WESTERN PACIFIC HIGH COURT (Civil Procedure) RULES 1964

THE WESTERN PACIFIC (COURTS) ORDER IN COUNCIL, 1961.

THE HIGH COURT (CIVIL PROCEDURE) RULES, 1964.

IN exercise of the powers conferred upon the Rules Committee by section 22 of the Western Pacific (Courts) Order in Council, 1961, and in exercise of the powers conferred upon the Chief Justice by section 5 of the Foreign Judgments (Reciprocal Enforcement) Ordinance, 1963 the following Rules are hereby made with the approval of the High Commissioner of the Western Pacific:-

Title and commencement

1. These Rules may be cited as the High Court (Civil Procedure) Rules, 1964, and shall come into operation on such date as the Chief Justice shall by notice appoint.

Application and Orders

2. These Rules shall apply in all causes and matters to which they extend in the High Court and are divided into Orders as follows:-

Order	Title	

1. Interpretation.
2. Writ of Summons and Procedure, etc.
3. Indorsement of Claim.
4. Indorsement of Address.
5. Issue of Writs of Summons.
6. Concurrent Writs.
7. Disclosure by Advocates and Plaintiffs.
8. Renewal of Writ.
9. Service of Writ of Summons and other Documents.
10. Substituted Service.
11. Service out of the Jurisdiction.
12. Appearance.
13. Default of Appearance.
14. Leave to sign judgment and defend where writ specially indorsed.
15. Summary Judgment for Specific Performance.
16. Application for an Account.
17. Parties.
18. Third Party Procedure.
19. Change of Parties by Death, etc.
20. Joinder of Causes of Action.
21. Pleading Generally.
22. Statement of Claim.
23. Defence and Counterclaim.
24. Payment into and out of Court.
25. Reply.
26. Matters Arising Pending the Action.
27. Proceedings in lieu of Demurrer.
28. Discontinuance.
29. Default of Pleading.
30. Amendment.
31. Admiralty Actions.
32. Summons for Directions.
33. Discovery and Inspection.
34. Admissions.
35. Settlements of Issues.
36. Inquiries and Accounts.
37.	I. Special Case.
II. Issue of Fact without Pleadings.
38. Trial.
39. Evidence Generally.
40. Depositions, Affidavits.
41. Exhibits.
42. Motion for Judgment.
43. Entry of Judgment.
44. Applications under the Foreign Judgments (Reciprocal Enforcement) Ordinance, 1963 (B.S.I.P.)
45. Execution.
46. Writs of Fieri Facias, and Sequestration.
47. Attachment.
48. Attachment of Debts.
49. Writ of Possession.
50. Writ of Delivery.
51. Actions by and against Firms and Persons carrying on Business in Names other than their own.
52. Transfers and Consolidation.
53. Interlocutory Orders as to Mandamus, Injunctions or Interim Preservation of Property, etc.
54. Sales by the Court.
55. Motions and other Applications.
56. Action of Mandamus.
57. Applications and Proceedings at Chambers.
58. Declaration on Originating Summons.
59. Interpleader.
60. Civil Appeals from Magistrates’ Courts.
61. Procedure for Prerogative Writs.
62. Delay in Proceedings.
63. Sittings, Vacations and Miscellaneous Provisions.
64. Time.
65. Costs.
66. Notices, Printing, Paper, Copies, Office Copies, Minutes, etc.
67. Service of Orders, etc.
68. Court Fees.
69. Effect of Non-Compliance.
70. Enforcement of Maintenance Orders.
71. Saving Provisions.
72. Application of Rules.
73. Repeal and Revocation.

____________________
(Note: In indicating in the marginal notes, the sources of the Orders and Rules, the letters “R.S.C.” mean the Rules of the Supreme Court of England.)

________

ORDER 1.

INTERPRETATION.

Interpretation of terms
R.S.C.
O.71, r.1

1. In these Rules, unless the context otherwise requires:- 

“action” means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include criminal proceeding by the Crown;

“advocate” means any legal practitioner entitled to practise in the High Court in accordance with the provisions of section 22 or 28 of the Western Pacific (Courts) Order in Council, 1961;

“cause” includes any action, suit or other original proceeding between plaintiff and defendant;

“Court” includes the High Court and the Chief Justice and Judges of the High Court;

“defendant” includes any person served with any writ of summons or process or served with notice of or entitled to attend any proceedings;

“Law Officer” means the Attorney General in the British Solomon Islands Protectorate, and that officer upon whom the powers of the law officer under these Rules have been conferred in any other territory;

“matter” includes every proceeding in Court not in a cause;

R.S.C.
O.71, r.1A.

“originating summons” means every summons other than a summons in a pending cause or matter;

“party” includes every person served with notice of or attending any proceeding, although not named on the record;

“person” includes a body corporate; 

R.S.C. O.71, r.1.

“plaintiff” includes every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise;

“pleading” includes any petition or summons and also includes the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant;

“Registrar” means the Registrar of the High Court in the territory in which proceedings have been or are being instituted;

“territory” means the British Solomon Islands Protectorate, the Gilbert and Ellice Islands Colony and the Condominium of the New Hebrides to the extent of Her Majesty’s jurisdiction therein as the case may be.

ORDER 2.

WRIT OF SUMMONS AND PROCEDURE, ETC.

Every action to be commenced by writ.
R.S.C. O.2,r.1.

1. Every action in the Court shall be commenced by a writ of summons which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.

Form of writ.
R.S.C. O.2, r.3.

2. The writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be in one of the Forms Nos. 1 and 2 in Appendix A, Part 1, with such variations as circumstances may require.

Leave to issue out of jurisdiction.
R.S.C. O.2, r.4.

3. No writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the Court.

Form of writ for service out of jurisdiction.
R.S.C. O.2, r.5.

4. A writ of summons to be served out of the jurisdiction or of which notice is to be given out of the jurisdiction, shall be in one of the Forms 3 and 4 in Appendix A, Part I, with such variations as circumstances may require. Such notice shall be in the Form No. 5 in the same Part, with such variations as circumstances may require.

All writs to be tested.
Their date.
R.S.C. O.2, r.8.

5. Every writ of summons and also (unless by these Rules or any written law it is otherwise provided) every other writ shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Chief Justice.

ORDER 3.

INDORSEMENT OF CLAIM.

Indorsement.
R.S.C. O.3, r.1

1. The indorsement of claim shall be made on every writ of summons before it is issued.

Precise relief need not be stated.
O.2, r.1. R.S.C. O.3, r.2.

2. In the indorsement required by Order 2, Rule 1, it shall not be essential to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled.

Indorsement Forms.
R.S.C. O.3, r.3.

3. The indorsement of claim shall be to the effect of such of the Forms in Appendix A, Part II and Part VI as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.

Indorsement to show representative capacity.
R.S.C. O.3, r.4.

4. If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show, in manner appearing by such of the forms in Appendix A, Part III, as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.

If an action is brought by or on behalf of a person resident outside the scheduled territories, as defined by any law in force relating to Exchange Control the indorsement shall so state and shall state the residence of such person.

Special indorsement.
R.S.C. O.3, r.6.

5. In actions -

(1) Where the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising -

(a) upon a contract, express or implied (as, for instance, on a Bill of exchange, promissory note or cheque, or other simple contract debt); or

(b) on a bond or contract under seal for payment of a liquidated amount of money; or

(c) on a statute or Ordinance where the sum to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(d) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or

(e) on a trust; or

(2) Where a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant; or

(3) Where the plaintiff seeks to recover possession of a specific chattel with or without a claim for the hire thereof or for damages for its detention; or

(4) Where the plaintiff claims possession of any property forming a security for the payment of money; and

(5) In all other actions in the Court (except matrimonial causes, probate and admiralty actions, actions for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, and actions in which fraud is alleged by the plaintiff) the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of his claim, or of the remedy or relief to which he claims to be entitled. Such special indorsement shall be to the effect of such of the Forms in Appendix A, sections 1 to 4, of Part IV inclusive, as shall be applicable to the case, or in a similar form.

What is indorsed, where the claim is liquidated.
R.S.C. O.3, r.7.

6. (1) Wherever the plaintiff’s claim is for a debt or liquidated demand only, the indorsement, besides stating the nature of the claim shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and shall further state that the defendant can pay the amount claimed and costs:

(a) into court if the plaintiff or one of two or more co-plaintiffs is resident outside the scheduled territories, as defined by any law in force relating to Exchange Control, or is acting by order or on behalf of a person so resident, or if the defendant is making the payment by order or on behalf of a person so resident, or

(b) in all other cases to the plaintiff, his advocate or agent; and that any such payment must be made within four days after service, or in the case of a writ not for service within the jurisdiction within the time allowed for appearance, and that upon such payment further proceedings will be stayed:

Provided that where the defendant pays the amount into court under this rule he shall give notice of such payment in to the plaintiff or his advocate or agent in Form No. 1A in Appendix A, Part V.

Ordinary account.
R.S.C. O.3, r.9.

7. In all cases in which the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be indorsed with a claim that such account be taken.

Libel
R.S.C. O.3, r.9.

8. In actions for libel the indorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.

ORDER 4.

INDORSEMENT OF ADDRESS.

R.S.C. O.4, r.1.

1. The advocate of a plaintiff suing by an advocate shall indorse upon the writ of summons the address of the plaintiff and also his own name or firm and an address within the jurisdiction which shall be an address for service where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for him.

Where plaintiff sues in person.
R.S.C. O.4, r.2.

2. (1) A plaintiff suing in person shall indorse upon the writ of summons his place of residence and his occupation.

(2) If his place of residence is within the jurisdiction it shall be an address for service, and, if his place of residence is not within the jurisdiction, or if he has no place of residence, the plaintiff shall indorse on the writ of summons a proper place within the jurisdiction, which shall be an address for service where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for him.

Where notice is served in lieu of writ.
R.S.C. O.4, r.3.

3. Where notice of a writ of summons is to be served out of the jurisdiction on a defendant in pursuance of Order 11, Rule 6, the indorsements required by the preceding rule of this Order shall be made both on the writ and on the notice.

R.S.C. O.4, r.4.

4. Where proceedings are commenced otherwise than by writ of summons, the preceding Rules of this Order shall apply to the process by which the proceedings are originated as they apply to a writ of summons.

ORDER 5.

ISSUE OF WRITS OF SUMMONS.

Issue of writ.

1. Every writ of summons shall be issued out of the Registry of the Court having jurisdiction over the action to which the writ relates and shall, subject to the provisions of the Order respecting transference, be regulated as follows:

(a) All actions relating to land, or any mortgage or charge thereon or any other interest therein or for any injuries thereto and also all actions relating to personal property distrained or seized for any cause, shall be commenced in the territory in which the land or any part thereof is situated, or the distress or seizure took place;

(b) All actions for recovery of penalties and forfeitures, and also all actions against public officers shall be commenced in the territory in which the cause of action arose;

(c) All actions for the specific performance, or upon the breach, of any contract, shall be commenced in the territory in which such contract ought to have been performed or in which the defendant resides;

(d) All other actions shall be commenced in the territory in which the defendant resides or carries on business. If there are more defendants than one resident in different territories, the action may be commenced in any of such territories; subject, however, to any order which the Court may upon the application of any of the parties, or on its own motion, think fit to make, with a view to the most convenient arrangement for the trial of such action;

(e) In case any action shall be commenced in any other territory than that in which it ought to have been commenced, the action may, notwithstanding, be tried in the territory in which it shall have been so commenced unless the Judge shall report to the Chief Justice that in his opinion the cause ought to be transferred, and the Chief Justice orders that the cause be transferred accordingly, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to plead in such cause;

(f) No proceedings which may have been taken previously to such plea in objection shall be in any way affected thereby; but the Judge shall report to the Chief Justice that in his opinion the cause ought to be transferred to the territory to which it may be proved to his satisfaction to belong, and the Chief Justice shall thereupon make such order as to him seems fit, or failing such proof as aforesaid the Judge may order that it be retained and proceed in the Court in which it has been commenced. Any Order made by the Chief Justice or a Judge under this rule shall be final, and there shall be no appeal therefrom.

Preparing and printing writs.
R.S.C. O.5, r.10.

2. Writs of summons shall be prepared by the plaintiff or his advocate, and shall be written, typewritten or printed, or partly written or typewritten and partly printed, at the option of the plaintiff:

Provided that where a plaintiff suing in person is illiterate and is unable to prepare the writ himself, the writ may be prepared by the Registrar from the dictation of the plaintiff, and any duplicates required shall also be made by the Registrar.

Sealing of writs.
R.S.C. O.5, r.1.

3. Every writ of summons issued out of the Registry of the Court, shall be sealed by the Registrar of the Court issuing the writ and shall thereupon be deemed to be issued.

What is to be done on sealing.
R.S.C. O.5, r.12.

4. The plaintiff or his advocate shall, on presenting any writ of summons for sealing, leave with the Registrar a copy of such writ and all the indorsements thereon, and such copy shall be signed by or for the advocate leaving the same, or by the plaintiff himself if he sues in person.

Filing and marking.
R.S.C. O.5, r.13.

5. The officer receiving such copy shall file the same, and an entry of the filing thereof shall be made in a book to be called the Cause Book.

ORDER 6.

CONCURRENT WRITS.

Concurrent writ, how issued, etc.
R.S.C. O.67, r.1.

1. The plaintiff in any action may, at the time of or at any time during twelve months after the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal hearing the word “concurrent”, and the date of issuing the concurrent writ; and such seal shall be impressed upon the writ by the Registrar; provided always, that such concurrent writ or writs shall only be in force for the period during which the original writ in such action shall be in force.

Concurrent originating summons.
R.S.C. O.6, r.1A.

2. A concurrent originating summons may be issued in the same manner, mutatis mutandis, as a concurrent writ of summons.

ORDER 7.

DISCLOSURE BY ADVOCATES AND PLAINTIFFS.

Where name of advocate indorsed on writ.
R.S.C. O.7, r.1.

1. Every advocate whose name shall be indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith in writing whether such writ has been issued by him or with his authority or privity; and if such advocate shall declare that the writ was not issued by him or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court.

2.-CHANGE OF ADVOCATES.

Notice of change of advocate.
R.S.C. O.7, r.2.

2. (1) A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed the former advocate shall be considered the advocate of the party till the final conclusion of the cause or matter.

Filing notice in Registry.
R.S.C. O.7, r.2.

(2) Notice of any change of advocate shall be filed with the Registrar of the Court.

ORDER 8.

RENEWAL OF WRIT.

Original writ in force for twelve months.
R.S.C. O.8, r.1.
Renewed for six months, if etc.
Seal.
Renewed writ, effect of.

1. No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court for leave to renew the writ; and the Court, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ. And the writ shall in such case be renewed by being marked with the seal of the Court by the Registrar who shall indorse such writ with the date of its renewal, upon delivery to him by the plaintiff or his advocate of a memorandum in Form No. 3 in Appendix A, Part V, with such variations as circumstances may require; and a writ of summons so renewed shall remain in force and be available to prevent the Operation of any Ordinance or other written law whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons.

Evidence of renewal.
R.S.C. O.8, r.2.

2. The production of a writ of summons purporting to be marked with the seal of the Court, showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for all purposes.

Lost writ.
R.S.C. O.8, r.3.

3. Where a writ, of which the production is necessary, has been lost, the Court, upon being satisfied of the loss, and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original writ.

ORDER 9.

SERVICE OF WRIT OF SUMMONS AND OTHER DOCUMENTS

Division 1.-Mode of Service.

Undertaking to accept service.
R.S.C. O.9, r.1.

1. No service of writ shall be required when the defendant, by his advocate, undertakes in writing to accept service, and enters an appearance.

When service required, how effected.
R.S.C. O.9, r.2.

2. When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made, but if it be made to appear to the Court that the plaintiff is from any cause unable to effect prompt personal service, the Court may make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may be just.

Division 2.-On Particular Defendants.

Husband and wife.
R.S.C. O.9, r.3.

3. (1) When husband and wife are both defendants to the action they shall both be served unless the Court shall otherwise order.

Service on Navy, Army or Air Force Personnel.

(2) Whenever it is desired to serve any writ or other document on any member of the Navy, Army or Air Force, service shall be effected through the Officer Commanding the ship or unit to which such member belongs.

Infant.
R.S.C. O.9, r.4.

4. When an infant is a defendant to the action, service on his father or guardian, or if none then upon the person with whom the infant resides or under whose care he is, shall, unless the Court otherwise orders, be deemed good service on the infant:

Provided that the Court may order that service made or to be made on the infant shall be deemed good service.

Person of unsound mind.
R.S.C. O.9, r.5.

5. When a person of unsound mind is a defendant to the action, service on the person with whom the person of unsound mind resides or under whose care he is, shall, unless the Court otherwise orders, be deemed good service on such defendant.

Division 3.-On Partners and other Bodies.

Actions by and against firms within the jurisdiction.
R.S.C. O.48A, r.3.

6. Where persons are sued as partners in the name of their firm, the writ shall be served either upon any one or more of the partners or at the principal place, within the jurisdiction, of the business of the partnership upon any person having at the time of service the control or management of the partnership business there; and, subject to these rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a writ against them shall be necessary:

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

Notice in what capacity served.
R.S.C. O.48A, r.4.

7. Where a writ is issued against a firm, and is served as directed by Rule 6 of this Order, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.

Service on Corporations, etc.
R.S.C. O.9, r.8.

8. (1) In the absence of any statutory provision regulating service of process, every writ of summons or other document to be served against a corporation aggregate may be served on the head officer, clerk, treasurer, secretary or other officer of such corporation; and where by any written law, provision is made for service of any writ of summons, bill, petition, summons, or any process upon any corporation, or upon any society or fellowship or any body or number of persons, whether corporate or incorporate, every writ of summons may be served in the manner so provided.

(2) In the absence of any statutory provision regulating service on a company carrying on business or on any society or fellowship within the jurisdiction of the Court whether corporate or incorporate, service may be effected, by sending the writ or other document to be served, by prepaid registered post to the secretary or other corresponding officer at the registered or head office of such company, society or fellowship, as the case may be, or by serving the writ or document on such secretary or corresponding officer personally of such office as aforesaid.

For the purpose of this Rule, “society” or “fellowship” includes any registered Trade Union or Co-operative Society.

Service on a Government Department.

(3) Whenever any writ or other document is to be served on any Government Department, service may be effected either by personal service on the Head of such Department, or by sending the writ or document to the Head of such Department in the same manner as writs or documents may, under paragraph (2), be sent to a company.

Service on principal residing or carrying on business out of the jurisdiction.
R.S.C. O.9, r.8A.

9. 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, a writ of summons in an action relating to or arising out of such contract may by leave of the Court given before the determination of such agent’s authority or of his business relations with the principal be served on such agent. Notice of the order giving such leave and a copy thereof and of the writ of summons shall forthwith be sent by prepaid registered post letter to the defendant or defendants at his or their address out of the jurisdiction.

Division 4.-In Particular Actions.

Service in action for recovery of land.
R.S.C. O.9, r.9.

10. Service of a writ of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise he effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property.

Service on board ship.
Sch. 3. O.10, r.5.

11. Where the person on whom service is to be effected is living or serving on board of any ship, it shall be sufficient service to deliver the writ or document to the person on board who is at the time of the service apparently in charge of the ship.

Division 5.-Generally

Indorsement of service.
R.S.C. O.9, r.15.

12. The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This Rule shall apply to substituted as well as other service.

Service of writ of summons, how made.

13. (1) Service of a writ of summons, and of any petition, notice, order or other document of which service is required shall be made by a bailiff.

(2) The bailiff serving any of the documents referred to in paragraph (1) above, shall, at the request of the party served, explain to such party the contents of the document served.

Service of notice, etc, to be personal.

14. (1) Service of a notice, summons, order or other document, shall wherever it is practicable, be effected personally on the person to be served and service thereof shall be completely effected by the delivery of a duplicate or attested copy of any such notice, summons, order or document without the exhibition of any original:

Provided that where service as aforesaid cannot be effected the provisions of Rule 2 of this Order as to substituted service shall, mutatis mutandis, apply.

(2) Service on the advocate or recognised agent of the person to be served shall be deemed to be effective service on such person.

No service on Sundays or holidays.

15. Service in a civil case shall not be made on Sunday, Good Friday, Christmas Day, or the day next before and the day next after Christmas Day.

Record and proof of service.

16. A book shall be kept at every Court for recording service of process, in such form as the Chief Justice may direct, to be called a Process Book, in which shall be entered by the officer serving the process, or by the Registrar, the names of the plaintiff and defendant, the particular Court issuing the process, the method, whether personal or otherwise, of the service, and the manner in which the person serving ascertained that he served the process on the right person, and where any process shall not have been duly served, then the cause of failure shall be stated; and every entry in such book or an office copy of any entry shall be prima facie evidence of the several matters therein stated.

Where violence threatened.

17. Where the bailiff charged with the service of any writ or document on any person is prevented by the violence or threats of such person, or any other person in concert with him, from personally serving the writ or document, it shall be sufficient to inform the person to be served of the nature of the writ or document, and to leave the writ of document as near such person as practicable.

Certificate of service.

18. In all cases where service of any writ or document shall have been effected by a bailiff a certificate of service signed by such bailiff shall, on production, without proof of signature, be prima facie evidence of service.

Bailiff to compare copy with original.

19. Whenever a bailiff shall receive any writ or document for service he shall compare the copy or duplicate for service with the original, so as to enable him to prove that the copy or the duplicate is a correct copy or a true duplicate of the original.

ORDER 10

SUBSTITUTED SERVICE.

Service other than personal

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, the Court may order that service be effected either-

Delivery to inmate.

(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

To agent.

(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 will, through the agent or other person, come to the knowledge of the person to be served; or

By advertisement.

(c) by advertisement at the Public Office of the High Commissioner or Resident Commissioner, as the case may be, and in such other manner, if any, as the Court, either generally or in respect of any particular case, may direct; or

By notice.

(d) by notice put up at the Court House, the office of the District Commissioner or District Agent, or some other place of public resort in the District 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; or

By registered letter.

(e) by prepaid registered letter addressed to the defendant at the address indicated in the affidavit filed by the plaintiff in support of his application for substituted service, whereat there is reasonable ground for believing that it will reach him.

Varying order of service.

2. An order for service may be varied from time to time with respect to the mode of service directed by the order.

Application to be supported by affidavit.
R.S.C. O.10, r.1.

3. Every application to the Court for an order 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.

ORDER 11

SERVICE OUT OF THE JURISDICTION.

In certain cases service of writ, etc., allowed out of jurisdiction.
R.S.C. O.11, r.1.

1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court whenever-

(a) the whole subject-matter of the action is land situate within the jurisdiction (with or without rents or profits), or the perpetuation of testimony relating to land within the jurisdiction; or

(b) any act, deed, will, contract, obligation, or liability affecting land or hereditaments, situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action; or

(c) any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or

(d) the action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of the territory; or

(e) the action is one brought against a defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract-

(i) made within the jurisdiction, or

(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or

(iii) by its terms or by implication to be governed by the law of a territory,

or is one brought against a defendant, in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

(f) the action is founded on a tort committed within the jurisdiction;

(g) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also 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 the jurisdiction;

(i) the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under paragraph (e) of this Rule) any personal judgment or order for payment of any moneys due under the mortgage.

In this sub-head the expression “personal property situate within the jurisdiction” means personal property which, on the death of an owner thereof intestate, would forth subject-matter for the grant of letters of administration to his estate; the expression “mortgage” means a mortgage charge or lien of any description; the expression “mortgagee” means a party for the time being entitled to or interested in a mortgage; and the expression “mortgagor” means a party for the time being entitled to or interested in property subject to a mortgage.

Agreement of parties as to jurisdiction and service.
R.S.C. O.11, r.2A.

2. Notwithstanding anything contained in Rule 1 of this Order, the parties to any contract may agree (a) that the Court shall have jurisdiction to entertain any action in respect of such contract, and, moreover or in the alternative, (b) that service of any writ of summons in any such action may be effected at any place within or out of the jurisdiction on any party or on any person on behalf of any party or in any manner specified or indicated in such contract. Service of any such writ of summons at the place (if any) or on the party or on the person (if any) or in a manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident, and if no place or mode or person be so specified or indicated, service out of the jurisdiction of such a writ may be ordered.

Application to be supported by evidence.
R.S.C. O.11, r.4.

3. Every application for leave to serve such writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or properly may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

Order to fix time for appearance.
R.S.C. O.11, r.5.

4. Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given, and on whether the airmail is available to such defendant.

Notice of writ.
R.S.C. O.11, r.6.

5. When the defendant is not a British subject living within the Commonwealth, notice of writ and not the writ itself is to be served upon him.

Service of notice of writ.
R.S.C. O.11, r.7.

6. Where leave is given under Rules 1 and 5 of this Order to serve notice of writ of summons out of the jurisdiction, such notice shall, subject to Rule 7 of this Order, be served in a manner in which writs of summons are served. (See Order 4, Rule 3.)

Service abroad by letter of request.
R.S.C. O.11, r.8.

7. Where leave is given to serve a writ of summons or a notice of a writ of summons in any foreign country to which this rule may by order of the Chief Justice from time to time be applied, the following procedure may be adopted:-

(1) The document to be served shall be sealed with the seal of the Court for use out of the jurisdiction, and shall be forwarded by the Judge to the Chief Secretary or to the Resident Commissioner as the case may be for transmission to Her Majesty’s Secretary of State for the Colonies, together with a copy thereof translated into the language of the country in which service is to be effected, and with a request for the further transmission of the same to the Government of the country in which leave to serve a document has been given. Such request shall be in Form numbered 4, in Appendix A, Part V, with such variations as circumstances may require.

(2) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the same, file a praecipe in Form numbered 5, in Appendix A, Part V.

(3) An official certificate, or declaration upon oath, or otherwise, transmitted through the diplomatic channel by the Government or Court of a foreign country to which this rule applies, to the Court, shall, provided it certifies or declares a document to have been personally served, or to have been duly served upon a defendant in accordance with the law of such foreign country, or words to that effect, be deemed to be sufficient proof of such service, and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.

(4) Where an official certificate or declaration, transmitted to the Court in manner provided in the last preceding section of this rule, certifies or declares that efforts to serve a document have been without effect, the Court may, upon the ex parte application of the plaintiff, order that the plaintiff be at liberty to bespeak a request for substituted service of such document. Such order shall be in Form numbered 6, in Appendix A, Part V, with such variations as circumstances may require.

(5) A request for substituted service of a document under this rule may be made by the plaintiff to the Registrar, upon filing a praecipe in Form numbered 5, in Appendix A, Part V, to these Rules, and the document and copy of the same, and the order shall be sealed and transmitted to Her Majesty’s Secretary of State for the Colonies in manner aforesaid together with a request in Form numbered 7, in Appendix A, Part V, with such variations as circumstances may require.

Process of which service may be allowed out of the jurisdiction.
R.S.C. O.11, r.8A.

8. Service out of the jurisdiction may be allowed by the Court of the following processes or of notice thereof, that is to say:-

(a) Originating Summonses under Order 58 or in any case where if the proceedings were commenced by writ of summons they will be within Rule 1 of this Order.

(b) Any originating summons, petition, notice of motion or other originating proceedings (1) in relation to any infant or person of unsound mind or (2) under any Ordinance or other written law under which proceedings can be commenced otherwise than by writ of summons or (3) under any Rule of Court or practice where under proceedings can be commenced otherwise than by writ of summons.

(c) Without prejudice to the generality of the last foregoing paragraph any summons, order, or notice in any Interpleader proceedings or for the appointment of any arbitrator or umpire or to remit, set aside or enforce an award in an arbitration held or to be held within the jurisdiction.

(d) Any summons, order or notice in any proceedings duly instituted whether by writ of summons or any other such originating process as aforesaid.

(e) Where the person on whom an originating summons, petition, notice of motion or other originating proceeding of a summons, order or notice is to be served is neither a British subject nor residing within British Dominions, a copy of the originating summons, petition, notice of motion or other originating proceeding or summons, order or notice instead of the original shall be served, together with an intimation in writing that a process in the form of the copy has been issued or otherwise launched.

Rules 3, 4, and 6 and 7 of this Order shall apply mutatis mutandis to such service.

Nothing herein contained shall in any way prejudice or affect any practice or power of the Court under which when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over any person out of the jurisdiction cause such person to be informed of the nature or existence of the proceedings with the view to such person having an opportunity of claiming, opposing or otherwise intervening.

Service of foreign process locally.
Transmission of Letter of Request by Secretary of State

9. 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 within the jurisdiction or any process or citation in such matter is transmitted to the Court by Her Majesty’s Secretary of State for the Colonies, with an intimation that it is desirable that effect should be given to the same, the following procedure shall be adopted:-

Translation required.

(1) The Letter of Request for service shall be accompanied by a translation thereof in the English language and by two copies of the process or citation to be served and two copies thereof in the English language.

Service by officer of the Court.

(2) Service of the process or of citation shall be effected by a bailiff.

Service, how to be effected.

(3) Such service shall be effected by the delivering to and leaving with the person to be served one copy of the process to be served and one copy of the translation thereof in accordance with the rules and practice of this Court relating to service of process.

Report of service to Registrar.

(4) After service has been effected the process server shall return to the Registrar one copy of the process, together with the evidence of service by affidavit of the person effecting the service verified by a Magistrate, a Commissioner of Oaths or justice of the peace, and particulars of charges for the cost of effecting such service.

Registrar to certify to charges.

(5) The particulars of charges for the cost of effecting service shall be submitted to the Registrar, who shall certify the correctness of the charges or such other amount as shall be properly payable for the cost of effecting service. A copy of such charges and certificate shall be forwarded to the Accountant-General.

Letter of Request to be returned to the Chief Secretary.

(6) The Registrar shall forward to the Chief Secretary or the Resident Commissioner as the case may be for transmission to Her Majesty’s Secretary of State for the Colonies the Letter of Request for service received from the foreign country together with the evidence of service, with a certificate appended thereto in Form numbered 8 in Appendix A, Part V, with such variations as circumstances may require duly sealed with the seal of the Court.

Substituted service.

10. Upon the application of a Law Officer the Court may make all such Orders for substituted service or otherwise as may be necessary to give effect to these Rules.

Service of English documents abroad.
R.S.C. O.11, r.11.

11. Where leave is given in a civil or criminal cause or matter or where such leave is not required, and it is desired to serve any writ of summons, originating summons, notice, or other document in any other foreign country with which a Convention in that behalf has been or shall be made, the following procedure shall, subject to any special provisions contained in the Convention, be adopted:-

(1) The party bespeaking such service shall file in the Registry a Request in the Form No. 9 in Appendix A, Part V, which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used. Such request shall state the medium through which it is desired the service shall be effected, i.e. whether (a) directly through the British Consul or (b) the foreign judicial authority, and 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 British subject directly through the British Consul in which case the translation and copies thereof need not accompany the request unless the convention expressly requires that they should do so.

(2) 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 Secretary of State for the Colonies for transmission to the foreign country.

(3) An official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a British Consular authority, to the Court, establishing the fact and the date of the service of the document, shall be deemed to be sufficient proof of such service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.

(4) In cases where a writ of summons or notice thereof is served pursuant to this rule, and an official certificate is produced, no indorsement of service under Order 9, rule 12, shall be required.

Airmail.
R.S.C. O.11. r.12A.

12. The Court, in giving leave to serve a document out of the jurisdiction under this Order, may direct that the airmail shall be used by the party effecting the service.

Service of foreign documents locally.

13. Where in any civil or commercial cause or matter pending before a Court or Tribunal in any foreign country with which a convention in that behalf has been or shall be made and applied to the territory within the jurisdiction of the Court, a request for service of any document on a person within the jurisdiction is received by the Registrar from the Consular or other authority of such country, the procedure laid down in this Order shall be subject to any special provisions contained in such convention.

ORDER 12.

APPEARANCE.

Mode of entering appearance. Memorandum and duplicate.
R.S.C. O.12, r.8.

1. A defendant shall enter his appearance to a writ of summons by delivering to the Registrar a memorandum in writing dated on the day of its delivery, and containing the name of the defendant’s advocate, or stating that the defendant defends in person. He shall at the same time deliver to the Registrar a duplicate of the memorandum, which shall be sealed with the official seal, showing the date on which it is sealed, and then return it to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.

Notice of appearance through the post.
R.S.C. O.12, r.8A.

2. In the case of a defendant desiring to enter an appearance in person, he may either by himself or by his advocate in lieu of delivering to the Registrar the memorandum of appearance and the duplicate thereof enter the appearance through the post by sending to the Registrar by prepaid registered letter -

(1) A memorandum of appearance and duplicate thereof both fully filled up;

(2) the sum of three shillings and sixpence;

(3) a notice of appearance and a copy thereof all duly filled up; and

(4) two envelopes each sufficiently stamped, one addressed to the plaintiff’s advocate (or to the plaintiff if he sues in person) at the address for service, and the other addressed to the defendant entering the appearance.

On receipt of these documents the Registrar shall forthwith enter the appearance as of the date when he receives the memorandum and shall seal the duplicate with the official seal, showing the date on which it is sealed, and shall seal the notice of appearance with the official seal, showing the date of the appearance, and shall deliver personally or post the notice to the plaintiff or his advocate and shall deliver or post the duplicate to the defendant, and shall file a copy of the notice.

Notice of appearance.
R.S.C. O.12, r.9.

3. (1) A defendant shall, on the date on which he enters an appearance to a writ of summons, give notice of his appearance to the plaintiff’s advocate, or if the plaintiff sues in person, to the plaintiff himself. The notice may be given either by notice in writing served in the ordinary way at the address for service or by prepaid registered letter directed to that address and posted on the day of entering appearance in due course of post, and shall in either case be accompanied by the sealed duplicate memorandum.

(2) This rule shall not apply to a defendant entering an appearance in person through the post under Rule 2 of this Order.

Defendant’s address for service.
R.S.C. O.12, r.10.

4. The advocate of a defendant appearing by an advocate shall state in the memorandum of appearance his place of business within the jurisdiction which shall be an address for service.

Defendant in person.
R.S.C. O.12, r.11.

5. A defendant appearing in person shall state in the memorandum of appearance his place of residence which shall be an address for service, or if he has no residence within the jurisdiction, a place within the jurisdiction which shall be an address for service.

Memorandum irregular, address fictitious.
R.S.C. O.12, r.12

6. If the memorandum does not contain such address it shall not be received; and if any such address shall be illusory or fictitious, the appearance may be set aside by the Court on the application of the plaintiff.

Memorandum of appearance.
R.S.C. O.12, r.13.

7. The memorandum of appearance shall be in the Form No.10, in Appendix A, Part V, with such variations as circumstances may require.

Entry of memorandum.
R.S.C. O.12, r.14.

8. Upon receipt of a memorandum of appearance, the Registrar shall forthwith enter the appearance in the Cause Book.

Appearance of partners.
R.S.C. O.48 (a), r.5.

9. 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, nevertheless, continue in the name of the firm.

Defendants appearing by same advocate.
R.S.C. O.12, r.17.

10. If two or more defendants in the same action shall appear by tile same advocate and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum.

Time of appearance.
R.S.C. O.12, r.22.

11. A defendant may appear at any time before judgment. If he appears at any time after the time limited by the writ for appearance, he shall not, unless the Court shall otherwise order, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ.

Recovery of land.
R.S.C. O.12, r.25.

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

Landlord appearing.
R.S.C. O.12, r.26.

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

Recovery of land, person not named defendant.
R.S.C. O.12, r.27.

14. Where a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the Court to appear and defend, he shall enter an appearance, according to the foregoing Rules of this Order, intituled in the action against the party named in the writ as defendant, and shall forthwith give notice of such appearance to the plaintiff’s advocate, or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the action.

Recovery of land limiting defence.
R.S.C. O.12, r.28.

15. Any person appearing to a writ of summons for the recovery of land shall be at liberty to limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance, or in a notice intituled in the action and signed by him or his advocate. Such notice shall be served within seven days after appearance; and an appearance, where the defence is not limited as above mentioned, shall be deemed an appearance to defend for the whole.

Form of notice.
R.S.C. O.12, r.29.

16. The notice mentioned in the last preceding Rule shall be in the Form No. 11, in Appendix A, Part V, with such variations as circumstances may require.

Motion to set aside writ.
R.S.C. O.12, r.30.

17. A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service.

Court may permit party to appear by proxy.

18. In every cause or matter pending before the Court, in case it shall appear to the satisfaction of the Court that any plaintiff or defendant who may not be represented by an advocate is prevented by some good or sufficient cause from attending the Court in person, the Court may in its discretion permit any person, who shall satisfy the Court that he has authority in that behalf, to appear for such plaintiff or defendant.

Public officer may appear.

19. Any public officer may appear and act for the Crown, the Government of a territory, the High Commissioner of the Western Pacific, the Resident Commissioner in a territory or a Department of Government or a public authority in any case or matter.

ORDER 13

DEFAULT OF APPEARANCE.

Default of appearance by infant or person of unsound mind.
Notice of application.
R.S.C. O.13, r.1.

1. Where no appearance has been entered to a writ of summons for a defendant who is an infant or a person of unsound mind, the plaintiff shall, before further proceeding with the action against the defendant, apply to the Court for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order shall be made unless it appears on the hearing of such application that the writ of summons was duly served, and that notice of such application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application, served upon or left at the dwelling-house of the person with whom or under whose care such defendant was at the time of serving such writ of summons, and also (in the case of such defendant being an infant not residing with or under the care of his father or guardian) served upon or left at the dwelling-house of the father or guardian, if any, of such infant, unless the Court at the time of hearing such application shall dispense with such last-mentioned service.

Default of appearance generally.
R.S.C. O.13, r.2.

2. Where any defendant fails to appear to a writ of summons and the plaintiff is desirous of proceeding upon default of appearance under any of the following rules of this Order or under Order 15, Rule 1, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service, as the case may be.

Liquidated demand indorsed.
R.S.C. O.13, r.3.

3. Where the writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and the defendant fails, or all the defendants, if more than one, fail, to appear thereto, the plaintiff may, subject as provided by Rule 11 of this Order, enter final judgment for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified (if any), or (if no rate be specified) at the rate of five per cent per annum, to the date of judgment and costs in accordance with Form 1 in Appendix F.

Liquidated demand.
Several defendants.
R.S.C. O.13, r.4.

4. Where a writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may enter final judgment, as in the preceding rule, against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with the action against such as have appeared.

Detention of goods.
R.S.C. O.13, r.5.
Damages.
Interlocutory judgment.
Writ of inquiry.

5. Where the writ is indorsed with a claim for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and the defendant fails, or all the defendants, if more than one, fail, to appear, the plaintiff may enter interlocutory judgment, and the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of summons shall be determined by a Judge in Chambers. But the Court may order a statement of claim or particulars to be filed before any assessment of damages, and may order that, the value and amount of damages, or either of them, shall be ascertained in any other way which the Court may direct. (See Forms 2 & 3 Appendix F.)

Several defendants.
R.S.C. O.13, r.6.

6. Where the writ is indorsed as in the last preceding rule mentioned, and there are several defendants, of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the Court shall otherwise direct:

Provided that the Court may order that the value and amount of damages, or either of them, shall be ascertained in any way which the Court may direct.

Detention of goods, damages, and liquidated demand.
Final and interlocutory judgment.
R.S.C. O.13, r.7.

7. Where the writ is indorsed with a claim for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and is further indorsed for a liquidated demand, whether specially or otherwise, and any defendant fails to appear to the writ, the plaintiff may enter final judgment for the debt or liquidated demand, interest and costs against the defendant or defendants failing to appear, and interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in such of the preceding Rules of this Order as may be applicable. (See Form 4 Appendix F.)

Setting aside judgment.
R.S.C. O.13, r.10.

8. Where judgment is entered pursuant to any of the preceding Rules of this Order, it shall be lawful for the Court to set aside or vary such judgment upon such terms as may be just.

Default of appearance in sections not otherwise specially provided for.
R.S.C. O.13, r.12.

9. In all actions not by the Rules of this Order otherwise specially provided for (including actions for the recovery of land and a claim for mesne profits), in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not’ specially indorsed under Order 3, Rule 5, of a statement of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 16.

Default of appearance to originating summons.
R.S.C. O.13, r.15.

10. Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff or applicant may apply to the Court for an appointment for the hearing of such summons, and upon a certificate that no appearance has been entered, the Court shall appoint a time for the hearing of such summons, upon such conditions (if any) as they or he shall think fit.

Actions on mortgages.
R.S.C. O.13, r.17.

11. In any action in which the plaintiff is claiming any relief of the nature or kind following, that is to say -

Payment of moneys secured by a mortgage or charge;

Sale;

Foreclosure;

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;

Redemption;

Reconveyance;

Delivery of possession by the mortgagee;

no judgment shall be entered in default of appearance without leave of the Court who may require the application for leave to be supported by such evidence as might be required if relief were being sought on originating summons, and may require notice of such evidence to be given to the defendant and to such other person (if any) as the Court may think proper.

ORDER 14

LEAVE TO SIGN JUDGMENT AND DEFEND WHERE
WRIT SPECIALLY INDORSED

Judgment on writ specially indorsed under Order 3, rule 6.
R.S.C. O.14, r.1.

1.	(a) Where the defendant appears to a writ of summons specially indorsed with or accompanied by a statement of claim under Order 3, Rule 5, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to the Court for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Court thereupon, unless the defendant shall satisfy the Court that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed;

(b) If on the hearing of any application under this rule it shall appear that any claim which could not have been specially indorsed under Order 3, Rule 5, has been included in the indorsement on the writ, the Court may forthwith amend the indorsement by striking out such claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects the residue of the claim;

(c) Where the plaintiff’s claim is for the delivery tip of a specific chattel (with or without a claim for the hire thereof or for damages for its detention) the Court may make an order for the delivery up of the chattel without giving the defendant any option of retaining the same upon paying the assessed value thereof, and such order, if not obeyed, may be enforced by a writ of attachment or a writ of delivery;

(d) Where an application is made by the Crown under this rule, the cause of action shall be deemed to be sufficiently verified if an affidavit is made by -

(i) an officer duly authorised by the Department concerned; or

(ii) a Law Officer; or

(iii) an officer duly authorised by a Law Officer, stating that to the best of his knowledge and belief, the plaintiff is entitled to the relief claimed and there is no defence to the action except as to the amount of damages claimed, if any. (See Form 6 Appendix F.)

Application by summons.
R.S.C. O.14, r.3.

2. The application by the plaintiff for leave to enter final judgment under Rule 1 shall be made by summons returnable not less than ten clear days after service accompanied by a copy of the affidavit and exhibits referred to therein.

Defendant may show cause.
R.S.C. O.14, r.3.

3.	(a) The defendant may show cause against such application by affidavit, or the Court may allow the defendant to be examined upon oath;

(b) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part of the plaintiff’s claim;

(c) The Court may order the defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.

Judgment for part of claim.
R.S.C. O.14, r.4.

4. If it appears that the defence set up by defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into Court by the Sheriff, costs, or otherwise, in the discretion of the Court. And the defendant may be allowed to defend as to the residue of the plaintiff’s claim.

Where one defendant has good defence, but other not.
R.S.C. O.14, r.5.

5. If it appears to the Court that any defendant has a good defence to or ought to be permitted to defend the action and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former.

Leave to defend.
R.S.C. O.14, r.6.

6. Leave to defend may be given unconditionally, or subject to such terms as to giving security or time or mode of trial or otherwise as the Court may think fit.

R.S.C. O.14, r.7A.

7. Where in the case of any claim for unliquidated damages the Court has given leave to enter interlocutory judgment, the value of the goods and the damages (or the damages only) to be awarded shall be determined by the Court in any way which the Court may direct.

Directions to trial.
R.S.C. O.14, r.8.

8.	(a) Where leave, whether conditional or unconditional, is given to defend, the Court shall have power to give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 32, and may order the action to be forthwith set down for trial.

(b) Where the plaintiff has obtained leave to enter final judgment subject to a suspension of execution pending the trial of a counter-claim the provisions of this Rule shall apply to the counterclaim as if it were an action.

Relief from forfeiture.
R.S.C. O.14, r.10.

9. A tenant shall have the same right to relief after a judgment under this Order for recovery of land on the ground of forfeiture for non-payment of rent as if the judgment had been given after trial.

ORDER 15

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE.

Summary judgment in actions for specific performance.
R.S.C. O.14A, r.1.

1. In any action commenced by a writ of summons indorsed with a claim for specific performance of an agreement, whether in writing or not, for the sale or purchase of property, with or without alternative claims for damages, for rescission or for the forfeiture or return of the deposit, the plaintiff may (whether the defendant has appeared or not), on affidavit made by himself, or by any other person who can swear positively to the facts, verifying the cause of action and stating that in his belief there is no defence to the action, apply to the Court for judgment and the Court may thereupon give judgment in the action unless the defendant by affidavit, or by his own viva voce evidence or otherwise, satisfies the Court that he has a good defence to the action on the merits, or discloses facts sufficient, in the opinion of the Court, to entitle him to defend.

R.S.C. O.14A, r.1A.

2. In proceedings by the Crown, where an application is made under Rule 1 of this Order, the cause of action shall be deemed to be sufficiently verified if affidavit is made by:-

(a) an officer duly authorised by the Department concerned; or

(b) a Law Officer; or

(c) an officer duly authorised by a Law Officer; stating that to the best of his knowledge and belief the plaintiff is entitled to the relief claimed and there is no defence to the action.

R.S.C. O.14A, r.2.

3. The application by the plaintiff under rule 1 shall be made by summons returnable not less than four clear days after set vice accompanied by a copy of the affidavit and any exhibits referred to therein.

R.S.C. O.14A, r.3.

4. (1) The defendant may show cause against such application by affidavit, or the Court may allow the defendant to be examined on oath.

(2) The Court may if it thinks fit order the defendant or in the case of a corporation any officer thereof to attend and be examined upon oath or to produce any documents or copies of or extracts therefrom.

R.S.C. O.14A, r.4.

5. Leave to defend may be given unconditionally or subject to such terms as to giving security or time or mode of trial or otherwise as the Court may think fit.

R.S.C. O.14A, r.5.

6. Where leave, whether conditional or unconditional, is given, the Court shall have power to give directions limiting the time within which pleadings are to be delivered, and as to any interlocutory matter, and may order the action to be set down for trial forthwith or at such date as the Court shall think proper.

R.S.C. O.14A, r.6.

7. The costs of and incident to all applications under this Order shall be dealt with by the Court on the hearing of the application, who may order by and to whom and when the same shall be paid or may refer them to the Court at the trial.

ORDER 16

APPLICATION FOR AN ACCOUNT

Order for account.
R.S.C. O.15, r.1.

1. Where a writ of summons has been indorsed for an account, under Order 3, Rule 7, or where the indorsement on a writ of summons involves taking an account, if the defendant either fails to appear, or does not after appearance, by affidavit or otherwise, satisfy the Court that there is some preliminary question to be tried, an order for proper accounts, with all necessary inquiries and directions, shall be forthwith made.

Application, how made.
R.S.C.O.15, r.2.

2. An application for such order as mentioned in the last preceding Rule shall be made by summons, and be supported by an affidavit, when necessary, filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired.

ORDER 17

PARTIES

Division I.-Generally.

Persons claiming jointly, severally or in the alternative may be plaintiff.
R.S.C. O.16, r.1.

1. All persons maybe joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that, if upon the application of any defendant it shall appear that such joinder may embarrass or delay the trial of the action, the Court may order separate trials, or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief unless the Court in disposing of the costs shall otherwise direct.

Action in name of wrong plaintiff.
R.S.C. O.16, r.2.

2. Where an action has been commenced in the name of the wrong person as plaintiff or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just.

Counterclaim Misjoinder.
R.S.C. O.16, r.3.

3. Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counterclaim or set-off, he may obtain the benefit thereof by establishing his set-off or counterclaim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.

All persons may be joined as defendants.
R.S.C. O.16, r.4.

4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

Defendant need not be interested in all the relief claimed.
R.S.C. O.16, r.5.

5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the Court may make such order as may appear just to prevent any defendant 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.
R.S.C. O.16, r.6.

6. The plaintiff 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.

Plaintiff in doubt as to person from whom redress is to be sought.
R.S.C. O.16, r.7.

7. Where the plaintiff is in doubt as to the person from whom lie 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.

Trustees, executors, etc., may sue and be sued as representing estate.
R.S.C. O.16, r.8.

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

This Rule shall apply to trustees, executors, and administrators, sued in proceedings to enforce a security by foreclosure or otherwise.

Head of family may sue and be sued.

Any person entitled in accordance with custom, to represent any community, line or group of natives, may sue and be sued on behalf of or as representing such community, line or group.

Numerous persons.
R.S.C. O.16, r.9.

9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court to defend in such cause or matter, on behalf or for the benefit of all persons so interested.

Power to approve compromise.
R.S.C. O.16, r.9A.

10. Where, in any proceedings concerning (a) the estate of a deceased person, (b) property subject to a trust, or (c) the construction of a written instrument, a compromise is proposed and some of the persons who are interested in or who may be affected by the compromise are not parties to the proceedings (including unborn or unascertained persons), but -

(i) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise; or

(ii) the absent persons are represented by a person appointed under Rule 21 of this Order 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 the same 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.

Misjoinder and non-joinder.
R.S.C. O.16, r.11.
Striking out and adding parties.
Consent of plaintiff or next friend.

11. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court 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 Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiff’s or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle-all the question involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceeding as against such party shall be deemed to have begun only on the service of such writ or notice.

Application to add or strike out.
R.S.C. O.16, r.12.

12. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by motion or summons or at the trial of the action in a summary manner.

Where defendant added.
R.S.C. O.16, r.13.

13. Where a defendant is added or substituted, the writ of summons shall be amended accordingly and the plaintiff shall, unless otherwise ordered by the Court, file a copy of the writ as amended, and serve the new defendant with such amended writ or notice in lieu of service thereof in the same manner as original defendants are served, and the proceedings shall, be continued as if the new defendant had originally been made a defendant.

Division II.-Persons under Disability.

Actions by infants.
R.S.C. O.16, r.16.

14. Infants may sue as plaintiffs by their next friends and may, in like manner, defend by their guardians appointed for that purpose.

Persons of unsound mind.
R.S.C. O.16, r.17.

15. Persons of unsound mind may sue as plaintiffs in any action by their next friend, and may in like manner defend any action by their next friend or guardians appointed by the Court for that purpose.

R.S.C. O.16, r.17A.

16. Nothing in Rule 14 or 15 of this Order shall prevent a married woman acting as next friend or guardian.

Appearance by infant.
R.S.C. O.16, r.18.

17. An infant shall not enter an appearance except by his guardian ad litem. No order for the appointment of such guardian shall be necessary, but the advocate applying to enter such appearance, shall make and file an affidavit in the Form No. 12, in Appendix A, Part V, with such variations as circumstances may require.

Guardian ad litem.
R.S.C. O.16, r.19.

18. Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the advocate by whom he appears shall previously make and file an affidavit as in the last rule mentioned.

Next friend.
R.S.C. O.16, r.20.

19. Before the name of any person shall be used in any action as next friend of any infant, or other party, or as relator, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed with the Registrar of the Court in which the cause or matter is proceeding.

Consent of persons under disability to procedure.
R.S.C.

20. In all causes or matters to which any infant or person of unsound mind, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall if given with the consent of the Court by the next friend, guardian, or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent.

Division III – Administration and Execution of Trusts

Representation of persons, or classes of persons in certain proceedings.
R.S.C. O.16, r.32.

21. Where, in any proceedings concerning (a) the administration of an estate, (b) property subject to a trust, or (c) the construction of a written instrument (including an Ordinance or other written law) it appears that any person (including an unborn person) or any class of person, is or may be interested (whether presently or for any future, contingent, or unascertained interest) in or affected by the proceedings, but cannot be ascertained or cannot readily be ascertained, or, though ascertained, cannot be found, the Court may, if satisfied that it is expedient so to do, appoint one or more persons to represent such persons or class, and the judgment or order of the Court delivered in the presence of the person or persons so appointed shall be binding on the person or class so represented.

Residuary legatee and next of kin.
R.S.C. O.16, r.33.

22. Any residuary legatee or next of kin entitled to a judgment or order for the administration of the personal estate of a deceased person may have the same without serving the remaining residuary legatees or next of kin.

Persons interested in proceeds of realty.
R.S.C. O.16, r.34.

23. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, and who may be entitled to a judgment or order for the administration of the estate of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate.

Residuary devisee or heir.
R.S.C. O.16, r.35.

24. Any residuary devisee or heir entitled to the like judgment or order, may have the same without serving any co-residuary devisee or co-heir.

Cestuis que trust.
R.S.C. O.16, r.36.

25. Any one of several cestuis que trust under any deed or instrument entitled to a judgment or order for the execution of the trusts of the deed or instrument, may have the same without serving any other cestui que trust.

Waste.
R.S.C. O.16, r.37.

26. In all cases of actions for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest.

Executor, administrator or trustee.
R.S.C. O.16, r.38.

27. Any executor, administrator, or trustee entitled thereto may have a judgment or order against any one legatee, next of kin, or cestui que trust for the administration of the estate or the execution of the trusts.

Conduct of action.
R.S.C. O.16, r.39.

28. The Court may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as he may think fit, and may make such order in any particular case as he may think just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question.

Notice of judgment to be served on certain persons.
R.S.C. O.16, r.40.

29. Wherever, in any action for the administration of the estate of a deceased person or the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or an order has been pronounced or made:-

(a) under Order 16;

(b) under Order 36;

(c) affecting the right or interests of persons not parties to the action;

the Court may direct that any persons interested in the estate or under the trust or in the hereditaments, shall be served with notice of the judgment or order; and after such notice such persons shall be bound by the proceedings, in the same manner as if they had originally been made parties, and shall be at liberty to attend the proceedings under the judgment or order. Any person so served may, within one month after such service, apply to the Court to discharge, vary, or add to the judgment or order.

Order for liberty to attend not necessary.
R.S.C. O.16, r.41.
Appearance entered.

30. It shall not be necessary for any person served with notice of any judgment or order, to obtain an order for liberty to attend the proceedings under such judgment or order, but such person shall be at liberty to attend the proceedings upon entering an appearance in the same manner, and subject to the same provisions, as the defendant entering an appearance.

Memorandum of service to be entered.
R.S.C. O.16, r.42.

31. A memorandum of the service upon any person of notice of the judgment or order in any action under Rule 29 of this Order shall be entered in the registry of the Court upon due proof by affidavit of such service.

Form of memorandum.
R.S.C. O.16, r.43.

32. Notice of a judgment or order served pursuant to Rule 29 of this order shall be entitled in the action, and there shall be endorsed thereon a memorandum in the Form No.13 in Appendix A, Part V.

Service of notice of judgment on infants, etc.
R.S.C. O.16, r.44.

33. Notice of a judgment or order on an infant or person of unsound mind shall be served in the same manner as a writ of summons in an action.

Where no legal personal representative, Court may appoint or dispense with.
R.S.C. O.16, r. 46.

34. If in any cause, matter, or other proceeding it shall appear to the Court that any deceased person who was interested in the matter in question has no legal personal 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 all the purposes of the cause, matter, or other proceeding on such notice to such persons (if any) as the Court shall think fit, either specially 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 cause, matter or proceeding.

ORDER 18

THIRD PARTY PROCEDURE.

Third party procedure. Third party notice.
R.S.C. O.16A, r.1.

1. (1) Where in any action a defendant claims as against any person not already a party to the action (in this Order called the third party)

(a) that he is entitled to contribution or indemnity, or

(b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or

(c) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them,

the Court may give leave to the defendant to issue and serve a “third-party notice”.

(2) The Court may give leave to issue and serve a “third party” notice on an ex party application supported by affidavit, or, where the Court directs a summons to the plaintiff to be issued, upon the hearing of the summons.

Form and issue of notice.
R.S.C. O.16A, r.2.

2. (1) The notice shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed. It shall be in accordance with the Form No. 1 or Form No. 2 in Appendix B, with such variations as circumstances may require and shall be sealed and served on the third party in the same manner as a writ of summons is sealed and served.

(2) The notice shall, unless otherwise ordered by the Court, be served within the time limited for delivering the defence or, where the notice is served by a defendant to a counterclaim, the reply, and with it there shall be served a copy of the writ of summons or originating summons and of any pleadings delivered in the action.

Effect of notice.
R.S.C. O.16A, r.3.

3. The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

Appearance.
R.S.C. O.16A, r.4.

4. The third party may enter an appearance in the action within eight days from service or within such further time as may be directed by the Court and specified in the notice:

Provided that a third party failing to appear within such time may apply to the Court for leave to appear, and such leave may be given upon such terms, if any, as the Court shall think fit.

Default by third party.
R.S.C. O.16A, r.5.

5. If a third party duly served with a third party notice does not enter an appearance or makes default in delivering any pleading which he has been ordered to deliver, 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, and by any decision therein on any question specified in the notice; and when contribution or indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of such contribution or indemnity or other relief or remedy.

Procedure in default before trial.
R.S.C. O.16A, r.6.

6. Where a third party makes default in entering an appearance or delivering any pleading which he has been ordered to deliver and the defendant giving the notice suffers judgment by default, such defendant shall be entitled at any time, after satisfaction of the judgment against himself or before such satisfaction by leave of the Court, to enter judgment against the third party to the extent of any contribution or indemnity claimed in the third party notice, or by leave of the Court to enter such judgment in respect of any other relief or remedy claimed as the Court shall direct:

Provided that it shall be lawful for the Court to set aside or vary such judgment against the third party upon such terms as may seem just.

Third party directions.
R.S.C. O.16A, r.7.

7. (1) If the third party enters an appearance the defendant giving notice may, after serving notice of the intended application upon the plaintiff, the third party and any other defendant, apply to the Court for directions, and the Court may:-

(a) where the liability of the third party to the defendant giving the notice is established on the hearing of the application, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant giving the notice; or

(b) if satisfied that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third party or between any or either of them as to the liability of the defendant to the plaintiff or as to the liability of the third party to make any contribution or indemnity claimed, in whole or in part, or as to any other relief claimed in the notice by the defendant or that a question or issue stated in the notice should be determined not only as between the plaintiff, the defendant and the third party or any or either of them, order such question or issue to be tried in such manner as the Court may direct; or

(c) dismiss the application.

R.S.C. O.16A, r.7, (2) (3).

(2) Any directions given pursuant to this Rule may be given either before or after any judgment has been signed by the plaintiff against the defendant in the action, and may be varied from time to time and may be rescinded.

(3) The third party proceedings may at any time be set aside by the Court.

Leave to defend.
R.S.C. O.16A, r.8.

8. The Court upon the hearing of the application for directions may, if it shall appear desirable to do so, give the third party liberty to defend the action, either alone or jointly with the original defendant, upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, pleadings or documents to be delivered, or amendments to be made, and give such directions as to the Court shall appear proper for having the question and the rights and liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or judgment in the action.

At trial.
R.S.C. O.16A, r.9.

9. (1) Where the action is tried, the Judge who tries the action may, at or after the trial, enter such judgment as the nature of the case may require for or against the defendant giving the notice against or for the third party, and may grant to the defendant or to the third party any relief or remedy which might properly have been granted if the third party had been made a defendant to an action duly instituted against him by the defendant:

Provided that execution shall not be issued without leave of the Court until after satisfaction by the defendant of the judgment against him.

(2) Where the action is decided otherwise than by trial, the Court may, on application by motion or summons, make such order as the nature of the case may require, and, where the plaintiff has recovered judgment against the defendant, may order such judgment as may be just to be entered for or against the defendant giving notice against or for the third party.

At trial.
R.S.C. O.16A, r.10.

10. The Court may decide all questions of costs as between a third party and other parties to the action, and may order any one or more of them to pay the costs of any other or others, or give such directions as to costs as the justice of the case may require.

Co-defendants.
R.S.C. O.16A, r.12.

11. (1) Where a defendant claims against another defendant -

(a) that he is entitled to contribution or indemnity, or

(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or

(c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue between the plaintiff and the defendant making the claim and should properly be determined not only as between the plaintiff and the defendant making the claim but as between the plaintiff and that defendant and another defend-ant or between any or either of them,

the defendant making the claim may without any leave issue and serve on such other defendant a notice making such claim or specifying such question or issue.

(2) No appearance to such notice shall be necessary and the same procedure shall be adopted for the determination of such claim, question or issue between the defendants as would be appropriate under this Order if he were a third party.

(3) Nothing herein contained shall prejudice the rights of the plaintiff against any defendant to the action.

Contribution between parties.

12. A party to an action who, either as a third party or as one of two or more tortfeasors liable in respect of the same damage, stands to be held liable in the action to another party to contribute towards any debt or damages which may be recovered by the plaintiff in the action, and who, at any time before the trial of the action,, makes a written offer to that other party (whether absolute or conditional and whether limited or not as respects the time for acceptance thereof) to contribute to a specified extent to the debt or damages, may, in making that offer, while stipulating that it is to be without prejudice to his defence (whether as against the plaintiff of as against the party to whom the offer is made or as against any other party to the action), nevertheless reserve the right to bring the offer to the attention of the Court at the trial as if it were a payment into Court (that is to say, after all questions of liability and amount of debt or damages have been decided); and if such an offer is so brought to the attention of the Court in pursuance of a right so reserved, the Court shall, to such extent, if any, as it may think appropriate in all the circumstances, take the offer into account in exercising its discretion as to costs.

Counterclaim.
R.S.C. O.16A, r.13.

13. In this Order the words “plaintiff” and “defendant” respectively shall include a plaintiff and a defendant to a counterclaim.

ORDER 19

CHANGE OF PARTIES BY DEATH, ETC.

Action not abated where cause of action continues.
R.S.C. O.17, r.1.

1. A cause or matter shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survive or continue, 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 verdict or finding of the issues of-fact and the judgment, but judgment may in such case be entered, notwithstanding the death.

In case of marriage, etc., or devolution of estate, Court may order successor to be made a party or served with notice.
R.S.C. O.17, r.2.

2. In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed and on such terms as the Court shall think just, and shall make such order for the disposal of the cause or matter as may be just.

In case of assignment, creation, or devolution of estate or title, action may be continued.
R.S.C. O.17, r.3.

3. 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.

Order to carry on proceedings.
R.S.C. O.17, r.4.

4. Where by reason of marriage, death, or bankruptcy, or any other event occurring after the commencement of a cause or matter, 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 cause or matter, 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 party on application to the Court, upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence.

Service of order to continue action.
R.S.C. O.17, r.5.

5. An order obtained as in the last preceding Rule mentioned, shall, unless the Court shall otherwise direct, be served upon the continuing party or parties, or their legal practitioner, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following Rules, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons.

Application to discharge order by person under no disability or having a guardian.
R.S.C. O.17, r.6.

6. Where any person who is under no disability or under no disability other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the cause or matter,-shall be served with such order as in Rule 4 mentioned, such person may apply to the Court to discharge or vary such order at any time within fourteen days from the service thereof.

By person under disability having no guardian.
R.S.C. O.17, r.7.

7. Where any person being under any disability other than coverture, and not having a guardian ad Hum in the cause or matter, is served with any order as in Rule 4 mentioned, such person may apply to the Court to discharge or vary such order at any time within fourteen days from the appointment of a guardian ad litem for such party, and until such period shall have expired such order shall have no force or effect as against such last-mentioned person.

Death of sole plaintiff or defendant.
R.S.C. O.17, r.8.

8. When the plaintiff or defendant in a cause or matter dies and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or person against whom the cause or matter may be continued) may apply by summons to compel the plaintiff (or the person entitled to proceed) to proceed within such time as may be ordered; and, in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued; and in such case, if the plaintiff has died execution may issue as in the case provided for by Order 45, Rule 23.

Advocate or plaintiff to give notice of abatement.
R.S.C. O.17, r.9.

9. Where any cause or matter becomes abated or in the case of any such change of interest as is by this Order provided for, the advocate for the plaintiff or person having the conduct of the cause or matter, as the case may be, shall certify the fact to the proper officer who shall cause an entry thereof to be made in the cause book opposite to the name of such cause or matter.

Abated cause, etc., to be struck out.
R.S.C. O.17, r.10.

10. Where any cause or matter shall have been standing for one year in the cause book marked as “abated” or standing over generally, such cause or matter at the expiration of the year shall be struck out of the cause book.

Dispute as to legal representative.
Sch.3. O.28, r.6.

11. If any dispute arise as to who is the legal representative or successor of a deceased plaintiff, it shall be competent to the Court either to stay the action until the fact has been duly determined in another action, or to decide at or before the hearing of the action who shall be admitted to be such legal representative or successor for the purpose of prosecuting the action.

ORDER 20

JOINDER OF CAUSES OF ACTION.

All causes of action may be joined.
O.18, r.1.

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

Recovery of land.
R.S.C. O.18, r.2.

2. No cause of action shall unless by leave of the Court be joined with an action for the recovery of land, except a claim for the declaration of title and claims in respect of mesne profits or arrears of rent or double value in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which same or any part thereof are held, or for any wrong or injury to the premises claimed, and except also claims for payment of principal money or interest secured by or for any other relief in respect of a mortgage or charge of such land:

Provided that nothing in this Order shall prevent any plaintiff in an action for foreclosure or redemption from asking for or obtaining an order against the defendant for delivery of the possession of the mortgaged property to the plaintiff on or after the order absolute for foreclosure or redemption, as the case may be, and such an action for foreclosure or redemption and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these Rules:

Provided also, that in case any mortgage security shall be foreclosed by reason of the default to redeem any plaintiff in a redemption action, the defendant in whose favour such foreclosure has taken place may by motion or summons apply to the Court for an order for delivery to him of possession of the mortgaged property, and such order may be made thereupon as the justice of the case shall require.

Claims by trustee.
R.S.C. O.18, r.3.

3. Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court, be joined with any claim by him in any other capacity.

Husband and wife.
R.S.C. O.18, r.4.

4. Claims by or against husband and wife may be joined with claims by or against either of them separately.

Executor, administrator or successor.
R.S.C. O.18, r.5.

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

Claims by joint plaintiffs.
R.S.C. O.18, r.6.

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

Rules 1, 8, and 9.
R.S.C. O.18, r.7.

7. The last three preceding Rules shall be subject to Rules 1, 8 and 9 of this Order.

Remedy for mis-joinder.
R.S.C. O.18, r.8.

8. Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the Court for an order confining the action to such of the causes of action as may be conveniently disposed of together.

Order for exclusion.
R.S.C. O.18, r.9.

9. If, on the hearing of such application as in the last preceding Rule mentioned, it shall appear to the Court that the causes of action are such as cannot all be conveniently disposed of together, the Court may order any of such causes of action to be excluded, and consequential amendments to be made, and may make such order as to costs as may be just.

ORDER 21

PLEADING GENERALLY.

R.S.C. O.19, r.1.

1. The following Rules of pleading shall be used in the High Court.

Delivery of pleadings.
R.S.C. O.19, r.2.

2. The plaintiff shall, subject to the provisions of Order 22, and at such time and in such manner as therein prescribed, deliver to the defendant a statement of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall, subject to the provisions of Order 23, and at such time and in such manner as therein prescribed, deliver to the plaintiff his defence, set-off, or counterclaim (if any), and the plaintiff shall, subject to the provisions of Order 25, and at such time and in such manner as therein prescribed, deliver his reply (if any) to such defence, set-off, or counterclaim. Such statements shall be as brief as the nature of the case will admit.

Set-off and counterclaim.
R.S.C. O.19, r.3.

3. Subject to the provisions of Rule 13 of Order 23, a defendant in an action may set-off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counter claim sound in damages or not, and such set-off or counterclaim shall have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim.

Pleading to state material facts and not evidence.
R.S.C. O.19, r.4.

4. Every pleading shall contain, and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Where pleadings have been settled by an advocate they shall be signed by him; and if not so settled they shall be signed by the party if he sues or defends in person.

Forms of pleading.
R.S.C. O.19, r.5.

5. The forms in Appendices C, D and E, when applicable, and where, they are not applicable forms of the like character, as near as may be, shall be used for all pleadings.

Particulars to be given where necessary.
R.S.C. O.19, r.6.

6. (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 beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading; provided that, if the particulars be of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading.

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

Further and better statement, or particulars.
R.S.C. O.19, r.7.

7. 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.

Letter for particulars.
R.S.C. O.18, r.7A.

8. Before applying for particulars by summons or notice a party may apply for them by letter. In dealing with the costs of any application for particulars by summons or notice, the costs of the letter and of any particulars delivered pursuant thereto shall be allowable by the Court.

Particulars before defence.
R.S.C. O.19, r.7B.

9. Particulars of a claim shall not be ordered under Rule 7 to be delivered before defence unless the Court shall be of opinion that they are necessary or desirable to enable the defendant to plead or ought for any other special reason to be so delivered.

Order for particulars - when a stay.
R.S.C. O.19, r.8.

10. The party at whose instance particulars have been delivered under an order of the Court shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons. Save as in this Rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time.

Pleadings to be typewritten or handwritten.
R.S.C. O.19, r.9.

11. Every pleading may he either typewritten or handwritten or partly typewritten and partly handwritten.

Delivery of pleadings.
R.S.C. O.19, r.10.

12. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered to the advocate of every party who appears by an advocate, or to the party if he does not appear by an advocate, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer.

Marking pleadings.
R.S.C. O.19, r.11.

13. Every pleading shall be delivered between parties and shall be marked on the face with the date of the day on which it is delivered, the reference to the letter and number of the action, the title of the action, and the description of the pleading, and shall be indorsed with the name and place of business of the advocate and agent, if any, delivering the same, or the name and address of the party delivering the same if he does not act by an advocate.

Specific denial.
R.S.C. O.19, r.13.

14. Every allegation of fact in any pleading, not being a petition or summons if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, or person of unsound mind.

Condition precedent.
R.S.C. O.19, r.14.

15. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant (as the case may be); and, subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

New fact must be specially pleaded.
R.S.C. O.19, r.15.

16. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, the Statute of Frauds, the Statute of Limitations, release, payment, performance, facts showing illegality either by Ordinance or other written law or common law.

Departure.
R.S.C. O.19, r.16.

17. No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

Denial to be specific.
R.S.C. O.19, r.17.

18. It shall not be sufficient for a defendant in his defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

Joinder of issue.
R.S.C. O.19, r.18.

19. Subject to the last preceding Rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any) subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted.

Evasive denial.
R.S.C. O.19, R.19.

20. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received; and if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances.

Denial of contract.
R.S.C. O.19, r.20.

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

Effect of documents to be stated.
R.S.C. O.19, r.21.

22. 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, etc. Condition of mind.
R.S.C. O.19, r.22.

23. Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred: Provided that where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privileged occasion, the plaintiff shall, if he intends to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matters from which such malice is to be inferred.

Libel and Slander.
R.S.C. O.19, r.22 (a).

24. 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 facts and of the facts and matters he relies on in support of the allegation that the words are true.

R.S.C. O.19, r.23.

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

Implied contract or relation.
R.S.C. O.19, r.24.

26. 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 such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

Presumption of law.
R.S.C. O.19, r.25.

27. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim).

Technical objection.
R.S.C. O.19, r.26.

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

Striking out pleadings.
R.S.C. O.19, r.27.

29. The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of the action and may in any such case, if they or he shall think fit, order the costs of the application to be paid as between advocate and client.

Native Law and Custom

30. In, all cases in which the party pleading relies upon a native law or custom, the native law or custom relied upon shall be stated in the pleading with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the line or group of persons to which it relates.

Illiterate parties

31. When in any case any party not represented by an advocate, is, owing to lack of education or from any other cause, incapable of preparing a written pleading, the Registrar or some other officer of the Court shall record the statement of that party in writing, and thereafter the Court may, if satisfied that the statement as recorded properly represents the intentions of the party in question, direct that such statement be filed as a pleading.

ORDER 22

STATEMENT OF CLAIM.

Statement of Claim.
R.S.C. O.20, r.1.

1. The delivery of statements of claim shall be regulated as follows:-

(a) Where the writ is specially indorsed with or accompanied by a statement of claim under Order 3, Rule 5, no further statement of claim shall be delivered unless the Court shall otherwise order;

(b) Subject to the provisions of Order 13, Rule 9, as to filing a statement of claim when there is no appearance, the plaintiff shall (unless he has delivered a statement of claim under Order 3, Rule 5, or the Court otherwise orders) deliver a statement of claim either with the writ of summons, or notice in lieu of writ of summons, or within fourteen days after appearance, provided that the times prescribed by this paragraph may be enlarged by consent in writing or by the Court.

Claim beyond indorsement.
R.S.C. O.20, r.4.

2. Whenever a statement of claim is delivered the plaintiff may t therein alter, modify, or extend his claim without any amendment of the indorsement of the writ.

Relief to be specifically stated.
R.S.C. O.20, r.6.

3. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the Court may think just, to the same extent as if it had been asked for. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant, in his defence.

Relief founded on separate grounds.
R.S.C. O.20, r.7.

4. Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off or counterclaim, founded upon separate and distinct facts.

Stated or settled account.
R.S.C. O.20, r.8.

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

ORDER 23

DEFENCE AND COUNTERCLAIM.

Mere denial insufficient.
R.S.C. O.21, r.1.

1. In actions for a debt or liquidated demand in money comprised in Order 3, Rule 5, a mere denial of the debt shall be inadmissible.

Defence to actions on bills.
R.S.C.O.21, r.2.

2. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact, e.g., the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill or note.

Defence to action under classes A & B, Order 3, R.5.
R.S.C. O.21, r.3.

3. In actions comprised in Order 3, Rule 5, classes (a) and (b), a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed ; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

Pleading to damages.
R.S.C. O.21, r.4.

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

Persons in representative capacity.
R.S.C. O.21, r.5.

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

Time for delivery of defence.
R.S.C. O.21, r.6.

6. Where a defendant has entered an appearance, he shall deliver his defence within fourteen days from the time limited for appearance or from the delivery of the statement of claim, whichever shall be later, unless such time is extended by consent in writing or by the Court, or, in actions in which the writ of summons has been specially indorsed with or accompanied by a statement of claim under Order 3, Rule 5, the plaintiff in the meantime serves a summons for judgment under Order 14.

Where leave to defend given under Order 14.
R.S.C. O.21, r.6.

7. Where leave has been given to a defendant to defend under Order 14, he shall deliver his defence (if any) within such time as shall be limited by the order giving him leave to defend: or if no time is thereby limited, then within eight days after the order.

Proper admissions not made.
R.S.C. O.21, r.9.

8. Where the Court shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra costs occasioned by their having been denied or not admitted.

Counterclaim.
R.S.C. O.21, r.10.

9. Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his defence, state specifically that he does so by way of counterclaim.

Title of counterclaim.
R.S.C. O.21, r.11

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

Claim against person not party.
R.S.C. O.21, r.12.

11. Where any such person as in the last preceding Rule mentioned is not a party to the action, he shall be summoned to appear by being, served with a copy of the defence, and such service shall be regulated by the same Rules as are hereinbefore contained with respect to the service of a writ of summons, and every defence so served shall be indorsed in the Form No. 3 in Appendix B, or to the like effect.

Appearance by added parties.
R.S.C. O.21, r.13.

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

Reply to counterclaim.
R.S.C. O.21, r.14.

13. Any person named in a defence as a party to a counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim.

Exclusion of counterclaim.
R.S.C. O.21, r.15.

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

Discontinuance.
R.S.C. O.21, r.16

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

Judgment for balance.
R.S.C. O.21, r.17.

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

Plea in abatement.
R.S.C. O.21, r.20.

17. No plea or defence shall be pleaded in abatement.

Plea of possession.
R.S.C. O.21, r.21.

18. No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless he is in possession by virtue of a lease or tenancy granted by the plaintiff or his predecessor in title or his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession, and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff’s statement of claim. He may nevertheless rely upon any ground of defence which he can prove except as hereinbefore mentioned.

ORDER 24

PAYMENT INTO AND OUT OF COURT.

Payment into Court.
R.S.C. O.22, r.1.

1. (1) In any action for a debt or damages the defendant may at any time after appearance upon notice to the plaintiff pay into Court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action; provided that with a defence setting up tender before action the sum of money alleged to have been tendered must be brought into Court.

Specific causes of action.
R.S.C. O.22, r.1 (2).

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

Notice.
R.S.C. O.22, r.1 (3).

(3) The notice shall be in Form 4 in Appendix B, and shall state whether liability is admitted or denied and receipt of the notice shall be acknowledged in writing by the plaintiff within three days.

Plaintiff may take out money.
R.S.C. O.22, r.2.

2. (1) Where money is paid into Court under Rule 1 of this Order the plaintiff may within fourteen days of the receipt of the notice of payment into Court or, where more than one payment into Court has been made, within fourteen days of the receipt of the notice of the last payment into Court, accept the whole sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the defendant in Form 5 in Appendix B; and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.

R.S.C. O.22, r.2.

(2) Payment shall be made to the plaintiff or on his written authority to his advocate and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed.

Plaintiff may tax costs.
R.S.C. O.22, r.2 (3).

(3) If the plaintiff accepts money paid into Court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more specified causes of action, and gives notice that he abandons the other causes of action, he may, after four days from payment-out apply to the Court for an order for the payment of any costs incurred by him.

R.S.C. O.22, r.2 (4).

(4) A plaintiff in an action for libel or slander who takes money out of Court may apply by summons to a Judge in Chambers for leave to make in open Court a statement in terms approved by a Judge.

R.S.C. O.22, r.2 (5).

(5) This Rule does not apply to an action or cause of action to which a defence of tender before action is pleaded.

Money remaining in Court.
R.S.C. O.22, r.3.

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

Several defendants.
R.S.C. O.22, r.4.

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

(2) If the plaintiff elects within fourteen 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 5 in Appendix B to each defendant.

(3) Thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed, and the money shall not be paid out except in pursuance of an order of the Court dealing with the whole costs of the action or cause or causes of action (as the case may be).

(4) In an action for libel or slander against several defendants sued jointly, if any defendant pays money into Court the plaintiff may within fourteen 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 5 in Appendix B. The plaintiff may continue with the action against any other defendant, but the sum paid into Court shall be set off against any damages awarded to the plaintiff against the defendant or defendants against whom the action is continued.

Counterclaim.
R.S.C. O.22, r.5.

5. A plaintiff or other person made defendant to a counterclaim may pay money into Court in accordance with the foregoing Rules, with the necessary modifications.

Non-disclosure of payment into Court.
R.S.C. O.22, r.6.

6. Except in an action to which a defence of tender before action is pleaded or in which a plea under the Libel Acts, 1843 and 1845, has been filed, no statement of the fact that money has been paid into Court under the preceding Rules of this Order shall be inserted in the pleadings and no communication of that fact shall at the trial of any action be made to the Judge until all questions of liability and amount of debt or damages have been decided, but the Judge shall, in exercising his discretion as to costs, take into account both the fact that money has been paid into Court and the amount of such payment.

Money paid into Court under order.
R.S.C. O.22, r.8

7. Money paid into Court under an order of the Court shall not be paid out of Court except in pursuance of an order of the Court: Provided that, where before the delivery of defence money has been paid into Court by the defendant pursuant to an order under the provisions of Order 14, he may (unless the Court shall otherwise order) by notice in writing appropriate the whole or any part of such money, and any additional payment if necessary, to the whole or any specified portion of the plaintiff’s claim, or if he pleads a tender may by his pleading appropriate the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered; and the money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this Order relating to money paid into Court or money paid into Court with a plea of tender as the case may be, and shall be subject in all respects thereto.

Duty.
R.S.C. O.22, r.10.

8. Every petition or summons for dealing with money or securities in Court, chargeable with any duty payable to the Treasury, or the dividends on such securities, shall contain a statement whether such duty has or has not been paid.

Money recovered by or paid into account of infant or person of unsound mind.
R.S.C. O.22, r.14.

9. (1) In any cause or matter in the Court in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, whether before or at or after the trial, shall as regards the claims of any such infant or person of unsound mind 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 cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise payment, payment into Court or otherwise, before or at or after the trial, shall be paid to the plaintiff or to the next friend to the plaintiff or to the plaintiff’s advocate 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 and the said money or any part thereof may be so directed:-

(i) to be paid into the Court and to be invested or otherwise dealt with there; or

(ii) to be paid into the Court and transferred to, or where the money has been paid into the Court to be transferred to, the Magistrate’s Court of the district in which the infant or person of unsound mind resides or such other Magistrate’s Court as the Court may think fit; or

(iii) to be otherwise dealt with.

The Forms numbered 6, 7, 8 and 9, in Appendix B may be used in cases to which they are applicable with such variations as the circumstances of each particular case may require.

(4) The directions referred to in paragraph (3) of this Rule may include any general or special directions that the Court may think fit to give, including (without prejudice to the generality of the above provision) directions as to how the money is to be applied or dealt with and as to any payment to be made either directly or out of the amount paid into Court either before or after it is transferred to a Magistrate’s Court, to the plaintiff or to the next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind or otherwise or to the plaintiff’s advocate in respect of costs.

R.S.C. O.22, r.14 (6).

(5) Where pursuant to paragraph (3) of this Rule money is ordered to be transferred to a Magistrate’s Court the plaintiff’s advocate or the next friend if there be no plaintiff’s advocate, shall send to a Magistrate’s Court a copy of the writ and pleadings (if any) and of any orders and documents (if any) in the cause or matter which may be necessary or useful in order to enable the Magistrate’s Court to deal with the matter, or which may be required by the Magistrate’s Court.

R.S.C. O.22, r.14 (7).

(6) When in the cases dealt with in paragraphs (2) to (4) inclusive of this Rule the money is received in a Magistrate’s Court, it shall (subject to any order or direction that the Court may give in the order or judgment for its transfer to the Magistrate’s Court) be held invested applied or otherwise dealt with for the benefit of the infant or person of unsound mind in such manner as the Magistrate’s Court in its discretion thinks fit (and in accordance with any Rules of Court for the time being in force).

R.S.C. O.22, r.14 (9).

(7) The provisions of this Rule shall also apply to all actions in which damages are claimed or recovered by or on behalf of or adjudged or ordered or awarded or agreed to be paid to an infant or person of unsound mind under the Fatal Accidents Acts, 1846 as amended prior to the first day of January, 1960 and also to money which under those Acts is recovered by or adjudged to be paid to the widow of the person killed as they apply to money recovered by or adjudged or ordered to be paid to an infant. Where such proceedings are taken by or for the benefit of more than one person and the amount recovered is to be divided amongst such persons the Court shall divide and apportion the share to be paid to each of the said persons and the amount so apportioned shall be specified in the order or judgment made or directed.

Custody of money.

10. When any money is paid into or deposited in Court, the Registrar shall thereupon pay the money into a deposit account entitled “Deposits-Court Registrar” which shall be maintained in accordance with the instructions of the Accountant-General or the Accountant as the case may be. The Accountant-General or the Accountant shall thereafter comply with any direction in writing he may receive from the Court or the Registrar respecting such money and shall, on compliance with any such direction, be free and exonerated from all liability on account of or relating to the same.

Order for payment into Court to be obtained from Court.

11. When, in proceedings for the administration by the Court of the estate of a deceased person, or of a trust estate, money is paid into Court, or anything is deposited in Court, an order for such payment of deposit must always be obtained beforehand from the Court.

Registrar to pay into Treasury money, etc., paid into Court.

12. (1) Any moneys so paid into Court shall be dealt with in the same manner as in Rule 10 of this Order, and where money is paid into Court in satisfaction or part satisfaction of a plaintiff’s claim, and the plaintiff refuses to accept, or does not within fourteen days after its receipt by the Registrar accept the same, the Registrar shall after such refusal, or after the expiration of the fourteen days deal with such money as in Rule 10 aforesaid provided.

(2) Where anything other than money is deposited in Court the Registrar shall keep such thing in safe custody, until the person entitled thereto withdraws the same, or until the Court shall give directions to him as to the disposal of the thing deposited.

ORDER 25

REPLY.

R.S.C. O.23, r.1.

1. Where the plaintiff desires to deliver a reply, he shall deliver it within fourteen days from the delivery of the defence.

R.S.C. O.23, r.2.

2. Where a counterclaim is pleaded, a reply thereto shall be subject to the Rules applicable to defences.

ORDER 26

MATTERS ARISING PENDING THE ACTION

R.S.C. O.24, r.1.

1. Any ground of defence which has arisen after action brought, but before the defendant has delivered his defence, and before the time limited for his doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence. And if, after a defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply.

Further defence or reply.
R.S.C. O.23, r.2.

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

Confession of defence.
R.S.C. O.24, r.3.

3. Whenever any defendant, in his defence, or in any further defence as in the last rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence (which confession may be in the Form No. 10 in Appendix B, with such variations as circumstances may require), and may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Court shall, either before or after the delivery of such confession, otherwise order. (See Form 12 Appendix F.)

ORDER 27

PROCEEDINGS IN LIEU OF DEMURRER.

Demurrer abolished.
R.S.C. O.25, r.1.

1. No demurrer shall be allowed.

Points of law may be raised by pleadings.
R.S.C. O.25, r.2.

2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Court at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

Dismissal of action.
R.S.C. O.25, r.3

3. If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court 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.
R.S.C. O.25, r.4.

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

Declaratory judgment.
R.S.C. O.25, r.5.

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

ORDER 28

DISCONTINUANCE

Plaintiff may discontinue before defence.
R.S.C. O.26, r.1.
The Court may allow a defendant to discontinue.

1. The plaintiff may, at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.

Withdrawal by consent.
R.S.C. O.26, r.2

2. When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing, signed by the parties.

Entering judgment on discontinuance.
R.S.C. O.26, r.3.

3. Any defendant may enter judgment for the costs of the action if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs, if any, are not paid within four days after such discontinuance or withdrawal. (See Form 11 Appendix F.)

Staying until costs paid.
R.S.C. O.26, r.4.

4. If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may, if they or he think fit, order a stay of such subsequent action, until such costs shall have been paid.

ORDER 29

DEFAULT OF PLEADING

Default of plaintiff in delivering statement of claim.
R.S.C. O.27, r.1.

1. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court to dismiss the action with costs, for want of prosecution; and on the hearing of such application the Court may, if no statement of claim shall have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just.

Claim for debt or liquidated demand.
R.S.C. O.27, r.2.

2. If the plaintiff’s claim be only for a debtor liquidated demand, and the defendant does not, within the time allowed for that purpose, deliver a defence, subject as provided by Rule 13 of this Order, the plaintiff may, at the expiration of such time, enter final judgment for the amount claimed, with costs. (See Forms 1 & 4 Appendix F.)

Several defendants -default of one.
R.S.C. O.27, r.3.

3. When in any such action as in the last preceding Rule mentioned there are several defendants, if one of them make default as mentioned in the last preceding Rule, the plaintiff may, subject to Rule 13 of this Order, enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants. (See Forms 1 & 4 Appendix F.)

Damages.
Detention of goods.
R.S.C. O.27, r.4.

4. If the plaintiff’s claim be for unliquidated damages only, or for detention of goods with or without a claim for unliquidated damages, and the defendant, or all the defendants, if more than one, make default as mentioned in Rule 2 of this Order, the plaintiff may enter an interlocutory judgment against the defendant or defendants, and the value of the goods, and the damages, or the damages only, as the case may be, shall be determined by the Court.

Default of one or more defendants.
R.S.C. O.27, r.5.

5. When in any such action as in Rule 4 mentioned there are several defendants, if one or more of them make default as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant or defendants so making default, and proceed with his action against the others. And in such case, the value and amount of damages against the defendant making default shall be assessed at the same time with the trial of the action or issues therein against the other defendants, unless the Court shall otherwise direct.

Debt or damages and detention of goods or damages.
R.S.C. O.27, r.6.

6. If the plaintiff’s claim be for a debt or liquidated demand and also for unliquidated damages, or for the detention of goods with or without a claim for unliquidated damages, and any defendant make default as mentioned in Rule 2 of this Order, the plaintiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in Rules 4 and 5 of this Order.

Where a defence is delivered to part of claim only.
R.S.C. O.27, r.9.

7. If the plaintiff’s claim be for a debt or liquidated demand, or for pecuniary damages only, or for detention of goods with or without a claim for unliquidated damages, or for any of such matters, or for the recovery of land, and the defendant delivers a defence, which purports to offer an answer to part only of the plaintiff’s alleged cause of action, the plaintiff may by leave of the Court enter judgment, final, or interlocutory, as the case may be, for the part unanswered: Provided that the unanswered part consists of a separate cause of action, or is severable from the rest, as in the case of part of a debt or liquidated demand: Provided also that, where there is a counterclaim, execution on any such judgment as above mentioned in respect of the plaintiff’s claim shall not issue without leave of the Court.

Defendant in default.
R.S.C. O.27, r.11.

8. In all other actions than those in the preceding Rules of this Order mentioned, and those to which Rule 14 of this Order applies, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled.

One of several defendants in default.
R.S.C. O.27, r.12.

9. Where, in any such action as mentioned in Rule 8 of this Order, there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered, for trial on set down on motion for judgment against the other defendants.

Close of pleadings on default.
R.S.C. O.27, r.13.

10. Where a pleading subsequent to reply is not ordered, then, at the expiration of fourteen days from the delivery of the defence or reply (if any); or, where a pleading subsequent to reply, is ordered, and the party who has been ordered or given leave to deliver the same fails to do so within the period limited for that purpose, then, at the expiration of the period so limited, the pleadings shall be deemed to be closed and material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue: Provided that this Rule shall not apply to a reply to a counterclaim and that unless the plaintiff delivers a reply to a counterclaim, the statements of fact contained in such counterclaim shall at the expiration of fourteen days from the delivery thereof or of such time (if any) as may by order be allowed for delivery of a reply thereto be’ deemed to be admitted, but the Court may at any subsequent time give leave to the plaintiff to deliver a reply.

Default of third party.
R.S.C. O.27, r.14.

11. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering 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 complete justice between the parties.

Setting aside judgment by default, or the setting down hereunder.
R.S.C. O.27, r.5.

12. Any judgment by default, whether under this Order or under any other of these Rules, may, be set aside by the Court, upon such terms as to costs or otherwise as such Court may think fit, and where an action has been set down on motion for judgment under Rule 8 of this Order, such setting down may be dealt with by the Court in the same way as if judgment by default had been signed when the case was set down.

R.S.C. O.27, r.17.

13. In any action in which the plaintiff is claiming any relief of the nature or kind following, that is to say:-

Payment of moneys secured by mortgage or charge,

Sale,

Foreclosure,

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,

Redemption,

Reconveyance,

Delivery of possession by the mortgagee,

(a) No judgment shall be entered in default of pleading without leave of the Court which may require the application for leave to be supported by such evidence as might be required if relief were being sought on originating summons, and may require notice of such evidence to be given to the defendant and to such other person (if any) as the Court, may think proper;

(b) on any motion for judgment under Rule 8 of this Order, the Court may require the motion to be supported by such evidence as might be required if relief were being sought on originating summons, and may require notice of such evidence to be given to the defendant and to such other person (if any) as the Court may think proper.

R.S.C. O.27, r.18.

14. In proceedings against the Crown no judgment for the plaintiff shall be entered in default of pleading without the leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day.

ORDER 30.

AMENDMENT.

Amendment of indorsement.
R.S.C. O.28, r.1.

l. The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Plaintiff may amend without leave, when.
R.S.C. O.28, r.2.

2. The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared.

When a defendant may amend a counterclaim or set-off without leave.
R.S.C. O.28, r.3.

3. A defendant who has set up any counterclaim or set-off may, without any leave, amend such counterclaim or set-off at, any time before the expiration of the time allowed him for answering the reply, and e before such answer, or in case there be no reply, then at any time before ; the expiration of twenty-eight days from defence.

Disallowance of amendment, application for, within eight days.
R.S.C. O.28, r.4.

4. Where any party has amended his pleading under either of the last two preceding rules, the opposite party may, within fourteen days after the delivery to him of the amended pleading, apply to the Court s to disallow the amendment, or any part thereof, and the Court may, if satisfies that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may be just.

Where one party has amended under Rule 2 or 3.
R.S.C. O.28, r.5.

5. Where any party has amended his pleading under Rule 2 or 3 of this Order, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead or within fourteen days from the delivery of the amendment whichever shall last expire; and in case the opposite party has pleaded before the delivery of the amendment; and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment.

Application for leave.
R.S.C. O.28, r.6.

6. In all cases not provided for by the preceding Rules of this Order, application for leave to amend may be made by either party to the Court at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.

Failure to amend after order.
R.S.C. O.28, r.7.

7. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court.

Amendments when to be printed.
R.S.C. O.28, r.8.

8. An indorsement or pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a printed or type written copy of the document as amended.

Date of order and date of amendment to be marked.
R.S.C. O.28, r.9.

9. Whenever any indorsement or pleading is amended, the same when amended shall be marked with the date of the order, if any, under which the same is so amended and of the day on which such amendment is made, in manner following, viz -

“Amended ……………… day of …………………., pursuant to order of ………………..dated the …………………of …………………….”

Delivery of amended pleadings.
R.S.C. O.28, r.10.

10. Whenever any indorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same.

Clerical mistakes and accidental omissions.
R.S.C. O.28, r.11.

11. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.

General power to amend.
R.S.C. O.28, r.12.

12. The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

Costs.
R.S.C. O.28, r.13.

13. The costs of and occasioned by any amendment made pursuant to Rules 2 and 3 of this Order shall be borne by the party making the same, unless the Court shall otherwise order.

ORDER 31

ADMIRALTY ACTIONS

Admiralty actions.

The jurisdiction of the High Court in relation to Admiralty matters shall be exercised in accordance with the procedure practice and forms for the time being in use in the High Court of Justice in England in Admiralty matters with such adaptation as local circumstances render necessary.

ORDER 32

SUMMONS FOR DIRECTIONS

Summons for directions.
R.S.C. O.30, r.1.

1.	(a) Within fourteen days from the time when the pleadings shall be deemed to be closed, the plaintiff shall take out a summons for directions returnable in not less than twenty-one days.

(b) Where under Order 14 and Order 15 the plaintiff applies for judgment, the Court may deal with such application as if the plaintiff had been entitled to take out and had taken out a summons for directions.

(c) This Rule shall not apply to actions in which the plaintiff has applied for judgment under Order 14 and directions have been given, or to actions for infringement of a patent, or to any proceeding commenced by originating summons, but in any such action or proceeding a summons for directions may be taken out at the instance of any party thereto.

Interlocutory proceedings.
R.S.C. O.30, r.2.

2. (1) Upon the hearing of the summons or at any later time before judgment, the Court shall have power to give any such directions as to the proceedings to be taken in the action and as to the costs thereof as the Court thinks proper.

(2) Without prejudice to the generality of the last preceding paragraph, the Court may -

(a) make such order as may be just with respect to any of the following matters, that is to say, discovery and inspection of documents, interrogatories, inspections of real or personal property, and admissions of fact or of documents;

(b) subject to paragraph (3) of this Rule, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the trial on such conditions as the Court may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with, be examined before a Magistrate;

(c) order that evidence of any particular fact or facts, to be specified in the order, shall be given at the trial by statement on oath of information and belief, or by production of documents or entries in books, or by copies of documents or entries or otherwise as the Court may direct;

(d) order that no more than a specified number of expert witnesses may be called;

(e) record any consent of the parties either wholly excluding their right of appeal or limiting it to the Fiji Court of Appeal or limiting it to questions of law only;

(f) make such order as may be just with respect to pleadings and particulars;

(g) in cases where two or more tortfeasors are sued together in respect of the same tort or damage and any one of them in the same proceedings claims contribution from the other or others, order that a written offer of contribution made by any one of such tortfeasors to the other or others of them shall be treated for the purposes of such claim as a notice of payment into Court;

(h) order that the action shall be tried with the aid of assessors if such action may lawfully be tried with the aid of assessors and stating the numbers of assessors with which the action shall be tried;

and may revoke or vary any such order.

(3) Where it appears to the Court that any party reasonably desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit, but the expenses of such witness at the trial shall be especially reserved.

No affidavit to be used.
R.S.C. O.30, r.3.

3. No affidavit shall be used on the hearing of the said summons except by special order of the Court.

Parties to apply for directions.
R.S.C. O.30, r.4.

4. On the hearing of the summons any party to whom the summons is addressed shall, so far as practicable, apply for any order or directions as to any interlocutory matter or thing in the action which he may desire.

Subsequent applications.
R.S.C. O.30, r.5.

5. Any application subsequently to the original summons and before judgment for any directions as to any interlocutory matter or thing by any party shall be made under the summons by three clear days’ notice to the other party stating the grounds of the application.

Costs of subsequent applications.
R.S.C. O.30, r.6.

6. Any application by any party which might have been made at the hearing of the original summons shall, if granted on any subsequent application, be granted at the costs of the party applying unless the Court shall be of opinion that the application could not properly have been made at the hearing of the original summons.

R.S.C. O.30, r.7.

7. Where an order has been made for the transfer of proceedings from a Magistrates Court to the High Court the Registrar shall forthwith give notice to all parties that the action is proceeding in the High Court. The defendant shall enter an appearance to the action within fourteen days of the receipt of such notice and all the provisions of these Rules shall apply to such action as they apply to actions commenced by a writ of summons.

R.S.C. O.30, r.8.

8. In any such action to which Rule 1 of this Order applies, if the plaintiff does not within fourteen days from the time when the pleadings shall be deemed to be closed take out a summons for directions under this Order, the defendant shall be at liberty to apply for an Order to dismiss the action and upon such application the Court may either dismiss the action on such terms as may be just, or may deal with such application in all respects as if it were a summons for directions under this Order.

ORDER 33

DISCOVERY AND INSPECTION

Discovery by interrogatories.
R.S.C. O.31, r.1.

1. In any cause or matter the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination interrogatories of the opposite parties, or anyone or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that interrogatories which do not relate to any matters 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.

Applications for leave to deliver interrogatories.
R.S.C. O.31, r.2.

2. A copy of the interrogatories proposed to be delivered shall be delivered with the summons or notice of application for leave to for leave to deliver them at least five clear days before the hearing thereof (unless in any case the Court shall think fit to dispense with this requirement) and the particular interrogatories sought to be delivered shall be submitted to and considered by the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to any matter in question, and leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.

Costs of interrogatories.
R.S.C. O.31, r.3.

3. In adjusting the costs of the cause or matter inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is in the opinion of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

Form of.
R.S.C. O.31, r.4.

4. Interrogatories shall be in the Form No.11 in Appendix B, with such variations as circumstances may require.

Corporation companies.
R.S.C. O.31, r.5.

5. If any party to a cause or matter be a body corporate or a joint-stock company, whether incorporated or not, or any other body or persons, empowered by law to sue or be sued whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.

Objections to interrogatories by answer.
R.S.C. O.13, r.6.

6. Any objection to answering any one or more of several interrogatories on the ground that it or they is or are scandalous or irrelevant, or not bona fide for the purpose of the cause or matter or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

Affidavit in answer, filing.
R.S.C. O.31, r.8.

7. Interrogatories shall be answered by affidavit to be filed within fourteen days, or within such other time as the Court may allow.

Printing affidavit in answer.
R.S.C. O.31, r.9.

8. An affidavit in answer to interrogatories shall be printed, or typewritten, and shall be in the Form No. 12 in Appendix B, with such variations as circumstances may require.

Order to answer or answer further.
R.S.C. O.31, r.11.

9. If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva-voce examination, as the Court may direct.

Application for discovery of documents.
R.S.C. O.31, r.12.

10. Any party may, without filing an affidavit, apply to the Court for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at the stage of the cause or matter, or make such order, either generally or limited to certain classes of documents as may, in their or his discretion, be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

Action on Marine Insurance Policy.
Discovery of Documents.
R.S.C. O.31, r.12A.

11. Where in any action arising on a Marine Insurance Policy an application for discovery of documents is made by the insurer, the following provisions shall apply:-

(a) On the hearing of the application, the Court may, subject as provided in the next paragraph, make an order in accordance with Rule 10 or Rule 14 of this Order;

(b) Where in any case the Court is satisfied, either on the original application or on a subsequent application, that it is necessary or expedient, having regard to the circumstances of the case, to make an order for the production of ship’s papers, the Court may make such an order;

(c) In making an order under this Rule the Court may impose such terms and conditions as to staying proceedings or otherwise as the Court in its absolute discretion shall think fit;

(d) Rule 13 of this Order shall not apply to any application made under this Rule.

Affidavit of documents.
R.S.C. O.31, r.13.

12. The affidavit to be made by any person against whom an order for discovery of documents has been made under Rule 10 or under paragraph (a) or paragraph (b) of Rule 11 of this Order, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall, except in the case of an order made under paragraph (b) of Rule 11, be in the Form No. 13 in Appendix B, with such variations as circumstances may require.

Power to order list of documents in lieu of affidavit.
R.S.C. O.31, r.13A.

13. On the hearing of any application for discovery of documents the Court in lieu of ordering an affidavit or documents to be filed may order that the party from whom discovery is sought shall deliver to the opposite party a list of the documents which are or have been in his possession, custody or power relating to the matters in question. Such list shall as nearly as may be follow the form of the affidavit in the Form No. 13 in Appendix B. Provided that the ordering of such list shall not preclude the Court from afterwards ordering the party to make and file an affidavit of documents.

Production of documents.
R.S.C. O.31, r.14.

14. It shall be lawful for the Court, at any time during the pendency of any cause or matter, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

Inspection of documents referred to in pleadings or affidavits.
R.S.C. O.31, r.15.

15. Every party to a cause or matter shall be entitled, at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his advocate, and to permit him or them to take copies thereof; and any party not complying with notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

Notice to produce.
R.S.C. O.31, r.16.

16. Notice to any party to produce any documents referred to in his pleading or affidavit shall be in the Form No. 14 in Appendix B, with such variations as circumstances may require.

Time for inspection when notice given under Rule 15.
R.S.C. O.31, r.17.

Bank and trade books.

17. The party to whom such notice is given shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in Rule 12 of this Order, or if any of the documents referred, to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his advocate, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade or business at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in the Form No. 16 in Appendix B, with such variations as circumstances may require.

Order for inspection.
R.S.C. O.31, r.18.

18. (1) If the party served with notice under Rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his advocate, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as he may think fit: Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars, or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

19. (1) Where inspection of any business books is applied for the Court may, if it shall think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of someone who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations. Provided that notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

Power to order discovery of particular document or class of documents.
R.S.C. O.31, r.19A.

(3) The Court may, on the application of any party to a cause or matter at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit, whether any particular document or documents or any class or classes of documents specified or indicated in the application is, or are, or has or have at any time been in his possession, custody or power; and, if not then in his possession, custody, or power, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had in his possession, custody or power the particular document or documents or the class or classes of documents specified or indicated it, the application, and that they relate to the matters in question it, the cause or matter, or to some or one of them.

Premature discovery.
R.S.C. O.31, r.20.

20. If the party from whom discovery of any kind or production or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or production or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

Non-compliance with order for discovery
R.S.C.O. 31, R.31

21. If any party fails to comply with any order to answer interrogatories, or for discovery or production or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.

Service on advocate of order for discovery.
R.S.C. O.31, r.22.

22. Service of an order for interrogatories or discovery or production or inspection made against any party on his advocate shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

Attachment of advocate.
R.S.C. O.31, r.23.

23. An advocate upon whom an order against any party for interrogatories or discovery or production or inspection is served under the last preceding rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment.

Using answer to interrogatories at trial.
R.S.C. O.13, r.24.

24. Any party may, at the trial of a cause, matter, or issue, use in evidence any one or, more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer: Provided always, that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them it may direct them to be put in.

Discovery against sheriff.
R.S.C. O.31, r.28.

25. In any action against or by a sheriff in respect of any matters 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 an order for discovery shall be made by the officer actually concerned.

Affidavit on Discovery Order against Crown.
R.S.C. O.31, r.28A.

26. In proceedings to which the Crown is a party any affidavit to be made in answer to an order for discovery against the Crown shall be made by such officer of the Crown as the Court shall direct.

Order to apply to infants.
R.S.C. O.31, r.29.

27. This Order shall apply to infant plaintiffs and defendants, and to their next friends and guardians ad litem.

28. Any order under any of the Rules of this Order (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court or a Judge made or given at or before trial.

ORDER 34

ADMISSIONS.

Notice of admission of facts.
R.S.C. O.32, r.1.

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

Notice to admit documents.
R.S.C. O.32, r.2.

2. (1) Either party may by notice in writing at any time not later than seven days before the day for which the notice of trial has been given, or, if no notice of trial is required, not later than seven days after the action has been set down for trial, call upon any other party to admit any document, saving all just exceptions, and if the other party desires to challenge the authenticity of the document, he shall within seven days after service of such notice, give notice that he does not admit the document and requires it to be proved at the trial.

(2) If such other party refuses or neglects to give notice of non-admission within the time prescribed in the last preceding paragraph, he shall be deemed to have admitted the document, unless the Court otherwise orders.

(3) Where a party gives notice of non-admission within the time prescribed by the first paragraph of this Rule and the document is proved at the trial, the costs of proving the document shall be paid by the party who has challenged the document whatever the result of the cause or matter may be, unless at the trial or hearing the Court shall certify that there were reasonable grounds for not admitting the authenticity of the document.

Costs of refusal or neglect to admit.

(4) Where a party proves a document without having given reflect or notice to admit under paragraph (1) of this Rule no costs of proving the document shall be allowed, except where the omission to give notice to admit is, in the opinion of the Court, a saving expense.

Form of notice.
R.S.C. O.32, r.3.

3. A notice to admit documents shall be in the Form No. 17 in Appendix B with such variations as circumstances may require.

Notice to admit facts.
R.S.C. O.32, r.4.

Costs of refusal or neglect to admit.

4. Any party may, by notice in writing, at any time not later than seven days before the day for which notice of trial has been given, or, if no notice of trial is required, not later than seven days after the action is set down for trial, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within seven days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the Court certify that the refusal to admit was reasonable, or unless the Court shall at any time otherwise order or direct: Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice: Provided also, that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.

Form of notice of admissions.
R.S.C. O.32, r.5.

5. A notice to admit facts shall be in the Form No. 18 in Appendix B, and admissions of facts shall be in the Form No. 19 in Appendix B, with such variations as circumstances may require.

Judgment or order upon admission.
R.S.C. O.32, r.4.

6. Any party may at any stage of a cause or matter, where admissions of facts have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or give such judgment, as the Court may think just.

Affidavit of signature to admissions.
R.S.C. O.32, r.7.

7. An affidavit of the advocate of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof be required.

Notice to produce documents.
R.S.C. O.32, r.8.

8. Notice to produce documents shall be in the Form No. 20 in Appendix B, with such variations as circumstances may require. An affidavit of the advocate, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, made by the person who served the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.

Costs of notice where documents unnecessary.
R.S.C. O.32, r.9.

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

ORDER 35

SETTLEMENTS OF ISSUES.

Settlement of issues at or before hearing.

l. Notwithstanding the provisions of any other Rule of Court, at any time before or at the hearing, the Court may, if it thinks fit, on the application of any party, or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may educe such questions into writing and settle them in the form of issues, which issues when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.

Court may direct parties to prepare issues.

2. The Court may, if it thinks fit, direct the parties to prepare such issues, and the same shall be settled by the Court.

When to be settled.

3. The issues may be settled without any previous notice at any stage of the proceedings, at which all the parties are actually present or at the hearing. If otherwise notice shall be given to the parties to attend at the settlement of the issues.

Court may amend or frame additional issues.

4. At any time before the decision of the case, if it shall appear to the Court necessary for the purpose of determining the real question or controversy between the parties, the Court may amend the issues or frame additional issues on such terms as it shall seem fit.

ORDER 36

INQUIRIES AND ACCOUNTS.

Inquiries and accounts, when directed.
R.S.C. O.33, r.2.

l. The Court may, at any stage of the proceedings in a cause or matter, direct any 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.

Special directions as to mode of taking accounts.
R.S.C. O.33, r.3.

2. The Court may, either by the judgment or order directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.

Questions of fact or of account may be investigated.
Sch.3. O.37, r.1.

3. In any cause or matter in which all parties interested, who of are under no disability, consent thereto, and also without such consent in any cause or matter requiring any prolonged examination of documents or accounts or any scientific or local examination, which cannot in the opinion of the Court, having regard to the other business before it, conveniently be made by the Court in the usual manner, the Court may at any time, for reasons stated on the minutes, on such terms as it may think proper, order any question or issue of fact, or any question of account rising therein, to be investigated or tried before a referee, to be agreed on by the parties or appointed by the Court who shall receive such remuneration as the Court may direct.

Application of Order 37, Part V to Rule 3 of this Order, etc.

4. Any referee to whom any question or issue of fact, or any question of account, may be referred under Rule 3 of this Order, shall as far as possible proceed in accordance with and be governed by the provisions of Order 38, Part III of these Rules.

ORDER 37

I. SPECIAL CASE.

Special case by consent.
R.S.C. O.34, r.1.

1. The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. 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 raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

Special case by order before trial.
R.S.C. O.34, r.2.

2. If it appear to the Court, that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court 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 printed.
R.S.C. O.34, r.3.

3. Every special case shall be printed or typewritten by the plaintiff, and signed by the several parties or their advocates, and shall be filed by the plaintiff. Three printed or typewritten copies for the use of the Court shall be left therewith.

Leave to set down where person under disability is a party.
R.S.C. O.34, r.4.

4. No special case in any cause or matter to which an infant, or person of unsound mind is a party, shall be set down for argument without leave of the Court, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such infant or person of unsound mind, are true.

Forms of entry for argument.
R.S.C. O.34, r.5.

5. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No. 21 in Appendix B, and also if any infant, or person of unsound mind not so found by inquisition be a party to the cause or matter, producing a copy of the order giving leave to enter the same for argument.

Agreement as to payment of money and costs.
R.S.C. O.34, r.6.

6. 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 of the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court, and 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 of the cause or matter; and 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.
R.S.C. O.34, r.7.

7. This Order shall apply to every special case stated in a cause or matter, or in any proceeding incidental thereto.

II. ISSUE OF FACT WITHOUT PLEADINGS.

Trial of questions of fact agreed upon.
R.S.C. O.34, r.9.

8. When the parties to a cause or matter are agreed as to the questions of facts to be decided between them, they may, after writ issued and before judgment, by consent and order of the Court, proceed to the trial of any such questions of facts without formal pleadings; and such questions may be stated for trial in an issue in the Form No. 22 in Appendix B, with such variations as circumstances may require, and such issue may be entered for trial and tried in the same manner as any issue joined in an ordinary action, and the proceedings shall be under the control and jurisdiction of the Court, in the same way as the proceedings in an action.

Order for payment of sum of money.
R.S.C. O.34, r.10.

9. The Court may by consent of the parties order that, upon the finding in the affirmative or negative of such issue as in the last preceding Rule mentioned, a sum of money, fixed by the parties, or to be ascertained upon a question inserted in the issue for that purpose, shall be paid by one of the parties to the other of them either with or without the costs of the cause or matter.

Entry of judgment upon the finding.
R.S.C. O.34, r.11.

10. Upon the finding on such issue, as in Rule 8 mentioned, judgment may be entered for the sum so agreed or ascertained as aforesaid, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed or unless the Court shall otherwise order for the purpose of giving either party an opportunity for moving to set aside the finding or for a new trial.

Record of proceedings.
R.S.C. O.34, r.12

11. The proceedings upon such issue, as in Rule 8 mentioned, may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.

ORDER 38

TRIAL.

Division I. - Place and Mode of Trial and Setting Down for Trial.

Determining place and mode of trial.
R.S.C. O.36, r.1.

1. (1) In every action commenced by writ of summons an order made on the summons for directions shall determine the place and mode of the trial, and whether the trial is to be with or without assessors but any such order may be varied by a subsequent order of the Court made at or before the trial.

(2) The discretion of the Court in making or varying any order under this Rule is an absolute one.

Setting down for trial.
R.S.C. O.36, r.4.

2. (1) Every order made in an action commenced by writ of summons shall, whether the trial is to be with or without assessors and wherever the trial is to take place, fix a period within which the plaintiff is to set the action down for trial.

(2) Where the plaintiff does not, within the period fixed under the preceding paragraph, set the action down for trial, the defendant may himself set the action down for trial or may apply to the Court to dismiss the action for want of prosecution, and on the hearing of any such application, the Court may order the action to be dismissed accordingly or may make such other order as to the Court may seem just.

Form of record.
R.S.C. O.36, r.5.

3. In order to set down for trial an action commenced by writ of summons the party setting it down must deliver to the Registrar, by post or otherwise, a request that the action may be set down for trial at the place specified in the order made on the summons for directions, together with-

(a) a bundle (which shall serve as the record) consisting of one copy of each of the following documents, that is to say, the writ, all the pleadings (including any affidavits ordered to stand as pleadings), all orders made on the summons for directions;

(b) another bundle (for the use of the Judge) consisting of one copy of each of the documents mentioned in the last preceding subparagraph together with one copy of any requests or orders for particulars and one copy of any particulars given.

Notification to other parties.
R.S.C. O.36, r.9.

4. (1) A party to an action who sets it down for trial shall, within twenty-four hours after doing so, notify the other parties to the action that he has done so and shall also without delay notify them of any communication received by him from the Registrar as to the date fixed for the trial of the action or the date before which the action will not be tried, but, save as aforesaid, no notice of trial shall be necessary in any action.

(2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled, or affecting the estimated length of the trial, and, if the action is settled or withdrawn, to notify that officer of the fact without delay and take such steps as may be necessary to withdraw the record.

Division II. - Proceedings at Trial.

Default of appearance by defendant at trial.
R.S.C. O.36, r.31.

5. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim so far as the burden of proof lies upon him.

Default of appearance by plaintiff.
R.S.C. O.36, r.32.

6. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but if he has a counterclaim, then he may prove such counterclaim so far as the burden of proof lies upon him. (See Form 10 Appendix F.)

Judgement by default may be set aside on terms.
R.S.C. O.36, r.33.

7. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within twenty-one days after the trial.

Adjournment of trial.
R.S.C. O.36, r.34.

8. The Court may, if it thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such place within the territory, and upon such terms, if any, as it shall think fit.

Order of proceeding.
Sch.3. O.35, r.1.

9. The order of proceeding at the hearing of a cause shall be as follows:-

Burden of proof.
Party to begin.
Sch. 3. O.35, r.2.

(a) The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the Court may determine, has the right to begin. He may state his case;

Sch. 3. O.35, r.3.

(b) He shall then produce his evidence;

Evidence summing up.
SCH.3. O.35, r.4.

(c) When the party beginning has concluded his evidence he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit deposition, or under commission, and documentary evidence not already read or taken as read); and, if answered in the negative, he shall be entitled to sum up the evidence already given, and comment thereon; but, if answered in the affirmative, he shall wait for his general reply;

Case of other party.
Sch.3.O.35, r.4.

(d) When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon;

General reply.
Sch.3. O.35, r.6.

(e) If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention to call evidence;

Case closed.
Sch.3. O.35, r.7.

(f) The case on both sides shall then be considered closed;

Evidence in reply.
Sch.3. O.35, r.8.

(g) If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence, given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters;

Address thereon.
Sch.3. O 35, r.9.

(h) Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the Court, and the party beginning shall be entitled to the general reply;

Documentary evidence.
Sch.3. O.35, r.10.

(i) Documentary evidence must be put in and read, or taken as read by consent.

Evidence in mitigation of damages in action for libel or slander.
R.S.C. O.36, r.37.

10. In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Court, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.

Disallowance of vexatious questions in cross-examination.
R.S.C. O.36, r.38.

11. The Court may in all cases disallow any questions put in cross-examination of any part or other witness which in the opinion of the Court are vexatious, and not relevant to any matter proper to be inquired into in the cause or matter.

Judgment to be entered at or after trial.
R.S.C. O.36, r.39.

12. The Court shall, at or after trial, direct judgment to be entered, and no motion for judgment shall be necessary in order to obtain such judgment. (See Form 9 Appendix F.)

Trial with Assessors.
R.S.C. O.36, r.43.

13. Trials with assessors shall take place in such manner and upon such terms as the Court shall direct.

Division III. - Assessors and Referees.

Sittings of referee.
Inspection or view.

14. Where any cause or matter, or any question in any cause or matter, is referred to a referee, he may, subject to the order of the Court, hold the trial at or adjourn it to any place which he may deem most convenient, and have any inspection or view, either by himself or with his assessors (if any) which he may deem expedient for the better disposal of the controversy before him.

Evidence at trial before referee.

15. Subject to any order to be made by the Court ordering the same, evidence shall be taken, at any trial before a referee, and the attendance of witnesses may be enforced by subpoena, and every such trial shall be conducted in the same manner, as nearly as circumstances will admit, as trials are conducted before a Judge.

Authority of referee.

16. Subject to any order as last aforesaid, the referee shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, as a Judge.

Referee not to commit or attach.

17. Nothing in these Rules contained shall authorise any referee to commit any person to prison or to enforce any order by attachment or otherwise.

Referee may submit question to the Court.
Court may remit cause to referee or decide it.

18. The referee may, by his report under the reference made to him, submit any question arising therein for the decision of the Court, or state any facts specially, with power to the Court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the Court may direct; and the Court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter or any part thereof, for further inquiry or consideration to the same or any other referee; or the Court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the Court may direct.

Notice of referee’s report.

19. Whenever a report shall be made by a referee, he shall on the same day cause notice thereof to be given to all the parties to the trial or the reference before him by prepaid post directed to the address for service of each party, who shall in due course of post be deemed to have notice of such report.

Adoption or variation of report of referee where further consideration of cause has been adjourned.

20. Where the report of the referee has been made in a cause or matter, the further consideration of which has been adjourned, it shall be lawful for any party, on the hearing of such further consideration, without notice of motion or summons, to apply to the Court to adopt the report or without leave of the Court to give not less than seven days’ notice of motion, to come on with the further consideration, to vary the report or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee.

Same where further consideration of cause not adjourned.

21. Where the report of the referee has been made in a cause or matter, the further consideration of which has not been adjourned, it shall be lawful for any party by an eight days’ notice of motion to apply to the Court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee.

Arbitrator under an order to have the powers of an official referee.

22. The provisions of Rules 14 to 18 of this Order shall apply, where any cause or matter or any question or issue of fact therein is referred to an officer of the Court or to an arbitrator.

ORDER 39

EVIDENCE GENERALLY.

Division I. - Evidence Generally.

Evidence at trial.
R.S.C. O.37, r.1.

1. Subject to these Rules, to the Evidence Act, 1938, and to any other enactment relating to evidence, any fact required to be proved at the trial of any action commenced by writ of summons by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court.

Evidence by affidavit.
R.S.C. O.37, r.1A.

2. (1) The Court may, at or before the trial of an action, order or direct that all or any of the evidence therein shall be given by affidavit.

(2) An order or direction under this Rule may be made or given on such terms as to the filing and giving of copies of the affidavits or proposed affidavits and as to the production of the deponents for cross-examination as the Court may think fit, but, subject to any such terms and to any such subsequent order or direction of the Court the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.

Manner of evidence may be directed by Court.
R.S.C. O.37, r.1B.

3. (1) Without prejudice to Rule 2 of this Order, the Court may, at or before the trial of an action, order or direct that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order or direction.

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

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

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

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

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

Expert witnesses.
R.S.C. O.37, r.1C.

4. The Court may, at or before the trial of an action, order or direct that the number of medical or expert witnesses who may be called at the trial shall be limited as specified by the order direction.

Admission of plans, photograph, etc.
R.S.C. O.37, r.1D.

5. Unless, at or before the trial, the Court for special reasons otherwise orders or directs, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least ten days before the commencement of the trial the parties, other than the party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.

Collisions on land.
R.S.C. O.37, r.1E.

6. (1) In an action, of whatever nature, arising out of an accident on land due to a collision or to an apprehended collision-

(a) no plan of the place where the accident happened, other than a sketch plan, shall be receivable in evidence unless, at or before the trial, the Court authorises the reception thereof;

(b) unless, at or before the trial, the Court otherwise orders or directs, the oral expert evidence of an engineer sought to be called on account of his skill and knowledge as respects motor vehicles shall not be receivable unless a copy of a report from him containing the substance of his evidence has been made available to all parties for inspection before the hearing of the summons for directions and an order made on the summons for directions or an application thereunder authorises the admission of the evidence.

(2) The references in this Rule to the summons for directions include references to any summons or application to which, under any of these Rules, Rules 2 to 6 of Order 32 are to apply, whether with or without modifications.

Revocation of order by Court or Judge.
R.S.C. O.37, r.1G.

7. Any order or direction under Rules 2 to 6 of this Order (including an order made on appeal) may, on sufficient cause being shown be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial.

Reading evidence taken in other causes or matters.
R.S.C. O.37, r.3.

8. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the Court, to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evidence given two days previous notice to the other parties of his intention to read such evidence.

Office copies admissible in evidence.
R.S.C. O.37, r.4.

9. Office copies of all writs, records, pleadings, and documents filed in the Court shall be admissible in evidence in all causes and matters and between all persons or parties, to the same extent as the original would be admissible.

Division II. - Examination of Witnesses.

Court or Judge may order depositions.
R.S.C. O.37, r.5.

10. The Court may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for examination upon oath before the Court or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court may direct.

Letters of request.
R.S.C. O.37, r.6B.

11. If in any case the Court shall so order, there shall be issued a request to examine witnesses. The Forms 23 and 24 in Appendix B hereto shall be used for such order and request respectively, with such variations as circumstances may require.

Examination of witnesses abroad.
R.S.C. O.37, r.6B.

12. Where an order is made for the issue of 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:-

(1) The party obtaining such order shall file in the Registry an undertaking in the Form No. 25 in Appendix B, which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used.

(2) Such undertaking shall be accompanied by:-

(a) A request in the Form No. 26 in Appendix B, with such variations as may be directed in the order for the issue thereof, together with a translation of such request in the language of the country in which the same is to be executed;

(b) A copy of the interrogatories (if any) to accompany the request, and a translation thereof;

(c) A copy of the cross-interrogatories (if any) and a translation thereof.

Form of order of examination of witnesses abroad.
O.37, r.6C.

13. Where an Order is made for the examination of witnesses before the British Consular Authority in any foreign country with which a Convention in that behalf has been or shall be made, such order shall be in Form No. 27 in Appendix B, which form of order may be varied as may be necessary to meet the circumstances of the particular case in which it is used.

Order for attendance of person to produce.
R.S.C. O.37, r.7.

14. The Court may in any cause or matter at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court may think fit to be produced:

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.
R.S.C. O.37, r.8.

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

Examiner to have copy of writ and pleadings.
R.S.C. O.37, r.10.

16. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the question at issue between the parties.

Examination, how taken.
R.S.C. O.37, r.11.

17. The examination shall take place in the presence of the parties or their advocates, and the witnesses shall be subject to cross-examination and re-examination.

Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner.
R.S.C. O.37, r.12.

18. The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, not ordinarily by question and answer, but so as to represent as nearly as may be the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The examiner may put down any particular question or answer, if there should appear any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the advocates, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question.

Refusal of witness to attend or to be sworn.
R.S.C. O.37, r.13.

19. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed at the Registry and thereupon the party requiring the attendance of the witness may apply to the Court ex parte or on notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be.

Objection by witness to questions.
R.S.C. O.37, r.14.

20. If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Registrar to be there filed, and the validity of the objection shall be decided by the Court.

Costs occasioned by refusal or objection under Rules 19 and 20.
R.S.C. O.37, r.15.

21. In any case under the two last preceding Rules, the Court shall have power to order the witness to pay any costs occasioned by his refusal or objection.

Depositions to be transmitted to the Registrar.
R.S.C. O.37, r.16.

22. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Registrar for filing.

Special report by examiner.
R.S.C. O.37, r.17.

23. The person taking the examination of a witness under these Rules may, and if need be shall, make a special report to the Court touching such examination and the conduct or absence of any witness or other person thereon, and the Court may direct such proceedings and make such order as upon the report they or he may think just.

Depositions not to be given in evidence without consent or by leave of Judge.
R.S.C. O.37, r.18.

24. Except where by this Order otherwise provided, or directed by the Court, 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 Court 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 cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.

Oaths. R.S.C. O.37, r.19.

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

Attendance of witness under subpoena for examination or to produce.
R.S.C. O.37, r.20.

26. Any party in any cause or matter 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 or which shall be used on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross-examination.

Practice as to taking evidence at any stage of cause or matter.
R.S.C. O.37, r.22.

27. 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.

Notice to use affidavit or depositions at trial.
R.S.C. O.37, r.24.

28. No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf.

Evidence in proceedings subsequent to trial.
R.S.C. O.37, r.25.

29. 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.

Division III. - Subpoena.

Form or praecipe for a subpoena.
R.S.C. O.37, r.26.

30. Where it is intended to sue out a subpoena, a praecipe for that purpose, in the Form No. 28 in Appendix B, and containing the name or firm and the place of business or residence of the advocate intending to sue out the same, shall in all cases be delivered and filed the Registry. The provisions of this Rule shall apply mutatis mutandis in the case of a person suing or defending in person.

Form of writ of subpoena.
R.S.C. O.37, r.27.

31. A writ of subpoena shall be in one of the Forms 29 to 33 in Appendix B, with such variations as circumstances may require.

Number of persons in subpoena duce tecum.
R.S.C. O.37, r.30.

32. No more than three persons shall be included in one subpoena duces tecum, and the party suing out the same shall be at liberty to sue out a subpoena for each person if it shall be deemed necessary or desirable.

Correction of errors in subpoena.
R.S.C. O.37, r.31.

33. In the interval between the suing out and service of any subpoena the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed upon leaving a corrected praecipe of such subpoena marked with the words “altered and resealed”, and signed with the name and address of the advocate suing out the same, or of the party, if the party is suing or defending in person.

Service of subpoena.
R.S.C. O.37, r.32.

34. The service of a subpoena shall be effected by delivering a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ.

Affidavit to prove service of subpoena.
R.S.C. O.37, r.33.

35. Affidavits filed for the purpose of proving the service of a subpoena upon any defendant must state when, where, and how, and by whom, such service was effected.

Within what time subpoena to be served.
R.S.C. O.37, r.34.

36. The service of any subpoena shall be of no validity if not made within twelve weeks after the teste of the writ.

Duration of subpoena.
R.S.C. O.37, r.34A.

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

Division IV. - Obtaining Evidence for Foreign Tribunals
(19 and 20 Vict. c. 113; 33 and 34 Vict. c. 52, s. 24).

Evidence for Foreign Tribunals.
R.S.C. O.37, r.54.

38. Where under the Foreign Tribunals Evidence Act, 1856, or the Extradition Act, 1870, section 24, any civil or commercial matter, or any criminal matter is pending before a Court or Tribunal of a foreign country, and it is made to appear to the Court, by commission rogatoire, or letter of request, or other evidence as hereinafter provided, that such Court or Tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may on the ex parte application of any person shown to be duly authorised to make the application on behalf of such foreign Court or Tribunal, and on production of the commission rogatoire, or letter of request, or of a certificate signed in the manner, and certifying to the effect mentioned in section 2 of the Foreign Tribunals Evidence Act, 1856, or such other evidence as the Court may require, make such order or orders as may be necessary to give effect to the intention of the Acts above mentioned in conformity with section 1 of the said Foreign Tribunals Evidence Acts, 1856.

R.S.C. O.37, r.55.

39. An order made under the last preceding Rule shall be in Form 34, Appendix B, with such variations as circumstances may require.

R.S.C. O.37, r.56.

40. The examination may be ordered to be taken before any fit and proper person nominated by the person applying or before such other qualified person, as to the Court may seem fit.

R.S.C. O.37, r.57.

41. Unless otherwise provided in the order for examination, the examiner before whom the examination is taken shall, on its completion, forward the same to the Registrar of the Court, and on receipt thereof the Registrar shall append thereto a certificate, in Form No. 35, Appendix B, with such variations as circumstances may require, duly sealed with the seal of the Court for use out of the jurisdiction, and shall forward the depositions so certified, and the commission rogatoire or letter of request, if any, to the Chief Secretary or Resident Commissioner as the case may be for transmission to Her Majesty’s Secretary of State for the Colonies for transmission to the foreign Court or Tribunal requiring the same.

R.S.C. O.37, r.58.

42. An Order made under Rule 38 of this Order may, if the Court shall think fit, direct the said examination to be taken in such manner as may be requested by the commission rogatoire or letter of request from the foreign Court, or therein signified to be in accordance with the practice or requirements of such Court or Tribunal, or which may, for the same reason, be requested by the applicant for such order. But in the absence of any such special directions being given in the order for examination the same shall be taken in the manner prescribed in Part II of this Order.

R.S.C. O.37, r.59.

43. Rules 38 to 42 of this Order shall apply as far as may be to applications under the Evidence by Commission Act, 1859 (22 Vict. c.20), for the purpose of giving effect to any commission or letter of request from any British Tribunal out of the jurisdiction; except that in such cases the depositions certified as above provided, and letter of request, if any, shall be forwarded by the Registrar to the Chief Secretary or Resident Commissioner as the case may be for transmission to Her Majesty’s Secretary of State for the Colonies.

R.S.C. O.37, r.60.

44. Where a commission rogatoire, or letter of request, as mentioned in Rule 38 of this Order, is transmitted to the Court by Her Majesty’s Secretary of State for the Colonies with an intimation that it is desirable that effect should be given to the same without requiring an application to be made to the Court by the agents who are within the jurisdiction of the Court of any of the parties to the action or matter in the foreign country, the Registrar shall transmit the same to the Law Officer who may thereupon, make such applications and take such steps as may be necessary to give effect to such commission rogatoire, or letter of request, in accordance with Rules 38 to 42 of this Order.

R.S.C. O.37, r.61.

45. For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Crown as they are exercisable in proceedings between subjects.

Division V. - Expenses and Attendance on Subpoena of Witnesses.

Expenses, etc., of witnesses subpoenaed in civil actions.

46. (1) The party applying for a subpoena may be required, before the subpoena is issued and within a period to be fixed, to pay into Court such sum of money as appears to the Registrar to be sufficient to defray the travelling and other expenses of the person subpoenaed in passing to and from the Court in which he is required to attend, and one day’s attendance.

(2) The sum so paid into Court shall be tendered to the person subpoenaed at the time of the service of the subpoena, if it can be served personally; or if the Court so directs, the person subpoenaed may be notified that the sum so paid into Court will be paid out to him on his attendance.

(3) Where it appears to the Court that the sum so paid into Court is not sufficient to cover the expenses and attendance of the person subpoenaed, the Court may direct such further sum to be paid to the person subpoenaed as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the moveable property of the party obtaining the subpoena, or the Court may discharge the person summoned without requiring him to give evidence, or may order both such levy and such discharge as aforesaid.

ORDER 40

DEPOSITIONS, AFFIDAVITS

Division I. - Affidavits and Depositions

Evidence on motions, etc.
R.S.C. O.38, r.1.

1. Upon any motion, petition, or summons evidence may be given by affidavit; but the Court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.

Title of affidavit.
R.S.C.O.38. r.2.

2. Every affidavit shall be intituled in the cause or matter in which it is sworn; but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs or defendants, as the case may be; and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed by the taxing officer.

Contents of affidavit.
R.S.C. O.38, r.3.

3. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. Provided that on interlocutory proceedings or with leave under Order 32, Rule 2, or Order 39, Rule 1, an affidavit may contain statements of information and belief, with the sources and grounds thereof.

Before whom affidavits may be sworn.
R.S.C. O.38, r.4.

4. Affidavits sworn within the jurisdiction of the Court shall be sworn before a Judge, Magistrate, Commissioner for Oaths, justice of the Peace, or officer empowered to administer oaths under the provisions of any written law.

Time and place of taking affidavits.
R.S.C. O.38, r.5.

5. Every Commissioner for Oaths and every Justice of the Peace or officer aforesaid shall express the time when and the place where he shall take any affidavit, or the acknowledgment of any deed, or recognizance; otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without the leave of the Court.

Affidavits, etc., how to be sworn and taken in the U.K., Scotland, Ireland, the Channel Islands, Colonies and foreign parts.
R.S.C. O.38, r.6.

6. All examinations, affidavits, declarations and affirmations, in causes or matters depending in the Court, and also acknowledgments required for the purpose of enrolling any deed in the Registry of the Court, may be sworn and taken in the United Kingdom, the Isle of Man or the Channel Islands, or in any part of the Commonwealth, or in the Republic of Ireland before any Judge, Court, Notary Public, or person lawfully authorised to administer oaths in such territory, or before any of Her Majesty’s Consuls or Vice-Consuls in any foreign parts outside of the Commonwealth; and the Judges and other officers of the Court shall take judicial notice of the seal or signature, as the case may be, of any such Court, Judge, Notary Public, person, Consul or Vice-Consul, attached, appended, or subscribed to any such examinations, affidavits, affirmations, declarations, acknowledgments, or to any other deed or document.

Form of affidavits.
R.S.C. O.38, r.7.

7. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or typewritten or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this Rule.

Description and abode of deponent to be stated.
R.S.C. O.38, r.8.

8. Every affidavit shall state the description and true place of abode of the deponent.

Affidavits made by two or more deponents.
R.S.C. O.38, r.9.

9. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the “above-named” deponents.

Affidavits to be filed in proper office.
R.S.C. O.38, r.10.

10. Every affidavit or other proof used in any proceedings shall be filed in the Registry of the appropriate Court. There shall be indorsed on every affidavit a note showing on whose behalf it is filed and no affidavit shall be filed or used without such note, unless the Court shall otherwise direct.

Scandalous matter.
R.S.C. O.38, r.11.

11. The Court may order to be struck out from any affidavit any matter which is scandalous.

Alterations in affidavits.
R.S.C. O.38, r.12.

12. No affidavit having in the jurat or body thereof any interlineations, alterations, or erasure shall without leave of the Court be read or made use of in any matter pending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or, if taken before the Registrar, either by his initials or by the stamp of that office, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the officer taking it.

Affidavits by illiterate or blind persons.
R.S.C. O.38, r.13.

13. (1) Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

Marksmen.
Sch.2. O.6, r.28 (g).

(2) Where the witness makes a mark or thumb impression instead of signing, the jurat shall state that fact, and that the mark or thumb impression was made in the presence of the officer.

(3) When an affidavit is made in any language not understood by the deponent the officer shall certify in the jurat that the affidavit was interpreted to the deponent in his own language; that he seemed perfectly to understand the nature and purport thereof and that he approved the contents of the affidavit.

Use of defective affidavit.
R.S.C. O.38, r.14.

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

Stamping affidavits, and use of office copies.
R.S.C. O.38, r.15.

15. An office copy of an affidavit may in all cases be used, the original affidavit having been previously filed with the Registrar, and the copy duly authenticated with the seal of the Registrar.

Affidavits sworn before an advocate or his agent.
R.S.C. O.38, r.16.

16. No affidavit shall be sufficient if sworn before the advocate acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such advocate, or before the party himself.

Affidavit sworn before clerk or partner of advocate.
R.S.C. O.38, r.17.

17. Any affidavit which would be insufficient if sworn before the advocate himself shall be insufficient if sworn before his clerk or partner.

Special times for filing affidavits.
R.S.C. O.38, r.18.

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

Affidavits in support of ex parte applications.
R.S.C. O.38, r.19.

19. Except by leave of the Court 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.

Verification of new trustee’s consent to act.
R.S.C. O.38, r.19A.

20. The consent of a new trustee to act shall be sufficiently evidenced by a written consent signed by him and verified by the signature of his advocate. Form 36 in Appendix B shall be used with such variations as circumstances may require.

Division II. - Affidavits and Evidence in Chambers

Notice of intention to use affidavit in chambers:
R.S.C. O.38, r.20.

21. 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 of his intention in that behalf.

Use in chambers of affidavit used in Court.
R.S.C. O.38, r.21.

22. All affidavits which have been previously made and read in Court upon any proceeding in a cause or matter may be used before the Judge in Chambers.

Alterations in accounts to be initialled.
R.S.C. O.38, r.22.

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

Exhibits.
R.S.C.O. 38, r.23.

24. 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 the exhibits.

Certificate on exhibit.
R.S.C.O. 38, r.24.

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

ORDER 41

EXHIBITS.

List of exhibits.
R.S.C. O.38B, r.1.

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 be attached to the pleadings and shall form part of the record of the action.

(4) For the purpose of this Order 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.

Custody of exhibit after trial.
R.S.C. O.38B, r.2.

2. It shall be the duty of every party who has put in any exhibit to apply to the Registrar immediately after the trial for the return of the exhibit, and, so far as is practicable regard being had to the nature of the exhibit, to keep it duly marked and labelled as before, so that in the event of an appeal he may be able to produce the exhibit so marked and labelled at the hearing of the appeal in case he is required by the Appeal Court to do so.

Office copy of list of exhibits.
R.S.C. O.38B, r.3.

3. (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 or otherwise.

(2) Where there is an appeal the appellant shall include an office copy of the list of exhibits amongst the documents supplied to the Appeal Court.

ORDER 42

MOTION FOR JUDGMENT

Judgment on motion for judgment.
O.40, r.1.

1. Except where by these Rules it is provided that judgment may be obtained in any other manner the judgment of the Court shall be obtained by motion for judgment.

Judgment to be entered by referee.
R.S.C. O.40, r.2.

2. Every referee to whom a cause or matter shall be referred for trial shall direct how judgment shall be entered, and such judgment shall be entered accordingly by a Registrar.

Setting down motion for judgment where issues have been directed and tried.
R.S.C. O.40, r.7.

3. Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right so to do has arisen then after the expiration of such ten days any defendant may set down a motion for judgment, and give notice thereof to the other parties. (See Form 13 Appendix F.)

Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment.
R.S.C. O.40, r.8.

4. Where issues have been ordered to be tried, or issues or questions o£ fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court for leave to set down a motion for judgment, without waiting for such trial or determination. And the Court may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other issues of fact.

Motion to be set down within one year.
R.S.C. O.40, r.9.

5. No motion for judgment shall, except by leave of the Court, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do.

Where judgement given, etc., on motion for new trial, etc.
R.S.C. O. 40, r.10.

6. Upon a motion for judgment, the Court may draw all inferences of fact, and if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it may think fit. (See Form 8 Appendix F.)

ORDER 43

ENTRY OF JUDGMENT.

Mode of entry.
R.S.C. O.41, r.1.

1. Every judgment shall be entered by the Registrar in the book to be kept for the purpose. The party entering the judgment shall deliver to the Registrar a copy of the whole of the pleadings in the cause, other than any petition or summons; such copy shall be in print or typewritten, except such parts (if any) thereof as are by these rules permitted to be written: Provided that no copy need be delivered of any document a copy of which has been delivered on entering any previous judgment in such cause. The forms in Appendix F shall be used, with such variations as circumstances may require.

R.S.C. O.41, r.1A.

2. In any judgment, whether in default of appearance or defence or after hearing, or trial or otherwise, the party entering the judgment shall, if he so desire, be entitled to have recited therein a statement as to the manner and place in and at which the service of the writ of summons or other process by which the proceedings were commenced was effected.

Date of judgment pronounced in Court.
R.S.C. O.41, r.3.

3. Where any judgment is pronounced by the Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court shall otherwise order, and the judgment shall take effect from that date: Provided that by special leave of the Court a judgment may be ante-dated or post-dated.

R.S.C. O.41, r.3A.

4. When any judgment is directed to be entered by an order made on the hearing of an application for judgment under Order 14, the judgment shall, unless the Court shall otherwise order, be dated as of the day on which the order is made and the judgment shall take effect from that date: Provided that the order may direct that the judgment shall not be entered until a given date, in which case the judgment shall take effect from that date.

Date of entry otherwise.
R.S.C. O.41, r.4.

5. In all cases not within the last two preceding Rules, the entry of judgment shall be dated as of the day on which the requisite documents are left with the Registrar for the purpose of such entry, and the judgment shall take effect from that date.

Time to be stated for doing any act ordered to be done. Memorandum to be indorsed. R.S.C. O.41, r.5.

6. Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be indorsed a memorandum in the words or to the effect following, viz:-

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

7. In any cause or matter in which the defendant has appeared by advocate, no order for entering judgment shall be made by consent, unless the consent is given by his advocate or agent.

Where consent of defendant in person.
R.S.C. O.41, r.10.

8. Where the defendant has not appeared, or has appeared in person, no such order shall be made unless the defendant attends before the Court and gives his consent in person, or unless his written consent is attested by an advocate acting on his behalf.

ORDER 44.

APPLICATIONS UNDER THE FOREIGN JUDGMENTS (RECIPROCAL
ENFORCEMENT) ORDINANCE, 1963 (B.S.I.P.)

The application.
R.S.C. O.41A, r.1.

1. Any application under the provisions of the Foreign Judgments (Reciprocal Enforcement) Ordinance 1963 for leave to have a judgment obtained in a superior Court in the United Kingdom or in any part of the Commonwealth or in a foreign country to which the Ordinance has been extended, registered in the Court, shall be made ex parte or by summons to a Judge. If the application is made ex parte the Judge to whom it is made may direct a summons to be issued.

The affidavit.
R.S.C. O.41A, r.2.

2. The application shall be supported by an affidavit of the facts exhibiting the judgment or a verified or certified or otherwise duly authenticated copy thereof and stating that to the best of the information and belief of the deponent the judgment creditor is entitled to enforce the judgment. The affidavit must also, so far as the deponent can, give the full name, title, trade or business and usual or last known place of abode or business of the judgment creditor and judgment debtor respectively.

Title and affidavit and summons.
R.S.C. O.41A, r.3.

3. The affidavit and the summons (if any) shall be intituled:

“In the Matter of the Foreign Judgments (Reciprocal Enforcement) Ordinance, 1963
In the matter of ………………….. versus ……………………………………………
………………………………. and ………………………………

In the Matter of a judgment of ..................... (describing the Court) obtained in ................................. (describing cause or matter) and dated the ..................... day of ................................................ 19......”.

Service of summons.
R.S.C. O.41A, r.4.

4. The summons (if any) for leave to register shall be an originating summons and (unless otherwise ordered by the Court) shall be served in the same manner as a writ of summons is required to be served. The judgment debtor shall not be required to enter any appearance thereto.

The order.
R.S.C. O.41A, r.5.

5. Any order giving leave to register shall be drawn up by or on behalf of the judgment creditor and when the order is made on a summons the order shall be served on the judgment debtor but where the order is made on an ex parte application no service of the order on the judgment debtor shall be required.

Form of order.
R.S.C. O.41A, r.6.

6. The order giving leave to register the judgment shall state the time within which the judgment debtor is to be entitled to apply to set aside the registration. Such time where the judgment debtor is, or is ordinarily resident, within the jurisdiction of the Court shall ordinarily be fourteen days and when the judgment debtor is, or is ordinarily resident, out of the jurisdiction of the Court shall depend on the distance from Honiara, of the place where the judgment debtor resides and the postal facilities between those places respectively and that place, and shall ordinarily be the same time as is limited for entering appearance after service out of the jurisdiction of a writ of summons or notice thereof.

The register.
R.S.C. O.41A, r.1

7. The register of judgments ordered to be registered under the Ordinance shall be kept by the Registrar of each Court. The judgment shall be registered therein in accordance with the order giving leave to register it.

Form of register.
R.S.C. O.41A, r.8.

8. The register shall be arranged in alphabetical order in the surname of the judgment debtor and there shall be entered in the register the date of the order for registration and of the registration, the name, title, trade or business and usual or last known place of abode or business of the judgment debtor and judgment creditor and the amount for which the judgment is signed and any special directions in the order for registration as to such registration and/or execution thereon and the particulars of any execution issued thereon.

Notice of registration.
R.S.C. O.41A, 1.9.

9. Notice in writing of the registration of the judgment must be served on the judgment debtor within a reasonable time after such registration. Such notice shall be served on the judgment debtor by personal service (with power to order substituted service or service out of the jurisdiction or both) as in the case of a writ of summons, but the Court may at any stage of the proceedings authorise or direct some other mode of service and if it does so the service shall be effected in accordance with such authority or direction.

Form of notice.
R.S.C. O.41A, r.10.

10. The notice of registration shall contain full particulars of the judgment registered and of the order for such registration and shall state the name and address of the judgment creditor or of his advocate or agent on whom and at which service of any summons issued by the judgment debtor may be served. The notice shall state that the defendant is entitled, if he has grounds for doing so, to apply to set aside the registration and shall also state the number of days for applying to set aside the registration limited by the order giving leave to register.

Indorsement of service.
R.S.C. O.41A, r.11.

11. The party serving the notice shall, within three days at most after such service indorse on the notice or a copy or duplicate thereof the day of the month and week of the service thereof, otherwise the judgment creditor shall not be at liberty to issue execution on the judgment; and every affidavit of service of such notice shall mention the day on which such indorsement was made. This rule shall apply to substituted as well as other service. The three days limited by this rule may be extended by order of the Court.

Application to set aside registration.
R.S.C. O.41A, r.12.

12. The judgment debtor may at any time within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by summons to the Court to set aside the registration or to suspend execution on the judgment and the Court on such application, if satisfied that the case comes within one of the cases in which under the relevant provision of the Ordinance no judgment can be ordered to be registered or that it is not just or convenient that the judgment should be enforced within the jurisdiction of the Court or for other sufficient reason, may order that the registration be set aside or execution on the judgment suspended either unconditionally or on such terms as he thinks fit and either altogether or until such time as he shall direct: Provided that the Court may allow the application to be made at any time after the expiration of the time herein mentioned.

Summons to set aside.
R.S.C. O.41A, r.13.

13. The summons referred to in Rule 12 of this Order shall be an ordinary summons intituled in the same manner as the affidavit referred to in Rule 3 of this Order.

Execution.
R.S.C. O.41A, r.14.

14. No execution shall issue on a judgment registered under the Ordinance until after the expiration of the time limited by the order giving leave to register after service on the judgment debtor of notice of registration thereof.

Affidavit of service.
R.S.C. O.41A, r.15.

15. Any party desirous of issuing execution on a judgment registered under the Ordinance must produce to the Registrar an affidavit of the service of the notice of registration.

Form of writ of execution.
R.S.C. O.41A, r.16.

16. A writ of execution on a judgment registered under the Ordinance may be thus varied:-

Instead of “which said sum of money and interest were lately before us in our High Court”, etc., insert “which said sum of money and interest were lately in .............................. (describing the Court in which judgment was obtained)”, etc., “and which judgment has been duly registered in the High Court of the Western Pacific pursuant to the Foreign Judgments (Reciprocal Enforcement) Ordinance, 1963.

Certified copy of judgment.
R.S.C. O.41A, r.17.

17. Any application under the Ordinance for a certified copy of a judgment obtained in the Court shall be made ex parte to the Court in which the judgment was obtained on an affidavit made by the judgment creditor or his advocate giving the particulars of the judgment and showing that the judgment debtor is resident in the United Kingdom, or in some (stating what) part of the Commonwealth, or in some (stating what) foreign country to which the Ordinance extends and stating to the best of his information and belief the title, trade, business or corporation of the judgment creditor and judgment debtor respectively and their respective usual or last known places of abode or business.

R.S.C. O.41A, r.18.

18. The certified copy of the judgment shall be an office copy and shall be sealed with the seal of the Court and shall be certified by the Registrar of the Court in which the judgment was obtained as follows:-

“I certify that the above copy judgment is a true copy of a judgment obtained in the High Court of the Western Pacific and this copy is issued in accordance with the provisions of the Foreign Judgments (Reciprocal Enforcement) Ordinance, 1963.

(Signed)................................................

Registrar.”

Fees.
R.S.C. O.41A, r.20.

19. The fees set out in the schedule to this Order shall be payable in respect of the registration of judgments under the Ordinance:-

Schedule of Fees.

	£	s.	d.	
On filing Affidavit in support of Application…………………...	0	15	0	
Any other Affidavit……………………………………………...	0	3	0	
On issuing Summons for leave to register………………………	0	15	0	
Any other Summons…………………………………………….	0	7	6	
On the Order for registration……………………………………	0	15	0	
On issuing execution…………………………………………….	The same fee as on a Judgment of the Court.	
On a certified Copy Judgment…………………………………..	0	15	0	
Other fees the same as those payable under Appendix M	

ORDER 45

EXECUTION.

Division 1 - Methods of Execution.

Judgment or order to be obeyed without demand.
R.S.C. O.42, r.1.

1. (1) Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand.

(2) Where any person is directed by any judgment, order, or award, to pay any money to or for the credit of any person who is resident outside the Scheduled Territories, as defined by any law in force relating to Exchange Control he shall, unless the permission by the Financial Secretary or the Resident Commissioner as the case may be under the said law has been given unconditionally, or upon conditions which have been complied with, pay the amount thereof into Court.

(3) Payment into Court under the preceding paragraph of this Rule shall, to the extent of the payment, be a good discharge to the person making the payment, and thereupon no steps may be taken to enforce the judgment, order, or award to the extent of the amount paid in notwithstanding the provisions of Rule 3 of this Order or any other Order.

(4) Notice of any payment into Court under this Rule shall be given to the plaintiff, his advocate, and to any other person specified in the judgment, order, or award, and shall be in Form 1A in Part V of Appendix A subject to such modification as may be necessary.

Waiver of conditional judgment or order.
R.S.C. O.42, r.2.

2. Where any person who has obtained any judgment or order upon condition does not perform or comply with such condition, he shall be considered to have waived or abandoned such judgment or order so far as the same is beneficial to himself, and any other person interested in the matter may on breach or non-performance of the condition take either such proceedings as the judgment or order may in such case warrant, or such proceedings as might have been taken if no such judgment or order had been made, unless the Court shall otherwise direct.

Enforcing judgment for payment of money.
R.S.C. O.42, r.3.
Sch.3, O.43, r.5.

3. A judgment for the recovery by or payment to any person of money may be enforced by the attachment and sale of the property of the party against whom judgment was given or the decree made, or by his imprisonment or both.

Judgment for payment into Court.
R.S.C. O.42, r.4.

4. A judgment for the payment of money into Court may be enforced by a writ of sequestration, or in cases in which attachment is authorised by law, by attachment.

For delivery of land.
R.S.C. O.42, r.5.

5. A judgment for the recovery or for the delivery of the possession of land may be enforced by writ of possession.

For recovery of other property.
R.S.C. O.42, r.6.

6. (1) A judgment for the recovery of any property other than land or money may be enforced:

(a) By writ for delivery of the property;

(b) By writ of attachment;

(c) By writ of sequestration.

Powers of Commissioners.
SCH.3. O.43, r.4.

(2) When enforced by writ of sequestration, the writ shall be directed to two or more Commissioners to be appointed by the Court for the purpose, who shall be commanded and empowered to enter upon all the immovable property of the person against whom the writ shall issue, and to collect, take, and get into their hands, not only the rents and profits of his immovable property, but also all his goods and movable property, and detain and keep the same under sequestration in their hands until he shall clear his contempt or the Court shall make other order to the contrary; and the Court may order the payment out of the proceeds of such sequestration of all charges attending the execution thereof, including such reasonable remuneration to the Commissioners as the Court shall think fit to allow, and all the provisions of the rules respecting attachment of property under a decree for money shall, so far as applicable, apply in the case of a writ of sequestration.

Judgment to do or abstain from any act.
R.S.C.O.42, r.7.

7. A judgment requiring any person to do any act other than payment of money, of abstain from doing anything may be enforced by writ of attachment, or by committal.

Meaning of “writ of execution etc”.
R.S.C. O.42, r.8.

8. In these Rules the term “writ of execution” shall include writs of fieri facias, capias, sequestration, and attachment, and all subsequent writs that may issue for giving effect thereto. And the term “issuing execution against any party” shall mean the issuing of any such process against his person or property as under the preceding Rules of this Order shall be applicable to the case.

Execution of judgment on condition.
R.S.C. O.42, r.9.

9. Where a judgment or order is to the effect that any party is entitled to any relief subject to or upon the fulfilment of any condition or contingency, the party so entitled may, upon the fulfilment of the condition or contingency and demand made upon the party against whom he is entitled to relief, apply to the Court for leave to issue execution against such party. And the Court may, if satisfied that the right to relief has arisen according to the terms of the judgment or order, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried.

Writ issued on production of judgment.
R.S.C. O.42, r.11.

10. No writ of execution shall be issued without the production of the officer by whom the same should be issued of the judgment or order upon which the writ of execution is to issue, or an office copy thereof, showing the date of entry. And the officer shall be satisfied that the proper time has elapsed to entitle the creditor to execution.

Praecipe for writ of execution.
R.S.C. O.42, r.12.

11. (1) No writ of execution shall be issued without the party issuing it, or his advocate, filing a praecipe for that purpose. The praecipe shall contain the title of the action, the reference to the record, the date of the judgment, and of the order, if any, directing the execution to be issued, the names of the parties against whom or of the firm against whose property the execution is to be issued and shall be signed by or on behalf of the advocate of the party issuing it, or by the party issuing it, if he do so in person. The Forms 37-44 in Appendix B shall be used, with such variations as circumstances may require.

(2) Subject to the provisions of Rule 16 of this Order any party who is resident, or who is acting by order or on behalf of a person who is resident, outside the Scheduled Territories as defined by any law in force relating to Exchange Control, and who is seeking to issue a writ of fieri facias or other process of execution to enforce a judgment, shall cause to be endorsed on the praecipe for the writ a certificate stating that the permission by the Financial Secretary or the Resident Commissioner as the case may be has been given unconditionally or on conditions which have been complied with.

(3) The praecipe for the writ under the preceding paragraph shall be in Form 42 in Appendix B and a certificate under paragraph (2) hereof shall be in Form 43 of the said Appendix.

(4) Where a certificate under paragraph (2) hereof is given the permission in writing shall be produced to the Registrar at the time of issuing execution.

On writ of execution.
Indorsement.
R.S.C.O. 42, r.13

12. Every writ of execution shall be endorsed with the name and place of abode or office of business of the advocate actually suing out the same, and when the advocate actually suing out the writ shall sue out the same as agent for another advocate, the name and place of abode of such other advocate shall also be indorsed upon the writ; and in case no advocate shall be employed to issue the writ, then it shall he indorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the island, town, village or district, and also the name of the hamlet, street, and number of the house of such plaintiff’s or defendant’s residence, if any such there be.

Date and form of writ.
R.S.C. O.42, r.14.

13. Every writ of execution shall bear date of the day on which it is issued. The forms in Appendix G shall be used with such variation as circumstances may require.

Expenses of execution.
R.S.C. O.42, r.15.

14. In every case of execution the party entitled to execution may levy the poundage, fees and expenses of execution over and above the sum recovered.

Amount of money and interest to be recovered to be indorsed.
R.S.C. O.42, r.16.

15. Every writ of execution for the recovery of money shall be indorsed with a direction to the Sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £5 per cent per annum from the time when judgment or order was entered or made, provided that in cases where there is an agreement between the parties that more than £5 per cent interest shall be secured by the judgment or order, then the indorsement may be accordingly to levy the amount of interest so agreed.

Time to sue out fi, fa, or elegit to enforce payment of money or costs.
R.S.C. O.42, r.17.

16. (1) Every person to whom any sum of money or any costs shall be payable under a judgment or order shall he entitled to sue, out one or more writ or writs of fieri facias to enforce payment thereof, subject nevertheless as follows:-

(a) If the judgment or order is for payment within a period therein mentioned, no such writ as aforesaid shall be issued until after the expiration of such period;

(b) The Court may, at or after the time of giving judgment or making an order, stay execution until such time as it shall think fit.

(2) Notwithstanding the provisions of paragraph (2) of Rule 11 of this order, a party seeking to issue execution who has not given the certificate prescribed by that paragraph may issue a writ of fieri facias or other process directing the sheriff to pay the proceeds of the execution into Court.

(3) The praecipe for a writ issued under the preceding paragraph shall be in Form 44 in Appendix B.

(4) The form of writ of fieri facias issued under paragraph (2) of this Rule shall be in Form 1 in Appendix G.

(5) Notice of any payment into court under this Rule shall be given by the Sheriff to the plaintiff, his advocate and to any other person specified in the judgment, order, or award, and shall be in Form 1A in Part V of Appendix A subject to such modifications as may be necessary.

Several fi. fa.
R.S.C. O.42, r.17A.

17. Where a writ of fieri facias has been sent out directed to a deputy sheriff in one territory the person entitled to issue execution may sue out another writ of fieri facias directed to the deputy sheriff in a different territory without requiring or waiting for a return to the first writ and notwithstanding any seizure or partial levy made under the first writ provided that no more than the whole of the money and costs due to the person suing out the writ shall be levied thereunder.

Execution of judgment for money and costs.
R.S.C. O.42, r.18.

18. Upon any judgment or order for the recovery or payment of a sum of money and costs, there may be, at the election of the party entitled thereto, either one writ or separate writs of execution for the recovery of the sum and for the recovery of the costs, but a second writ shall only be for costs and shall be issued not less than eight days after the first writ. (See Forms 1 & 2 in Appendix G.)

Power to stay execution on writ of fieri facias.
R.S.C. O.42, r.19.

19. (1) Where a judgment is given or an order made for the payment of money by any person and the Court is satisfied on application made at the time of the judgment or order or at any time thereafter by the judgment debtor or other party liable to execution that there are special circumstances which render it inexpedient to enforce the judgment or order or that the judgment debtor is unable from any cause to pay the money, then, notwithstanding anything in Rule 16, 17 or 18 of this Order, the Court may by order stay execution of the judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court thinks fit.

(2) An Application under this Rule, if not made at the time the judgment is given or the order made shall be made by summons and may be so made notwithstanding that an appearance has not been entered.

(3) An application made by summons shall be supported by an affidavit made by or on behalf of the applicant which shall state the grounds of the application and the facts necessary to substantiate them and, in particular, shall, in the case of an application on the grounds of the applicant’s inability to pay, disclose his income, the nature and value of any property of his and the amount of any other liabilities of his.

(4) A summons under this Rule and a copy of the affidavit in support shall be served not less than seven clear days before the return day on the party entitled to enforce the judgment or order or his advocate and may, without prejudice to any other mode of service, be so served by ordinary pre-paid post.

Any document served by post under this paragraph shall be deemed to have been served at the time at which it would have been delivered in the ordinary course of post.

(5) Any order staying execution under this Rule may be varied or revoked by a subsequent order.

Renewal of writ.
R.S.C. O.42, r.20.

20. A writ of execution if unexecuted shall remain in force for one year only from its issue, unless renewed in the manner hereinafter provided; but such writ may, at any time before its expiration, by leave of the Court be renewed by the party issuing it for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being marked with a seal of the Court bearing the date of the day, month, and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his advocate, and bearing the like seal of the Court, and a writ of execution so renewed shall have effect, and be entitled to priority, according to the time of the original delivery thereof.

Evidence of renewal.
R.S.C. O.42, r.21.

21. The production of a writ of execution, or of the notice renewing the same, purporting to be marked with such seal as in the last preceding Rule mentioned, showing the same to have been renewed, shall be sufficient evidence of its having been so renewed.

Execution to issue within six years.
R.S.C. O.42, r.22.

22. As between the original parties to a judgment, or order, execution may issue at any time within six years from the recovery of the judgment, or the date of the order.

Leave to issue execution in certain cases.
R.S.C. O.42, r.23.

23. In the following cases, viz.:-

(a) Where six years have elapsed since the judgment or date of the order, or any change has taken place by death or otherwise in the parties entitled or liable to execution;

(b) Where a husband is entitled or liable to execution upon a judgment or order for or against a wife;

(c) Where a party is entitled to execution upon a judgment of assets in futuro;

(d) Where a party is entitled to execution against any of the shareholders of a joint-stock company upon a judgment recorded against such company, or against a public officer or other person representing such company;

the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. And the Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried. And in either case the Court may impose such terms as to costs or otherwise as shall be just.

Order enforceable like judgment.
R.S.C. O.42, r.24.

24. Every order of the Court in any cause or matter may be enforced against all persons bound thereby in the same manner as a judgment to the same effect.

Execution by or against person not a party.
R.S.C. O.42, r.26.

25. Any person not being a party to a cause or matter, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to such cause or matter; and any person not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to such cause or matter.

No proceeding by audita querela.
R.S.C. O.42, r.27.

26. No proceeding by audita querela shall hereafter be used; but any party, against whom judgment has been given, may apply to the Court for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded; and the Court may give such relief and upon such terms as may be just.

Saving of pre-existing mode of process.
R.S.C. O.42, r.28.

27. Nothing in this Order shall take away or curtail any right heretofore existing to enforce or give effect to any judgment or order in any manner or against any person or property whatsoever.

Order of issue of writs.
R.S.C. O.42, r.29.

28. Nothing in this Order shall affect the order in which writs issue of execution may be issued.

Court may order act to be done at expense of party refusing.
R.S.C. O.42, r.30.

29. If a mandamus, granted in an action or otherwise, or a mandatory order, injunction, or judgment for the specific performance of any contract be not complied with, the Court, besides or instead of proceeding against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done, the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue for the amount so ascertained, and costs.

Enforcing judgment or order against corporation.
R.S.C. O.42, r.31.

30. Any judgment or order against a corporation wilfully disobeyed may, by leave of the Court, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers thereof, or by writ of sequestration against their property.

Enforcing award.
R.S.C. O.42, r.31A.

31. An award may with the leave of the Court, and on such terms as may be just, be enforced at any time though the time for moving to set it aside has not elapsed.

Division 2 - Discovery in aid of Execution.

Examination of judgment debtor as to debits owing.
R.S.C. O.42, r.32.

32. When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the Court for an order that the debtor liable under such judgment or order, or, in the case of a corporation, that any officer thereof, be orally examined, whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before the Court; and the Court may make an order for the attendance and the examination of such debtor, or of any other person, and for the production of any books or documents. Such order shall be in accordance with Form 45 in Appendix B.

Difficulty in enforcing judgment.
R.S.C. O.42, r.33.

33. In case of any judgment or order other than for the recovery or payment of money, if any difficulty shall arise in or about the execution or enforcement thereof, any party interested may apply to the Court, and the Court may make such order thereon for the attendance and examination of any party or otherwise as may be just.

Impounded documents.
R.S.C. O.42, r.33A.

34. Impounded documents while in the custody of the Court are not to be parted with, and are not to be inspected, except on a written order signed by the Judge on whose order they were impounded.

Such impounded documents shall not be delivered out of the custody of the, Court except upon an order on motion made in open Court: Provided that impounded documents in the custody of the Court shall upon request in writing of a Law Officer be given into his custody.

Division 3 - Miscellaneous Provisions.

Where payment ordered by instalments.

35. Where a judgment orders payment of money by instalments, execution shall not issue until after default in payment of some instalment according to the order, and execution or successive executions may then issue for the whole money then remaining unpaid, or for such portion thereof as the Court orders, either when making the original order or at any subsequent time.

For execution of deed, etc., or endorsement of negotiable instrument.

36. If the judgment be for the execution of a deed, or for the endorsement of a negotiable instrument, and the party ordered to execute or endorse such deed or negotiable instrument shall neglect or refuse so to do, any party, interested in having the same executed or endorsed, may prepare a deed or endorsement of the instrument in accordance with the terms of the judgment and tender the same to the Court for execution which shall be stamped as required by law; and the signature thereof by the Registrar shall have the same effect as the execution or endorsement thereof by the party ordered to execute.

Against representatives of deceased persons.

37. If the judgment be against a party as the representative of a deceased person, and such judgment be for money to be paid out of the property of the deceased person, it may be executed by the attachment and sale of any such property; or, if no such property can be found, and the judgment debtor fail to satisfy the Court that he has duly applied such property of the deceased as shall be proved to have come into his possession, the judgment may be executed against the judgment debtor to the extent of the property not duly applied by him, in the same manner as if the judgment had been against the judgment debtor personally.

Against sureties.

38. Whenever a person has become liable as surety for the performance of a decree, or of any part thereof, the decree may be executed against such person to the extent to which he has rendered himself liable, in the same manner as a decree may be enforced against a defendant.

Where writ may be executed.

39. Every writ of execution may lawfully be carried into effect in any place within the jurisdiction of the Court where the judgment debtor or his movable or immovable property may be found or met with.

Property liable to execution.

40. All property whatsoever, movable or immovable, belonging to the party against whom a judgment is to be enforced, and whether held in his own name or by another person in trust for him or on his behalf (except always the wearing apparel and bedding of himself or his family, and the tools and implements of his trade, if any, to the value of twenty-five pounds), is liable to attachment and sale in execution of the judgment.

Lands not to be levied on till goods exhausted.
Option of judgment creditors in certain cases.

41. If the judgment debtor has sufficient movable property within the territory in which the judgment was issued to satisfy the debt, damages, and costs recovered, his immovable property shall not be levied upon; but if he has not sufficient movable property within the territory it shall be optional to the execution creditor to levy upon his immovable property within the same territory before levying on his in certain movable property elsewhere, or to levy upon the movable property of such judgment debtor wherever it may be found within the jurisdiction of the Court, before having recourse to his immovable property

Execution on demand of creditor.

42. In every case of execution, all steps therein shall be taken on the demand of the party prosecuting the judgment, and he shall be liable for any damage arising from any illegal or irregular proceeding taken at his instance; but this provision shall not exempt any officer of Court from any liability to which he would otherwise be liable.

Division 4 - Application for Execution in Ordinary Cases.

Cross decrees.

43. If there be cross judgment between the same parties for the payment of money, execution shall be taken out by that party only who shall have obtained a judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the smaller sum shall be entered, on the judgment for the larger sum as well as satisfaction on the judgment for the smaller sum, and if both sums be equal, satisfaction shall be entered upon both judgments.

Court may stay execution in certain cases of previous decree.

44. Whenever an action shall be pending in the Court against the holder of a previous judgment of the Court by the persons against whom the judgment was given, the Court may, if it appear just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just, until a judgment shall be given in the pending action.

Execution against administrator, etc.

45. If any person against whom a judgment has been given shall die before execution has been fully had thereon, application for execution thereof may be made against the legal representative or successor under native customary law, or the estate of the person so dying as aforesaid; and, if the Court shall think proper to grant such application, the judgment may be executed accordingly.

Mode of execution.

46. If the judgment be ordered to be executed against the legal representative or successor under native customary law it shall be executed in the manner provided by Rule 37 of this order for execution of a judgment for money to be paid out of the property of a deceased person.

Record of application for execution.

47. The Registrar, on receiving any praecipe for execution of a judgment, shall make a note of the praecipe and the date and hour when it was received for filing.

Registrar may apply to Court for direction.

48. The Registrar may, at any time, take the direction of the Court as to any application for execution, and in the meanwhile refuse issue the writ.

Division 6 - Obstructing Execution.

Obstruction to execution of decree.

49. If in the execution of a judgment for land or other immovable property, the officer executing the same shall be resisted or obstructed by any person, the person in whose favour such a judgment was made may apply to the Court at any time within one month from the time of such resistance or obstruction. The Court shall fix a day for investigating the complaint, and shall summon the party against whom the complaint is made to answer the same.

By judgment debtor.

50. If it shall appear to the satisfaction of the Court that the obstruction or resistance was occasioned by the judgment debtor, or by some person at his instigation, on the ground that the land or other immovable property is not included in the judgment or on any other ground, the Court shall enquire into the matter of the complaint, and make such order as may be proper under the circumstances of the case.

Penalty for obstruction.

51. If the Court shall be satisfied, after such investigation of the facts of the case as it may deem proper, that the resistance or obstruction complained of was without any just cause, and that the complainant is still resisted or obstructed in obtaining effectual possession of the property adjudged to him by the judgment, by the judgment debtor, or some person at his instigation, the Court may, without prejudice to any proceedings to which such judgment debtor or other person may be liable for such resistance or obstruction, commit the judgment debtor or such other person to prison as for contempt of Court, for such period as may be necessary to prevent the continuance of such obstruction or resistance.

ORDER 46

WRITS OF FIERI FACIAS AND SEQUESTRATION.

Effect and manner of execution of writs of fi, fa.
R.S.C. O.43, r.1.

1. Writs of fieri facias shall have the same force and effect as the like writs have heretofore had and shall be executed in the same manner in which the like writs have heretofore been executed, and shall be as in Form 10 in Appendix G.

Sequestration to enforce payment into Court, or doing of other acts.
R.S.C. O.43, r.6.
Form No.10 Appendix G.

2. Where any person is by any judgment or order directed to pay money into Court or to do any other act in a limited time, and after due service of such judgment or order refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment or order, shall, at the expiration of the time limited for the performance thereof, be entitled without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ of sequestration shall have the same effect as a wrist of sequestration heretofore and the proceeds of such sequestration may be dealt with in the same manner as heretofore.

No subpoena or, without leave, sequestration for costs.
R.S.C. O.43, r.7.

3. No subpoena for the payment of costs, and unless by leave of the Court, no sequestration to enforce such payment, shall be issued.

Mode of attachment.

4. If the judgment be for money, and the amount thereof is to be levied from the property of the person against whom the same may have been pronounced, the Court shall cause the property to be attached in the manner following.

Movable property in possession of debtor.

5. Where the property shall consist of goods, chattels or other movable property in the possession of the judgment debtor, the attachment shall be made by actual seizure, and the Sheriff shall keep the same in his custody, and shall be responsible for the custody thereof.

Where subject to lien or rights of third parties.

6. Where the property shall consist of goods, chattels, or other movable property to which the judgment debtor is entitled subject to a lien or right of some other person to the immediate possession thereof, the attachment shall be made by a written order prohibiting the person in possession from giving over the property to a judgment debtor.

Immovable property.

7. Where the property shall consist of lands, houses, or other immovable property, or any interest therein, either at law or in equity, the attachment shall be made by a written order of the Sheriff prohibiting the judgment debtor from alienating the property by sale, gift, or in any other way, and all persons from receiving the same by purchase, gift, or otherwise, and the Sheriff may also, by direction of the Court, take and retain actual possession thereof.

Property in the custody of a public officer or in custodia legis.

8. Property in the custody or under the control of any public officer in his official capacity shall be liable to attachment in execution of a judgment with the consent of a Law Officer, and property in custodia legis shall be liable also to attachment by leave of the Court. In such cases the order of attachment must be served on such public officer, or on the Registrar, as the case may be.

Negotiable instruments.

9. Where the property shall consist of a negotiable instrument, the attachment shall be made by actual seizure, and the Sheriff shall bring the same into Court, and such instrument shall be held subject to the further order, of the Court.

Service of prohibitory orders.

10. In the case of goods, chattels, or other movable property not in the possession of the judgment debtor, an office copy of the order shall be delivered to the person in possession of the property. In the case of lands, houses, or other immovable property, or any interest therein, a copy of the order certified by the Sheriff, shall be delivered to the judgment debtor, or, if he cannot be found, shall be delivered to some adult person at his last usual place of abode or business to be given to such judgment debtor, or in case such delivery cannot be made, shall be affixed to the door of the Court House of the Court from which the writ of execution issued, and (unless it be the same Court House) to the door of the Magistrate’s Court nearest the immovable property in question: a similar copy of the order shall also in every case be posted on or affixed to some conspicuous part of such property. In the case of debts, office copies of the order shall be delivered to or served upon each individual debtor. And in the case of shares in the capital or joint-stock of any public company or corporation, an office copy of the order shall be delivered to or served upon the manager, secretary, or other proper officer of the company or corporation.

Private alternation after attachment void.

11. After any attachment shall have been made by actual seizure, or by written order as aforesaid, and in case of an attachment by written order, after it shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the Court of the property attached, whether by sale, gift, or otherwise, and any payment of the debt or debts, or dividends, or shares to the judgment debtor during the continuance of the attachment, shall be null and void, and the person making such alienation or payment shall be deemed to have committed a contempt of Court.

Court may order money or proceeds of property attached to be paid to the decree holder.

12. In all cases of attachment under this Order, it shall be competent to the Court, at any time during the attachment, to direct that any part of the property so attached as shall consist of money or bank notes or a sufficient part thereof, shall be paid over to the party applying for execution of the judgment, or that any part of the property so attached as may not consist of money or bank notes, so far as may be necessary for the satisfaction of the judgment, shall be sold, and that the money which may be realised by such sale, or a sufficient part thereof, shall be paid to such party.

In absence of judgment debtor, Court may order mortgage in lieu of sale.

13. If the judgment debtor shall be absent from the jurisdiction, and it shall appear to the satisfaction of the Court that the public sale of any of his property, which has been attached, consisting of lands, houses, or any interest therein, is objectionable, and that satisfaction of the decree may be made within a reasonable period by a temporary alienation of such property, the Court may of its own motion, instead of proceeding to a public sale of such property, order that provision be made for the satisfaction of the judgment by mortgage thereof, and may authorise the Registrar, if necessary, to execute the mortgage deed in lieu of the judgment debtor or any other necessary parties; and may make such orders in relation to such mortgage as may be requisite to carry out this provision; and the execution of such mortgage deed by the Registrar shall have the same effect as the execution thereof by the judgment debtor or other necessary parties. That the Court may be able to act under this rule the Sheriff shall forthwith on the attachment of any property of a judgment debtor absent from the jurisdiction consisting of lands, houses, or any interest therein give notice of the same to the Court.

Order for withdrawal of attachment on satisfaction of decree.

14. If the amount adjudged, with costs and all charges and expenses which may be incurred by the attachment be paid into Court, or if satisfaction of the judgment be otherwise made, an order shall be issued for the withdrawal of the attachment; and if the defendant shall desire it, and shall deposit in Court a sum sufficient to cover the expense, the order shall be notified in the same manner as hereinbefore prescribed for the notification of the attachment; and such steps shall be taken as may be necessary for staying further proceedings in execution of the decree.

Share in public companies.

15. Where the property shall consist of shares in any public company or corporation, the attachment shall be made by a written order prohibiting the person in whose name the shares may be standing from making any transfer of the shares or receiving payment of any dividends thereof, and the manager, secretary or other proper officer of the company or corporation from permitting any such transfer or making such payment until such further order.

ORDER 47.

ATTACHMENT.

Effect of writ of attachment.
R.S.C. O.44, r.1.
Form No.8 Appendix G.

1. A writ of attachment shall have the same effect as a writ of attachment has heretofore had, and shall be as in Form 8 in Appendix G

Application for leave to issue writ of attachment.
R.S.C. O.44, r.2.

2. No writ of attachment shall be issued without the leave of the Court, to be applied for on notice to the party against whom the attachment is to be issued.

ORDER 48.

ATTACHMENT OF DEBTS.

Order for attachment of debts.
R.S.C. O.45, r.1.

1. The Court may, upon the ex-parts application of any person who has obtained a judgment or order for the recovery or payment money, either before or after any oral examination of the debtor liable under such judgment or order, and upon affidavit by himself or his advocate stating that judgment has been recovered, or the order made, and that it is still unsatisfied, and to what amount, and that any other person is indebted to such debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (hereinafter called the garnishee) to such debtor shall be attached to answer the judgment or order, together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs aforesaid. At least seven days before the day of hearing the order nisi shall be served on the garnishee and, unless otherwise ordered, on the judgment debtor or his advocate at least seven days before the day of hearing. Service on the judgment debtor may be made in manner provided by Order 67, Rule 2, either at the address for service, if the judgment debtor has appeared in the action and given an address for service, or on his advocate, if he has appeared by advocate, or if there has been no appearance then at his usual residence or place of business, or in such other manner as the Court may direct.

Service and effect of order on garnishee.
R.S.C. O.45, r.2.

2. Service of an order that debts, due or accruing to a debtor liable under a judgment or order, shall be attached, or notice thereof to the garnishee, in such manner as the Court shall direct, shall bind such debts in his hands.

Execution against garnishee.
R.S.C. O.45, r.3.

3. (1) If the garnishee does not dispute the debt clue or claimed to be due from him to such debtor, or if he does not appear upon summons, then the Court may order execution to issue, and it may issue accordingly, without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

(2) No order absolute shall be made ordering the garnishee to pay any sum to or for the credit of a judgment creditor resident outside the scheduled territories, as defined by any law in force relating to Exchange Control, unless there is produced by the said judgment creditor a certificate that the permission of the Financial Secretary or the Accountant as the case may be has been given unconditionally or upon conditions which have been complied with. The said certificate shall be in Form 43 of Appendix B.

(3) If it appears to the Court that payment by the garnishee to the judgment creditor will contravene any provision of any such law the garnishee may be ordered to pay the amount due together with the costs of the garnishee proceedings into Court, subject to the deduction of his costs if the Court shall so order.

Trial of liability of garnishee.
R.S.C. O.45, r.4.

4. If the garnishee disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined.

Lien or claim of third person on debt.
R.S.C. O.45, r.5.

5. Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Court may order such third person to appear, and state the nature and particulars of his claim upon such debt.

Trial of claim of third person and order thereon or on non-appearance.
R.S.C. O.45, r.6.

6. After hearing the allegation of any third person under such order, as is mentioned in Rule 5 of this Order, and of any other person who by the same or any subsequent order the Court may order to appear, or in case of such third person not appearing when ordered, the Court may order execution to issue to levy the amount due from such garnishee, together with the costs of garnishee proceedings or any issue or question to be tried or determined according to the preceding Rules of this Order, and may bar the claim of such third person, or make such other order as such Court shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Court shall think just and reasonable.

Payment by or execution on garnishee a valid discharge.
R.S.C. O.45, r.7.

7. Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the debtor, liable under a judgment or order, to the amount paid or levied, although such proceeding may be set aside, or the judgment or order reversed.

Debt attachment book.
R.S.C. O.45, r.8.

8. There shall be kept by the Registrar a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise, and copies of any entries made therein may be taken by any person upon application to the proper officer.

ORDER 49

WRIT OF POSSESSION.

Writ of possession for recovery of land.
Appendix II Form 4.
R.S.C. O.47, r.1.

1. (1) A judgment or order that a party do recover possession of any land may by leave obtained on ex parte application to the Court supported by affidavit, be enforced by writ of possession in accordance with Form 4 in Appendix G.

(2) Such leave shall not be given unless it is shown that all persons in actual possession of the whole or any part of the land have received such notice of the proceedings as may be considered sufficient to enable them to apply to the Court for relief or otherwise.

Writ obtained on proof of service of judgment, default.
R.S.C. O.47, r.2.

2. Where by any judgment or order any person therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order and that the same has not been obeyed.

Execution on judgment for recovery of land and costs.
R.S.C. O.47, r.3.

3. Upon any judgment or order for the recovery of any land and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs at the election of the successful party. Such writ or writs shall be in accordance with Form 3 in Appendix G.

ORDER 50.

WRIT OF DELIVERY.

Writ of delivery for recovery of property other than land or money.
R.S.C. O.48, r.1.

1. Where it is sought to enforce a judgment or order for the recovery of any property other than land or money by writ of delivery, the Court may, upon the application of the plaintiff; but subject to any provisions as to securities, certificates of title, coupons and other documents as defined by any law in force relating to Exchange Control, order that execution shall issue for the delivery of the property, without giving the defendant the option of retaining the property, upon paying the value assessed, if any, and that if the property cannot be found, and unless the Court shall otherwise order, the Sheriff shall distrain the defendant by all his lands and chattels in the Sheriff’s bailiwick, till the defendant deliver the property; or at the option of the plaintiff, that the Sheriff cause to be made of the defendant’s goods the assessed value, if any, of the property.

Form of writ Separate writ for damages, costs, and interest.
R.S.C. O.48, r.2.

2. A writ of delivery shall be in one of the Forms 5, 6 or 7 in Appendix G; and when a writ of delivery is issued, the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant’s goods the damages and costs awarded, and interest.

ORDER 51.

ACTIONS BY AND AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN.

Actions by and against firms within the jurisdiction.
R.S.C. O.48A, r.1.

1. Any two or more persons claiming or being liable as partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise as the Court may direct.

Disclosure of partners names.
R.S.C. O.48A, r.2.

2. When a writ is sued out by partners in the name of their firm, the plaintiffs or their advocates shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought. And if the plaintiffs or their advocates shall 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. And when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as the plaintiffs in the writ. But all the proceedings shall, nevertheless, continue in the name of the firm.

Service.
R.S.C. O.48A, r.3.

3. Where persons are sued as partners in the name of their firm under Rule 1 of this Order, the writ shall be served either upon any one or more of the partners or at the principal place, within the jurisdiction, of the business of the partnership upon any person having at the time of service the control or management of the partnership business there; and, subject to these Rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a writ against them shall be necessary: Provided that in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable.

Notice, in what capacity served.
R.S.C. O.48A, r.4.

4. Where a writ is issued against a firm, and is served as directed by Rule 3 of this Order, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.

Appearance of partners.
R.S.C. O.48A, r.5.

5. 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, nevertheless, continue in the name of the firm.

No appearance except by partners.
R.S.C. O.48A, r.6.

6. Where a writ is served under Rule 3 of this Order 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.

Appearance under protest of person served as partner.
R.S.C. O.48A, r.7.

7. Any person served as a partner under Rule 3 of this Order, but who denies that he was a partner or liable as such at any material time, may enter an appearance stating therein that he does so as “a person served as a partner in the defendant firm, but who denies that he was a partner at any material time”. Such appearance as long as it stands shall be treated as an appearance for the firm. If an appearance is so entered (a) the plaintiff may apply to set it aside on the ground that the person entering it was a partner or liable as such, or may leave that question to be determined at a later stage of the proceedings; or (b) the person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as such; or he may at the proper time deliver a defence denying either or both (1) his liability as a partner, (2) the liability of the defendant firm in respect of the plaintiff’s claim. An order may on the application of either party at any time be made that the question as to the liability of the person served and the liability of the defendant firm may be tried in such manner and at such time or times as the Court may think fit.

Execution of judgment against a firm.
R.S.C. O.48A, r.8.

8. Where a judgment or order is against a firth, execution may issue:

(a) Against any property of the partnership within the jurisdiction;

(b) Against any person who has appeared in his own name under Rule 5 or 6 of this Order, or who has admitted on the pleadings that he is, or who has been adjudged to be a partner;

(c) Against any person who has been individually served, as a partner, with the writ of summons, and has failed to appear.

If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court for leave so to do; and the Court may give such leave if the liability be not disputed, or if such liability be disputed may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. But except as against any property of the partnership, a judgment against a firm shall not render liable, release, or otherwise affect any member thereof who was out of the jurisdiction when the writ was issued, and who has not appeared to the writ unless he has been made a party to the action under Order 11, or has been served within the jurisdiction after the writ in the action was issued.

Attachment of debts owing from a firm.
R.S.C. O.48A, r.9.

9. Debts owing from a firm carrying on business within the jurisdiction may be attached under Order 48, although one or more members of such firm may be resident abroad: Provided that any person having the control or management of the partnership business or any member of the firm within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

Application of rules to actions between co-partners.
R.S.C. O.48A, r.10.

10. The above Rules shall apply to actions between a firm and one or more of its members, and to actions between firms having one or more members in common, provided such firm or firms carry on business within the jurisdiction, but no execution shall be issued in such actions without leave of the Court, and on an application for leave to issue such execution all such accounts and inquiries may be directed to be taken and made, and directions given, as may be just.

Application of rules to person trading as firm.
R.S.C. O.48A, r.11.

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

ORDER 52.

TRANSFERS AND CONSOLIDATION.

Transfer of causes.

1. Causes or matters may be transferred from the Court in one territory to the Court in any other territory by an order of the Chief Justice.

Consolidation of causes.
Sch.3. O.3, r.9.

2. Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall	the any directions that may be necessary as to the conduct of the consolidated actions.

ORDER 53.

Division 1. - Interlocutory Orders as to Mandamus, Injunctions or Interim Preservation of Property, etc.

Preservation or interim custody of subject-matter of disputed contract.
R.S.C. O.50, r.1.

1. When by any contract a prima facie case of liability is established, and there is alleged as 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 litigation, or may order that the amount in dispute be brought into Court or otherwise secured.

Interim attachment of property in certain cases.
Sch.3. O.13, r.1.

2.	(a) If the defendant in any action for an amount or value of ten pounds or upwards, with the intent to obstruct or delay the execution of any judgment 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 territory in which the action is brought or from the jurisdiction of the Court, the plaintiff may apply to the Court, either at the time of the institution of the action, or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any judgment that may be made against him in the action, and on his failing to give 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.
Sch. 3. O.13, r.2.

(b) The application shall contain a specification of the property required to be attached, and the estimated value thereof, so far as the plaintiff can reasonably ascertain the same; and the plaintiff shall, at the time of making the application, 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.
O.13, r.3.

(c) If the Court, after making such investigation as it may consider necessary, shall be satisfied that the defendant is about to dispose of or remove his property with intent to obstruct or delay the execution of the judgment, it shall be lawful for the Court to order the defendant, within the 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 judgment, or to appear and show cause why he should not furnish security. The Court may also, in the warrant, 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.
Appendix B. Form 53. Sch. 3. O.13, r.4.

(d) If the defendant fail 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 judgment, shall be attached until further order in accordance with Form 46 Appendix B. If the defendant show such cause, or furnish 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;

Removal of attachment.
Sch.3. O.13, r.6.

(e) In all cases of attachment before judgment, the Court shall at any time remove the same, on the defendant furnishing security as above required together with security for the costs of the attachment;

Order for sale of perishable goods, etc.
R.S.C. O.50, r.2.

3. It shall be lawful for the Court on the application of any party, to 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 Court may think desirable, of any goods, wares, or merchandise which may be of a perishable nature or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once.

Detention, preservation or inspection of property, the subject of an action.
R.S.C. O.50, r.3.

4. It shall be lawful for the Court upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.

Inspection by Judge.
R.S.C. O.50, r.4.

5. It shall be lawful for any Court by whom any cause or matter may be heard or tried or before whom any cause or matter may be brought by way of appeal, to inspect any property or thing concerning which any question may arise therein.

Power of Court to grant injunction, etc.
S.45
J.A. 1925.

6. (1) The Court may grant a mandamus or an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the Court to be just or convenient so to do.

(2) Any such order may be made either unconditionally or on such terms or conditions as the Court thinks just.

Application of rules 3, 4 and 6.
Supra
R.S.C. O.50, r.6.

7. An application for an order under Rules 3, 4 or 6 of this Order may be made to the Court by any party. If the application be by the plaintiff for an order of mandamus or for an injunction or the appointment of a receiver, it may be made either ex parte or with notice, and if for an order under Rules 3, 4 or 6 of this Order it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it be by any other party then on a notice to the plaintiff and at any time after appearance by the party making the application.

Time for application under Rule 1.
R.S.C. O.50, r.7.

8. An application for an order under Rule 1 of this Order may be made by the plaintiff 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.

Order for recovery of specific property, other than land, subject to lien, etc.
R.S.C. O.50, r.8.

9. Where an action is brought to recover, or a defendant in his defence seeks by way of counterclaim to recover specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the Court may, at any time after such last-mentioned claim appears from the pleadings, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such Court, 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 such Court may direct, and that, upon such payment into Court being made, the property claimed be given up to the party claiming it, but subject to any provisions relating to certificates of title and coupons and other documents as defined by any law in force relating to the Exchange Control.

Allowance of income of property pendent lite.
R.S.C. O.50, r.9.

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

Conduct of sale of trust estates.
R.S.C. O.50, r.10.

11. Whenever in an action for the administration of the estate of a deceased person or execution of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator or trustee, the conduct of such sale shall be given to such executor, administrator, or trustee, unless the Court shall otherwise direct.

Injunction to be by judgment or order.
R.S.C. O.50, r.11.

12. No writ of injunction shall be issued. An injunction shall be by a judgment or order, and any such judgment or order, shall have the effect which a writ of injunction previously had.

Injunction against repetition of wrongful act or breach of contract.
R.S.C. O.50, r.12.

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

Division 2. - Receivers.

Appointment of receiver by way of equitable execution.
R.S.C. O.50, r.15A.

14. 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 they or he shall so think fit, direct any inquiries on these or other matters before making the appointment.

Receiver’s security, remuneration.
R.S.C. O.50, r.16.

15. 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 allowed 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. Such security shall be by guarantee in the Form No. 47 in Appendix B, unless the Court shall otherwise order.

Filing account.
R.S.C. O.50, r.20.

16. Every receiver shall file his account in the Registry together with an affidavit verifying the same in the Form No.48 in Appendix B, with such variations as circumstances may require. An appointment shall thereupon be obtained by the plaintiff or person having the conduct of the cause for the purpose of passing such account.

Consequences of default by receiver.
R.S.C. O.50, r.21.

17. In case of any receiver failing to file 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 attend the Court to show cause why such account or affidavit has not been filed, or  such account passed, or such payment made, or any other proper proceeding taken, and thereupon such directions as shall be proper may be given by the Court, including the discharge of any receiver and appointment of another, and payment of costs.

Certificate of receiver’s account.
R.S.C. O.50, r.22.

18. A certificate of the Registrar stating the result of a receiver’s account shall from time to time be taken.

Division 3. - Liquidators.

Passing of liquidators’ accounts.
R.S.C. O.50, r.23.

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

Passing of guardians’ accounts.
R.S.C. O.50, r.24.

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

ORDER 54

SALES BY THE COURT

Division 1 - Sales other than in Execution of Judgment.

Power of Court to order sale of immovable property.
R.S.C. O.51, r.1.

1. If in any cause or matter relating to any immovable property, it shall appear necessary or expedient that the immovable property or any part thereof should be sold, the Court may order the same to be sold, and any party bound by the order and in possession of the property, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser, or such other person as may be thereby directed.

Mode of carrying out sale, mortgage, partition or exchange, when ordered by Court.
R.S.C. O.51, r.1A.

2. In all cases where a sale, mortgage, partition or exchange is ordered, the Court shall have power, in addition to the powers already existing, with a view to avoiding expense or delay, or for other good reason, to authorise the same to be carried out, either -

(a) by laying proposals before the Court for its sanction; or

(b) by proceedings altogether out of Court, any moneys produced thereby being paid into Court or to trustees, or otherwise dealt with as the Court may order:

Provided always that the Court shall not authorise the said proceedings altogether out of Court, unless and until satisfied, that all persons interested in the estate to be sold, mortgaged, partitioned, or exchanged are before the Court or are bound by the order for sale, mortgage, partition, or exchange, and every order authorising the said proceedings altogether out of Court shall be prefaced by a declaration that the Court is so satisfied as aforesaid, and a statement of the evidence upon which such declaration is made.

Abstract of title, delivery of.
R.S.C. O.51, r.2.

3. Before any estate or interest shall be put up for sale under a judgment or order directions shall be given by the Court respecting the conditions of sale and other matters connected with the sale. The conditions of sale shall specify a time for the delivery of the abstract of title to the purchaser or to an advocate.

Sale with the approbation of the Judge.
R.S.C. O.51, r.3.

4. Where a judgment or order is given or made, whether in Court or in Chambers, directing any property to be sold unless otherwise ordered, the same shall be sold, with the approbation of the Court to the best purchaser that can be got for the same, to be allowed by the Court, and all proper parties shall join in the sale and conveyance as the Court shall direct.

Order for payment of purchase-money into Court not necessary.
R.S.C. O.51, r.3A.

5. No order for the payment of purchase-money into Court shall be necessary, but a direction for that purpose signed by the Registrar shall be sufficient authority for the Accountant-General or Accountant as the case may be to receive the money.

Form of affidavit of value.
R.S.C. O.51, r.4.

6. Affidavits for the purpose of enabling the Court to fix reserved biddings shall state the value of the property by reference to an exhibit containing such value, so that the value may not be disclosed by the affidavit when filed.

Copies of particulars and conditions of sale.
R.S.C. O.51, r.5.

7. As soon as particulars and conditions of sale settled at Chambers have been prepared, two copies thereof, certified by the advocate (if any) to be correct copies of the particulars and conditions settled at the Judge’s Chambers, shall be left with the Registrar.

Office copy of affidavit as to result of sale.
R.S.C. O.51, r.6.

8. An office copy of the affidavit of the person appointed to sell of the result of the sale, with the bidding paper and particulars therein referred to, shall be left with the Registrar at least one clear day before the day appointed for settling the certificate of the result of the sale.

Certificate of result of sale to be made by auctioneer and advocate in lieu of affidavit.
R.S.C. O.51, r.6A.

9. In the case of sales under the direction of the Court the particulars of sale shall be signed by and the result of the sale shall be certified under the hands of the auctioneer and the advocate of the party having the conduct of the sale. It shall not be necessary to file any affidavit verifying the particulars or the result of the sale.

Division 2 - Sales in Execution of Judgments.

Sheriff to have conduct of sales.

10. Sales in execution of judgments shall be made under the direction of the Sheriff, and shall be conducted according to such orders, if any, as the Court may make on the application of any parties concerned, and such sales shall be made by public auction: Provided that it shall be competent to the Court to authorise the sale to be made in such other manner as it may deem advisable. Any order relating to sale may be made at the time of issuing a writ of execution or afterwards.

Notice of sale.

11. Subject to the provisions of the next Rule, no sale shall be made until after at least seven days’ public notice of the sale, nor, in the case of immovable property, until after at least twenty-one days’ public notice thereof, unless on the consent in writing of the judgment debtor. Whatever notices are made elsewhere, the said notices shall be made in the town or place where the property to be sold is situated, and if the sale is to take place at any other town or place, the said notices shall also be made at the place of sale.

Court may increase or diminish notice.

12. The Court may for any sufficient reason increase the said periods of notice in any case or diminish those periods.

May authorise sale without licensed auctioneer.

13. Any person employed to execute an order of sale may be authorise by the Court if it thinks fit to sell any property taken in execution by public auction without the assistance of a licensed auctioneer.

Setting aside sale for irregularity.

14. At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.

When sale becomes absolute.

15. If no such application as is mentioned in the last preceding Rule be made, the sale shall be deemed absolute. If such application be made and the objection be disallowed the Court shall make an order confirming the sale; and in like manner, if the objection be allowed, the Court shall make an order setting aside the sale for irregularity.

Return of deposit or purchase money.

16. Whenever a sale of immovable property is set aside, the purchaser shall be entitled to receive back any money deposited or paid by him on account of such sale, with or without interest, to be paid by such parties and in such manner as it may appear proper to the Court to direct in each instance.

Certificate of purchase.

17. After a sale of immovable property shall have become absolute in manner aforesaid, the Court shall grant a certificate in the Form 49 in Appendix B to the person who may have been declared the purchaser at such sale, to the effect that he has purchased the right, title, and interest of the judgment debtor in the property sold and such certificate shall be taken and deemed to be a valid transfer of such right, title, and interest.

Delivery of movable property in possession of judgment debtor.

18. Where the property sold shall consist of goods, chattels, or other movable property in the possession of the judgment debtor, or to immediate possession of which the judgment debtor is entitled and of which actual seizure has been made, the property shall be delivered to the purchaser.

Property subject to lien

19. Where the property sold shall consist of goods, chattels, or other movable property to which the judgment debtor is entitled, subject to a lien or right of any person to the immediate possession thereof, the delivery to the purchaser shall, as far as practicable, be made by the Sheriff giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser thereof.

Immovable property in the possession of a judgment debtor.

20. If the property sold shall consist of a house, land, or other immovable property in the possession of a judgment debtor, or some person on his behalf, or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property, the Court shall, on the application of the purchaser, order delivery thereof to be made by putting the party to whom the house, land, or other immovable property may have been sold, or any person whom he may appoint to receive delivery on his behalf, in possession thereof, and, if need be, by removing any person who may refuse to vacate the same.

In lawful occupancy of other persons.
Sch.3. O.44, r.38.

21. If the property sold shall consist of a house, land, or other immovable property in the occupancy of other persons entitled to occupy the same, the Court shall, on the application of the purchaser, order delivery thereof to be made by affixing a copy of the certificate of sale in some conspicuous place on the house, land, or other immovable property, or in the Court building.

Of debts and shares in public companies.
Sch.3. O.44, r.39.

22. Where the property sold shall consist of debts, not being negotiable instruments, or of shares in any public company or corporation, the Court shall, on the application of the purchaser, make an order prohibiting the creditor from receiving the debts and the debtor from making payment thereof to any person or persons except the purchaser, or prohibiting the person in whose name the shares may be standing, from making any transfer of the shares to any person except the purchaser, or receiving payment of any dividends thereon, and the manager, secretary, or other proper officer of the company or corporation from permitting any such transfer or making any such payment to any person except the purchaser.

Of negotiable securities.
Sch. 3. O.44, r.40.

23. Where the property sold shall consist of negotiable securities, of which actual seizure has been made, the same shall be delivered to the purchaser thereof.

Transfer of securities and shares.
Sch.3. O.44, r.41.

24. If the endorsement, transfer, or conveyance of the party in whose name any negotiable security, or any share in a public company or corporation is standing, or in whom any mortgage or equity of redemption shall be vested, shall be required to transfer the same and such party shall fail or refuse to transfer the same the Registrar may endorse the security or the certificate of the share, or may execute such other document as may be necessary for transferring the same. The endorsement or execution shall be in the following form, or to the like effect: “A.B., by C.D., Registrar of the …………………….. High Court of the Western Pacific; in a suit by E.F. versus A.B.”. Until the transfer of such security or share, the Court may, by order, appoint some person to receive any interest or dividend due thereon, and to sign receipts for the same; and any endorsement made, or document executed, or receipts signed as aforesaid, shall be as valid and effectual for all purposes as if the same had been made or executed or signed by the party himself.

Obstructing purchaser in obtaining possession.
Sch. 3. O.44, r.42.

25. If the purchaser of any immovable property sold in execution of a decree shall, notwithstanding the order of the Court, be resisted or obstructed in obtaining possession of the property, the provisions contained in Order 45 relating to resistance or obstruction to a party in whose favour an action has been adjudged in obtaining possession of the property adjudged to him, shall be applicable in the case of such resistance or obstruction.

ORDER 55

MOTIONS AND OTHER APPLICATIONS

Application by motion.
R.S.C. O.52, r.1.

1. Whereby these Rules any application is authorised to be made to the Court such application if made to a Judge in Court shall be made by motion.

Restriction on rules nisi and orders to show cause.
R.S.C. O.52, r.2.

2. No motion or application for a rule nisi or order to show cause shall hereafter be made in any action, or (a) to set aside remit, or enforce an award, or (b) for attachment, or (c) against a Sheriff to pay money levied under an execution.

Where notice of motion to be given
R.S.C.O. 52, r. 3.

3. Except where according to the practice now existing any order or rule might be made absolute ex parte in the first instance and except where notwithstanding Rule 2 a motion or application may be made for an order to show cause only, no motion shall be made without previous notice to the parties affected thereby. But the Court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court may think just; and any party affected by such order may move to set it aside.

Where grounds of notice of motion to be stated.
R.S.C. O.52, r.5.

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

Length of notice of motion.
R.S.C. O.52, r.5.

5. Unless the Court give special leave to the contrary, there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion.

Motions may be dismissed or adjourned where necessary notice not given.
R.S.C. O.52, r.6.

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

Adjournment of hearing.
R.S.C. O.52, r.7.

7. The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court shall think fit.

Service of notice on defendant served with writ but not appearing.
R.S.C. O.52, r.8.

8. The plaintiff shall, without any special leave, be at liberty to serve any notice of motion or other notice or any petition or summons upon any defendant, who, having been duly served with a writ of summons to appear has not appeared within the time limited for that purpose.

Service of notice of motion with writ.
R.S.C. O.52, r.9.

9. The plaintiff may, by leave of the Court to be obtained ex parte, serve any notice of motion upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant.

Notice to Sheriff to return writ, etc.
R.S.C. O.52, r.11.

10. No order shall issue for the return of any writ, or to bring in the body of a person ordered to be attached or committed; but a notice from the person issuing the writ or obtaining the order for attachment or committal (if not represented by an advocate), or by his advocate, calling upon the Sheriff to return such writ or to bring in the body within a given time, if not complied with, shall entitle such person to apply for an order for the committal of such Sheriff.

R.S.C. O.52, r.13.

11. Every order, if and when drawn up, shall be dated the day of the week, month, and year on which the same was made, unless the Court shall otherwise direct, and shall take effect accordingly.

What orders need not be drawn up.
R.S.C. O.52, r.14.

12. 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, it shall not be necessary to draw up such order unless the Court shall otherwise direct; but the production of a note or memorandum of such order, signed by a Judge or Registrar, shall be sufficient authority for such enlargement of time, issue, amendment, filing, or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed a special direction within the meaning of this Rule. The advocate of the person on whose application such order is made, shall forthwith give notice in writing thereof to such person (if any) as would, if this Rule had not been made, have been required to be served with such order.

Petitions.
Statement of persons to be served with petition.
R.S.C. O.52, r.16.

13. At the foot of every petition (not being a petition of course) presented to the Court, and of every copy thereof, a statement shall be made of the persons, if any, intended to be served therewith, and if no person is intended to be served, a statement to that effect shall be made at the foot of the petition and of every copy thereof.

Length of notice of petition.
R.S.C. O.52, r.17.

14. Unless the Court gives leave to the contrary, there must be at least two clear days between the service and the day appointed for hearing a petition.

Affidavit upon applications under statute directing purchase-money to be paid into Court.
R.S.C. O.52, r.18.

15. In the case of an application under any Ordinance or other written law directing the purchase-money of any property sold to be paid into Court, any person claiming to be entitled to the money, so paid in must make an affidavit not only verifying their title, but also stating that they are not aware of any right in any other person, or of any claim made by any other person, to the sum claimed, or to any part thereof, or, if the petitioners are aware of any such right or claim, Court they must in such affidavit state or refer to and accept the same.

ORDER 56

ACTION OF MANDAMUS.

Indorsement on writ of summons.
R.S.C. O.53, r.1.

1. The plaintiff, in any action in which he shall claim a mandamus to command the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, shall indorse such claim upon the writ of summons.

Form of indorsement.
R.S.C. O.53, r.2.

2. The indorsement shall be in the form given in Appendix A. Part VI.

Order upon defendant to perform duty.
R.S.C. O.53, r.3.

3. If judgment be given for the plaintiff the Court may by the judgment command the defendant either forthwith or on the expiration of such time and upon such terms as may appear to the Court to be just, to perform the duty to question. The Court may also extend the time for the performance of the duty.

Mandamus in action to be by judgment or order.
R.S.C. O.53, r.4.

4. No writ of mandamus shall hereafter be issued in an action, but a mandamus shall be by judgment or order, which shall have the same effect as a writ of mandamus formerly had.

ORDER 57.

APPLICATIONS AND PROCEEDINGS AT CHAMBERS

Division 1 - General.

Application to be by summons.
R.S.C. O.54, r.1.

1. Every application at chambers not made ex parte shall be to be made by summons.

Ex parte applications by summons.
R.S.C. O.54, r.2.

2. Every application for payment or transfer out of court made ex parte, and every other application made ex parte in which the Court shall think fit so to require, shall be made by summons.

Alteration of summons.
R.S.C. O.54, r.3.

3. Summonses shall not be altered after they are sealed except upon application at chambers.

Form and issue of originating summons.
R.S.C. O.54, r.4B.

4. An originating summons shall be in the Form No. 2, 3 or 5 Appendix H to these Rules, with such variations as circumstances may require. It shall be prepared by the applicant or his advocate, and shall be sealed in the Registry and when so sealed shall be deemed to be issued. The person obtaining the summons shall leave a copy thereof with the Registrar, which shall be filed and stamped in the manner required by law.

Appearance to originating summons.
R.S.C. O.54, r.4C.

5. The parties served with an originating summons shall, except as hereinafter provided, before they are heard, enter appearances at the Registry and give notice thereof. A party so served may appear at any time before the hearing of the summons. If he appears at any time after the time limited by the summons for appearance he shall not, unless the Court shall otherwise order, be entitled to any further time for any purpose, than if he had appeared according to the summons.

Attendance under originating summons.
R.S.C. O.54, r.4D.

6. The day and hour for attendance under an originating summons to which an appearance is required to be entered shall after appearance be fixed by notice, sealed with the seal of the Court. Such notice shall be in Form No. 4 Appendix H. The notice shall be served on the defendant or respondent by delivering a copy thereof at the, address for service named in the memorandum of appearance of such defendant or respondent not less than seven clear days before the return day.

Service of summons not being originating summons requiring appearance.
R.S.C. O.54, r.4E.

7. Every summons, not being an originating summons to which an appearance is required to be entered, shall be served two clear days before the return thereof, unless in any case it shall be otherwise ordered: Provided that in case of summonses for time only, the summons may be served on the day previous to the return thereof.

Proceeding ex parte, where any party fails to attend.
R.S.C. O.54, r.5.

8. Where any of the parties to a summons fail to attend, whether upon the return of the summons, or at any time appointed for the consideration or further consideration of the matter, the Court may proceed ex parte, if, considering the nature of the case, it appears expedient so to do; no affidavit of non-attendance shall be required or allowed, but the Court may require such evidence of service as may be just.

Rehearing when party fails to attend.
R.S.C. O.54, r.6.

9. Where the Court has proceeded ex parte, such proceeding shall not in any manner be reconsidered in chambers, unless the Court shall be satisfied that the party failing to attend was not guilty of wilful delay or negligence; and in such case the costs occasioned by his non-attendance shall be in the discretion of the Court, who may fix the same at the time, and direct them to be paid by the party or his advocate before he shall be permitted to have such proceeding reconsidered, or make such other order as to such costs as the Court may think just.

Costs thrown away by non-attendance of any party.
R.S.C. O.54, r.7.

10. Where a proceeding in chambers fails by reason of the non-attendance of any party, and the Court does not think it expedient to proceed ex parte, the Court may order such an amount of costs (if any) as it shall think reasonable to be paid to the party attending by the absent party or by his advocate personally.

Further attendance where summons not fully disposed of.
R.S.C. O.54, r.8.

11. Where matters in respect of which summonses have been issued are not disposed of upon the return of the summons, the parties shall attend from time to time without further summons, at such time or times as may be appointed for the consideration or further consideration of the matter.

What matters to be included in the same summons.
R.S.C. O.54, r.9.

12. In every cause or matter where any party thereto makes application at chambers either by way of summons or otherwise shall be at liberty to include in one and the same application matters upon which he then desires the order or directions of the Court; and upon the hearing of such application it shall be lawful for the Court to make any order and give any directions relative to or consequential on the matter of such application as may be just; any such application may, if the Court thinks fit, be adjourned from chambers into Court, or from Court into chambers.

Form of summons.
R.S.C. O.54, r.10.

13. A summons other than an originating summons shall be in the Form No. 1 in Appendix H, with such variations as circumstances may require, and shall be addressed to all the persons on whom it is to be served.

Division 2 - Business to be Disposed of in Chambers.

Business to be disposed of in chambers.

14. The business to 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 by Ordinance or other written law may be disposed of in chambers:-

(1) Applications for payment or transfer to any person of any cash or securities standing to the credit of 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 or the birth, marriage, or death of any person.

(2) Applications in partnership actions with the consent of all the partners for payment or transfer to any person of any cash or securities standing to the credit of the action.

(3) Applications for payment to any person of the dividend or interest on any securities standing to the credit of any cause or matter, whether to a separate account or otherwise.

(4) Applications as to the guardianship and maintenance or advancement of infants.

(5) Any matter relating to the adoption of children.

(6) Applications connected with the management of property.

(7) Applications for or relating to the sale by auction or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into Court and investment of the purchase money.

(8) Such other matters as the Court may think fit to dispose of at chambers.

(9) The determination of any question of construction arising under a deed, will or other written instrument and declarations of the rights of the persons interested: Provided that a Judge shall not be bound to determine any such question of construction if in his opinion it ought to be determined on originating summons.

Originating summons relating to express trusts or the administration of the estate of a deceased person.
R.S.C.O. 55, r.3.

15. The executors or administrators of a deceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law or customary heir of the of a deceased person, or as cestui que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in chambers for such relief of the nature or kind following, as may by the summons be specified and as the circumstances of the case may require, that is to say, 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, devisee, legatee, next-of-kin, or heir-at-law, or cestui que trust;

(b) the ascertainment of any class of creditors, legatees, devisees, next-of-kin, or others;

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

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

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

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

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

Order for administration of estate of deceased and of trust.
R.S.C. O.55, r.4.

16. Any of the persons named in the last preceding Rule may like manner apply for and obtain an order for-

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

(b) the administration of the real estate of the deceased;

(c) the administration of the trust;

(d) 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. 
R.S.C. O.55, r.5.

17. The persons to be served with the summons under the last preceding Rules in the first instance shall be the following, that is to say,-

A. Where the summons is taken out by an executor or administrator or trustee-

(a) for the determination of any question under subsections (a), (e), (f), or (g) of Rule 15, the persons, or one of the persons, whose rights or interests are sought to be affected

(b) for the determination of any question under subsection (b) of Rule 15, any member or alleged member of the class;

(c) for the determination of any question under subsection (c) of Rule 15, any person interested in taking such accounts;

(d) for the determination of any question under subsection (d) of Rule 16, any person interested in such money;

(e) for relief under subsection (a) of Rule 16, the residuary legatees, or next of kin, or some of them;

(f) for relief under subsection (b) of Rule 16, the residuary devisees, or heirs, or some of them;

(g) for relief under subsection (c) of Rule 16, the cestuis que trust, or some of them;

(h) 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.

B. Where the summons is taken out by any person other than the executors, administrators or trustees, the said executors, administrators or trustees.

Originating summons for foreclosure. 
R.S.C. O.55, r.5A.

18. 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, returnable in the chambers of a Judge, for such relief of the nature or kind following as may by the summons be specified, and as the circumstances of the case may require; that is to say,-

Payment of moneys secured by the mortgage or charge;

Sale;

Foreclosure;

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;

Redemption;

Reconveyance;

Delivery of possession by the mortgagee.

ORDER 58

DECLARATION ON ORIGINATING SUMMONS.

Power to make declarations on summons.
R.S.C. O.54A, r.1.

1. Any person claiming to be interested under a deed, will, 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.

R.S.C. O.54A, r. 1A.

2. 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 any provision of a written law, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed.

Service.
R.S.C. O.54A, r.2.

3. The Court may direct such persons to be served with the summons as it may think fit.

Evidence.
R.S.C. O.54A, r.3.

4. The application shall be supported by such evidence as the Court may require.

Discretion of Court.
R.S.C. O.54A, r.4.

5. The Court shall not be bound to determine any such question of construction if in its opinion it ought not to be determined on originating summons.

ORDER 59

INTERPLEADER

When relief by Interpleader granted.
R.S.C. O.57, r.1. and Sch. 3. O.44, r.5.

1. Relief by way of interpleader may be granted -

(a) Where the person seeking relief (in this order called 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 (in this order called the claimants) making adverse claims thereto;

(b) Where the applicant is a sheriff or other officer charged with the execution of process by or under the authority of the Court, and claim is made to any movable property taken or intended to be taken in execution under any process, or to the proceeds or value of any such property by any person other than the person against whom the process is issued.

Matters to be proved by applicant.
R.S.C. O.57, r.2.

2. The applicant must satisfy the Court by affidavit or otherwise-

(a) That the applicant claims no interest in the subject-matter in dispute, other than for charges or costs; and

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

(c) that the applicant, except where he is a sheriff or other officer charged with the execution of process by or under the authority of the Court who has seized property and who has withdrawn from possession in consequence of the execution creditor admitting the claim of the claimant under Rule 15 of this Order, is willing to pay or transfer the subject-matter into Court or to dispose of it as the Court may direct.

Adverse title of claimants.
R.S.C. O.57, r.3.

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

When application to be made by a defendant.
R.S.C. O.57, r.4.

4. Where the applicant is a defendant, application for relief may be made at any time after service of the writ of summons.

Summons by applicant.
R.S.C. O.57, r.5.

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

Stay of action.
R.S.C. O.57, r.6.

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

Order upon summons.
R.S.C. O.57, r.7.

7. If the claimants appear in pursuance of the summons, Court 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 plaintiff, and which defendant.

Disposal of matters in summary manner.
R.S.C. O.57, r.8.

8. The Court may, with the consent of both claimants or on the request of any claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable so to do, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just.

Questions of law.
R.S.C. O.57, r.9.

9. Where the question is a question of law, and the facts are not in dispute, the Court may either decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the Court. If a special case is stated, Order 37 shall, as far as applicable, apply thereto.

Failure of claimant to appear, or neglect to obey summons.
R.S.C. O.57, r.10.

10. 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 Court may make an order declaring him, and all persons claiming under him, for ever barred against the applicant, and persons claiming under him, but the order shall not affect the rights of the claimants as between themselves.

Appeals in interpleader.
R.S.C. O.57, r.11.

11. (1) The decision of the Court in a summary way under Rule 8 of this Order and the decision of the Court on a question of law under Rule 9 thereof shall be final and conclusive against the claimants and all persons claiming under them unless leave to appeal is given by the Court or by the Fiji Court of Appeal.

(2) Where an interpleader issue is tried by the Court with or without assessors, an appeal shall lie from any decision arrived at or any judgment directed by the Court.

(3) Where the Court tries an interpleader issue and finally disposes of the whole matter under Rule 13 of this Order, an appeal shall lie from the decision or judgment.

(4) Any appeal under this Rule shall be to the Fiji Court of Appeal and shall be deemed to be interlocutory.

Order for sale of goods seized in execution.
R.S.C. O.57, r.13.

12. When any property has been seized in execution by a sheriff or other officer charged with the execution of process, and any claimant alleges that he is entitled, under a mortgage, a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court may order the sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be just.

Application of O.33, 38 to Interpleader proceedings.
R.S.C. O.57, r.13.

13. Orders 33 and 38 shall, with necessary modifications, apply to an interpleader issue; and the Court who tries the issue may finally dispose of the whole matter of the interpleader proceedings including all costs not otherwise provided for.

Costs etc.
R.S.C. O.57, r.15.

14. The Court 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 and reasonable.

Sheriff’s costs.
R.S.C. O.57, r.16.

15. (1) Where a claim is made to or in respect of any property taken in execution under the process of the Court it shall be in writing with the address of the claimant thereon, and such address shall be the address for service of the claimant.

(2) Upon the receipt of the claim the Sheriff or his officer shall forthwith give notice thereof to the execution creditor according to Form 50 in Appendix B or to the like effect, and the execution creditor shall within four days after receiving the notice, give notice to the Sheriff or his officer whether he admits or disputes the claim, according to Form 51 in Appendix B or to the like effect. If the execution creditor admits the title of the claimant, and gives notice as directed by this Rule, he shall only be liable to such Sheriff or officer for any fees and expenses incurred prior to the receipt of the notice admitting the claim.

Withdrawal by Sheriff.
R.S.C. O.57, r 16A.

16. When the execution creditor has given notice to the Sheriff or his officer that he admits the claim of the claimant, the Sheriff may thereupon withdraw from possession of the property claimed, and may apply for an order protecting him from any action in respect of the said seizure and possession of the said property, and the Court may make any such order as may be just, and reasonable in respect of the same: Provided always that the claimant shall receive notice of such intended application, and, if he desires it, may attend the hearing of the same, and if he attend, the Court may, in and for the purposes of such application, make all such orders as to costs as may be just and reasonable.

Costs in interpleader
R.S.C.O. 57, r 17A.

17. (1) Where the execution creditor does not in due time, as directed by the last preceding Rule, admit or dispute the title of the claimant to the property, and the claimant does not withdraw his claim thereto by notice in writing to the Sheriff or his officer, the Sheriff may apply for an interpleader summons in the Form No. 6 in Appendix H to be issued, and service of the summons on the claimant shall be effected at the address for service by personal service upon the claimant.

(2) Should the claimant withdraw his claim by notice in writing to the Sheriff or his officer, or the execution creditor in like manner serve an admission of the title of the claimant prior to the return day of such summons, and at the same time give notice of such admission to the claimant, the Court may, in and for the purposes of the interpleader proceedings, make all such orders as to costs, fees, charges, and expenses as may be just and reasonable.

ORDER 60

CIVIL APPEALS FROM MAGISTRATES’ COURTS

Division 1 - Leave to Appeal.

Notice and grounds of appeal.

1. (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Magistrate’s Court which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the Magistrate’s Court is complained of (in the latter case specifying such part) and shall state also the nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties.

(2) If the grounds of appeal allege misdirection or error in law particulars of the misdirection or error in law particulars of the misdirection or error shall be clearly stated.

(3) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.

(5) The appellant shall not without the leave of the Court urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon such terms as the Court may deem just.

(6) Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant:

Provided that the Court shall not rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.

Special leave.

2. (1) Where an appeal lies by special leave only any person desiring to appeal shall apply to the Court or to the Magistrate’s Court by notice on motion for special leave within fourteen days from the date of the decision against which leave to appeal is sought.

(2) If special leave is granted the appellant shall file a notice of appeal as provided by Rule 1 within fourteen days from the grant of special leave.

(3) In any case where special leave may be granted either by the Magistrate’s Court or the Court application for special leave shall be made to the Court by notice of motion within fourteen days from the date upon which the Magistrate’s Court refused to grant special leave.

Time limits.

3. (1) Subject to the provisions of Rule 2 of this Order no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision, unless the Magistrate’s Court or the Court shall enlarge the time.

(2) The prescribed period for appeal shall be calculated from the date of the decision appealed against:

Provided that where there is no appeal as of right the prescribed period shall be calculated from the date upon which special leave to appeal is granted.

(3) An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Magistrate’s Court.

(4) No application for enlargement of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed within which an appeal may be brought. Every such application shall be supported by an affidavit setting forth good and substantial reasons for the application and by grounds of appeal which prima facie show good cause for leave to be granted. Any such application shall be made to the Court or to the Magistrate’s Court and when time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal. The decision of the Magistrate’s Court or the Court shall be final and shall not be the subject matter of an appeal.

Service of notice.

4. The Magistrate’s Court shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected.

Provided that the Court may direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order as might have been made if the persons served with such notice had been originally parties to the appeal.

Deposit or security.

5. The appellant shall within seven days after filing notice of appeal deposit in the Magistrate’s Court a sum of money sufficient in the opinion of the Magistrate’s Court to cover the expense of making up and forwarding the record of appeal, and shall also deposit a sum of money (or give security therefor by bond with one or more sureties to the satisfaction of the Court below) sufficient in the opinion of the Magistrate’s Court for the payment of any costs which may be ordered to be paid by the appellant. Such bond shall be in Form No. 52 of Appendix B.

Record of appeal.

6. The Magistrate’s Court shall make up the record of appeal, which shall consist of the writ of summons, the pleadings (if any), certified copies of all documents admitted as evidence or tendered as evidence and rejected, the notes of evidence, the judgment or order of the Magistrate’s Court and the notice of appeal. The record of appeal when completed shall be forwarded to the Registrar of the Court together with-

(a) a Certificate of Service of the notice of appeal;

(b) a Certificate that the conditions imposed under Rule 5 have been fulfilled;

(c) one copy of the record for the use of the Court;

(d) the docket or file of the case in the Magistrate’s Court containing all papers or documents filed by the parties in connection therewith.

Appeal not to operate as stay of execution.

7. An appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the Magistrate’s Court or the Court may order; and no intermediate act of proceeding shall be invalidated, except so far as the Magistrate’s Court may direct.

Production of original letters or documents.

8. The Magistrate’s Court shall not, except for some special cause, take upon itself the charge or the transmission of original letters or documents produced in evidence. They shall be returned to the parties producing them, and they must be prepared to produce the originals, if required by the Appeal Court, before or at the hearing of the appeal.

Division 2 - Proceedings in the Court.

Control of Appeal Court while appeal pending.

9. After the record of appeal has been transmitted, until the appeal is disposed of, the Court shall be in possession of the whole proceedings as between the parties to the appeal. Every application in the proceedings shall be made to the Court, and not to the Magistrate’s Court, but any application may be made through the Magistrate’s Court Provided that in cases of urgency the Magistrate’s Court may make any interim order to prevent prejudice to the claims of any party pending an appeal, but every such order may be discharged or varied by the Court.

Additional security.

10. The Court may where necessary, require security for costs or for performance of the orders to be made on appeal, in addition to what the Magistrate’s Court has thought fit to direct, and may make an interim order or grant any injunction which the Magistrate’s Court is authorised to make or grant, and which may be necessary.

Notice to parties in Interlocutory appeals.

11. If the appeal is from an interlocutory order, the Court shall not cause notice to be given to the parties of the day when the appeal will be disposed of, unless under special circumstances it thinks fit to do so; but where a party to the appeal notifies the Court his desire to attend, he shall be at liberty to do so, and to be heard at such time as the Court directs.

Notice to parties in appeals from final judgments.

12. If the appeal is from a final judgment the Registrar of the Court shall give notice of the date of hearing through the Magistrate’s Court to the parties to the appeal.

Failure of appellant to appear.

13. (1) If, the appellant fails to appear in person or by legal practitioner when his appeal is called on for hearing, the appeal shall on proof of service upon him of the notice of the hearing, stand dismissed with costs.

(2) Where an appeal has been dismissed owing to the non-appearance of the appellant or his advocate, the Court may, if it think fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.

Failure of respondent to appear.

14. If the respondent fails to appear in person or by advocate when the appeal is called on for hearing, the Court shall on proof of the service upon him of notice of the hearing, proceed to hear the appeal ex parte.

New evidence on appeal.

15. It is not open as of right to any party to an appeal to adduce new evidence in support of his original case; but for the furtherance of justice the Court may, where it thinks fit, allow or require new evidence to be adduced. A party may, by leave of the Court, allege any facts essential to the issue that have come to his knowledge after the decision of the Magistrate’s Court, and adduce evidence in support of such allegations.

Interlocutory order not to prejudice decision on appeal.

16. No interlocutory order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.

General power of Appeal Court.

17. The Court may from time to time amend the grounds of appeal and make any order necessary for determining the real question controversy in the appeal, and may amend any defect or error in the record of the appeal; and may direct the Magistrate’s Court to enquire into and certify its finding on any questions which the Court thinks fit to determine before final judgment in the appeal, and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may re-hear the whole case, or may remit it to the Magistrate’s Court to be re-heard or to be otherwise dealt with as the Court directs.

Powers of High Court on hearing appeals.

18. (1) The Court shall have power to give any judgment, and make any order that ought to have been made, and to make such further or other order as the case may require, including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.

R.S.C.O. 59, r. 35

(2) The Court may draw all inferences of fact which might have been drawn in the Magistrate’s Court and may give any judgment or decision or make any order which ought to have been given or made by the Magistrate’s Court.

(3) The appeal shall not succeed on the ground merely of misdirection or improper reception or rejection of evidence unless, in the opinion of the Court, substantial wrong or miscarriage has been thereby occasioned.

(4) The Court may in its discretion entertain any objection to evidence received in the Magistrate’s Court though not objected to at the time it was offered.

Division 3 - Enforcement of judgments, Decrees, or Orders on Appeal.

Execution to be as directed by Appeal Court.

19. Any judgment, decree, or order given or made by the Court may be enforced by the Court or by the Magistrate’s Court, according as the Court may consider most expedient and may direct.

Execution by Court below in terms of certificate.

20. When the Court directs any judgment, decree, or order to be enforced by the Magistrate’s Court, a certificate under seal of the Court and the hand of the presiding judge, setting forth the judgment, decree, or order of the Court shall be transmitted by the Registrar of the Court to the Magistrate’s Court, and the latter shall enforce the judgment, decree or order made by the Court in terms of the certificate.

ORDER 61

PROCEDURE FOR PREROGATIVE WRITS

Division 1 - Mandamus, Prohibition and Certiorari.

Abolition of order nisi, rule nisi and summons to show cause.
Source R.S.C. O.59, r.2

1. No order nisi, rule nisi or summons to show cause shall be made, granted or issued in any proceedings to which this Order relates.

Application for mandamus etc., not to be made without leave.
R.S.C. O.59, r.3.

2. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule.

(2) An application for such leave as aforesaid shall be made ex parte to the Court, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. The Court may, in granting leave, impose such terms as to costs and as to giving security as it thinks fit.

(3) The applicant shall give notice of the application for leave not later than the preceding day to the Registry and shall at the same time lodge in the said Registry copies of the statement and affidavits.

(4) The grant of leave under this Rule to apply for an order of prohibition or an order of certiorari, shall, if the Court so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court otherwise orders.

Time for applying for mandamus and certiorari in certain cases.
R.S.C. O.59, r.4(2).

3. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

Application to be by notice of motion or summons.
R.S.C. O.59, r.5.

4. (1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made by notice of motion, and there shall, unless the Court granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion or summons and the day named therein for the hearing.

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

(3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion or summons shall be filed before the notice or summons is put in the list for hearing, and, if any person who ought to be served under the provisions of the last preceding paragraph has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the Court on the hearing of the motion or summons.

(4) If on the hearing of the motion or summons the Court is of opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this Rule, the Court may adjourn the hearing, in order that the notice or summons may be served on that person, upon such terms (if any) as the Court may direct.

Statements and affidavits.
R.S.C. O.59, r.6.

5. (1) Copies of the statement accompanying the application for leave shall be served with the notice of motion or summons, and copies of any affidavits accompanying the application for leave shall be supplied on demand and on payment of the proper charges, and no grounds shall, subject as hereafter in this Rule provided, be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.

(2) The Court may on the hearing of the motion or summons allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand and upon payment of the proper charges copies of any such further affidavits.

(3) Every party to the proceedings shall supply to any other party, on demand and on payment of the proper charges, copies of the affidavits which he proposes to use at the hearing.

Right to be heard in opposition.
R.S.C. O.59, r.7.

6. On the hearing of any such motion or summons as aforesaid, any person who desires to be heard in opposition to 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 the notice or summons, and shall be liable to costs in the discretion of the Court if the order should be made.

Provisions of certiorari as to orders for the purpose of quashing proceedings.
R.S.C. O.59, r.8.

7. (1) In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Registry, or accounts for his failure to do so to the satisfaction of the Court hearing the motion or summons.

(2) Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the Court.

Saving for persons acting in obedience to mandamus.
R.S.C. O.59, r.9.

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

Division 2 – Habeas Corpus

Application for habeas corpus ad subjiciendum.
R.S.C. O.59, r.14.

9. An application for a writ of habeas corpus ad subjiciendum shall be made to a Judge in Court, except that in cases where the application is made on behalf of a child, it shall be made in the first instance to a Judge sitting otherwise than in Court.

Applications to be ex parte in first instance and on affidavit.
R.S.C. O.59, r.15.

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

Provided that where the person restrained is unable owing to the restraint to make the affidavit the application shall be accompanied by an affidavit to the like effect made by some other person which shall state that the person restrained is unable to make the affidavit himself.

Power to order immediate issue of writ or to direct a summons or notice of motion.
R.S.C. O.59, r.16.

11. The Judge to whom the application is made may make an order forthwith for the writ to issue, or may-

(a) in a case where the application is made to a Judge sitting otherwise than in Court, direct that a summons for the writ be issued, or that an application therefor be made by notice of motion to a Judge in Court;

(b) in a case where the application is made to a Judge in Court, adjourn the application so that notice thereof may be given, or direct that an application be made by notice of motion.

Service of summons or notice.
R.S.C. O.59, r.17.

12. The summons or notice of motion aforesaid shall be served on the person against whom the issue of the writ is sought and on such persons as the Judge may direct, and, unless the Judge otherwise directs, them shall be at least eight clear days between the service of the summons or notice and the date named therein for the hearing of the application.

Copies of affidavits.
R.S.C. O.59, r.18.

13. Every party to the application shall supply on demand and on payment of the proper charges copies of the affidavits which he proposes to use at the hearing of the application.

Power to order discharge of person restrained.
R.S.C. O.59, r.19.

14. On the hearing of the application the Judge may, in his discretion, order that the person restrained be released, and the order shall be a sufficient warrant to any gaoler, constable or other person for the release of the person under restraint.

Directions as to Court where writ is returnable.
R.S.C. O.59, r.20.

15. Where the writ is ordered to issue, the Judge by whom the order is made shall give directions as to the Judge before whom the writ is returnable, and every such writ shall be returnable, immediately.

Service of writ and notice.
R.S.C. O.59, r.21.

16. (1) The writ shall be served personally, if possible, upon the person to whom it is directed; or if not possible, or if the writ be directed to a gaoler or other public official, by leaving it with a servant or agent of the person to whom the writ is directed at the place where the prisoner is confined or restrained; and if the writ is directed to more than one person, the original shall be served as aforesaid on the principal person, and copies shall be served on each of the other persons in the same manner as the writ.

(2) There shall be served or left with the writ a notice stating the Judge before whom and the date on which the person restrained is to be brought, and that in default of obedience proceedings for attachment of the party disobeying will be taken.

Return to the writ.
R.S.C. O.59, r.22.

17. The return to the writ shall contain a copy of all the causes of the prisoner’s detainer endorsed on or annexed to the writ, and the return may be amended, or another return substituted therefor, by leave of the Judge to whom the writ is returnable.

Procedure at hearing.
R.S.C. O.59, r.23.

18. When a return to the writ is made, the return shall first be read, and motion then made for discharging or remanding the prisoner or amending or quashing the return, and where the prisoner is brought up in accordance with the writ, his advocate shall be heard first, then the advocate for the Crown, and then one advocate for the prisoner in reply.

Other writs of habeas corpus.
R.S.C. O.59, r.24.

19. Applications for writs of habeas corpus ad testificandum or of habeas corpus ad respondendum shall be made on affidavit to a Judge in Chambers.

Order in lieu of habeas corpus for witness.
R.S.C. O.59, r.25.

20. An application for an order to bring up a prisoner, otherwise than by habeas corpus, to give evidence in any cause or matter, civil or criminal, before any court, justice or other judicature, shall be made on affidavit to a Judge in Chambers.

Division 3 - Attachment for Contempt.

Procedure for attachment similar to procedure for mandamus.
R.S.C. O.59, r.26.

21. (1) The procedure in applications for attachment for contempt of court in the cases to which this Rule applies shall be the same as in applications for an order of mandamus and Rules 2, 4, 5 and 6 of this Order shall apply accordingly to applications for attachment, so far as they are applicable:

Provided that the issue of the writ of attachment shall not be ordered by a Judge in Chambers, and the notice of motion shall be personally served unless the Court dispenses with such service.

(2) This Rule applies to cases where the contempt is committed-

(a) in connection with proceedings to which this Order relates;

(b) in connection with any proceedings in Court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the Court;

(c) in connection with proceedings in an inferior court.

Return of writ of attachment.
R.S.C. O.59, r.27.

22. Every writ of attachment issued in a case to which Rule 21 of this Order applies shall be made returnable before the Court from which it issues. If a return of non est inventus is made, one or more writs may be issued on the return of the previous writ.

Abolition of interrogatories.
R.S.C. O.59, r.29.

23. The defendant in proceedings for attachment shall not be put to answer interrogatories. 

Service of document.
R.S.C. O.59, r.40.

24. Any document required by these Rules to be served on any person, not being a document required to be personally served, shall be deemed to be sufficiently served if it is left at the last known place of abode or business of that person or if it is served in such other manner as the Court may direct.

Trial of issues.
R.S.C. O.59, r.41.

25. On the hearing of any motion or summons to which this Order relates, the Court may direct any issue of fact in dispute to be tried in the same manner as other issues of fact are tried.

ORDER 62

DELAY IN PROCEEDINGS

Striking out action for want of prosecution.

1. Where, in any cause or matter there has been no proceeding for one year from the last proceeding heard and neither party has, under Order 64, Rule 9, given to the other party one month’s notice of his intention to proceed, the Registrar may take out a summons before a Judge in Chambers returnable in one month, directed to all parties concerned calling upon them to show cause why the action should not be struck out for want of prosecution and if, on the return day, no parties show cause to the satisfaction of the Judge why the action should not be so struck out, and on proof of service of the summons on all parties concerned, the Judge shall strike out the action accordingly.

Action to proceed if cause shown.

2. If any party shows cause to the satisfaction of the Judge why the action should not be struck out for want of prosecution the Judge may order the action to proceed on such terms as to costs and otherwise as to the Judge seems just.

Application of Rule 1 to Appeals.

3. The provisions of Rule 1 of this Order shall apply to appeals to the Court as it applies to actions instituted and commenced in the Court.

ORDER 63

SITTINGS, VACATIONS AND MISCELLANEOUS PROVISIONS

Days of sitting.

1. The Court may, at its discretion, appoint any day or days, from time to time, for the hearing of causes as circumstances require.

Order of business at sittings.

2. Subject to special arrangements for any particular day, the business of the day shall be taken as nearly as circumstances permit in the following order:-

(a) At the commencement of the sitting, judgments shall be delivered in matters standing over for that purpose;

(b) Motions on notice, shall be taken in the order in which they respectively stand on the motion list;

(c) The causes on the cause list shall then be called on in their order unless the Court sees fit to vary the order.

Office Hours.

3. The several offices of the Court shall be open at such times as the Chief Justice shall direct by any order published once at the Public Office of the High Commissioner, or Resident Commissioner, as the case may be.

Public or private sittings of the Court.

4. The sittings of the Court for the hearing of causes shall ordinarily be public; but the Court may, for a reason to be specified by it on the minutes, hear any particular cause or matter in the presence only of the parties, with their advocates, if any, and the officers of Court.

What orders to be made.

5. Subject to particular Rules, the Court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.

Recovery of penalties and costs.

6. All fines, forfeitures, pecuniary penalties, and costs ordered to be paid may be levied by distress, seizure and sale of the movable and immovable property of the person making default in payment, and any bill of sale or mortgage or transfer of property made with the view of avoiding such distress, seizure, or sale, shall be ineffectual for such purpose.

Notices.

7. In all cases in which the publication of any notice is required the same may be made by advertisement once at the Public Office of the High Commissioner, or Resident Commissioner, as the case may be, unless otherwise provided in any particular case by any Rule of Court or otherwise ordered by the Court.

ORDER 64

TIME

“Month” means calendar month.
R.S.C. O.64, r.1.

1. Where by these Rules or by any judgment or order time for doing any act or taking any proceeding is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months, unless otherwise expressed.

Exclusion of Sundays, etc.
R.S.C. O.64, r.2.

2. Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time.

Time expiring on Sunday or close day.
R.S.C. O.64, r.3.

3. Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.

Time for giving security for costs, when not to be reckoned.
R.S.C. O.64, r.6.

4. The day on which an order for security for costs is served, and the time thence forward until and including the day on which such security is given, shall not be reckoned in the computation of time  all owed to plead, answer interrogatories, or take any other proceeding in the cause or matter.

Power of Court or Judge to enlarge or abridge time.
R.S.C. O.64, r.7.

5. Subject to any provisions to the contrary in these Rules the Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by an order enlarging time for doing any act or taking any proceeding, upon such terms as the, justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that when the time for delivering any pleading or document or filing any affidavit, answer or document or doing any act is or has been fixed or limited by any of these Rules or by any direction on or under the summons for directions or by any order of the Court the costs of any application to extend such time and of any order made thereon shall be borne by the party making such application unless the Court shall otherwise order.

Enlargement time by consent.
R.S.C. O.64, r.8.

6. The time for delivering, amending, or filing any pleading, answer, or other document may be enlarged by consent in writing, without application to the Court.

Time of day of service.
R.S.C. O.64, r.11.

7. Service of pleadings, notices, summonses, orders, rules and other proceedings, shall be effected before the hour of four in the afternoon, except on Saturdays, when it shall be effected before the hour of eleven in the forenoon. Service effected after four in the afternoon on any week-day except Saturday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after eleven in the forenoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday.

Number of days, how computed.
R.S.C. O.64, r.12.

8. In any case in which any particular number of days, not expressed to be clear days, is prescribed by these Rules, the same shall be reckoned exclusively of the first day and inclusively of the last day.

Length of notice after delay of one year.
R.S.C. O.64, r.13.

9. In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this Rule.

Time for applications to set aside awards.
R.S.C. O.64, r.14.

10. An application to set aside or remit an award may be made at any time within six weeks after such award has been made and published to the parties: Provided that the Court may by order extend the said time either before or after the same has elapsed.

ORDER 65

COSTS

Costs to be in the discretion of the Court.
R.S.C. O.65, r.1.

1. Subject to the provision of these Rules, the costs of and incident to all in the Court, including the administration of estates and trusts, shall be in the discretion of the Court: Provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon.

Costs of cause removed from inferior Court.
R.S.C. O.65, r.3.

2. If a cause be removed or transferred from a Magistrate’s Court, having jurisdiction in the cause, the costs in the Court below shall be costs in the cause, and shall be dealt with under Rule 1 of this Order.

Personal liability of advocate to pay costs.
R.S.C. O.65, r.3.

3. Where upon the trial of any cause or matter it appears that the same cannot conveniently proceed by reason of the advocate for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court, and which according to the practice ought to have been delivered such advocate shall personally pay to all or any of the parties such costs as the Court shall think fit to award.

Security for costs.
R.S.C. O.65, r.6.

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

Security for costs by plaintiff only temporarily within jurisdiction.
R.S.C. O.65, r.6A.

5. A plaintiff 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.
R.S.C. O.65, r.6B.

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

Bond as security for costs.
R.S.C. O.65, r.7.

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

Costs may be disallowed to or ordered to be paid by advocate on account of delay or misconduct.
R.S.C. O.65, r.11.

8. If in any cause it shall appear to the Court that costs have been improperly or without any reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the advocate any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court may call on the advocate of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the advocate and his client, and also (if the circumstances of the case shall require) why the advocate should not repay to his client any costs which the client may have been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require.

Set-off for damages or costs.
R.S.C. O.65, r.14.

9. A set-off for damages or costs between parties may be allowed notwithstanding the advocate’s lien for costs in the particular cause or matter in which the set-off is sought.

Costs out of estate.
R.S.C. O.65, r.14A.

10. The costs occasioned by any unsuccessful claim or unsuccessful resistance to any claim to any property shall not be paid out of the estate unless the Court shall otherwise direct.

Costs as regards particular shares.
R.S.C. O.65, r.14B.

11. The costs of inquiries to ascertain the person entitled to any legacy, money, or share, or otherwise incurred in relation thereto, shall be paid out of such legacy, money, or share, unless the Court shall otherwise direct.

Distribution not to be delayed by difficulties as to some shares.
R.S.C. O.65, r.14C.

12. Where. some of the persons entitled to a distributive share of a fund are ascertained and difficulty or delay has occurred or is likely to occur in ascertaining the persons entitled to the other shares, the Court may order or allow immediate payment of their shares to the persons ascertained without reserving any part of those shares to answer the subsequent costs of ascertaining the persons entitled to the other shares; and in all such cases such order may be made for ascertaining and payment of the costs incurred down to and including such payment as the Court shall think reasonable.

ORDER 66

NOTICES, PRINTING, PAPER, COPIES, OFFICE
COPIES, MINUTES, ETC.

All notices to be in writing.
R.S.C. O.66, r.1.

1. All notices required by these Rules shall be in writing unless expressly authorised by the Court to be given orally.

Accounts, etc., to be written on foolscap.
R.S.C. O.66, r.2.

2. All accounts, copies, and papers left at chambers, shall be written upon foolscap paper, unless the nature of the document renders on it impracticable.

First black ink copy.
R.S.C. O.66, r.3.

3. No written or typewritten copy of a document shall be filed, registered or marked as an office copy unless it is a first black ink copy.

Affidavits printed or written.
R.S.C. O.66, r.4.

4. Any affidavit may be sworn to either in print or in typescript or in manuscript, or partly in print and partly in manuscript.

Marking office copies.
R.S.C. O.66, r.7 (f).

5. The party by whom or on whose behalf any deposition, affidavit, or certificate is filed shall leave a copy with the officer with whom the same is filed, who shall examine it with the original and mark it as an office copy.

Footnote of affidavit.
R.S.C. O.66, r.7(k).

6. It shall be stated in a note at the foot of every affidavit filed on whose behalf it is so filed, and such note shall be recorded on every copy thereof.

Indorsement address.
R.S.C. O.66, r.7 (l).

7. The name and address of the party or advocate by whom any copy is furnished is to be indorsed thereon in like manner as upon proceedings in court, and such party or advocate is to be answerable for the same being a true copy of the original, or of an office copy of the original, of which it purports to be a copy, as the case may be.

ORDER 67

SERVICE OF ORDERS, ETC.

Showing original order on service.
R.S.C. O.67, r.1.

1. Except in the case of an order for attachment, it shall not be necessary to the regular service of an order that the original order be shown if an office copy of it be exhibited.

Mode and time of service where not personal.
R.S.C. O.66, r.2.

2. All writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings, and written communications in respect of which personal service is not requisite shall be sufficiently served if left within the prescribed hours, at the address for service of the person to be served as defined by Orders 4 and 12, with any person resident at or belonging to such place.

Service where no appearance or no address for service.
R.S.C. O.67, r.5.

3. Where no appearance has been entered for a party, or where a party or his advocate, as the case may be, has omitted to give an address for service as required by Orders 4 and 12, all writs, notices, pleadings, orders, summonses, warrants, and other documents, proceedings, and written communications in respect of which personal service is not requisite may be served by filing them with the Registrar.

Manner of personal service.
R.S.C.O. 67, r.5

4. Where personal service of any writ, notice, pleading, order, summons, warrant, or other document, proceeding, or written communication is required by these Rules or otherwise, the service shall be effected as nearly as may be in the manner prescribed for the personal service of a writ of summons.

Substituted service.
R.S.C. O.67, r.6.

5. Where personal service of any writ, notice, pleading, summons, order, warrant, or other document, proceeding, or written communication is required by these Rules or otherwise and it is made to appear to the Court that prompt personal service cannot be effected, the Court may make such order for substituted or other service, or for the substitution of notice for service by letter, public advertisement, or otherwise, as may be just.

Service upon an advocate or party formerly appearing in person.
R.S.C. O.67, r.7.

6. Where a party after having sued or appeared in person has given notice in writing to the opposite party or his advocate, through an advocate, that such advocate is authorised to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders, warrants, and other documents, proceedings, and written communications which ought to be delivered to or served upon the party on whose behalf the notice is given shall thereafter be delivered to or served upon such advocate.

Writs may be served in any other territory.

7. Subject to the provisions of any other written law any writ or other document which may require to be served, issuing out of the Registry of the Court in any territory may be served in any other territory.

Contents of affidavits.

8. Affidavits of service shall state when, where, and how and by whom, such service was effected.

ORDER 68

COURT FEES.

Fees payable.

1. The fees payable in respect of the matters specified in Parts I, II and III of Appendix I shall be as prescribed therein. Such of the said fees as are payable in a cause or proceeding shall be paid by the party concerned and may afterwards be recovered as costs if the Court shall so order.

Dispensation

2. The Court may on account of the poverty of any person, or for other sufficient reasons, to be stated in the minutes, dispense, if it sees fit, with the payment of any fees.

ORDER 69

EFFECT OF NON-COMPLIANCE.

Non-compliance with rules not to render proceedings void.
R.S.C. O.70, r.1.

1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set not to aside either wholly or in part as irregular, or amended, or otherwise render dealt with in such manner and upon such terms as the Court shall void.

Application to set aside for irregularity when allowed.
R.S.C. O.70, r.2.

2. No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.

Objections of irregularity.
R.S.C. O.70, r.3.

3. Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion.

Costs.
R.S.C. O.70, r.4.

4. When a summons is taken out to set aside with costs any process or proceeding for irregularity and the summons is dismissed generally without any special direction as to costs, it is to be understood as dismissed with costs.

ORDER 70

ENFORCEMENT OF MAINTENANCE ORDERS.

Transmission of copy of Maintenance Order.

1. The certified copy of an order made by a Court outside the jurisdiction of the Court and transmitted by one of Her Majesty’s principal Secretaries of State to the High Commissioner under section 3 of the Maintenance Orders (Facilities for Enforcement) Ordinance, shall, where the order was made by a Court of superior jurisdiction, be sent to the Registrar of the Court in the territory in which the defendant is alleged to be living.

Transmission of copy of provisional order.

2. The certified copy of a provisional order made by a Court of superior jurisdiction outside the jurisdiction of the Court, and received by the High Commissioner under section 6 of the Ordinance shall be sent to the Registrar, with accompanying documents and a requisition order for the issue of a summons.

Registration of orders.

3. The Registrar to whom any order is sent in accordance with the above Rules shall enter it in his register on the date on which he receives it, in the same manner as though the order had been made at his Court, distinguishing it from the other entries in such manner as he may find most convenient so as to show that it is entered in pursuance of the Ordinance.

Notice of confirmation or non-confirmation.

4. When an order provisionally made outside the jurisdiction of the Court has been confirmed with or without modification under section 6 of the Ordinance by a Court or the Court has decided not to confirm it, the Registrar shall send notice thereof to the Court from which it issued and also to the High Commissioner.

Direction as to payments.

5. When an order has been registered in the Court under section 3 of the Ordinance, or a provisional order has been confirmed by the Court under section 6, that Court shall, unless satisfied that it is undesirable to do so, direct that all payments due thereunder shall be made through an officer of the Court, or such other person as it may specify for the purpose. Such direction may be given without any complaint or application, the provisions of any rule of Court notwithstanding.

Collection of payments.

6. The person through whom the payments are directed to be made shall collect the moneys due under the order, and may take proceedings in his own name for enforcing payment, and shall send the moneys when so collected, to the Court from which the order originally issued.

Notice of taking of further evidence.
Sch. 3. O.54, r.7.

7. When a provisional order made under section 5 of the Ordinance has been remitted under subsection (4) of that section to the Court in the territory where the defendant is alleged to be residing for the purpose of taking further evidence, notice specifying the further evidence required and the time and place fixed for taking it shall be sent by the Registrar to the person on whose application the provisional order was made.

Definition.

8. In this Order the expression “the Ordinance” means the Maintenance Orders (Facilities for Enforcement) Ordinance (Cap. 6) in the British Solomon Islands Protectorate and the Maintenance Orders (Facilities for Enforcement) Ordinance (Cap. 5) in the Gilbert and Ellice Islands Colony.

ORDER 71.

SAVING PROVISIONS.

Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the High Court of the Western Pacific.

ORDER 72.

APPLICATION OF RULES.

These Rules shall apply to all proceedings commenced in the High Court on or after the date appointed by the Chief Justice as the date for the coming into operation of these Rules, and shall also apply to all proceedings taken on or after that date in all causes or matters in the High Court then pending.

ORDER 73.

REPEAL AND REVOCATION.

1. The Rules listed in Part I of the Schedule to these Rules shall cease to apply.

2. The Rules and Regulations specified in the first column of Part II of the Schedule to these Rules shall cease to apply to the extent respectively specified in the second column of the said Part.

___________________