Suits for
undefended list
1. Despite
order 2 rule 4 of these rules, a plaintiff
who wishes to place that plaintiff's suit on
the undefended list, shall attach to the
Writ of Summons an affidavit in support of
the claim and all the documents which the
plaintiff intends to rely on in support of
the claim.
(2) The
affidavit shall
(a)
be as set out in Form 5 of the
First Schedule or as appropriate; (b)
set out the grounds on which the claim
is based, and
(c) state that the deponent
believes there is no defence to the claim.
(3) The
Court shall if satisfied that there are good
grounds for the relief and that there is no
defence to the claim,
(i) enter
the suit for hearing in a list called the
"Undefended List",
(ii) mark
the writ of summons as entered on the
Undefended List, and
(iii) enter
on the writ of summons a date for hearing
suitable to the circumstances of the
particular case.
Copies of
affidavit to be furnished by plaintiff
2.
The
plaintiff shall deliver to the Registrar on
the issue of the writ of summons under rule
1 as many copies of the affidavit and the
supporting documents as there are parties
against whom relief is sought, and the
Registrar shall annex one copy of the
affidavit and the supporting documents to
each copy of the writ of summons for
service.
Notice of
intention to defend and affidavit of grounds
of defence
3.
(1) A
party served with a writ of summons and
affidavit together with the supporting
documents who wishes to defend the action
shall not less than five days before the
date fixed for the hearing, fIle an
affidavit together with documents which
support that party's defence, setting out
the grounds of defence .
(2) The
affidavit shall state whether the defence
alleged goes to the whole or part only of
the plaintiff's claim and if it is to a part
of the claim, which part.
(3) If the
Court is satisfied at the hearing by the
affidavit and the supporting documents or by
the defendant's oral evidence on oath that
the defendant has(
a)
a good
defence to the action on the merits, or
(b)
disclosed sufficient facts to merit a
defence of the suit,
the
Court shall permit the defence of the suit
on terms that it considers just. (4) Where
the defendant is permitted to defend the
action, the Court shall enter the suit in
the general list for hearing.
Judgment
for claim or part thereof
4.
(1) Where it appears that the defence put up
by the defendant applies only to a part of
the plaintiff's claim, or that a part of the
claim is admitted, the Court shall give
judgment for the part of the claim that the
defence does not apply to or which is
admitted.
(2) Where it
appears that the defence put up by the
defendant does not amount in law to a
defence to the plaintiff's claim the Court
shall give judgment for the plaintiff
without proceeding to a hearing or trial.
(3) Judgment
under subrule (1)may be subject to terms
that the Court considers appropriate
including;
(a)
suspension
of execution,
(b)
payment
of the amount levied or any part of that
amount into Court by the Sheriff, or
(c)
the taxation
of costs
and the
defendant shall be allowed to defend the
residue of the plaintiff's claim.
Where one
defendant has a good defence but the other
does not
5.
Where it
appears to the Court that
(a)
a defendant
has a good defence to or ought to be
permitted to defend the action, and
(b)
another
defendant does not have a defence and does
not have to be permitted to defend the
action,
the Court
may permit the defendant with a good defence
to defend and the plaintiff is entitled to
enter
(c)
final judgment against the defendant who
does not have a
good
defence,
and
(d)
into execution on the judgment without
prejudice to the plaintiff's right to
proceed with the action against the
defendant who has a good defence.
