which the party moving intends to rely at the hearing of the motion.

Order for service

21.

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

Service of motion with originating process

22.

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

Oral evidence

23.

  1. EVIDENCE IN INTERLOCUTORY PROCEEDINGS
  2. Oral evidence shall not be heard in support of any motion unless by leave of the court.

Evidence in addition to or in lieu of affidavits

24.

  1. The court may, in addition to or in lieu of affidavit if it thinks it expedient, examine any witness viva voce, or receive documents in evidence, and may summon any person to attend to produce documents before it, or to be examined or cross-examined before it in like manner as at the hearing of a suit.

Notice to parties and interested parties

25.

  1. Such notice as the court in each case, according to the circumstances, considers reasonable, shall be given to the persons summoned and to such persons (parties to the cause or matter or otherwise interested) as the court considers are entitled to inspect the documents to be produced, or to examine the person summoned, or to be present at his examination, as the case may be.

Evidence, how taken

26.

  1. The evidence of a witness on any such examination shall be taken in like manner as nearly as may be as at the hearing of a suit.

Affidavit not filed with motion paper

27.

  1. Upon the hearing of any motion the court may, on such terms as to costs and adjournment as it may deem fit, allow any additional affidavit to be used, after the affidavit has been duly filed and served on the opposite side.

 

ORDER 12

Preservation or interim custody of subject-matter of disputed contract

1.

  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, the Court may make an order for the preservation or interim custody of the subject-matter of the action or may order that the amount in dispute be brought into Court or otherwise secured.
    (2) An application for an order under sub-rule (1) may be made by the claimant at any time after his right thereto appears from the pleadings or, if there be no pleadings, is made to appear by affidavit or otherwise to the satisfaction of the Court.

 

Early trial of cause

2.

  1. Whenever an application shall be made before trial for an injunction or other order and on the opening of such application, or at any time during the hearing thereof, it shall appear to the Court 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, the Court may make an order for such trial accordingly and in the meantime make such order as the justice of the case requires.

Order for sale of perishable goods etc.

3.

  1. The Court may on 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 which for any other just and sufficient reason it may be desirable to have sold at once.

Detention, preservation or inspection of property

4.

  1. (1) The Court may upon the application of any party to an action or matter and upon such terms as may be just, make an 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, or for all or any of the purposes aforesaid, authorize any person or persons to enter upon or into any land or building in the possession of any party to such action or matter or 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 sub-rule (1) (including an application made before any pleadings have been delivered in the action or matter) and 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, he may order the costs to be paid by the respondent.

Inspection by Judge

5.

  1. A Judge by whom any action or matter is tried, may inspect any property or thing concerning which any question arises therein.

Disposal of property in Court’s custody

6.

  1. (1) Where any property is in the custody of the Court either before or after Judgment and it has remained so for a period of 12 months, the Court 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 Court for the benefit of the person adjudged entitled to it at the trial or on appeal.
    (2) The money kept in the bank shall be withdrawn by the registrar and paid to the person entitled to it by the judgment of the Court.

Proceeds of sale of property

7.

  1. Where any money paid after disposal of any goods or chattel is in the custody of the Court such money shall be paid to the person entitled to it by the registrar.

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

8.

  1. Where an action or counterclaim is filed to recover specific property other than land 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 Court 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 court may direct and that upon such payment into Court being made, the property claimed be given up to the party claiming it.

Allowance of income of property pendente lite

9.

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

Injunction against repetition of wrongful act for breach of contract

10.

  1. 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

11.

  1. In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court 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. Forms 11 and 12.

12.

  1. Where an order is made directing a receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give security to be approved by the Court, duly to account for what he shall receive as such receiver, and to pay the same as the court shall direct; and the person so to be appointed shall, unless otherwise ordered be allowed a proper salary or allowance. The security to be given shall be by guarantee or by an undertaking in Forms 11 and 12 with such variations as circumstances may require.  The undertaking shall be filed in the Registry and form part of the record of proceedings until it has been duly vacated.

Where receiver appointed in court: adjournment to give security

13.

  1. Where any judgment or order is pronounced or made in court appointing a person therein named to be receiver the Court may adjourn the proceedings then pending, in order that the person named as receiver may give security as mentioned in rule 12 and may thereupon direct such judgment or order to be drawn up.

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

14.

  1. When a receiver is appointed with a direction that he shall pass accounts, the Court 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 neglect to leave and pass his accounts and pay the balances at the times fixed for the purpose as aforesaid, the court 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 25% 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.Form 13

15.

  1. Receivers’ accounts shall be in Form 13 with such modifications or variations as circumstances may require.

Leaving account at the Registry. Form 14

16.

  1. Every receiver shall deliver to the registrar his account together with an affidavit verifying the same in Form 14 (with such variations as circumstances may require) and the claimant or party having the conduct of the action shall thereupon obtain an appointment for the purpose of passing the account.

Consequences of default by receiver

17.

  1. In case of any receiver failing 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 other 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’ accounts

18.

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

 

ORDER 13

Evidence on motion

1.

  1. Upon any motion, petition or summons, evidence may be given by affidavit; but the Court or a Judge in Chambers may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence unless by special leave of the Court or a Judge in Chambers.

Title of affidavits

2.

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

 

Use of defective affidavits

3.

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

Special time for filing affidavits

4.

  1. Where special time is limited for filing affidavit, no affidavit filed after that time shall be used, unless by leave of the Court or a Judge in Chambers and the Commissioner of Oaths shall not sign any affidavit unless the deponent is present before him to swear to the affidavit.

Affidavit in support of ex parte applications

5.

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

Notice of intention to use affidavit in Chambers

6.

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

Alterations in accounts to be initialed

7.

  1. Every alteration in an account verified by affidavit to be left at Chambers shall be marked with the initials of the Commissioner before whom the affidavit is sworn, and the alterations shall not be made by erasure.

Exhibits

8.

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

Certificate on exhibit

9.

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

Application of Evidence Act No. 18 of 2011

10.

  1. Sections 107 to 120 of the Evidence Act (which set out provisions governing affidavits) shall apply as if they were part of these Rules.

Affidavit taken in Common-wealth Country admissible

11.

  1. A document bearing the seal or signature of a Court, Judge, notary public or a person having authority to administer oath in any part of the Commonwealth outside Nigeria in testimony of an affidavit being taken before it or him in that part shall be admitted in evidence without proof of the seal or signature being of that Court, Judge, notary public or person.

 

ORDER 14

Person claiming jointly or severally

1.

  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 judgment may be given for such claimants 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.

  1. 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, the Court may order the substitution or addition of any other person as claimant on such terms as may be just.

Misjoinder and counter-claim

3.

  1. 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 proceeding based thereon.

Any person may be joined as defendant

4.

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

Action in name of wrong defendant

5.

  1. Where an action has been instituted against a wrong defendant or where the name of a defendant has been incorrectly stated the Court 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. (1) It shall not be necessary that every defendant shall be interested as to all the reliefs prayed for, or as to every cause of action included in any proceeding against him.
    (2) The Court upon considering the defence filed by any defendant may on application by that defendant make such order as may appear just to prevent him from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

Joinder of persons severally or jointly and severally liable

7.

  1. 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 any one contract, including parties to bills of exchange and promissory notes.

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

8.

  1. 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.

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

Guardian

10.

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

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

11.

  1. 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 the Court 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. (1) Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.
    (2) Where there are numerous persons having the same interest in one suit and they seek to defend the action, the Court may allow one or more of such persons to defend the action on behalf or for the benefit of all persons so interested.

Representation of persons or classes of persons in certain proceedings

13.

  1. (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, the Court 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 court may make the appointment. The decision of the Court in the proceedings shall be binding on the person or class of persons so represented.

(2) Notice of appointment made by the Court under this rule and all processes filed in Court shall be served on every person so appointed.
(3) If in any proceedings mentioned in sub-rule (1), several persons having the same interest in relation to the matter to be determined attend the hearing by separate legal practitioners, then, unless the Judge considers that the circumstances justify separate representation, not more than one set of costs of the hearing shall be allowed to these persons, and the judgment or order shall be framed accordingly.
(4) In this rule, the word “class” includes the persons recognized by Customary Law as members of a family or as members of a land owning community.

Power to approve compromise

14.

  1. Where in any proceedings mentioned in sub-rule (1) of rule 13 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:
    (a) 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
    (b) the absent persons are represented by a person under rule 13 who so assents, the Court 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 representation

15.

  1. (1) If in any proceedings it appears to the Court that any deceased person who was interested in the proceedings has no legal representative, the Court 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 Court shall deem fit, either specifically or generally by public advertisement, and the order so made and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceedings.
    (2) Where a sole or sole surviving claimant or defendant in a proceeding dies and the cause of action survives but the person entitled to proceed fails to proceed, the Court 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 non-joinder

16.

  1. (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
    (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 the Court 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. (1) Any application to add or strike out or substitute or vary the name of a claimant or defendant shall be made to the Court 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, copies of every document 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.

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

Third Parties

19.

  1. (1) Where it appears to the Court that any person not a party in the proceedings may bear eventual liability either in whole or in part, the Court 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.

  1. 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 the Court may order.

Default by Third Party

21.

  1. If a Third Party duly served with the order and all existing processes does not enter an appearance or make 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.

Counter-Claim by Defendant

22.

  1. Where a counter-claim is made by a defendant, the provisions of rules 19-21 shall apply in relation to the counter-claim as if the subject matter of the counter-claim were the original subject matter of the action, and as if the party making the counter-claim were the claimant and the party against whom it is made, the defendant.

Subsequent Third Party

23.

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

Claim against co-defendant

24.

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

Actions by and against firms

25.

  1. ACTIONS AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
  2. Any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firm, if any, of which they were partners when the cause of action arose and any party to an action may in such case apply to the Court 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 Court may direct.

Disclosure of partners’ names

26.

  1. (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 the Court may direct.
    (3) Where the names of the partners are so declared, the suit shall proceed in the same manner and the same consequences in all respect shall follow as if they had been named as claimants in the originating process; and the proceedings may continue in the name of the firm.

Appearance of partners

27.

  1. (1) Where persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent proceedings shall continue in the name of the firm.
    (2) Where an originating process is served upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued.

Application of rules to actions between co-partners

28.

  1. Rules 25, 26 and 27 shall apply to proceedings between a firm and one or more of its partners and between firms having one or more partners in common, provided such firm or firms carry on business within the jurisdiction.

Persons trading as firms

29.

  1. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s 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

30.

III. ALTERATION OF PARTIES

  1. No proceedings shall abate by reason of death or bankruptcy of any of the parties if the cause of action survives and shall not become defective by the assignment, creation or devolution of any estate or title pendente lite, and, whether the cause of 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 proceeding

31.

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

Continuation of cause on assignment, creation or devolution of estate or title

32.

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

Discharge of order by person having a guardian

33.

  1. Where any person who is under no legal disability or being under any legal disability but having a guardian in the proceedings is served with an order under rule 31, such person may apply to the Court to discharge or vary such order at any time within 14 days from the service of the order.

Discharge by a person having no guardian

34.

  1. Where any person under any legal disability and not having a guardian in the proceedings is served with an order under rule 31, such a person may apply to the court 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

35.

  1. LEGAL PRACTITIONERS OR AGENTS
  2. Where by these Rules any act may be done by any party in any proceedings, such act may be done either by the party in person, or by his legal practitioner, or by his agent, unless an agent is expressly barred under these Rules.

 

ORDER 15

Legal Practitioner to conduct cause or matter to final judgment

1.

  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 judgment, unless allowed for any special reason to cease acting therein.

Application for change of Legal Practitioner or withdrawal

2.

  1. An application for a change or withdrawal of legal practitioner 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.

  1. 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.

 

ORDER 16

Mode of entry of appearance. Form 15

1.

  1. (1) A defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copy of a duly completed and signed memorandum of appearance as in Form 15 with such modifications or variations as circumstances may require.
    (2) On receipt of the memorandum of appearance, the registrar shall make entry thereof and stamp the copy with the seal showing the date he received it and deliver the sealed copy to the claimant.

Defendant appearing in person or represented by Legal Practitioner

2.

  1. (1) A defendant appearing in person shall state in the memorandum of appearance an address for service which shall be within Kwara State and he shall also state his telephone number and Electronic mail where available.
    (2) Where a defendant appears by a legal practitioner, the legal practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within Kwara State together with his Telephone number and electronic mail address and where any such legal practitioner is only the agent of another legal practitioner he shall also insert the name and place of business, Telephone and Electronic mail address of the principal legal practitioner.

 

Fictitious address

3.

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

Defendants appearing through same Legal Practitioner

4.

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

Late appearance

5.

  1. If a defendant files an appearance after the time prescribed in the originating process, he shall pay to the Court an additional fee of N100.00 for each day of default.  If the defendant appears late but within the time prescribed for filing his defence, he shall file his defence within that time.

Intervener in probate matters

6.

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

 

Recovery of land

7.

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

Landlord appearing

8.

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

Person under legal disability appearing

9.

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

Tenant

10.

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

 

ORDER 17

Default of appearance generally

1.

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

Default of appearance by person under legal disability

2.

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

 

Liquidated demand

3.

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

Liquidated demand: several defendants

4.

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

Detention of goods

5.

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

Several defendants

6.

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

Detention of goods, damages and liquidated demand

7.

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

Recovery of land

8.

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

Mesne profits

9.

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

Judgment for costs: upon payment, satisfaction etc

10.

  1. In any case to which rules 3 to 8 do not apply and the defendant or all of several defendants fail to appear, but by reason of payment, satisfaction, abatement of nuisance, or any other reason, it is unnecessary for a claimant to proceed, he may apply to the Court for judgment for costs:
    Provided that such application shall be filed and served in the manner in which service of the originating process was effected or in such manner as the Court shall direct.

Setting aside judgment

11.

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

Default of appearance in actions not otherwise specifically provided for

12.

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

Compulsory service

13.

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

 

ORDER 18

Defendant leaving jurisdiction or removing property

1.

  1. If in any action the defendant is about to leave the jurisdiction of the Court, or has disposed of or removed from the jurisdiction, 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, apply by exparte motion to the judge for an order that the defendant do show cause why security should not be taken for his appearance to answer and satisfy any judgment that may be passed against him in the suit.

Warrant to arrest. Form 16

2.

  1. (1) If the judge, after such investigation as he may consider necessary, shall be of the opinion that there is probable cause for believing that the defendant is about to leave the jurisdiction of the Court, or that he has disposed of or removed from the jurisdiction, his property or any part thereof, or is about to do so, and that by reason thereof the execution of any judgment which may be made against him is likely to be obstructed or delayed, the judge shall issue a warrant to bring the defendant before him, that he may show cause why he should not give good and sufficient bail bond for his appearance.
    (2) The defendant shall be brought to court within 2 days of the execution of the warrant.

Bail for appearance or satisfaction

3.

  1. If the defendant fails to show cause, the judge shall order him to give bail bond for his appearance at any time when called upon while the suit is pending and until execution or satisfaction of any judgment that may be passed against him in the suit, or to give bail bond 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.

  1. (1) Where a defendant offers to deposit a sum of money in lieu of bail bond for his appearance sufficient to answer the claim against him with costs of the suit, the judge may accept such deposit and direct that the deposit be paid into an interest yielding account in a bank.
    (2) Where a defendant offers security other than money in lieu of bail bond for his appearance sufficient to answer the claim against him, the judge may accept such security and make such order as he may deem fit in the circumstance.

Committal in default

5.

  1. (1) If the defendant fails to furnish security or offer a sufficient deposit, the judge may commit him into custody until the decision of the suit or if judgment has been given against the defendant until the execution of the judgment.
    (2) Committal to custody under this rule shall not exceed a period of 6 months.
    (3) The judge may at any time upon reasonable cause being shown and upon such terms as to security or otherwise as may seem just, release the defendant.
    (4) An applicant shall deposit with the Court a sufficient amount of money to compensate the defendant where it is discovered that the arrest was frivolous, vexatious and without any good course.
    (5) 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 judge 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 19

In what cases

1.

  1. Where:
    (a) the defendant in any suit with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property or any part thereof, or to remove any such property from the jurisdiction; or
    (b) in any suit founded on contract or for detinue or trover in which the cause of action arises within the jurisdiction:
    (i) the defendant is absent from jurisdiction, or there is probable cause to believe that he is concealing himself to evade service; and
    (ii) the defendant is beneficially entitled to any property in the state in the custody or under the control of any other person in the state, or such person is indebted to the defendant, then in either such case the claimant may apply to the Court either at the time of the institution of the suit or at any time thereafter until final judgment to call upon the defendant to furnish sufficient security to fulfill any decree that may be made against him in the suit, and on his failing to give such security, or pending the giving of such security, to direct that any property movable or immovable belonging to the defendant shall be attached until the further order of the Court.

 

Application for attachment

2.

  1. The application shall contain a specification of the property required to be attached and the estimated value thereof so far as the claimant can reasonably ascertain, and the claimant shall declare that to the best of his information and belief the defendant is about to dispose of or remove his property with such intent as aforesaid.

Form of Order. Form 17.

3.

  1. (1) If the Court after making such investigation as it may consider necessary is satisfied that the defendant is about to dispose of or remove his property with intent to obstruct or delay the execution of the decree, the Court may order the defendant within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the order to produce and place at the disposal of the Court when required the said property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security.
    (2) Pending the defendant’s compliance with such order, the Court may by warrant as in Form 17 direct the attachment until further order of the whole, or any portion of the property specified in the application.

Where defendant fails to show cause or give security

4.

  1. If the defendant fails to show such cause, or to furnish the required security within the time fixed by the Court, the Court may direct that the property specified in the application if not already attached, or such portion thereof as shall be sufficient to fulfil the decree, be attached until further order.  If the defendant shows such cause, or furnishes the required security, and the property specified in the application or any portion of it shall have been attached, the Court shall order the attachment to be withdrawn.

Rights of third parties not to be affected

5.

  1. The attachment shall not affect the rights of persons not parties to the suit, and in the event of any claim being preferred to the property attached before judgment, such claim shall be investigated in the manner prescribed for the investigation of claims to property attached in execution of a decree.

Removal of attachment

6.

  1. In all cases of attachment before a judgment, the Court shall at any time remove the attachment on the defendant furnishing security as above required, together with security for the costs of the attachment, or upon an order for a non-suit or striking out the cause or matter.

 

ORDER 20

Summary order for account. Form 18

1.

  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 as in form 18 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. (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 inquires to be taken or made.
    (2) Every direction for the taking of an account or the making of inquiry shall be numbered in the judgment or order so that, as far as may be practicable, each distinct account and inquiry may be designated by a number.

 

Direction as to manner of taking account

3.

  1. (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 or vouched.
    (2) Without prejudice to the generality of sub-rule (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. (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 consecutively.
    (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.

Erroneous account

5.

  1. 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.

  1. 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. (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 for staying the proceeding or for expediting them or for 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 the legal practitioner’s costs.

 

Distribution of fund before all persons entitled are ascertained

8.

  1. 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 and reserving the remainder of the fund to meet the subsequent costs of ascertaining those other persons and their shares.

 

ORDER 21

Nomination of arbitrators and appointment

1.

  1. Reference to Arbitration
  2. In any case in which a matter is referred to one or more arbitrators under the provisions of the Arbitration And Conciliation Act, the arbitrators shall be nominated by the parties in such manner as may be agreed upon between them.

Court may appoint arbitrators

2.

  1. If the parties cannot agree with respect to the nomination, or if the persons nominated refuse to act, and the parties are desirous that the nomination be made by the Court, the Court shall appoint the arbitrators.

Form of Order of reference. Form 19

3.

  1. The Court shall by an order under its seal refer to the arbitrators the matters in dispute in the suit which they may be required to determine, and shall fix a time for the delivery of the award, and the time so fixed shall be stated in the order as in Form 19.

 

Umpire where necessary

4.

  1. If the reference be to two or more arbitrators, provision shall be made in the order for a difference of opinion among them, by the appointment of an umpire, or by declaring that the decision shall be with the majority, or by empowering the arbitrators to appoint an umpire, or otherwise as may be agreed between the parties, or if they cannot agree, as the Court may determine.

Attendance of witnesses

5.

  1. When a reference to arbitration is made by an order of Court, the same process to the parties and witnesses, whom the arbitrators or umpire may desire to have examined, shall issue as in ordinary suit, and persons not attending in compliance with such process, or making any other default, or refusing to give evidence, or being guilty of any contempt of the arbitrators or umpire during the investigations of the suit, shall be subject to the like disadvantages, penalties, and punishments, by order of the Court on the representation of the arbitrators or umpire, as they would incur for the same offences in suits tried before the Court.

Extension of time for making award

6.

  1. (1) When the arbitrators are not able to complete the award within the period specified in the order from want of the necessary evidence or information, or other good and sufficient cause, the Court may, from time to time, enlarge the period for delivering of the award, if it thinks it proper.
    (2) In any case in which an umpire is appointed, it shall be lawful for him to enter on the reference in lieu of the arbitrators, if they shall have allowed their time, or their extended time, to expire without making an award or have delivered to the Court, or to the umpire, a notice in writing stating that they cannot agree.
    (3) An award shall not be liable to be set aside only by reason of its not having been completed within the period allowed by the Court, unless on proof that the delay in completing the award arose from misconduct of the arbitrators or umpire, or unless the award shall have been made after the issue of an order by the Court superseding the arbitration and recalling the suit.

Power of court in case of death, incapacity, or refusal to act

7.

  1. (1) If, in any case of reference to arbitration by an order of Court, the arbitrators or umpire dies, or refuses or becomes incapable to act, the Court shall appoint a new arbitrator or arbitrators, or umpire in the place of the person or persons so dying, or refusing or becoming incapable to act.
    (2) Where the arbitrators are empowered by the terms of the order or reference to appoint an umpire, and do not appoint an umpire, any of the parties may serve the arbitrators with a written notice to appoint an umpire; and if within 7 days after the notice is served, no umpire is appointed, the Court shall, upon the application of the party having served such notice as aforesaid and upon proof to its satisfaction of such notice having been served, appoint an umpire.
    (3) In any case of appointment under this rule, the arbitrators or umpire so appointed shall have the like power to act in the reference as if their names had been inserted in the original order of reference.

Finding

8.

  1. The award shall contain a conclusive finding, and may not find on the contingency of any matter of fact being afterwards substantiated or deposed to.  It shall comprehend a finding on each of the several matters.

Special case for opinion of the court

9.

  1. It shall be lawful for the arbitrators or umpire upon any reference by an order of Court, if they shall think fit, and if it is not provided to the contrary, to state their award as to the whole or any part thereof in the form of a special case for the opinion of the Court.

Court may modify for correct award

10.

  1. The Court may, on the application of either party, modify or correct an award where it appears that a part of the award is upon matters not referred to the arbitrators, (provided such part can be separated from the other part and does not affect the decision on the matter referred), or where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision.

Power as to costs

11.

  1. The Court may also on such application, make such order as it thinks just respecting the costs of the arbitration, if any question arises about such cases or their amount, and the award contains no sufficient provision concerning them.

Power of court to remit award for reconsideration

12.

  1. In any of the following cases, the Court may remit the award, or any of the matters referred to arbitration, for reconsideration by the arbitrators or umpire, upon such terms as it thinks proper:
    (a) if the award has left undetermined some of the matters referred to arbitration;
    (b) if it has determined matters not referred to arbitration;
    (c) if the award is so indefinite as to be incapable of execution; or
    (d) if an objection to the legality of the award is apparent upon the face of the award.

Setting aside award

13.

  1. (1) No award shall be liable to be set aside except on the ground of perverseness or misconduct of the arbitrators or umpire.
    (2) Any application to set aside an award shall be made within 15 days after the publication thereof.

Filing award: effect of

14.

  1. If no application is made to set aside the award, or to remit it or any of the matters referred for reconsideration, or if the Court has refused any such application, either party may file the award in Court, and the award shall thereupon have the same force and effect for all purposes as a Judgment.

Applications under Arbitration and Conciliation Act. Cap. A18 LFN 2004.

15.

  1. Arbitral Proceedings
  2. Every application in this rule to the Court under the Arbitration and Conciliation Act:
    (a) to revoke an arbitration agreement under section 2 thereof;
    (b) to appoint an arbitrator under section 7(3) thereof;
    (c) to stay proceedings under section 5 thereof;
    (d) to remove an arbitrator or umpire under section 30 thereof;
    (e) to direct an arbitrator or umpire to state the reasons for an award under section 26 thereof;
    (f) to ask that a case on trial which is the subject of an arbitration agreement be referred to an arbitration under section 4 thereof;
    (g) to set aside an award under section 29 thereof;
    (h) for declaration that an award is not binding on a party to the award on the ground that it was made without jurisdiction or because the arbitrator misconducted himself or that the proceedings were arbitrary or that the award has been improperly procured under section 30 thereof;
    (i) generally to determine any question of law arising in the course of or concerning any arbitration agreement or proceedings referred to the Court;
    (j) to subpoena witness to attend under section 23 thereof, shall be made by originating motion.

Application to be made within 15 days

16.

  1. An application under rule 15 shall be made on notice and within 15 days after the award or the proceedings has been made or commenced.

Mode of enforcing awards

17.

III. Enforcement of Arbitral awards

  1. (1) An application to enforce an award on any arbitration agreement in the same manner as a judgment or order of Court may be made ex-parte, but the Judge hearing the application may order it to be made on notice.
    (2) The supporting affidavit shall:
    (a) exhibit the arbitration agreement and the original award or in either case certified copies of each;
    (b) state the name and usual or last known place of abode or business of the applicant and the person against whom it is sought to enforce the award;
    (c) state as the case may require either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.
    (3) An application may be brought under this rule for leave of Court to enforce a decision reached at the Multi-Door Court House and Citizens’ Mediation & Conciliation Center in the same manner as a judgment or Order of Court.

Awards made on proceedings in foreign territory. Cap. F35 LFN. 2004

18.

  1. Registration of foreign arbitral award
  2. Where an award is made in proceedings on an arbitration in a foreign territory to which the Foreign Judgment (Reciprocal Enforcement) Act extends, if the award was in pursuance of the law in force in the place where it was made it shall become enforceable in the same manner as a judgment given by a court in that place and the proceeding of the Foreign Judgments (Reciprocal Enforcement) Act shall apply in relation to the award as it applies in relation to a judgment given by that court.

 

ORDER 22

Reference to referees

1.

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

 

Instruction to referee

2.

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

Interim Inquiries or accounts

3.

  1. The Court may at any stage of the proceeding direct any such necessary inquiries or accounts to be made or taken notwithstanding that it may appear that there is some special or further relief sought for, 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.

General power of the referee

4.

  1. The referee may, subject to the order of the Court, 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 and shall, as 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 the attendance of witnesses to give evidence before a referee may be enforced by the judge in the same manner as such attendance may be enforced before the Court and every such inquiry shall be conducted in the same manner or as nearly as circumstances will admit as trials before a Court.

Referee’s authority in the inquiry

6.

  1. Subject to any order of Court, the referee shall have the same authority in the conduct of any inquiry as a judge of the Court when presiding at any trial.

Limitations in certain particulars

7.

  1. 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 Court may, in respect of matters before a referee, make any order of attachment or committal it may consider necessary.

Report made in pursuance of reference

8.

  1. The report made by a referee in pursuance of a reference under these Rules shall be made to the Court and notice thereof served on the parties to the reference.

Referee may report questions of facts specifically

9.

9.(1) A referee may in his report submit any question arising therein for the decision of the Court or make a special statement of facts from which the Court may draw such inferences as it think fit.
(2) On the receipt of a referee’s report, the Court may:
(a) adopt the report in whole or in part;
(b) vary the report;
(c) require an explanation from the referee;
(d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee; or
(e) decide the question or issue originally referred to him on the evidence taken before him, either with or without additional evidence.
(3) When the report of the referee has been made, an application to vary the report or remit the whole or any part of the question or issue originally referred may be made on the hearing by the Court or the further notice thereof, and any other application with respect to the report may be made on that hearing without notice.
(4) Where on a reference under this order the Court or judge in chambers 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 the rule shall have effect subject to any such directions.

 

ORDER 23

The undefended list affidavit

1.

  1. Where a claimant files a writ of summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is supported by affidavit setting forth the grounds upon which the cause of action is based and stating that in the deponent’s belief there is no defence to the action, the judge in chambers  shall if satisfied that there are good  grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and cause the writ of summons to be marked accordingly, and enter thereon a date for hearing.

Delivery of copies of writ of summons and affidavit to be served

2.

  1. There shall be delivered by the claimant to the registrar sufficient copies of the writ of summons and affidavit for service on the parties against whom relief is sought.

Notice of intention to defend

3.

  1. (1) If the party served with the writ of summons and affidavit delivers to the registrar before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
    (2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.

Judgment in undefended suit

4.

  1. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the claimant to summon witnesses before the Court to prove his case formally.

Oral evidence

5.

  1. Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.

 

ORDER 24

Where claimant believes there is no defence

1.

  1. Where in a claim other than to recover a debt or a liquidated money demand, a claimant believes that there is no defence to his claim, he shall file with his writ of summons the statement of claim, copies of 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 address in respect thereof.

Delivery of extra copies

2.

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

 

Service

3.

  1. Service of all the processes and documents referred to in rule 1 shall be effected in the manner provided under Order 7.

Where defendant intends to defend

4.

  1. Where a party served with the processes and documents referred to in rule 1 intends to defend the suit he shall, not later than the time prescribed for defence, file his statement of defence, depositions of his witnesses, the exhibits to be used in his defence and a written address in reply to the application for summary judgment.

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

5.

  1. (1) Where it appears to the Court 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 the Court that the defendant has no good defence, the Judge may thereupon enter judgment for the claimant.
    (3) Where it appears to the Court that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Court 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 there are several defendants

6.

  1. Where there are several defendants and it appears to the Court 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 Court shall enter judgment against the latter.

 

ORDER 25

All causes of action may be joined

1.

  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 but 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 exparte by motion before the originating process is issued and the affidavit in support of the motion shall state the grounds of the application.

Counter claim against claimant

2.

  1. (1) Subject to rule 2(2), 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) 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 the counter-claim were claimant and the person against whom it is made a defendant.

 

Court may order separate trials, etc

3.

  1. (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 may be, 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 separate action, the Court may order it to be tried separately or make such order as may be expedient.

 

ORDER 26

Demurrer abolished

1.

  1. No demurrer shall be allowed.

Points of law may be raised by Pleadings

2.

  1. Any party shall be entitled to raise by his pleadings any point of law which may be disposed of by the Judge at the Pre-trial conference or at the trial.

 

Dismissal of action

3.

  1. If, in the opinion of the Judge the decision on the point of law substantially disposes of the whole action, or of any cause of action, ground of defence, set-off, counter-claim, or reply therein, the 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.

  1. The 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 Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

Declaratory Judgment

5.

  1. No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the judge may make binding declarations of right whether any consequential relief is or could be claimed or not.

 

ORDER 27

Filing of pleadings

1.

  1. (1) The claimant shall file his originating process and accompanying documents simultaneously for service on the defendant or if there are two or more defendants, on each defendant.
    (2) A defendant shall, not later than 20 days after service on him of the claimant’s originating process and accompanying documents, file his statement of defence, set off or counter-claim, if any, together with a written statement on oath of each witness to be called and a copy of every document to be relied on at the trial.
    (3) A claimant shall within 10 days of service of the statement of defence and counter-claim if any, file his reply, if any, to such defence or counter-claim:
    Provided that where a defendant sets up a counter-claim, if a claimant or any other person named as a party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent proceeding, the Court may at any time order that such counter-claim be excluded.
    (4) Where a claimant files both a reply and a defence to counter-claim, he shall include them in the same document.

Pleadings to state material facts and not evidence

2.

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

Particulars to be given where necessary

3.

  1. (1) In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful 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 defamation, 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.

Matters which must be specifically pleaded

4.

  1. (1) A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded, might take the opposite party by surprise.
    (2) Any condition precedent, the performance or occurrence of which is intended to be contested, shall be specified in the pleadings of the parties; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the parties shall be implied in his pleading.
    (3) Without prejudice to sub rule (1), a defendant in an action for the recovery of land shall plead specifically every ground of defence on which he relies.

Further and better statement of particulars

5.

  1. (1) 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, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just.
    (2) Before applying for particulars by summons or notice, a party may apply for them by letter, and the costs of the letter and of any particulars delivered pursuant thereto shall be allowable on taxation.
    (3) In dealing with the costs of any application for particulars by summons or notice, the provisions of this rule shall be taken into consideration by the Court or Judge in Chambers.
    (4) Particulars of a claim shall not be ordered under this rule before filing of defence.

Order for particulars not a stay

6.

  1. (1) The party at whose instance particulars have been filed under a Judge’s order shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars upon him that he had initially.
    (2) Except the Court otherwise orders, an order for particulars shall not operate as a stay of proceedings or give an extension of time.

Specific denial

7.

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

Joinder of issue

8.

  1. If there is no reply to a defence, there is an implied joinder of issue on that defence.

Pleadings to be consistent

9.

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

Grounds of claim founded on separate facts to be separately stated

10.

  1. Where the claimant seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated separately and distinctly; and the same rule shall apply where the defendant relies on several distinct grounds of set-off or counter-claim founded upon separate and distinct facts.

The relief claimed to be stated

11.

  1. Every statement of 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.

Allegations shall not be made generally but specifically

12.

  1. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge.

Denial of fact must answer point of substance

13.

  1. (1) When a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance.
    (2) When a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.

Admissions

14.

  1. (1) Any party may give notice by his pleading that he admits the truth of the whole or any part of the case of any other party.
    (2) The defence shall admit such material allegations in the statement of claim as the defendant knows to be true, or desires to be taken as established without proof thereof.
    (3) Where admissions of fact are made by a party either by his pleadings or otherwise, any other party may apply to the Court for such judgment or order as upon those admissions he may be entitled to without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, as it thinks just.
    (4) An application under sub-rule (3) may be made orally or by motion on notice.

Set-off or counter-claim to be pleaded

15.

  1. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim as the case may be, and the particulars of the set-off or counter-claim shall be given.

Title of counter-claim where party added

16.

  1. Where a defendant by his defence sets up any counter-claim which raises questions between himself and the claimant along with any other person, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the name of all persons who, if such counter-claim 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 defendant.

Service of defence and counter-claim on added party. Form 19A.

17.

  1. Where any such person as in rule 16 is not a party to the action, he shall be summoned to appear by being served with a copy of the defence and counter-claim, 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 endorsed as in Form 19A with such modifications or variations as circumstances may require.

Appearance by added party

18.

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

Reply to counter-claim

19.

  1. Any person not already a party to the action, who is named in a defence as a party to a counter-claim 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.

Counter-claim may proceed notwithstanding discontinuance etc of claimant’s action

20.

  1. If, in any case in which the defendant sets up counter-claim, the action of the claimant is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

Striking out of pleading

21.

  1. The Court may at the pre-trial conference in any proceedings order to be struck out or amended, any matter in any endorsement 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 Court shall deem fit, order costs of the application to be paid as between legal practitioner and client.

Where pleadings disclose no reasonable cause of action

22.

  1. The Court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case may be, or on the ground that it is embarrassing, or scandalous, or vexatious, or an abuse of the process of the Court; and the Court may either give leave to amend that pleading, or may proceed to give judgment for the claimant or the defendant, as the case may be, or may make such other order, and upon such terms and conditions as may seem just.

Denial of contract

23.

  1. When a contract, promise, or agreement is alleged in any pleading, a bare denial of it by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or the matters of fact from which it may be implied by law, and not as a denial of the legality or sufficiency in law of the contract, promise or agreement, whether with reference to any statute or otherwise.

Effect of documents to be stated

24.

  1. Wherever the contents of any document 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.

Malice, knowledge, or other condition of mind

25.

  1. (1) Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege it as a fact without setting out the circumstances from which it 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 that 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 statements 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 words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

Notices

26.

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

Implied contract or relation

27.

  1. (1) Whenever 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 that contract or relation as a fact, and to refer generally to those letters, conversations, or circumstances without setting them out in detail.
    (2) If as in sub-rule (1), the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from those circumstances, he may state them in the alternative.

Presumptions of law

28.

  1. A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleadings.

Pleadings: probate actions

29.

  1. (1) In probate actions it shall be stated with regard to every defence which is pleaded what is the substance of the case on which it is intended to rely; and further where it is pleaded that the testator was not of sound mind, memory and understanding, particulars of any specific instances of delusion shall be delivered before the case is set down for trial, and, except by leave of the Court or a Judge in Chambers, no evidence shall be given of any other instances at the trial.
    (2) In a probate action the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will; and he shall thereupon be at liberty to do so, and shall not in any event be liable to pay the costs of the other side unless the Judge is of opinion that there was no reasonable ground for opposing the will.

Technical objection

30.

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

Stated or settled account

31.

  1. In every case in which the cause of action is a stated or settled account, it shall be alleged with particulars; but in any 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, it need not be alleged in the pleadings.

Defence of tender

32.

  1. Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the claimant, it may be included in the defence and set-off against the claimant’s claim, whether or not it is also added as a counter-claim.

Judgment for balance

33.

  1. (1) Where in any action a set-off or counter-claim is established as a defence against the claimant’s claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for the balance or otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.
    (2) Sub-rule (1) shall apply mutatis mutandis where the balance is in favour of the claimant.

Close of Pleadings

34.

  1. (1) The pleadings in an action are deemed to be closed:
    (a) at the expiration of 5 days after service of the reply or, if there is no reply but only a defence to counter-claim, after service of the defence to counter-claim; or
    (b) if neither a reply nor a defence to counter-claim is served, at the expiration of 5 days after service of the defence.
    (2) The pleadings in an action are deemed to be closed at the time provided by sub-rule (1) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.

Defence to originating summons

35.

  1. – DEFENCE TO ORIGINATING SUMMONS
  2. A respondent to an originating summons shall file a counter affidavit together with all the exhibits he intends to rely upon and a written address within 7 days after service on him of the originating summons.

Counter-claim by respondent

36.

  1. A respondent to an originating summons who alleges that he has any claim or is entitled to any relief or remedy against the claimant in respect of any matter may make a counter-claim in the action in respect of that matter instead of bringing a separate action.

Order for separate trial or striking out of counter-claim

37.

  1. Where it appears on the application of the claimant or any other person against whom a counter-claim is made that the counter-claim ought for any reason to be disposed of by a separate action, the Court may order that the counter-claim be struck out or may order it to be tried separately or make such other order as may be expedient.

 

ORDER 28

Amendment of originating process and pleadings

1.

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

Application

2.

  1. Application to amend may be made to the Court and such application shall be accompanied with a copy of the proposed amendment and may be allowed upon such terms as to costs or otherwise as may be just.

Amendment of originating process

3.

  1. Where any originating process and or a pleading is to be amended, a list of any additional witness (if any) 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.

  1. If a party who has obtained an order to amend does not amend  within the time limited for that purpose by the order, or if no time is thereby limited, then within 5 days from the date of the order, such party shall pay an additional fee of N200.00 for each day of default.

Filing and service of amended process

5.

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

Date of order and amendment to be displayed

6.

  1. Whenever any endorsement or pleading is amended, it shall be marked in the following manner:
    “Amended…………..day of………….pursuant to order of (name of Judge) dated the………….day of………….”

Clerical mistakes and accidental omissions

7.

  1. A Judge may sou  motu  or upon application at anytime correct errors arising  from any accidental slip or clerical mistake  in Judgments or Orders  without an appeal being filed.

 

ORDER 29

Claim for debt or liquidated demand

1.

  1. If the claim is only for a debt or liquidated demand and the defendant does not, within the time allowed by these Rules or an order of Court or a Judge in Chambers for that purpose, file a defence, 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.

  1. When in any action for a debt or liquidated demand there are several defendants, if one of them makes default as mentioned in rule 1, the claimant may apply for final judgment against the defendant making default, and issue execution upon that judgment without prejudice to his right to proceed with his action against the other defendants.

 

Default of defence: claim for unliquidated damages

3.

  1. Where the claim against a defendant is for unliquidated damages only, if that defendant makes default in filing his defence, the claimant may apply to the Court for judgment and judgment shall be given upon the statement of claim as the court shall consider the claimant entitled, with costs.

Default of defence: claim in detinue

4.

  1. Where the claim against the defendant relates to the detention of goods only, if the defendant makes default in filing his defence the claimant may apply to the Court for:
    (a) judgment against the defendant for the delivery of the goods; or
    (b) judgment for the value of the goods to be assessed by the Court and costs, and in either case, he may proceed with the action against the other defendants, if any.

Default of defence: claim for possession of land

5.

  1. (1) Where the claim against a defendant is for possession of land only, if the defendant makes default in filing his defence, the claimant may, stating that he is not claiming any relief in the action of the nature of mortgage action, have judgment entered for possession of the land as against the defendant and for costs, and proceed with the action against other defendants, if any.
    (2) Where there are more than one defendant, judgment entered under sub rule (1) shall not be enforced against any defendant unless and until judgment for the possession of the land has been entered against all the defendants.

Claim for Mesne-profits, arrears or damages

6.

  1. Where the claimant has endorsed a claim for mesne profits or arrears of rent in respect of the premises claimed, or any part of them, or damages for breach of contract, or damage or wrong or injury to the premises claimed upon a writ for possession of land, if the defendant makes default in filing his defence, or if there may be more than one defendant, some or one of the defendants make such default, the claimant may apply for final judgment against the defaulting defendant or defendants and proceed against the other defendants.

Default of defence: mixed claims

7.

  1. Where the claimant makes against a defendant two or more of the claims mentioned in rules 3 to 6, if the defendant fails to file a defence, the claimant may apply to have judgment entered against that defendant as he would be entitled to under those rules if that were the only claim made, and proceed with the action against the other defendants, if any.

Default of defence: other claims.

8.

  1. Where the claimant makes against a defendant or defendants a claim of a description not mentioned in rules 3 to 6, if the defendant or all the defendants fails or fail to serve a defence on the claimant, the claimant may apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the claimant appears entitled to on his statement of claim.

Default of defence: severable claims

9.

  1. (1) Where the claimant makes such a claim as is mentioned in rule 8 against more than one defendant, if one of the defendants makes default as mentioned in that rule, the claimant may:
    a) if his claim against the defendant in default is severable from his claim against the other defendants, apply for judgment against that defendant, and proceed with the action against the other defendants; or
    (b) set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down for motion for judgment against the other defendant.
    (2) An application under sub-rule (1) shall be by motion on notice.

Default of third party

10.

  1. 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 the Court for such judgment, if any, as upon the pleadings he may appear to be entitled to, and the Court may order judgment to be entered accordingly or may make such other order as may be necessary to do justice between the parties.

Default of defence to counter-claim

11.

  1. A defendant who counter-claims against a claimant shall be treated for the purposes of rules 3 to 10 as if he were a claimant.

Setting aside default judgment

12.

  1. Any judgment by default under these Rules shall be final  and may only  be set aside or varied, upon application made to the Court on the ground of fraud, or non-service, or lack of jurisdiction, or any other good cause on such terms as the Court may deem fit.

Interpretation

13.

  1. In this Order, a party makes default in pleading when he fails to file and serve his defence on the opposite party within the time fixed for doing so by these Rules or by the order of the Court or a Judge in Chambers.

 

ORDER 30

Where relief by inter-pleader is granted

1.

  1. Relief by way of Interpleader may be granted where the person seeking relief (“the applicant”) is under liability for any debt, money, goods, or chattels, for or in respect of which he is, or expects to be sued by two or more parties (“the claimants”) making adverse claims:
    Provided that where the applicant is a Sheriff or other officer charged with the execution of process by or under the authority of the Court, the provisions of Section 34 of the Sheriffs and Civil Process Act and the rules made under it shall apply.

Matters to be proved by application

2.

  1. The applicant must satisfy the Judge by affidavit or otherwise that he:
    (a) claims no interest in the subject matter in dispute other than for charges or costs;
    (b) does not collude with any of the claimants; and
    (c) is willing to pay or transfer the subject-matter into Court or to dispose of it as the Judge may direct.

 

Adverse titles of claimants

3.

  1. 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 a defendant

4.

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

Summons by applicant

5.

  1. 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.

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

Order upon summons

7.

  1. 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.

Failure of claimant to appear, or neglect to obey summons

8.

  1. 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, forever 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.

9.

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

 

ORDER 31

Withdrawal of appearance

1.

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

Dis-continuance of action without leave

2.

  1. (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 the defendants at any time not later than seven 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 the effect on the defendant concerned.
    (2) A defendant may, without leave of 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 claimant or other party concerned.
    (3) Where there are two or more defendants to an action, not all of whom served 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) of this rule 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) Sub-rule (3) of this rule shall apply in relation to a counter-claim as it applies in relation to an action, with the substitution for references to a defence, to the plaintiff and to sub-rule(1) of this rule, of references to a defence to counter-claim, to the defendant and to sub-rule(2) of this rule 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 filing in the Registry a written consent to the action being withdrawn signed by all the parties, and the action shall thereafter be struck out by the Court.

 

Discontinuance of action, etc. with leave

3.

  1. (1) Except as provided by rule 2 of this order, a party may not discontinue any 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 the 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 motion on notice.

Effect of discontinuance

4.

  1. Subject to any terms imposed by the Court in granting leave under rule 3 of this order, 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.

  1. 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 costs to any other party of 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 cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid.

Withdrawal of summons

6.

  1. 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 32

Payment into and out of court. Form 20

1.

  1. (1) Where in any proceeding for debt or damages, a defendant shows an intention to pay money into Court in respect of the proceeding, he shall notify the 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 registrar.
    (2) Where a teller for payment is filed with the registrar, he shall forthwith give notice of the payment to the claimant who may apply to the court for an order to withdraw the amount so paid.
    (3) Where a defence of tender before action is set up, the sum of money alleged to have been tendered shall be brought into Court.
    (4) The defendant may without leave give a written notice to the registrar of an intention to increase the amount of any sum paid into Court.
    (5) Where the money is paid into Court in satisfaction of one or more of several causes of action, the notice shall specify the cause or causes of action in respect of which payment is made and the sum paid in respect of each such cause of action.
    (6) The notice shall be in Form 20 with such modifications or variations as circumstances may require. The receipt of the notice shall forthwith 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 Court.
    (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 the court 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 Court.

Claimant may take out money. Form 21

2.

  1. (1) Where money is paid into Court under rule 1, the claimant may within 14 days of the receipt of the notice of the payment into Court, or where more than one payment into Court has been made, within 14 days of the receipt of the notice of the last payment into Court, accept the whole sum or any one or more of the specific sum in satisfaction of the cause or causes of actions to which the specified sum or sums relate by giving notice to the defendant in Form 21 with such modifications or variation 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 legal practitioner representing him in the cause and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall abate.
    (3) If the claimant accepts money paid into Court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more specified cause of action, and gives notice that he abandons the other causes of action, he may after 4 days from payment out and unless the court 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 defamation, the claimant accepts money paid into Court, the court may allow the parties or either of them to make a statement in open court in terms approved by the court.

 

Money remaining in court

3.

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

Several defendants. Forms 21 and 22

4.

  1. (1) Money may be paid into Court under rule 1 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 payment into Court to accept the sum or sums paid into Court, he shall give notice as in Form 22 with such modifications or variations as circumstances may require to each defendant and thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall abate.
    (3) The money shall not be paid out except in pursuance of an order of the court dealing with the whole cause or causes of action.
    (4) In an action for defamation 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 21 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) and the action shall thereupon abate 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 against whom the action is continued.

Counter claim

5.

  1. A person made a defendant to a counter claim may pay money into Court in accordance with the foregoing rules of this Order, with necessary modifications.

Persons under legal disability

6.

  1. (1) In any proceeding in which money or damages is or are claimed by or on behalf of a person under legal disability suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, whether before, at or after the trial, shall as regards the claims of any such person be valid without the approval of the court.
    (2) No money (which expression for the purposes of this rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such proceedings in respect of the claims of any such person under legal disability whether by judgment, settlement, compromise, payment into Court or otherwise, before, at or after the trial shall be paid to the claimant or to the guardian of the claimant or to the claimant’s legal practitioner unless the court 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 court shall direct. The directions thus given may include any general or special directions that the court 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.

Application to be made ex parte

7.

  1. Every application for payment into or transfer out of Court shall be made ex-parte.

 

ORDER 33

Pre-trial Conference notice

1.

  1. (1) Within 5 days after close of pleadings, the claimant shall write a letter to the court asking for the case to be set down for pre-trial conference.
    (2) If the claimant does not write the letter in sub-rule 1 above, the defendant or defendants may do so or apply within 3 days thereafter by motion on notice that the case be struck out.

Agenda

2.

  1. At the pre-trial conference, the court shall consider and take appropriate action with respect to such of the following (or aspects of them) as may be necessary or desirable:
    (a) promoting amicable settlement or the adoption of ADR mechanism.
    (b) disposal of matters which must or can be dealt with on interlocutory application, admission of facts, exhibits and other evidence by consent.
    (c) settlement documents to be admitted as exhibit at trial.
    (d) formulation and settlement of issues;
    (e) amendments, further and better particulars;
    (f) hearing of applications and objections on point of law;
    (g) giving orders or directions for separate trial of a claim, Counter-Claim, Set Off, Cross-Claim, Third party claim or any particular issue in the case;
    (h) making referrals to the Multi-door Court house or Kwara Citizens’ Mediation & Conciliation center or other ADR bodies;
    (i) implementing any ADR Order made under (h) above;
    (j) discovery, inspection and production of documents.

 

Conclusion of pre-trial conference

3.

  1. (1) Where the case is settled amicably, the term of settlement shall be reduced into writing and signed by the parties and/or their counsel (if any) and made the judgment of the court.
    (2) Where the parties adopt an Alternative dispute resolution (ADR) mechanism, the fact shall be reduced into writing and signed by the parties and/or their counsel (if any). The court shall thereafter make appropriate order in the circumstances.
    (3) Where the case cannot be settled amicably, or the parties did not agree on any ADR mechanism, the court shall adjourn the case for hearing.
    (4) The Judge may issue report at the end of the pre-trial conference.
    (5) If a party or his legal practitioner fails to attend the pre-trial conference the court shall in the case of the claimant dismiss the claim while in the case of the defendant enter judgment against him as appropriate provided that a judgment given under this rule may be set aside within seven days of the date of the judgment.

 

ORDER 34

Special case by consent of parties

1.

  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.

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

 

Special case to be signed

3.

  1. Every special case agreed pursuant to rule 1 shall be signed by the 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.

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

Agreement as to payment of money and costs

5.

  1. (1) The parties to a special case may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, that on the judgment of the court being given in the affirmative or negative on the questions of law raised by the special case, a sum of money fixed by the parties or to be ascertained by the court or in such manner as the court may direct, shall be paid by one of the parties to the other of them, either with or without costs as the case may be.
    (2) The judgment of the court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed or unless stayed on appeal.

Application of Order

6.

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

 

ORDER 35

Discovery by interrogatories

1.

  1. In any cause or matter any party may deliver interrogatories in writing for the examination of any other party or 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 5 days of close of pleadings and shall form part of the agenda of pre-trial conference.

Form 23

2.

  1. Interrogatories shall be in Form 23 with such modifications or variations as circumstances may require.

 

Corporation or companies

3.

  1. If any party to a cause or matter is a limited or unlimited company, body corporate, firm, enterprise, friendly society, partnership, 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 other party may deliver interrogatories to any member or officer of such party.

Objection to interrogatories by answer

4.

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

Affidavit in answer. Filing.

5.

  1. Interrogatories shall be answered by affidavit to be filed and served within 5 days, or within such other time as the Judge may allow.  Two copies of the affidavit in answer shall be supplied to the registrar.

Form of affidavit in answer. Form 24.

6.

  1. An affidavit in answer to interrogatories shall be in Form 24 with such modifications or variations as circumstances may require.

Order to answer or answer further

7.

  1. If any person served with interrogatories omits to answer or answers insufficiently, the 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. Form 25

8.

  1. (1) Any party may in writing request any other party to any cause or matter to make discovery on oath of the documents that are or have been in his possession, custody, power or control, relating to any matter in question in the case. Request for discovery shall be served within 5 days of close of pleadings and shall form part of the agenda of pre-trial conference. The party on whom such a request is served shall answer on oath completely and truthfully within 5 days of the request and it shall be dealt with at pre-trial conference.
    (2) Every affidavit in answer to a request for discovery of documents shall be accompanied by office copies of documents referred to therein.
    (3) The affidavit to be made by any person in answer to a request for discovery of documents shall specify which, if any, of the listed documents he objects to producing, stating the grounds of his objection, and it shall be in Form 25 with such modifications or variations as circumstances may require.

Processes filed after pre-trial Conference

9.

  1. (1) Any process to be filed after the pre-trial conference shall be accompanied by copies of documents referred to in the process.
    (2) Where a process filed is not accompanied by a document referred to therein the court may on application strike out the process.

Verification of business books

10.

  1. (1) Where any document required to be attached to any process or produced under this or any other rule is a business book, the court may upon application order a copy of any entry therein to be furnished and verified in an affidavit. Such affidavit shall be made by a person who keeps the book or under whose supervision the book is kept.
    (2) Notwithstanding that a copy has been supplied the Court may order inspection of the book from which the copy was made.
    (3) The Court 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.

Consequences of non-compliance with order for discovery

11.

  1. (1) Service of an order for interrogatories or discovery or inspection made against any party or his legal practitioner shall be sufficient service to found an application for an attachment for disobedience to the order.
    (2) If any party fails to comply with an order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to committal.
    (3) The party against whom the application for attachment is made may show in answer to the application that he has had no notice of the order.

Liability of Legal Practitioner

12.

  1. A legal practitioner upon whom an order against any party for interrogatories or discovery or inspection is served under rule 11, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to pay the costs occasioned thereby.

Using answers to interrogatories at trial

13.

  1. 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 other party answering the interrogatories without putting in the others or the whole of such answer:
    Provided that the court may look at the whole of the answers and order that any of them may be put in.

 

Discovery against Sheriff

14.

  1. In any action against or by a Sheriff in respect of any matter connected with the execution of his office, the court may, on the 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.

Interrogatories not related to matters deemed irrelevant

15.

  1. Interrogatories which do not relate to any matter in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

Order to apply to person under legal disability

16.

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

 

ORDER 36

Re-assignment of cause or matter

1.

  1. A cause or matter may at any stage of the proceedings be reassigned to another Judge of the same Division or of any other Division by the Chief Judge whether or not the cause or matter is being heard before him.

Action by Chief Judge on transfer of cause

2.

  1. If for any reason a Judge hearing a cause or matter, and who has taken any step in the proceedings, considers it necessary either at his own opinion or upon application of any party to the proceedings, to have the cause or matter transferred to another court, the Judge shall refer the cause or matter to the Chief Judge for such necessary action as the Chief Judge may think expedient.

 

Evidence in part heard cause or matter. Evidence Act No. 18 of 2011

3.

  1. Where a Judge retires or is transferred to another Division and having part-heard a cause or matter which is being heard denovo by another Judge, the evidence already given before the former Judge can be adopted at the re-hearing subject to Sections 39 and 46(1) of the Evidence Act.

Order transferring proceedings from district to the High Court

4.

  1. Where a judge has in exercise of the powers conferred under the District Courts Law and the High Court Law, ordered the transfer of any action or matter from a district court to the High Court or to another district court, a copy of the order duly certified by the registrar shall forthwith be sent to the registrar of the district court who shall forthwith transmit to the High Court or the other district court, as the case may be, the process and proceedings in every such case and an attested copy of all the entries in the books of that court relating thereto and thereupon all proceedings in the action, cause or matter shall be taken in the court to which the transfer is made as if the action, cause or matter had been commenced therein.

Payment of filing fees

5.

  1. (1) On receipt by the court of the documents mentioned in rule 4, 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 costs shall ultimately be borne.
    (2) The 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

6.

6.(1) The registrar shall on payment of the prescribed fees, in any case not later than 7 days, file the documents received from the lower court and make an entry of the filing in the Cause Book.
2) The registrar shall then give notice to the parties to attend in person or by their legal practitioner before the Court 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 5.

Party failing to attend

7.

7.(1) If the claimant fails to attend in compliance with a notice given under sub-rule (2) of rule 6, the Judge shall record his default and may suo motu or on application by the defendant, dismiss the action or matter 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 6, the claimant may have judgment entered for him with costs or obtain the order prayed for in the transferred proceedings.

Construction

8.

  1. The references in this Order to the claimant and the defendant shall, in relation to proceedings commenced otherwise than by writ of summons, be construed as references to the applicant and the respondent.

 

Consolidation

9.

  1. (1) The Judge may on application consolidate several actions pending before him where it appears that the issues are the same in all the actions, and can therefore be properly tried and determined at the same time.
    (2) Where actions are pending before different Judges, a party desiring consolidation shall first apply to the Chief Judge for transfer of the matter to a Judge before whom one or more of the matters is pending.
    (3) An order to consolidate may be made where two or more actions are pending between the same claimant and the same defendant or between the same claimant and different defendants or between different claimants and the 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.
    (4) Where an order for consolidation has been made, it shall be drawn up at the expense of the parties who applied for consolidation and shall be recorded in the Cause Book.

 

ORDER 37

Representation in Chambers

1.

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

Business to be disposed of in Chamber

2.

  1. The business which may be disposed of in Chambers by a Judge shall consist of the following matters, in addition to the matters which under any other rule or any enactment may be disposed of in Chambers and any order made in chambers shall have the same effect if the order had been made in open Court.
    (a) application to serve a writ or other process out of the jurisdiction;
    (b) application for substituted service of a writ or other process;
    (c) applications to have cases heard during vacations;
    (d) application for enlargement of time;
    (e) application for a writ of attachment or for a garnishee order;
    (f) applications for payment or transfer to any person of any cash or securities standing to his credit in any cause or matter where there has been a judgment or order declaring the rights or where the title depends only upon proof of the identity of the birth, marriage or death of any person;
    (g) applications as to the guardianship and maintenance or advancement of infants;
    (h) any matter relating to the adoption of children;
    (i) applications connected with the management of property; and
    (j) such other matters of an interlocutory nature as the Judge may think fit to dispose of in Chambers.

 

Procedure on applications in Chambers

3.

  1. The provisions of Order 9 with regard to interlocutory applications by way of motion in Court shall apply mutatis mutandis to applications to a Judge in Chambers.

Notes of proceeding in Chambers

4.

  1. 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

5.

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

 

ORDER 38

List of causes for hearing

1.

  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 33.
    (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.

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 the Judge 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 whether or not included in the list.

 

Public Holidays

3.

  1. 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.

  1. 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 in the Court file.

Notice boards

5.

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

 

 

ORDER 39

Attendance by proxy

1.

  1. When any party who may not be represented by a legal practitioner is prevented by a good or sufficient cause from attending court in person, the judge may in his discretion permit any person who shall show that he has authority in that behalf to appear for such party.

Non-appearance of both parties

2.

  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 out the cause.

 

Default of appearance by defendant

3.

  1. 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

4.

  1. When a cause is called for hearing, if the defendant appears and the claimant does not appear, the defendant, if he has no counter claim, shall be entitled to judgment dismissing the action, but if he has a counter claim, 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

5.

  1. (1) Where a cause is struck out under rule 2 either party may apply that the cause be re-listed on the cause list on such terms as the Judge may deem fit.
    (2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge upon such terms as he may deem fit.

Application to re-list cause or set aside judgment

6.

  1. An application to re-list a cause struck out or to set aside a judgment shall be made within 5 days after the order or judgment or such other longer period as the Judge may allow.

Adjournment of trial

7.

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

 

Time of commencement and termination of trial

8.

  1. The registrar or other proper officer present at any trial or hearing shall make a note of the time 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 Proceeding

9.

  1. The order of proceeding at the trial of a cause shall be as prescribed in rules 10 to 17 of this Order.

Burden of proof by party to begin

10.

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

Documentary evidence

11.

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

Additional witness

12.

  1. (1) A party who desires to call any witness not being a witness whose deposition on oath accompanied his pleading shall apply to the Judge for leave to call such witness.
    (2) An application for leave under sub-rule (1) shall be accompanied by the deposition on oath of such witness.

Close of case of parties

13.

  1. (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), the Judge may suo motu where he considers that a party fails to conclude his case within a reasonable time, close the case for the party.

 

Exhibits during trial

14.

  1. (1) The registrar shall take charge of every document or object put in as an exhibit during the trial of an action and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in (or where more convenient the witness by whom the exhibit is proved) and with a number, so that all the exhibits put in by a party (or proved by a witness) are numbered in one consecutive series.
    (2) The registrar shall cause a list of all the exhibits in the action to be made.
    (3) The list of exhibits when completed shall form part of the record of the action.
    (4) For the purpose of this rule a bundle of documents may be treated and counted as one exhibit.
    (5) In this rule a witness by whom an exhibit is proved includes a witness in the course of whose evidence the exhibit is put in.

Rejected exhibits

15.

  1. (1) Where a document or object is tendered as an exhibit and is rejected by the Court, it shall be marked “Rejected”, and shall be retained along with accepted exhibits.
    (2) Where more exhibits than one are rejected in the same action, they shall be numbered serially.
    (3) If the case goes on appeal, a list of such exhibits shall be transmitted to the appeal court.

Written address

16.

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

Right of reply

17.

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

Custody of exhibit after trial

18.

  1. (1) An exhibit shall not be released after the trial to the party who has put it in unless the period during which notice of appeal may be given has elapsed without such notice having been given, and then only if the trial Judge (or in his absence, another Judge) grants leave to release such exhibit on being satisfied:
    (a) that the exhibit will be kept duly marked and labeled and will be produced, if required, at the hearing of an appeal (if any such appeal is lodged); or
    (b) that the release of the exhibit will not in any way prejudice the 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 appeal court.

Office copy of list of exhibits

19.

  1. (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

20.

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

 

ORDER 40

Proof of facts

1.

  1. (1) Subject to these Rules and to any enactment relating to evidence, any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open court.
    (2) The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all documents and other exhibits referred to in the deposition.
    (3) All agreed documents and exhibits shall be tendered from the bar, or by the party where he is not represented by a legal practitioner.

Particular facts

2.

  1. (1) A Judge may, at the pre-trial conference, order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the order or direction.
    (2) The power conferred by sub-rule (1) extends in particular to ordering or directing that evidence of any particular fact be given at the trial:
    (a) by statement on oath of information or belief;
    (b) by the production of documents or entries in books;
    (c) by copies of documents or entries in books; or
    (d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.

 

Limitation of expert evidence

3.

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

Limitation on use of documentary evidence

4.

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

 

Revocation and variation

5.

  1. 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.

Office copies admissible in Evidence Act No. 18 of 2011

6.

  1. Subject to the provisions of the Evidence Act, office copies of all writs, processes, records, pleadings, and of documents filed in the Court shall be admissible in evidence in all matters to the same extent as the original would be admissible.

Examination of witnesses abroad. Forms 26 and 27

7.

  1. Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country with which a Convention in that behalf has been or shall be made, the following procedure shall be adopted:
    (a) the party obtaining such order shall file in the Registry an undertaking in Form 26, 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 27, 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. Form 28

8.

  1. Where an order is made for the examination of a 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 28, the form may be modified or varied as may be necessary to meet the circumstances of the particulars case in which it is used.

Order for attendance of person to produce document

9.

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

Disobedience to order for attendance

10.

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

Expenses of persons ordered to attend

11.

  1. 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

12.

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

Examination of witnesses

13.

  1. When the examination of any witness before any examiner under rule 7 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 Court

14.

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

Oaths

15.

  1. Any officer of the Court or other person directed to take the examination of any witness 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

16.

  1. A party may by subpoena ad testificandum 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

17.

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

Special directions as to taking evidence

18.

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

Evidence in Proceedings subsequent to trial. Evidence Act No. 18 of 2011

19.

  1. Subject to Sections 39 and 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

20.

  1. Where it is intended to issue out a subpoena a praecipe for that purpose in Form 29 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 is deposited to cover the first day’s attendance.

Form of subpoena. Forms 30, 31 and 32

21.

  1. A subpoena shall be in one of Forms 30, 31 and 32 with such variations as circumstances may require.

Subpoena for attendance of witness in Chambers

22.

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

Correction of errors in subpoena

23.

  1. In the interval between the issue and service of any subpoena the legal practitioner applying for the issuance may correct any error in the names of parties or witnesses, and may have it 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

24.

  1. A subpoena shall be served personally unless substituted service has been ordered by the Court 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

25.

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

Action to perpetuate testimony

26.

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

Examination of witnesses to perpetuate testimony

27.

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

Such action not to be set down for trial

28.

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

Disallowance of irrelevant questions

29.

  1. The Judge may in all cases disallow any question put in cross-examination which appears to him to be vexations and not relevant to any matter proper to be inquired into in the action.

 

ORDER 41

Application

1.

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

Content of written address

2.

  1. A written address shall be printed on white opaque paper and set out in paragraphs numbered serially and shall contain:
    (i) the claim or application on which the address is based;
    (ii) a brief statement of the facts with reference to the exhibit attached to the application or tendered at the trial;
    (iii) the issues arising from the evidence;
    (iv) a succinct statement of argument on each issue incorporating the purport of the authorities referred to together with full citation of each such authority.

Summation of address

3.

  1. 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.

Copies of written address

4.

  1. Each party shall file sufficient copies of his written addresses in Court for service on every party.

Oral argument

5.

  1. (1) Oral argument of not more than 20 minutes shall be allowed each party to emphasize and clarify the written address already filed.
    (2) Except with the leave of the Court, no oral argument shall be heard on behalf of any party for whom no written address has been filed, or in respect of a point not covered by the written address.
    (3) When a case is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though written address has been filed by him, he shall not be heard in oral argument, save with the leave of the Court.
    On the day fixed for adoption of written addresses, if either of the parties or both of them fail to appear to adopt their addresses, the court shall deem the written addresses adopted.

Late filing of written address

6.

  1. A party that fails to file his written address within the prescribed period shall pay to the Court at the time of filing his application for extension of time a fee of N200 for each day of such default.

7.

  1. The written address shall not exceed 35 pages of A4 size paper typed in clear typographic character, the type set of which shall not exceed 14 font size on single line spacing.

8.

  1. Every written address which does not comply with the page limit, page size and font shall not be accepted by the Registry for filing.

9.

  1. An appellant shall within 21 days of being served the record of proceedings by the registrar of the court below file and serve his written address on the respondent(s).

10.

  1. The respondent(s) to an appeal shall file and serve on the appellant his   written address within 21 days of being served with the appellant’s written address.

11.

  1. The appellant may file further address in response to new points raised in the respondent’s written address within 7days of being served the respondent’s address.

 

ORDER 42

Delivery of judgment in open court

1.

  1. The Judge shall, at the pre-trial conference or after trial, deliver judgment in open court.

 

Notice when judgment reserved

2.

  1. If the Court reserves judgment at the hearing, parties to the suit shall be served with notice to attend and hear judgment, unless the Court at the hearing states the day on which judgment will be delivered, in which case there shall be no further notice.

When parties deemed to have had notice

3.

  1. All parties shall be deemed to have notice of the decision or judgment if pronounced at the hearing, and all parties served with notice to attend and hear judgment shall be deemed to have notice of the judgment when pronounced.

Effect of minute of judgment

4.

  1. (1) A minute of every judgment, whether final or interlocutory, shall be made, and every such minute shall be a decree of the Court, and shall have the full force and effect of a formal decree.
    (2) A formal decree or order may be drawn up on the application of either party.

Date of judgment pronounced in Court

5.

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

 

Date of judgment directed to be entered

6.

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

Where set-off allowed

7.

  1. (1) If the defendant has been allowed to set off any demand or counter-claim against the claim of the claimant, the judgment shall state what amount is due to the claimant, and what amount, if any, is due to the defendant, and shall be for recovery of any sum which appears to be due to either party.
    (2) The judgment of the Court, with respect to any sum awarded to the defendant, shall have the same effect, and be subject to the same rules, as if that sum had been claimed by the defendant in a separate suit against the claimant

Judge may direct time for payment or performance and interest

8.

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

Payment by installments

9.

  1. (1) When any judgment or order directs the payment of money, the Court may, for any sufficient reason, order that the amount shall be paid by installments, with or without interest.
    (2) The order may be made at the time of giving judgment, or at any time afterwards, and may be rescinded upon sufficient cause at any time.

 

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

10.

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

Entry on production of affidavit document

11.

  1. Where under any relevant law, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the registrar shall submit the affidavit or document produced to the Judge and if it is regular and contains all that is required, the Judge shall signify his approval in writing and judgment shall be entered accordingly.

Judgment by consent

12.

  1. (1) 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.
    (2) Where the defendant has no legal practitioner such order shall not be made unless the defendant gives his consent in person in open court.

Date of order, when drawn

13.

  1. Every order when drawn up shall bear the day and date on which it was made and shall take effect accordingly.

What orders need not be drawn up

14.

  1. (1) 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 issue of any writ other than a writ of attachment;
    (b) for the amendment of any writ or pleadings;
    (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.

(2) A direction that the costs of the order shall be costs in any cause or matter shall not be deemed to be a special direction within the meaning of this rule.

Filing of Orders. Form 33

15.

  1. (1) Orders, other than final orders, shall not be entered after being drawn up but shall be filed, and a note of the filing shall be made in a book kept for the purpose.
    (2) Every order so filed shall be deemed to be duly entered, and the date of the filing shall be deemed the date of entry.
    (3) An order shall be in Form 33 with such variations as circumstances require. It shall be sealed, and shall be marked with the name of the Judge by whom it is made.

Power of Court to non-suit

16.

  1. The Court may, having first given the parties the opportunity of being heard on the point, non-suit the claimant in any suit where satisfactory evidence is not given entitling either the claimant or defendant to the judgment of the Court.

 

ORDER 43

Definition

1.

  1. In this Order, unless the context otherwise requires, “writ of execution” includes a writ of Fieri Facias, a writ of possession, a writ of delivery, a writ of sequestration and any further writ in aid of any of the aforementioned writs.

When leave to issue any writ of execution is necessary

2.

2 (1) A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases, that is to say, where:
(a) six years or more have elapsed since the date of the judgment or order;
(b) any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order;
(c) the judgment or order is against the assets of a deceased person coming to the hands of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against the assets;
(d) under the judgment or order any person is entitled to relief subject to the fulfillment of any condition which it is alleged has been fulfilled;
(e) any goods sought to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.
(2) Sub-rule (1) is without prejudice to any enactment or rule by virtue of which a person is required to obtain the leave of the Court for the issue of a writ of execution or to proceed to execution on or otherwise to the enforcement of a judgment or order.
(3) Where the Court grants leave, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such leave, the order shall cease to have effect, without prejudice, however, to the making of a fresh order.

 

Leave required for issue of writ in aid of other writ

3.

  1. A writ of execution in aid of any other writ of execution shall not issue without the leave of the Court.

Application for leave to issue writ

4.

  1. (1) An application for leave to issue a writ of execution may be made ex-parte unless the Court directs it to be made by summons.
    (2) Such an application shall be supported by an affidavit:
    (a) identifying the judgment or order to which the application relates and, if the judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due at the date of the application;
    (b) stating, where the case falls within rule 2 (1) (a), the reason for the delay in enforcing the judgment or order;
    (c) stating, where the case falls within rule 2 (1) (b), of the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;
    (d) stating, where the case falls within rule 2 (1) (c) or (d), that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so;
    (e) giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it.
    (3) The judge hearing the application may grant leave in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in an action may be tried and, in either case, may impose such terms as to costs or otherwise as he thinks just.

Application for leave to issue writ of sequestration

5.

  1. (1) Notwithstanding anything in rules 2 and 4, an application for leave to issue a writ of sequestration shall be made to a judge by motion on notice.
    (2) Subject to sub-rule (3), the notice of motion, stating the grounds of the application, shall be served personally on the person against whose property it is sought to issue the writ.
    (3) An application for leave to issue a writ of sequestration may be made to a judge in chambers.

Issue of writ of execution. Form 34

6.

  1. (1) The issue of writ of execution takes place on its being sealed by the registrar.
    (2) A praecipe for the issue of a writ as in Form 34 shall be filed before the writ is issued.
    (3) The praecipe shall be signed by the legal practitioner of the person entitled to execution or, if the person is acting in person, by that person.
    (4) No such writ shall be sealed unless at the time of the tender thereof for sealing:
    (a) the person tendering it produces:
    (i) the judgment or order on which the writ is to be issued or an office copy thereof;
    (ii) where the writ may not be issued without the leave of the Court, the order granting the leave or evidence of the granting of it;
    (b)the registrar is satisfied that the period, if any, specified in the judgment or order for the payment of any money or the doing of any other act thereunder has expired.
    (5) Every writ of execution shall bear the day and date on which it is issued.

Duration and renewal of writ of execution

7.

  1. (1) For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue.
    (2) Where a writ has not been wholly executed the Court may by order extend the validity of the writ from time to time for a period of 12 months at any time beginning with the day of which the order is made, if an application for extension is made to the Court before the day next following that on which the writ would otherwise expire or such later day, as the Court may allow.
    (3) Before a writ, the validity of which has been extended under this rule is executed, either the writ shall be sealed with the seal of the Court showing the date on which the order extending its validity was made, or the applicant for the order shall serve a notice sealed as aforesaid on the sheriff to whom the writ is directed informing him of the making of the order and the date thereof.
    (4) The production of a writ of execution, or of the notice as is mentioned in sub-rule (3), purporting in either case to be sealed as mentioned in that sub-rule, shall be evidence that the validity of that writ, or as the case may be, of the writ referred to in that notice, has been extended under this rule.

Return of writ of execution

8.

  1. (1) Any party at whose instance a writ of execution was issued may serve a notice to the Sheriff to whom the writ was directed requiring him, within such time as may be specified in the notice, to endorse on the writ a statement of the manner in which he has executed it and to send to that party a copy of the statement.
    (2) If a sheriff on whom such notice is served fails to comply with it, the party by whom it was served may apply to the Court for an order directing the sheriff to comply with the notice.

 

ORDER 44

Attachment of debt to judgment debtor

1.

  1. (1) Where a person (in this Order referred to as “the judgment creditor”) has obtained a judgment or order for the payment by some other person (in this Order referred to as “the judgment debtor”) of a sum of money, and any other person within the jurisdiction (in this Order referred to as “the garnishee”) is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.
    (2) An order under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in sub-rule (1) or so much thereof as may be specified in the order and the costs of the garnishee proceedings.
    (3) An order under this rule shall not require a payment which would reduce below N1000.00 the amount standing in the name of the judgment debtor in an account with a bank or a credit union.

Application for order

2.

  1. An application for an order under rule 1 shall be made ex-parte supported by an affidavit:
    (a) stating the name and last known address of the judgment debtor;
    (b) identifying the judgment or order to be enforced and stating the amount of the judgment or order and the amount remaining unpaid under it at the time of the application;
    (c) stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or the grounds for his belief; and
    (d) stating, where the garnishee is a bank or credit union having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not known to the deponent.

 

No appearance or dispute of liability by garnishee

3.

4.(1) Where on the further consideration of the matter, the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may make an order absolute under rule 1 against the garnishee.
(2) An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for the payment of money.

No appearance or dispute of liability by garnishee

4.

  1. (1) Where on the further consideration of the matter, the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may make an order absolute under rule 1 against the garnishee.
    (2) An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for the payment of money.

Dispute on liability of garnishee

5.

  1. Where on the further consideration of the matter, the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the Court may summarily determine the question in issue or order that any question necessary for determining the liability of the garnishee be tried, without, if it orders trial before a matter, the need for any consent by the parties.

Claims of third persons

6.

  1. If in garnishee proceedings it is brought to the notice of the Court that some other person than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge upon it, the Court may order that person to attend before the court and state the nature of his claim with particulars thereof.

Discharge of garnishee

7.

  1. Any payment made by a garnishee in compliance with an order absolute under this Order, and any execution levied against him in pursuant of such an order, shall be a valid discharge of liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose is reversed.

 

ORDER 45

Habeas corpus ad subjuciendum

1.

  1. Where a person is alleged to be wrongfully detained, an application for an order of Habeas Corpus ad Subjuciendum may be made for his release.

Application how made

2.

  1. (1) An application under rule 1 shall be made to the Court, except that during vacation or at anytime when no Judge is sitting in court, it may be made to a Judge sitting in Chambers.
    (2) The application may be made ex-parte and shall be accompanied by an affidavit by the person detained setting out the nature of the detention and the grounds on which the application is made.
    (3) Where the person detained is unable owing to the detention 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 detained is unable to make the affidavit himself.

 

Power to issue order of release

3.

  1. (1) A Judge to whom the application is made may make an order forthwith for the release of the person detained.
    (2) The Judge may adjourn the ex-parte application so that notice thereof may be given to the person against whom the order is sought.
    (3) The Judge may order the person detained to be produced in court and may discharge him immediately with or without conditions.

Service of notice

4.

  1. (1) The motion on notice aforesaid shall be served on the person against whom the order is sought and on such other persons as the Judge may direct.
    (2) Unless the Judge otherwise directs, there shall be at least 2 clear days between the service of the motion and the date named for the hearing of the application.

Copies of affidavits

5.

  1. Every party to the application shall file for service on the other party or parties copies of the affidavits and written address which he proposes to use at the hearing of the application.

Service of order to release

6.

  1. (1) The order or motion may be served personally or where personal service cannot be effected, by courier on the person against whom the order is made 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 the detention.
    (2) The order shall contain the date on which the person detained is to be brought before the Judge and that in default of obedience, proceedings for attachment of the party disobeying will be taken.

 

Statement and verifying affidavit

7.

  1. Upon service of the order or motion on the person against whom the order is made, 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 and the statement shall be verified by an affidavit.

Bringing up prisoner to give evidence etc.

8.

  1. (1) An application for a writ of habeas corpus ad testificandum or of habeas corpus ad respondendum may be made to the Court and shall be supported by an affidavit.
    (2) Every application for an order to bring up a prisoner, otherwise than by writ of habeas corpus, to give evidence in any cause or matter, civil or criminal, before any court or tribunal shall be supported by an affidavit.

Form of Writ

9.

  1. A writ of habeas corpus shall be in Form 35, 36 or 37 whichever is appropriate.

 

ORDER 46

Committal for contempt of court

1.

  1. (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) proceedings in an inferior Court;
    (b) is committed in the face of the Court, or consist 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

2.

  1. (1) An application for an order of committal shall be made to the Court by motion on notice stating the grounds of the application supported by an affidavit and a written address.
    (2) The motion on notice and the accompanying documents shall be served personally on the person sought to be committed unless the Court orders otherwise.

Saving for power to commit without application for the purpose

3.

  1. Nothing in rules 1 and 2 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.

Provision as to hearing

4.

  1. (1) Subject to sub-rule (2), the Judge hearing an application for an order of committal may sit in chambers 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 guardianship, custody, maintenance or upbringing of an infant or right 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 Judge that in the interest of the administration of justice or for reasons of national security the application should be heard in chambers,
    but except as aforesaid, the application shall be heard in open court.
    (2) If the Judge hearing an application in Chambers by virtue of sub-rule (1) decides to make an order of committal against the person sought to be committed, he shall in open court state:
    (a) the name of that 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 Judge hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the motion mentioned in rule 2.
    (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 shall be entitled to do so.

Contempt in face of court; saving for

5.

  1. The foregoing provisions of this Order 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

6.

  1. (1) The Judge by whom an order of committal is made may by order direct that the execution of the order of committal be suspended for such period or on such terms or conditions as he may specify.
    (2) Where execution of an order of committal is suspended by an order under sub-rule (1), the applicant for the order of committal shall, unless the Judge otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order.

Discharge of person committed

7.

  1. (1) The Judge 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 any thing to some other person or to deposit it in Court or else where, and a writ of sequestration has also been issued to enforce that judgment or order, then, if the thing is in the custody or power of the 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 sub-rule (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.

Procedure on disobedience of order of court

8.

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

Notice of consequence of disobedience to court order

To…………….. of……………..

TAKE NOTICE that unless you obey the direction(s) contained in this order you will be guilty of contempt of Court and will be liable to be committed to prison.

Dated this………… day of………… 20……….

……………………….
REGISTRAR

Saving for other powers

9.

  1. 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

10.

  1. Every writ of attachment issued in a case to which this Order applies shall be made returnable before the Court. If a return of non est inventus (not found) is made, one or more writs may be issued on the return of the previous writ.

 

ORDER 47

Cases appropriate for application for judicial review

1.

  1. (1) An application for:
    (a) an order of mandamus, prohibition or certiorari; or
    (b) an injunction restraining a person from acting in any office in which he is not entitled to act,
    shall be made by way of an application for judicial review in accordance with the provisions of this Order.
    (2) An application for a declaration or an injunction (not being an injunction mentioned in sub-rule (1) (b)) may be made by way of an application for judicial review, and the Court may grant the declaration or injunction claimed if it considers that 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; and
    (c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

Joinder of claims for relief

2.

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

 

Grant of leave to apply for judicial review

3.

  1. (1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
    (2) An application for leave shall be made ex parte to the Court, except in vacation when it may be made to a judge in Chambers, and shall be supported by:
    (a) a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
    (b) affidavit verifying the facts relied on.
    (3) The applicant shall file the application not later than the day preceding the date of hearing, and shall at the same time lodge sufficient copies of the motion on notice, supporting affidavit and a written address.
    (4) 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 thinks fit.
    (5) The Judge shall not grant leave unless he considers that the applicant has a sufficient interest in the matter to which the application relates.
    (6) 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
    (7) The Judge may in granting leave, impose such terms as to giving security for costs as he thinks fit.
    (8) Where an application for leave is refused, the applicant may make a fresh application not later than 10 days after the refusal.
    (9) Where leave to apply for judicial review is granted, then:
    (a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;
    (b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.

Delay in applying for relief

4.

  1. (1) Subject to the provisions of this rule, where in any case or series of cases, the applicant fails to bring within 3 months of the judicial review or in a case to which sub-rule (2) applies, application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant:
    (a) Leave for the making of the application; or
    (b) any relief sought on the application, if in the opinion of the Court the granting of the relief sought would be likely to cause substantial hardship to or substantial prejudice to the rights of, any person or would be detrimental to good administration.
    (2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub-rule (1) is 3 months after the date of the proceeding.
    (3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

Mode of applying for judicial review

5.

  1. (1) Where leave has been granted and the Judge directs, the application may be made by motion or summons.
    (2) The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings before a Judge and the object of the application is either to compel the Judge or an officer of the Court to do any act in relation to the proceedings, or to quash them or any order made therein, the notice or summons shall also be served on the Clerk or Registrar of the Court and where an 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 5 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 10 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, 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. (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 Court may on the hearing of the motion or summon allow the applicant to amend his statement whether by specifying different or additional grounds of relief or otherwise on such terms as it thinks fit, and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.
    (3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.
    (4) Each party to the application shall supply 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.

  1. On an application for judicial review the Court may 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 Court is satisfied that if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

Interlocutory application

8.

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

Hearing of application for judicial review

9.

  1. (1) On the hearing of any motion or summons under rule 5, any person who desires to be heard on the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons.
    (2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the judge hearing the motion or summons.
    (3) Where an order of certiorari is made in any such case as is referred to in sub-rule (2), the order shall, subject to sub-rule (4), direct that the proceedings shall be quashed forthwith on their removal into Court.
    (4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court 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 Court.
    (5) Where the relief sought is a declaration, an injunction or damages and the Court 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 Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.

Saving for person acting in obedience to mandamus

10.

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

Consolidation of applications

11.

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

 

ORDER 48

Notice of appeal

1.

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

Contents of notice of appeal. Form 38

2.

  1. (1) The notice of appeal shall set out the reference number of the proceedings in which the decision complained of was given, the names of the parties, the date of the decision and the grounds of appeal and their particulars.
    (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 the lower court appealed from is situated and to which notices may be sent for the appellant, and the notices may be sent to him by registered post.
    (4) The notice of appeal shall be in Form 38 and may be varied to suit the circumstances of the case.

 

Copies of proceeding

3.

  1. (1) The registrar of the lower court shall, within 3 months of the decision appealed from, prepare as many certified copies of the proceedings required for the consideration of the appeal as there are parties on record.
    (2) Except where the fees for preparing the copies are remitted, a deposit decided upon by the registrar as likely to cover the fees, shall be made by the appellant before the preparation of the copies.

Copies of proceedings to be sent to High Court

4.

  1. The registrar of the lower court shall within 7 days of preparing the copies of the proceedings send them to the registrar of the Court in the Judicial Division in which the lower court is situated.

Respondent to be supplied with copy of proceedings

5.

  1. When notifying a party of the day fixed for the hearing of the appeal, the registrar shall send him a copy of the proceedings.

Proceedings time

6.

  1. The times prescribed in rules 1 to 4 may be enlarged at any time by the Court on such terms as may seem fit, after notice has been given to the respondent by the appellant of his application for enlargement of time.

 

Where time expires

7.

  1. Where the time available to the appellant for the taking of any step has expired before such step has been taken or completed, the respondent may, on notice to the appellant, apply to the Court to strike out the appeal   and the Court may strike out, or enlarge the time for sufficient reason shown provided that the court only enlarge the time where the requisite penalty has been paid.

Constitution of Court hearing appeals

8.

  1. Appeals from lower courts may be heard by one or more Judges of the Court.

Time and place for hearing

9.

  1. The appeal shall come on for hearing at such time and at such place as the registrar shall notify to the parties.

Where appellant fails to appear

10.

  1. (1) If on the day of hearing or at any date of adjournment of the case, the appellant does not appear, the appeal shall be struck out, unless the Court thinks fit, for sufficient cause to order otherwise.
    (2) If in any such case the respondent appears, the judgment shall be with costs of the appeal against the appellant, unless the Court expressly orders otherwise; but if the respondent does not appear, the costs of the appeal shall be in the discretion of the Court.

Where appellant appears

11.

  1. If, on the day of hearing and at any adjournment of the case, the appellant appears, the Court shall, whether the respondent appears or not, proceed to the hearing or further hearing and determination of the appeal and shall give judgment according to the merits of the case without regarding any imperfection or defect of form; but if it appears or is proved to the Court that the appellant has not complied with the requirements precedent to the hearing of an appeal under this order, the Court shall strike out the appeal.

Appeal limited to grounds given in notice

12.

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

13.

  1. (1) The respondent may give notice that he intends at the hearing to ask the Court to confirm the judgment of the lower court on grounds other than those stated by that court.
    (2) The notice shall be accompanied by a clear statement of the grounds on which the respondent intends to ask the Court to confirm the judgment of the lower court.
    (3) Such notice and grounds shall be filed in Court within 14 days of service on the respondent of the notice and grounds of appeal, and shall be served on the appellant or his legal practitioner.

Cross-appeal

14.

  1. (1) the respondent may cross appeal against any part of the judgment of the lower court.
    (2) The grounds of appeal together with the particulars shall be filed by the respondent within 14 days of service on him of the appellants notice of appeal and shall be served on the appellant or his legal Practitioner before hearing

Objections to form of grounds of appeal

15.

  1. (1) No objection on account of any defect in the form of setting forth any ground of appeal shall be allowed, unless the Court is of opinion that the ground of appeal is so imperfectly or incorrectly stated as to be insufficient to enable the respondent to enquire into the subject-matter thereof or to prepare for the hearing.
    (2) In any case where the Court is of opinion that any objection to any reason for appeal ought to prevail, the Court may, if it thinks fit, cause the reason for appeal forthwith to be amended upon such terms and conditions, if any, as the Court may think just.

Defects in proceedings under appeal

16.

  1. On any appeal from a decision of a lower court, no objection shall be taken or allowed to any proceeding in such court for any defect or error which might have been amended by that court, or to any complaint, summons, warrant, or other process 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 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, the Court may refer the case back to the lower court with directions to re-hear and determine it or to make such other order for disposing of the case as justice may require.

Defects in notice of appeal or recognizance

17.

  1. No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered into under this Order for the due prosecution of the appeal for any alleged error or defect therein; but if the error or defect appears to the Court to be such that the respondent on the appeal has been thereby deceived or misled the Court may amend it and, if it is expedient to do so, adjourn the further hearing of the appeal, the amendment and the adjournment, if any, being made on such terms as the Court may think just.

Additional evidence

18.

  1. The Court may, in any case where it considers it necessary that evidence should be adduced, either:
    (a) order such evidence to be adduced before the Court on some day to be fixed in that behalf; or
    (b) refer the case back to the lower court to take such evidence, and may in such case either direct the lower court to adjudicate afresh after taking such evidence and subject to such directions in law, if any, as the Court may think fit to give, or direct it, after taking such evidence, to report specific findings of 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

19.

  1. (1) when additional evidence is to be taken by the lower court and specific findings of fact reported, it shall certify the evidence to the Court which shall thereupon proceed to dispose of the appeal.
    (2) The appellant or his legal practitioner shall be present when the additional evidence is taken.
    (3) Evidence taken in pursuance of rule 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.

Allowances to witnesses

20.

  1. Allowances may be made to witnesses as prescribed.

Stay of execution pending appeal

21.

  1. Where any application is made to the Court for a stay of execution or of proceedings under any judgment or decision appealed from, the application shall be made by notice of motion supported by affidavit setting forth the grounds upon which a stay of execution or of proceedings is sought.

Court may grant or refuse order for stay

22.

  1. (1) The Court may make or refuse an order for a stay of execution or of proceedings.
    (2) 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.
    (3) 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

23.

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

Costs

24.

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

Security for costs

25.

  1. (1) The Court may, in special circumstances, upon application on notice by motion 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 30 days) within which the deposit of security shall be made or given and may direct that in default of its being made or given within the time so limited the appeal shall abate.
    (3) Where an appeal so abates 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 deem fit.
    (4) Subject and without prejudice to the discretion of the Court to grant costs where it seems proper on an application made under sub-rule (1), costs shall not normally be granted to the applicant except where the net proceeds of proceeds of execution levied on the appellant’s goods are insufficient to satisfy the amount payable under the judgment or decision appealed from.

Orders of High Court to be certified to lower court

26.

  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.

Enforcement of judgment

27.

  1. 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 respect as if such decision or judgment had been pronounced by itself.

Enforcement of orders

28.

  1. 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

29.

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

Interpretation

30.

  1. In this Order:
    “the lower court” means the court whose judgment is appealed against and includes district court, area court, an arbitrator or a referee.
    “judgment” includes an order or a ruling.

 

ORDER 49

Stay of Execution pending appeal

1.

  1. Where any application is made to the Court for a stay of execution or of proceedings under any judgment or decision appealed from, the application shall be made by motion on notice supported by affidavit setting forth the grounds upon which a stay of execution or of proceedings is sought and a written address in respect of the application.

Court may grant or refuse order for stay

2.

  1. (1) The Court may make or refuse an order for a stay of execution or of proceedings.
    (2) An order for stay may be made on 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

3.

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

 

ORDER 50

Originating summons for foreclosure

1.

  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 as of course an originating summons, for such relief of the nature or kind following as may by the summons be specified, and as the circumstance of the case may require; that is:
    (a) payment of moneys secured by the mortgage or charge;
    (b) sale;
    (c) foreclosure;
    (d) delivery of possession (whether before or after foreclosure) to the 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.

 

Forms 39, 40 and 41

2.

  1. Orders for payment and for possession shall be in Forms 39, 40 and 41 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.

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

 

ORDER 51

Petition to be made to probate Registrar

1.

  1. Grant of Probate or Administration in General
  2. (1) Subject to Section 1(1) b of the Administration of Estates law and rules 44 and 45 hereof, when any person , subject to the jurisdiction of the Court dies, all petitions for the granting of Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the Court.
    (2) In regard to any such application, the Chief Judge 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 7 days of the death of the deceased; and no grant of administration (not with the Will annexed) shall issue within 14 days of such death.

Preservation of property

2.

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

 

Unauthorized persons intermeddling with property

3.

  1. 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 a fine not less than N10, 000.00 as the Court, having regard to the condition of the person so interfering with the property and the other circumstances of the case, may deem fit to impose.

Production of testamentary papers

4.

  1. 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 Registry of the Court.  If any person fails to do so within 14 days after having had knowledge of the death of the deceased, he may be liable to a fine of N2,000.00 as the Court having regard to the condition of such person in default and other circumstances of the case may deem fit to impose.

Court may order production

5.

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

Examination respecting papers

6.

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

Notice to executor to come in and prove

7.

  1. The Court may 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 14 days after notice, come in and prove or renounce accordingly.

Liability of executor neglecting to apply for probate

8.

  1. 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 3 months 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 to be in contempt of Court, and shall be liable to such fine not less than N10,000.00, as the Court deems fit to impose.

Identity

9.

  1. 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 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.

  1. 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.

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

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

(a) any gratuity payable by the Government of the Federation of Nigeria, or of a State, to the estate of any person formerly employed by either of such Governments or by a Statutory Corporation;
(b) any sum of money payable to an estate from a Provident Fund established under the provisions of any applicable law.

Answers required before grant

12.

  1. All inquiries the Court sees fit to institute shall be answered to the satisfaction of the Court before issue of Letters of Administration.  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.

Form of suits

13.

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

 

Testator may deposit will

14.

  1. Custody of Wills
  2. Any person may deposit his Will for safe custody in the Probate Registry, sealed up under his own seal and the seal of the Court.

Custody of wills which probate is given

15.

  1. 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 to secure at once its due preservation and convenient inspection.  A copy of every such Will and of the probate or administration shall be preserved in the Registry.

Will not given out without order of court

16.

No original Will shall be given 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 wills as to its execution

17.

  1. Probate or Administration with Will annexed.
  2. (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 subscribed by two witnesses according to the applicable law, and shall not proceed further if the Will does not appear to be so signed and subscribed.
    (2) If the Will appears to be so signed and subscribed, the 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.

Evidence as to due execution of will

18.

  1. (1) Where a Will contains no attestation clause or the attestation clause is insufficient or where it appears to the registrar that there is some doubt about the due execution of the Will, he shall before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the Will was executed.
    (2) If no affidavit can be obtained in accordance with sub-rule (1) the registrar may, if he deems fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the Will, accept evidence on affidavit from any person he may deem fit to show that the signature on the Will is the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the Will.
    (3) If the registrar, after considering the evidence:
    (a) is satisfied that the Will was not duly executed, he shall refuse probate and shall mark the Will accordingly;
    (b) is doubtful whether the Will was duly executed, he may refer the matter to the Court by motion.

Evidence on failure of attesting witnesses

19.

  1. 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 for that fact, and of the handwriting of the deceased and of the subscribing witnesses, and also of any circumstances raising a presumption in favour of the due execution of the Will.

Evidence as to terms; conditions and date of execution of will

20.

  1. (1) Where in a Will, there is any obliteration, interlineation or other alteration which is not authenticated in the manner prescribed by law or by re-execution of the Will or by the execution of a codicil, the registrar shall require evidence to show whether the alteration was present at the time the Will was executed and shall give directions as to the form in which the Will is to be proved:

Provided that this sub-rule shall not apply to any alteration which appears to the registrar to be of no practical importance.

(2) If from any mark on the Will it appears to the registrar that some other document has been attached to the Will or if a Will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the Will, the registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may deem fit.

(3) Where there is doubt as to the date on which a Will was executed, the registrar may require such evidence as he deems necessary to establish the date.

Attempted revocation of a will

21.

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

Affidavit as to due execution, terms etc. of will

22.

  1. The registrar may require an affidavit from any person he may deem fit for the purpose of satisfying himself as to any of the matters referred to in rules 18, 20 and 21. In any such affidavit sworn by an attesting witness or other person present at the time of the execution of a Will, the deponent shall depose to the manner in which the Will was executed.

Wills of persons in Military Service and seamen

23.

  1. If it appears to the registrar that there is prima facie evidence that a Will is one to which section 9 of the Wills Act 1837 or any provision of the equivalent enactment in force in the State applies, the Will may be admitted to proof if the 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

24.

  1. Where evidence of foreign law 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

25.

  1. Where the deceased dies after the commencement of these Rules, the persons or persons entitled to a grant of probate or administration with the Will annexed shall be determined in accordance with the following order of priority:
    (a) the executor;
    (b) any residuary legatee or devisee holding in trust for any other person;
    (c) any residuary legatee or devisee for life;
    (d) the ultimate residuary legatee or devisee, including one entitled on the happening of any contingency or where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person:

Provided that:
(i) unless the registrar otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency; and

(ii) where the residue is 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 to rule 68) to any legatee or devisee entitled to, or to a share in the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the Will;

(e) any specific legatee or devisee or any creditor or, subject to sub-rule (3) of rule 59, the personal representative of any such person or where the estate is not wholly disposed of by Will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion to it;
(f) any specific legatee or devisee entitled on the happening of any contingency, or any person having no interest under the Will who would have been entitled to a grant if the deceased had died wholly intestate.

Joinder of Administrator

26.

  1. In the absence of a proving executor:
    (a) an application to join with a person entitled to a grant of administration with the Will attached, a person in a lower degree shall, in default of renunciation by all persons entitled in priority to the latter, be made to the registrar and shall be supported by an affidavit by the person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the registrar may require;
    (b) an application to join with a person entitled to a grant of administration with the Will attached, a person having no right to it shall be made to the registrar and shall be supported by an affidavit by the person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the registrar may require:

Provided that there may without any such application be joined with a person entitled to administration with the Will attached:

(i) on the renunciation of all other persons entitled to join in the grant, any kin of the deceased having no beneficial interest in the estate;

(ii) unless the registrar otherwise directs, any person whom the guardian of a minor may nominate for the purpose;

(iii) a trust corporation.

Will of blind or illiterate testator

27.

  1. 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

28.

  1. (1) The Court, on being satisfied that the Will was duly executed, shall carefully inspect it to see whether there are any interlineations, alterations, erasures, or obliterations appearing in it and requiring to be accounted for.
    (2) Interlineations, alterations, erasures, and obliterations are invalid unless they existed in the Will at the time of its execution or unless, if made afterwards, they have been executed and attested in the mode required by the said enactments or unless they have been made valid by the re-execution of the Will or by the subsequent execution of some codicil thereto.
    (3) Where interlineations, alterations, erasures, or obliterations appear in the Will (unless duly executed or recited in or otherwise identified by the attestation clause), an affidavit in proof of their having existed in the Will before its execution shall be filed.

(4) If no satisfactory evidence is adduced respecting the time when an erasure or obliteration was made and the words erased or obliterated are not entirely effaced, and can, on inspection of the Will, be ascertained, they shall form part of the probate.  Where any words have been erased which might have been of importance, an affidavit shall be required.

Documents referred to in a will or annexed or attached

29.

  1. (1) Where a Will contains a reference to any document of such a nature as to raise the question whether it ought or ought not to form a constituent part of the Will, the Court shall require the production of the document, with a view to ascertaining whether or not it is entitled to probate; and if it is not produced, a satisfactory account of its non production shall be proved. A document cannot form part of a Will unless it was in existence at the time when the Will was executed.
    (2) If there are vestiges of sealing wax or wafers, or other marks on the Will, leading to the inference that some document has been at sometime annexed or attached thereto, a satisfactory account of them shall be required, and if it is not produced, a satisfactory account of its non production shall be proved.

Executor dying without proving or not appearing

30.

  1. 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 and does not appear, his right in respect of the executorship wholly ceases; and, without further renunciation, the representation to the testator and the administration of his property may go and be committed as if that person had not been appointed executor.

Marking of wills

31.

  1. Every Will in respect of which an application for a grant is made shall be marked by the signatures of the applicant and the person before whom the oath is sworn, and shall be exhibited to any affidavit which may be required under this Order as to the validity, terms, condition or date of execution of the Will:

Provided that where the registrar is satisfied that compliance with this rule might result in the loss of the Will, he may allow a photocopy to be marked or exhibited in lieu of the original document.

Viva voce examination of persons making affidavits

32.

  1. 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 content of his affidavit. The examination may take place before any affidavit has been sworn or prepared if the Court deems fit.

Letters of Administration

33.

  1. Administration (not with will)
  2. (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

34.

  1. (1) The person to whom administration is granted shall give a bond with two or more responsible sureties to the satisfaction of the Probate Registrar. The bond shall affirm that the administrator shall be duly conditioned to collect, getting in and administering the personal property of the deceased.

(2) The Court may if it deems fit take one surety only where the gross value of the estate does not exceed N100, 000. 00 or where a corporation is proposed as a surety.

(3) The bond shall be in form of a penalty which is twice the sum value of the estate of the deceased unless the Court deems it expedient to reduce the amount.

(4) The Court may also in any case direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court deems reasonable.

Guarantee

35.

  1. (1) The registrar shall not require a guarantee as a condition of making a grant where it is proposed to make it:
    (a) by virtue of rule 25(e) to a creditor or the personal representative of a creditor or to a person who has not immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;

(b) under rule 61 to a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate be entitled to his estate;

(c) under rule 63 to the attorney of a person entitled to a grant;

(d) under rule 64 for the use and benefit of a minor;

(e) under rule 66 for the use and benefit of a person who by reason of mental or physical incapacity is incapable of managing his affairs;

(f) to an applicant who appears to the 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 purpose of the Order shall be in Form 46 with such variations as circumstances may require.

(4) Except where the surety is a corporation, the signature of the surety on every such guarantee shall be attested by an authorized officer, commissioner for oaths or other person authorized by law to administer an oath.

(5) Unless the registrar otherwise directs:

(a) if it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed N1,000.00 or a corporation is a proposed surety, and in those cases one will suffice;

(b) no person shall be accepted as a surety unless he is resident in the State;

(c) no officer of the judiciary shall be a surety;

(d) the limit of the liability of the surety or sureties under a guarantee shall be the gross amount of the estate as sworn on the application for the grant;

(e) every surety other than a corporation, shall justify his eligibility.

(6) Where the proposed surety is a corporation, there shall be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the guarantee in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the registrar that its assets are sufficient to satisfy all claims which may be made against it under any guarantee which it has given or is likely to give.

Assignment of bond

36.

  1. The Probate Registrar may, on being satisfied that the condition of the bond has been broken, assign to some person, and that person may thereupon sue on the bond in his own name as if it had been originally given to him 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

37.

  1. Administration of Property.
  2. Any person claiming to be a creditor or legatee or the next of kin or one of the next of kin of a deceased, may apply for and obtain a summons from the Court requiring the executor or administrator (as the case may be) of the deceased to attend Court and show cause why an order for the administration of the property of the deceased should not be made.

Order for administration

38.

  1. (1) On proof of service of the summons or on appearance of the executor or administrator, and on proof of all such other things (if any) as the Court may direct, the Court may, if it deems 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 in respect of the carriage or execution of it and in the case of applications for such an order by two or more different persons, or classes of person, to grant the same to such one or more of the claimants or classes of claimants, as the Court deems fit.

(3) If the Court deems fit the carriage of the order may subsequently be given to such person, and on such terms, as the Court deems fit

Order relating to property

39.

  1. On making such an order or at any time afterwards, the Court may, if it deems fit, make any further or other order which may appear requisite to secure the proper collection, recovery for safe-keeping and disposal of the property or any part thereof.

Administration may be granted to officer

40.

  1. In a case of intestacy, where the special circumstances of the case appear to the Court to require, the Court may if it deems 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 the direction of Court

41.

  1. (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 3 months.

Court may appoint person to be Administrator

42.

  1. Where a person has died intestate as to his personal estate or leaving a Will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate or where the executor shall, at the time of the death of such person, be resident out of the jurisdiction, and it shall appear to the Court to be necessary or convenient in any such case to appoint some person as administrator of the estate of the deceased or of any part thereof, the Court may appoint such person as it shall deem 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 deem fit.

 

Remuneration of Administrators

43.

  1. 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 deem fit not exceeding 10% on the amount of the realized property, or, when not converted into money, on the value of the property duly administered and accounted for by him:

Provided that where the 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

44.

  1. Where any citizen of any foreign country dies within the jurisdiction without leaving within the jurisdiction a widower, widow or next of kin, the Probate Registrar shall collect and secure all moneys and other property belonging to the deceased, and shall then inform the nearest consular officer of such country of the death, and transmit to him a list of the money and property of the deceased.

Application by consular officer or person authorized by him to administer estate

45.

  1. Application may be made to the Court by any such Consular Officer or by any person authorized by him in writing and under the consular seal, for leave to administer the estate of the deceased, and the Court may make such order as to security for payment of debts and the method of administration as the Court shall deem fit, and vary such order when and so often as it is expedient

Accounts to be filed

46.

  1. Administration Generally
  2. (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 file in Court the accounts of his administration every 6 months from the date of the grant or the appointment until 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 a penalty of N200.00 for every day of default. Every such fine shall on non-payment be enforceable by distress, and failing sufficient distress, by imprisonment for a term not exceeding 6 months.

(3) When an account is filed in court under this rule, the 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 curt shall require the person filing the account to remedy such defects as there may be within such time as the court may deem reasonable for the purpose; and on failure to remedy such defects 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) It shall 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.

(5) The court may, on the motion of any party interested, or suo motu, summon any executor or administrator failing as aforesaid, to show cause why he should not be punished.

(6) The court may for good cause shown extend the time for such filing of accounts.

(7) Any executor or administrator who has been granted an extension of time to file such accounts, and who fails within such extended time to file such accounts, shall be liable to the penalty set out above, and the procedure for bringing him before the Court shall be as set out above.

(8) Such accounts shall be open to the inspection of all persons satisfying the Probate Registrar that they are interested in the administration.

(9) In this rule, the word “accounts” shall mean and include an inventory, an account of the administration, the vouchers in the hands of the executor or administrator relating thereto and affidavit in verification.

Court may refuse application to review

47.

  1. The Court may refuse to entertain any application under rule 86(1) if it considers that there has been unreasonable delay by the applicant in making the application.

Grant to be signed by probate Registrar

48.

  1. The grant of Letters of Administration under this Order shall be signed by the Probate Registrar on behalf of the Court.

Application

49.

II: Probate (Non-Contentious) Procedure

  1. In this Part, rules 1, 4, 5, 6, 7, 8, 11, 12, 14, 15, 16, 17, 19, 26, 27, 28, 29, 30, 31, 71(1) and 72(1) or (4) of this Order shall also apply.

Application for grants through legal practitioner

50.

  1. Every legal practitioner through whom an application for a grant is made shall give the address of his place of business within the jurisdiction.

Personal Application

51.

  1. (1) An applicant for a grant may apply in person.
    (2) A personal applicant may not apply through an agent, whether paid or unpaid, and may not be represented by any person acting or appearing to act as his adviser.
    (3) No personal application shall be received or proceeded with if :
    (a) it becomes necessary to bring the matter before the Court by motion or by action;
    (b) an application has already been made by a legal practitioner on behalf of the applicant and has not been withdrawn;
    (c) the registrar otherwise directs.
    (4) After a Will has been deposited in the Registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the registrar so directs.
    (5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as the registrar may approve.
    (6) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared in the Registry or may himself prepare such papers and lodge them unsworn.
    (7) Unless the registrar otherwise directs, every oath, affidavit or guarantee required of a personal application shall be sworn or executed by all the deponents or sureties before an authorized officer.

Duty of Registrar on receiving application for grant

52.

  1. (1) The registrar shall not allow any grant to issue until all inquires which he may deem fit to make have been answered to his satisfaction.
    (2) The registrar may require proof of the identity of the deceased or of the applicant for the grant beyond those contained in the oath.

(3) No grant of probate or of administration with the Will annexed shall issue within 7 days of the death of the deceased; and no grant of administration (not with the Will annexed) shall issue within 14 days of such death.

Oath in support of grant

53.

  1. (1) Every application for a grant shall be supported by an oath in the form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the registrar may require.
    (2) Unless otherwise directed by the registrar, the oath shall state where the deceased was domiciled at the time of death.

Grant in additional name

54.

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

Engrossment for purposes of record

55.

  1. (1) Where the registrar considers that in any particular case a photocopy of the original Will would not be satisfactory for purposes of record, he may require that an engrossment suitable for photo reproduction be lodged.
    (2) Where a Will contains alterations which are not admissible to proof, there shall be lodged an engrossment of the Will in the form in which it is to be proved.
    (3) Any engrossment lodged under this rule shall reproduce the punctuation, spacing and division into paragraphs of the Will and, if it is one to which sub-rule (2) applies, it shall be made book wise on durable paper following continuously from page to page.
    (4) Where any pencil writing appears on a Will, there shall be lodged a copy of the Will or of the pages or sheets containing the pencil writing in which there shall be underlined in red ink those portions which appear in pencil in the original.

 

Grant to attesting witnesses

56.

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

Right of assignee to a grant

57.

  1. (1) Where all the persons entitled to the estate of the deceased under a Will have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace in order of priority for a grant of probate the assignor or if there are two or more assignors, the assignors with the highest priority, in the absence of a proving executor.

(2) Where there are two or more assignees, probate may be granted with the consent of the others to any one or more (not exceeding four) of them.

(3) In any case where probate is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Registry.

Additional Personal representatives

58.

  1. (1) An application to add a personal representative shall be made to the registrar and shall be supported by an affidavit by the personal applicant, the consent of the person proposed to be added as personal representative and such other evidence as the registrar may require.

(2) On any such application the registrar may direct that a note shall be made on the original grant of the addition of a further personal representative, or he may impound or revoke the grant or make such order as the circumstances of the case may require.

Grants where two or more persons entitled in same degree

59.

  1. (1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same degree.
    (2) A dispute between persons entitled to a grant in the same degree shall be brought by application before the 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 Register 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 person not under disability in preference to an infant entitled in the same degree.

Prevention of grant

60.

  1. (1) Nothing in rules 57, 60 or 62 shall operate to prevent a grant being made to any person to whom a grant may, or may require to be made, under any enactment.
    (2) The rules mentioned in sub-rule (1) shall not apply where the deceased died domiciled outside the State, except in a case to which the provisions of rule 63 applies.

Grants person having spes successionis

61.

  1. When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant of administration with the Will attached and has consented to such administration being granted to the person or persons who would be entitled to his estate if he himself had 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 regarded as person in whom the estate has vested absolutely unless he would be entitled to the whole of the estate, whatever its value may be.

 

Grants where deceased was domiciled outside the state

62.

  1. Where the deceased was domiciled outside the State, the registrar may order that a grant should issue:

(a) to the person entrusted with the administration of the estate by the Court having jurisdiction at the place where the deceased died domiciled;

(b) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;

(c) if there is no such person as is mentioned in paragraph (a) or (b) or if in the opinion of the registrar circumstances so require, to such person as the registrar may direct;

(d) if a grant required to be made to, or if the registrar in his discretion considers that a grant should be made to, not less than two administrators, to such person as the registrar may direct jointly with any such person as is mentioned in paragraph (a) or (b) or with any other person:

Provided that without any such order as aforesaid:

(a) probate of any Will which is admissible to proof may be granted:

(i) if the Will is in English or in the local vernacular, to the executor named therein;

(ii) if the Will described the duties of a named person in terms sufficient to constitute him executor according to the tenor of the Will, to that person;

(b) where the whole of the estate in the State consists of immovable property, a grant limited thereto may be made in accordance with the law that would have been applicable if the deceased had died domiciled in the State.

Grant to Attorney

63.

  1. (1) Where a person entitled to a grant resides outside the State, a grant may be made to his lawful attorney for his use and benefit, until such person shall obtain a grant or in such other way as the registrar may direct:

Provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any.

(2) Where the registrar is satisfied by affidavit that it is desirable for a grant to be made to the lawful attorney of a person entitled to a grant and resident in the State, he may direct the grant to be made to the attorney for the use and benefit of such person, until such person obtains a grant or in such other way as the registrar may direct.

Grants on behalf of minors

64.

  1. (1) Where the person to whom a grant would otherwise be made is a minor, a grant for his use and benefit until he attains the age of 18 years shall subject to sub-rules (3) and (5) be granted:

(a) to both parents of the minor jointly or to any guardian appointed by a court of competent jurisdiction; or

(b) if there is no such guardian able and willing to act and the minor has attained the age of 16 years, to any next of kin nominated by the minor, or where the minor is a married woman, to any such next of kin or to her spouse if nominated by her.

(2) Any person nominated under sub-rule (1) (b) may represent any other minor whose next of kin he is, being a minor below the age of 16 years entitled in the same degree as the minor who made the nomination.

(3) Notwithstanding anything in this rule, administration for the use and benefit of the minor until he attains the age of 18 years may be granted to any person assigned as guardian by order of a court in default of, or jointly with, or to the exclusion of any such person as is mentioned in sub-rule (1) 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 a minor who is sole executor has no interest in the residuary estate of the deceased, administration with the Will attached for the use and benefit of the minor until he attains the age of 18 years shall, unless the registrar otherwise directs, be granted to the person entitled to the residuary estate.

(6) A minor’s right to administration may be renounced only by a person assigned as guardian under sub-rule (3) and authorized to renounce by the registrar.

Grants where minor is co-executor

65.

  1. (1) Where one of several executors is a minor, probate may be granted to the adult executors, with power reserved for making the like grant to the minor on his attaining the age of 18 years and administration for the use and benefit of the minor until he attains the age of 18 years may be granted under rule 64 if and only if the adult executors renounce or, on being cited to accept or refuse a grant, fail to make an effective application.

(2) A minor executor’s right to probate on attaining the age of 18 years shall not be renounced by any person on his behalf.

Grants in case of mental or physical incapacity

66.

  1. (1) Where the registrar is satisfied that a person entitled to grant is by reason of mental or physical infirmity incapable of managing his affairs, a grant for his use and benefit during his incapacity may be made:

(a) in the case of mental incapacity, to the person authorized by the Court to apply for the grant;

(b) where there is no person so authorized or in the case of physical incapacity:

(i) if the person incapable is entitled as executor and has no interest in the residuary estate of the deceased, to the person entitled to such residuary estate;
(ii) if the person incapable is entitled otherwise than as executor or is an executor having an interest in the residuary estate of the deceased, to the person who would be entitled to a grant in respect of his estate if he had died intestate; or to such other person as the registrar may by order direct.

(2) Unless the registrar otherwise directs, no grant shall be made under this rule unless all persons entitled in the same degree as the person incapable have been considered and excluded.

(3) In the case of mental incapacity, notice of intended application for a grant under this rule shall, unless the registrar otherwise directs, be given to the person alleged to be so incapable.

Renunciation of probate and administration

67.

  1. (1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.

(2) Unless the registrar otherwise directs, no person who has renounced a grant in one capacity may obtain a grant in some other capacity.

(3) A renunciation of probate or administration may be retracted at any time on the order of the registrar:

Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to such other person entitled in a lower degree.

Notice to state of intended application for grant

68.

  1. 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 Kwara State Attorney-General and the registrar may direct that no grant shall issue within a specified time after the notice has been given.

Resealing

69.

  1. (1) An application for the resealing of probate or administration with the Will attached granted by a court outside the State shall be made by the person to whom the grant was made or by any person authorized in writing to apply on his behalf.

(2) On any such application:

(a) an Inland Revenue Affidavit shall be lodged as if the application were one for a grant in the State;

(b) the application shall be advertised in such manner as the registrar may direct and shall be supported by an oath sworn by the person making the application.

(3) On an application for the resealing of such a grant:
(a) the registrar shall not require sureties except where it appears to him that the grant is made to a person or for a purpose mentioned in paragraphs (a) to (f) of rule 35(1) or except where he considers that there are special circumstances making it desirable to require sureties;

(b) Rules 35(2), (4), (5), (6) and 51(4) shall apply with any necessary modifications; and

(c) a guarantee entered into by a surety shall be in Form 47 with such variations as circumstances may require.

(4) Except by leave of the registrar, no grant shall be resealed unless it was made to such a person as is mentioned in paragraph (a) or (b) of rule 62 or to a person to whom a grant could be made under a proviso to that rule.

(5) No limited or temporary grant shall be resealed except by leave of the 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 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

70.

  1. If the registrar is satisfied that a grant shall be amended or revoked, he may make an order accordingly:
    Provided that except in special circumstances no grant shall be amended or revoked under this rule except on the application or with the consent of the person to whom the grant was made.

Notice to prohibit grant caveats

71.

  1. (1) A notice to prohibit a grant of administration may be filed in Court.
    (2) Any person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat in the Registry.
    (3) Any person who wishes to enter a caveat (in this rule called “the caveator”) may do so by completing Form 48 in the appropriate book at the Registry and obtaining an acknowledgment of entry from the proper officer, or by sending through the post at his own risk a notice in Form 48 to the Registry in which he wishes the caveat to be entered.

(4) Where the caveat is entered by a legal practitioner on behalf of the caveator the name of the caveator shall be stated in Form 48.

(5) Except as otherwise provided by this rule, a caveat shall remain in force for 3 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.

(6) The registrar shall maintain an index of caveats entered in the Registry and on receiving an application for a grant in the Registry he shall cause the index to be searched and shall notify the applicant in the event of any caveat having been entered against the sealing of a grant for which application has been made.

(7) The registrar shall not allow any grant to be sealed if he has knowledge of an effective caveat in respect thereof:

Provided that no caveat shall operate in the sealing of a grant on the day on which caveat is entered.

(8) A warning in Form 49 may issue from the Registry against a caveator at the instance of any person interested (“the person warning”) which shall state his interest and, if he claims under a Will, the date of the Will, and shall require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning or copy thereof shall be served on the caveator.

(9) A caveator having an interest contrary to that of the person warning may, within 8 days of service of the warning upon him inclusive of the day of such service; or at any time thereafter if no affidavit has been filed under sub-rule (12) enter an appearance in the Registry by filing Form 50 and making an entry in the appropriate book, and shall forthwith thereafter serve on the person warning a copy of Form 50 sealed with the seal of the Registry.

(10) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the Registry and the caveat shall then cease to have effect and if he has been warned, the caveator shall forthwith give notice of withdrawal of the caveat to the person warning.

(11) A caveator having no interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under sub-rule (12), issue and serve a summons for directions, which shall be returnable before the registrar.

(12) If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under sub-rule (11), and thereupon the caveat shall cease to have effect.

(13) Upon commencement of a probate action the Probate Registrar shall, if a caveat is in force (other than a caveat entered by the claimant) give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.

(14) Unless the registrar otherwise directs:

(a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to sub-rule (10), remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect;

(b) any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action;

(c) the commencement of a probate action shall, whether or not any caveat has been entered, operate to prevent the sealing of a grant until application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under sub-rule (13), shall cease to have effect.

(15) Except with the leave of the registrar, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under sub-rule (12) or (14).

Citation

72.

72.(1) Notices in the nature of citation shall be given in such manner as the Court directs.

(2) Every citation shall be settled by the registrar before being issued.

(3) Every averment in a citation and such other information as the registrar may require shall be verified by an affidavit sworn to by the person issuing the citation (in this Order called “the citor”) or, if there are two or more citors, by one of them:

Provided that the registrar may in special circumstances accept an affidavit sworn to by the citor’s legal practitioner.

(4) The citor shall enter a caveat before issuing a citation.

(5) Every citation shall be served personally on the person cited unless the registrar, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.

(6) Every Will referred to in a citation shall be lodged in the Registry before the citation is issued, except where the Will is not in the citor’s possession and the registrar is satisfied that it is impracticable to require it to be lodged.

(7) A person who has been cited to appear may, within 8 days of service of the citation upon him inclusive of the day of such service, or at any time thereafter if no application has been made by the citor under sub-rule (5) of rule 35 or sub-rule (2) of rule 69 enter an appearance in the Registry by filing Form 48 and making an entry in the appropriate book, and shall thereafter serve on the citor a copy of Form 48 sealed with the seal of the Registry.

Citation to accept or refuse a grant

73.

  1. (1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

(2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the Will or the executors of the last survivor of deceased executors who have proved.
(3) A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of 6 months from the death of the deceased:
Provided that no citation to take a grant shall issue while 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 sub-rule (1), apply to the registrar for an order for a grant to himself;
(b) in the case of a citation under sub-rule (2), 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 sub-rule (3), 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 him or some other person specified in the summons.
(6) An application under sub-rule (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 sub-rule (4) or has failed to prosecute his application with reasonable diligence, the citor may:
(a) in the case of a citation under sub-rule (1), apply by summons to the registrar for an order for a grant to himself;
(b) in the case of a citation under sub-rule (2), 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 mentioned in paragraph (b) of sub-rule (5).
(c) in the case of a citation under sub-rule (3), apply by summons to the registrar for an order requiring the person cited to take a grant within a specific time or for a grant to himself or some other persons specified in the summons,
and the summons shall be served on the person cited in each case.

Citation to propound a will

74.

  1. (1) A citation to propound a Will shall be directed to the executors named in the Will and to all persons interested thereunder, and may be issued at the instance of any citor having any interest contrary to that of the executors or such other persons.

(2) If the time limited for appearance has expired, the citor may:

(a) in the case where no person cited has entered an appearance, apply to the registrar for an order for a grant as if the Will were invalid;

(b) in the case of a citation under sub-rule (2) of rule 73, apply by summons to the registrar for an order striking out the appearance and for endorsement on the grant of such a note as mentioned in paragraph (b) of sub-rule (5) of rule 73.

(c) in the case of a citation under sub-rule (3) of rule 73, 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 persons cited in each case.

Address for service

75.

  1. All caveats, citations, warnings and appearances shall contain an address for service within the jurisdiction.

Application for order to bring or to attend for examination

76.

  1. (1) An application for an order requiring a person to bring in a Will or to attend for examination may, unless a probate action has been commenced, be made to the Court by summons, which shall be served on every such person as aforesaid.
    (2) An application for the issue by the registrar of a subpoena to bring in a Will shall be supported by an affidavit setting out the grounds for the application, and if any person served with the subpoena denies that the Will is in his possession or control, he may file an affidavit to that effect.

Limited grant

77.

  1. 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 considered and excluded.

Grants ad colligenda bona

78.

  1. 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 of a person

79.

  1. An application for leave to swear to the death of a person in whose estate a grant is sought may be made to the 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 will

80.

  1. (1) An application for an order admitting to proof a codicil or a Will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original Will is not available may be made to the 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;

(c) the accuracy of the copy or other evidence of the contents of the Will, together with any consent in writing to the application given by any person not under disability who would be prejudiced by the grant.

 

Grants durante absentia

81.

  1. An application for an order for a grant of special administration where a personal representative is residing outside the State shall be made to the Court by a motion.

Notice of election by surviving spouse to redeem life interest

82.

  1. (1) Where a surviving spouse who is the sole personal representative of the deceased is entitled to a life interest in part of the residuary estate and elects to have the life interest redeemed, he may give written notice of the election to the registrar by filing a notice in Form 55 with such variations as circumstances may require.
    (2) A notice filed under this rule shall be notice on the grant and the record shall be open to inspection.

Photocopy of wills or other documents may be certified and sealed

83.

  1. (1) Where copies are required of original Wills or other documents deposited under the provisions of any enactment, such copies may be photocopies sealed with the seal of the Registry and issued as office copies and where such office copies are available copies certified under the hand of a Registrar to be true copies shall be issued only if it is required that the seal of the Court be affixed thereto.

(2) Copies, not being photocopies of original Wills or other documents deposited as aforesaid shall be examined against the documents of which they purport to be copies if so required by the person demanding the copy, and in such case the copy shall be certified under the hand of a Registrar to be a true copy and may in addition be sealed with the seal of the Court.

Power to require application to be made by summons or motions

84.

  1. The registrar may require any application under this Order to be made by motion or summons.

Duties and powers to be performed and exercised by probate Registrar

85.

  1. The duties imposed and powers conferred upon the Court by rules 5, 6, 7, 9, 10, 11, 12, 15, 16, 17, 19, 31, 34, 45 and 46(1), (3), (4), (6) 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.

Exercise of power of Judge

86.

  1. (1) Any person aggrieved by a decision or requirement of the registrar may by summons apply to a Judge for that decision or requirement to be reviewed.

(2) If in the case of a summons for review under sub-rule (1) any person besides the applicant appeared or was represented before the registrar from whose decision or requirement the application for review is brought, the summons shall be issued within 7 days thereof for hearing on the first available day and shall be served on every such person concerned.

(3) On such review the Judge shall have power to cancel or amend anything which may have been done by the Probate Registrar.

Court may refuse application to review

87.

  1. The Court may refuse to entertain any application under rule 86 if it considers that there has been unreasonable delay by the applicant in making his application.

Service of notice of motion and summons

88.

  1. (1) A Judge or the registrar may direct that a notice of motion or summons for the service of which no other provision is made in this Order shall be served on such person or persons as the Judge or registrar may direct.

(2) Where by the provisions of this Order or by any direction given under sub-rule (1) a notice of motion or summons is required to be served on any person, it shall be served not less than 5 days before the hearing of the motion or summons.

Notices

89.

  1. Unless the registrar otherwise directs or this Order provides, any notice or other document required to be given or served on any person may be given or served by leaving it at, or by sending it by courier to that person’s address for service, or if he has no address for service, his last known address.

Affidavit

90.

  1. Every affidavit used in non-contentious probate business shall satisfy the requirements of Order 13.

Time

91.

  1. The provisions of Order 10 shall apply to the computation, enlargement and abridgement of time under this Order.

Application

92.

  1. Subject in any particular case to any direction given by the Court, this Order shall apply to any proceeding which is pending on the date on which these Rules come into operation as well as to any proceeding commenced on or after that date:

Provided that where the deceased died before the commencement of these Rules, the right to a grant shall, subject to the provisions of any enactment, be determined by the principles and rules in accordance with which the Court would have acted at the date of the death.

Contentious probate form of suits

93.

  1. Suits in respect of probate shall be instituted and carried on as nearly as possible in the like manner and subject to the same rules of procedure as suits in respect of civil claims.

Probate actions

94.

III.  Proceeding Generally

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

Service of writ of summons

95.

  1. In probate actions, service of a writ of summons may by leave of the Court be allowed out of Nigeria.

Pleadings and further action

96.

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

Where claimant disputes defendant’s interest

97.

  1. In probate actions, where the claimant disputes the interest of the defendant, he shall allege in his statement of claim that he denies the defendant’s interest.

Notice in probate actions

98.

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

Inquiry as to outstanding personal estate

99.

  1. Every Judgment or order for a general account of the personal estate of a testator or intestate shall contain a direction for any inquiry as to what parts (if any) of such personal estate are outstanding or undisposed of, unless the Court shall otherwise directs.

Discretion to order costs

100.

  1. Where a person is or has been  a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the court otherwise orders be entitled to the costs of such proceedings in so far as they are not recovered from or paid by any other person out of the fund held by the trustee or personal representative or the mortgaged property, as the case may be; and the court may otherwise order only on the ground that the trustee, personal representative or mortgagee has acted unreasonably or, in the case of a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund.

Originating summons relating to deceased person

101.

  1. The executors or administrators of deceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, beneficiary, next of kin, heir-at-law of a deceased person, or as Cestui que trust under the trust of any deed or instrument, or as claiming by assignment or administration otherwise under any such creditor or other person as aforesaid, may take out an originating summons for such relief as listed hereunder as may be specified by the summons and as the circumstances of the case may require; that is, the determination without an administration of the estate or trust of any of the following questions or matters:

(a) any question affecting the rights or interests of the person claiming to be creditor, beneficiary, next of kin, or heir-at-law or cestui que trust;

(b) the ascertainment of any class of creditors, beneficiary, next of kin, or heirs;

(c) the furnishing of any particular accounts by the executors or administrators or trustee and the vouching (when necessary) of such accounts;

(d) the payment into Court of any money in the hands of the executors or administrators or trustees;

(e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees;

(f) the approval of any sale, purchase, compromise, or other transaction;

(g) the determination of any question arising in the administration of the estate or trust.

Order for administration of estate of deceased and of trust

102.

  1. Any of the persons named in rule 101 may in like manner apply for and obtain an order for:

(a) the administration of the personal or real estate of the deceased;

(b) the administration of the trust;

(c) any act to be done or step to be taken which the Court could have ordered to be done or taken if any such administration order as aforesaid had previously been made.

Persons to be served

103.

  1. The persons to be served with the summons under rules 101 and 102 in the first instance shall be the following:

(1) Where the summons is taken out by an executor or administrator or trustee:

(a) for the determination of any question under paragraphs (a), (c), (f) or (g) of rule 101, the persons, or one of the persons, whose rights or interests are sought to be affected;

(b) for the determination of any question under paragraph (b) of rule 101, any member or alleged member of the class;

(c) for the determination of any question under paragraph (c) of rule 101, any person interested in taking such accounts;

(d) for the determination of any question under paragraph (d) of rule 101, any person interested in taking such money;

(e) for relief under paragraph (a) of rule 102, the residuary legatees or next of kin (or some of them) or the residuary devisees, or heirs, or some of them, as the case may be;

(f) for relief under paragraph (b) of rule 102, the Cestui que trust or some of them;

(g) if there are more than one executor or administrator or trustee and they do not all concur in taking out the summons, those who do not concur;

(2) Where the summons is taken out by any person other than the executors, administrators or trustees, the said executors, administrators or trustees, or some of them must be served.

Court not bound to order administration

104.

  1. It shall not be obligatory on the Court to pronounce or make judgment or order, whether on summons or otherwise for the administration of any trust or of the estate of any deceased person if the questions between the parties can be properly determined without such judgment or order.

Order to be made on application for administration or execution of trusts

105.

  1. Upon an application for administration or execution of trusts by a creditor or beneficiary under a Will, intestacy, or deed of trust, where no accounts or insufficient accounts have been rendered, the Court may, in addition to the powers already existing:

(a) order that the application shall stand over for a certain time, and that the executors, administrators or trustees in the meantime shall render to the applicant a proper statement of their accounts, with an intimation that if this is not done they may be made to pay the costs of the proceedings;

(b) when necessary, to prevent proceedings by other creditors, or by persons beneficially interested, make the usual judgment or order for administration with a proviso that no proceedings are to be taken under such judgment or order without leave of the Court.

Interference with discretion of trustee

106.

  1. The issue of a summons under rule 101 shall not interfere with or control any power or discretion vested in any executor, administrator or trustee except so far as such interference or control may necessarily be involved in the particular relief sought.

Application of summons

107.

  1. Any of the following applications may be made by summons:
    (a) an application for the appointment of a new trustee with or without a vesting or other consequential order;
    (b) an application for vesting or other consequential order in any case where a judgment or order has been given or made for the sale, conveyance, or transfer of any land or stock or the suing for or recovering any chose in action;
    (c) an application for a vesting or other consequential order in any case where a judgment or order has been given or made for the sale, conveyance, or transfer of any land or stock or the suing for or recovering any chose in action;
    (d) an application relating to a fund paid into Court.

Interpretation

108.

  1. (1) The provisions of the Interpretation Law shall apply to the interpretation of this Order.
    (2) In this Order, unless the context otherwise requires:
    “authorized officer” means any officer of the Registry who is for the time being authorized by law to administer any oath or take any affidavit required for any purpose connected with his duties;
    “gross value” in relation to any estate means the value of the estate without deduction for debts, encumbrances, funeral expenses or estate duty;
    “oath” means the oath required by this Order to be sworn by every applicant for grant;
    “personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a legal practitioner, and
    “personal application” has a corresponding meaning;
    “Registrar” means the Probate Registrar;
    “Registry” or “Probate Registry” means the Probate Registry of the Court;
    “Will” includes a codicil and any testamentary document or copy or reconstruction of it.
    (3) Unless the context otherwise requires, any reference in this Order to any rule or enactment shall be construed as a reference to that rule or enactment as amended, extended or applied by any other rule or enactment.

 

ORDER 52

Proceedings to be brought by Originating summons

1.

  1. Where a person claims possession of land which he alleges is occupied by a person not being:

(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,

proceedings may be brought by originating summons in accordance with the provisions of this Order.

Form of originating summons. Form 48

2.

  1. The originating summons shall be in Form 52 and no acknowledgement of service shall be required.

Affidavit in support

3.

  1. The claimant shall file in support of the originating summons an affidavit stating:
    (a) his interest in the land;

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

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

Service of originating summons

4.

  1. (1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him:

(a) personally; or

(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 Court may direct.

(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with sub-rule (1) be served, unless the Court 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) 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.

  1. Without prejudice to Order 14 Rule 16, 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 of possession

6.

  1. (1) An order for possession in proceedings under this Order shall be in Form 53 with such variations as circumstances may require.

(2) Nothing in this Order shall prevent the Court 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 Court.  An application for leave may be made ex parte unless the Court otherwise directs.

Setting aside of order

8.

  1. (1) The Court may, on such terms as it 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 53

Who may sue or defend in forma pauperis

1.

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

Conditions to be fulfilled

2.

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

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

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

Fees and costs

3.

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

Procedure to be followed

4.

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

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

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

Revocation of order, discontinuance, etc

5.

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

(2) Neither the applicant nor the legal practitioner assigned to him shall discontinue, settle or compromise the action without the leave of court.

Payment to Legal Practitioner

6.

  1. (1) The court 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 seem fit.
    (2) Where no payment is made to the legal practitioner pursuant to sub-rule (1), he may apply to the Chief Judge for payment by the Court of a brief fee not exceeding N25,000.00

Duty of Legal Practitioner

7.

  1. Every process, 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

8.

  1. No person shall be permitted to appeal in forma pauperis except by leave of the trial or the appellate court.

 

ORDER 54

Principle to be observed in fixing costs

1.

  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 making the judgment or order and stated therein.

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

Security for costs

2.

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

Security for costs by claimant temporarily within jurisdiction

3.

  1. 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.

  1. 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.

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

Costs at discretion of court

6.

  1. Subject to the provisions of any applicable law and these Rules, the costs of and incidental to all proceedings in the 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.

  1. 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.

  1. 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.

When costs to follow the event

9.

  1. (1) Costs when ordered immediately become payable, and in all events shall be paid within 7 days of the order, otherwise the defaulting party or his legal practitioner may be denied further audience in the proceedings.
    (2) 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.

State of proceedings at which costs to be dealt with

10.

  1. Costs may be dealt with by the Judge at any stage of the proceedings and any order of the Judge for the payment of any costs may, if the Judge deems fit and the person against whom the order is made is not a person to whom Order 53 applies, require the costs to be paid forthwith notwithstanding that the proceedings have not been concluded.

Matters to be taken into account in exercising discretion

11.

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

Costs arising from misconduct or neglect

12.

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

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

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

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

(c) any unnecessary delay in the proceedings.

(3) The Judge may instead of giving a direction under sub-rule (1) 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. (1) Subject to the following provisions of this rule, where in any proceedings costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, the Judge may make against any legal practitioner whom he considers to be responsible (whether personally or through a servant or agent) an order:

(a) disallowing the costs as between the legal practitioner and his clients; 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) Sub-rule (1) shall apply where proceedings in Court cannot conveniently proceed or fails or are adjourned without useful progress being made:

(a) because of the failure of the legal practitioner to attend in person or by a proper representative; or

(b) because of the failure of the legal practitioner to deliver any document for the use of the Court which ought to have been delivered or to be prepared with any proper evidence or account or otherwise to proceed.

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

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

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

Taxation of costs

14.

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

Notice to other party

15.

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

Power of taxing officer

16.

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

Supplementary powers of taxing officer

17.

  1. A taxing officer may, in the discharge of his functions with respect to the taxation of costs:
    (a) take an account of any dealings in money made in connection with the payment of the costs being taxed, if the Judge so directs;
    (b) require any party represented jointly with any other party in any proceedings before him to be separately represented;
    (c) examine any witness in those proceedings;
    (d) direct the production of any document which may be relevant in connection with those proceedings.

Extension of time

18.

  1. (1) A taxing officer may:

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

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

(2) Where an order of the Court specifies a period within which anything is to be done by 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.

  1. (1) Where a party entitled to be paid costs is also liable to pay costs, the taxing officer may:
    (a) tax the costs which that party is liable to pay and set off the amount allowed against the amount he is entitled to be paid and direct payment of any balance; or
    (b) delay the issue of a certificate for the costs he is entitled to be paid until he has paid or tendered the amount he is liable to pay.

Mode of beginning proceedings for taxation

20.

  1. (1) A party entitled to require any costs to be taxed shall begin proceedings for the taxation of those costs by filing in the registry a bill of costs and obtain a day and time for the taxation thereof. Such party shall give at least 7 days notice to every other party of the day and time appointed for taxation proceedings and at the same time serve a copy of its bill of costs to the other party if he has not already done so.
    (2) A notice under sub-rule(1) need not be given to any party who has not entered an appearance or taken any part in the proceedings which gave rise to the taxation proceedings.

Provisions as to bills of costs

21.

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

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

Fees on taxation

24.

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

Application for review

25.

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

Application by summons

26.

  1. (1) An application under the preceding rules shall be made by summons at any time within 14 days after the taxing officer’s certificate.
    (2) Unless the Judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on taxation but, except as aforesaid, on the hearing of any such application the Judge may exercise all such powers and discretion as are vested in the taxing officer in relation to the subject matter of the application.
    (3) On an application under this rule the Judge may make such order as the circumstances require and in particular may order the taxing officer’s decision to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the same or another taxing officer for taxation.

 

ORDER 55

Designation of Fast track judges

1.

  1. The Chief Judge shall designate such number of judges as he thinks fit as Fast Track Judges and appoint an officer as Coordinator of Fast Track cases.

Mode of beginning Fast track cases

2.

  1. (1) The claimant or counter claimant shall present his originating process prepared by him or his legal practitioner accompanied by
    (a) a statement of claim
    (b) a list of witnesses to be called
    (c) a written statement on oath of witnesses
    (d) copies of every document to be relied on at the trial
    (e) a certificate of pre-action counseling
    (f) a duly completed application as in Form 42 to place the case on the Fast Track mode.

 

Cases qualified for Fast track

3.

  1. (1) Where a case satisfies any of the criteria in rule 2 of this order, the coordinator shall cause the originating process to be marked “QUALIFIED FOR FAST TRACK” and direct the applicant to pay filing fees of N50,000(fifty thousand naira only).
    (2) Where he accepts the case as qualified for Fast Track the coordinator shall issue form 44 but if he does not accept the case as qualified, he shall issue form 45.

Marking and payment of filing fees

4.

  1. A suit shall be qualified for Fast Track where the:
    (a) action is commenced by writ of summons; and
    (b) ‘the claim or counterclaim is for a liquidated monetary relief of a sum not less than N50,000,000(fifty million naira); or
    (c) claim involves a mortgage transaction, charge or other securities.
    (d) commerce and industry

Service of originating process

5.

  1. The bailiff shall serve the originating process under this order within 7 days while all other processes or notices filed shall be served within 3 days of filing and file proof of service.
    a. Where the bailiff is unable to serve, a Certificate of non-service shall be filed.
    b. Any court official who receives or dispatches a file or process relating to a Fast Track case shall state the time and date of such receipt or dispatch.
    c. Service of process may be effected on parties or counsel in court.

Trial from day to day

6.

  1. The trial shall be conducted on a day to day basis and parties are bound by hearing dates fixed in advance.

Fast track cases coordinator

7.

  1. The fast track coordinator shall:
    (a) Process Fast Track cases
    (b) Monitor the performance of Fast Track cases and submit weekly and monthly performance appraisal report to the Chief Judge.

Adjournments

8.

  1. (1) A judge may not grant an adjournment unless it is for cogent and compelling reasons to be advanced by a counsel present in court to make that application and not by letter.
    (2) Where an application for an adjournment is granted, the order shall not exceed three days from the date of the order.
    (3) Where a matter is adjourned at the instance of a party, he shall pay cost of not less than N10,000 (Ten thousand Naira) for everyday of the adjournment to each of the other party.
    (4). Where hearing has commenced the court will hold counsel responsible to his commitment to continuous trial. The court shall proceed notwithstanding the absence of counsel, parties or witnesses.

Time table for Fast track action

9.

  1. The timetable for steps in Fast Track action is as follows:
    (a) Administrative action by Chief Judge after filing of process –within 3 days.
    (b) Memorandum of appearance, defence and accompanying documents – 7 days within jurisdiction and 30 days outside jurisdiction.
    (c) Reply to defence – within 7 days
    (d) Pre trial conference, motion and other applications – within 7 days of close of pleadings.
    (e) Commencement of trial – within 30 days
    (f) Filing and adoption of addresses within 14 days.
    (g) Judgment – within 60 days
    (h) Issuance of Certified True Copy within 5 days.

Variation of trial directions

10.

  1. (1). Where service has been duly effected and there is proof of service, an extension of time prescribed in the time table for taking steps shall not be allowed unless for cogent and compelling reasons.
    (2). A party who fails to comply with the period prescribed in the timetable shall not be heard on any application except one for extension of time.

Enforcement of trial directions

11.

11-(1). Where hearing cannot proceed on a date fixed for hearing due to absence of the claimant, the case shall be struck out.
(2). Where hearing cannot commence on a date fixed for hearing due to the absence of the defendant, hearing shall continue and may be concluded without further notice to the defendant.
(3). Where a case is struck out under paragraph (1) above the claimant may apply to relist within 7 days.
(4). Where a case is relisted pursuant to sub rule (3) above, the claimant shall pay a cost as shall be determined by the court.

Addresses

12.

  1. (1) Addresses, objections and applications except arising extempore, shall be in writing and served on the other party.
    (2) Final addresses shall be deemed adopted in the absence of parties.

Record of proceedings

13.

  1. The registrar shall prepare record of proceedings upon payment of fees, to be issued within five days of the application.

ORDER 56

Establishment of Electronic Filing System

1.

  1. There shall be established a 24 hour electronic filing system on the Court’s portal for electronic filing of court processes.

Assessment, Payment and Receipt of Electronic Filing

2.

  1. The assessment of fees, payment of fees and generation of receipt of payment shall be done on the Court’s portal.

Virtual Proceedings

3.

  1. An electronically filed process shall be deemed filed when payment of necessary fees is made.

Web Link to observe Virtual Proceedings

4.

  1. An electronic signature shall constitute the parties’ and the Registrar’s signature.

Dressing for Virtual Proceedings

5.

  1. The Registrar shall sign, date and where required fill every document electronically filed.

6.

  1. The electronic filing system shall run parallel with manual filing process until the Chief Judge otherwise directs.

7.

  1. The Court may conduct all proceedings including rulings and judgments virtually by means of any audio-visual platform.

8.

  1. The Registrar shall notify the parties and provide a link to enable members of the public observe the virtual proceedings.

9.

  1. The court and Counsel shall be formally robed for the virtual hearing.

 

ORDER 57

What orders to be made

1.

  1. Subject to particular rules, the Court may in all cases make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not.

Recovery of penalties and costs

2.

  1. All fines, forfeitures, pecuniary penalties and costs ordered to be paid may be levied by distress, seizure and sale of the moveable and immovable property of the person making default in payment.

 

Notice.

3.

  1. In all cases in which 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 Court.

Office hours

4.

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

Filing

5.

  1. A document shall not be filed unless it has endorsed 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 endorsement shall be initialed by the registrar.

How process addressed

6.

  1. All warrants and orders of whatever description shall be sufficiently addressed for execution by being directed to the Sheriff; but this provision shall not prevent any order or warrant from being addressed to a person by name or to a person named and to officers of Court generally or to a Local Government authority.

Framing of new forms

7.

  1. In proceedings for which Forms are not prescribed by these Rules, the Chief Registrar may, subject to the approval of the Chief Judge, frame the forms required.

Fees

8.

  1. (1) The fees payable under these Rules shall be as set out in Form 57 as may be amended from time to time.
    (2) No fees are to be taken in respect of any matter where such fees would be payable by the Government or any Government Department:

Provided that when any person is ordered to pay the costs of the State or of a Government Department in any case, all fees which would have been payable but for the provisions of this sub-rule shall be taken as paid and shall be recoverable from such person.

Regulations

9.

  1. The Regulations in Form 56 shall govern the payment and disposal of fees and the duties of Court officers in regard thereto.

Rules of Court Advisory Committee

10.

  1. (1) There shall be constituted a body to be known as the Rules of Court Advisory Committee consisting of:
    (a) two Judges of the Court, one of whom shall be the Chairman;
    (b) two legal practitioners nominated by the Nigerian Bar Association of not less than fifteen years post qualification experience.
    (c) two State Counsel not below the rank of Principal State Counsel; and
    (d) a Secretary to be appointed by the Chief Judge.
    (2) It shall be the duty of the Committee to advise the Chief Judge from time to time in the exercise of the powers conferred upon him under the High Court Law to make rules for regulating or making provisions with respect to practice and procedure of the Court.
    (3) Every member of the Committee shall remain a member thereof for such period as the Chief Judge may prescribe at the time of the appointment of the member or at any time thereafter.

Saving

11.

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

Chief Judge to Issue Practice Direction.

12.

  1. The chief Judge shall have power to issue practice directions and such practice directions shall form part of these Rules.