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HIGH COURT (CIVIL PROCEDURE) (AMENDMENT) (NO.2) RULES, 1977

(LI 1129).

 

 

IN exercise of the powers conferred on the Rules of Court Committee by section 75 of the Courts Act, 1971 (Act 372), these Rules are made this 21st day of September, 1977.

Rule 1—Orders 14, 15 and 16 Substituted.

For Orders 14, 15 and 16 of the High Court (Civil Procedure) Rules, 1954 (L.N.140A) there are hereby substituted the Orders set out in the Schedule to these Rules.

Rule 2—Consequential Amendments.

The High Court (Civil Procedure) Rules, 1954 (L.N. 140A) are hereby amended as follows:—

(a) In rules 2 and 12 of Order 13, for the words "Order 15" there are substituted the words "Order 33",

(b) for rule 3 of Order 19 there is substituted the following:

3."Defence of Set-off.

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

(c) for the title to Order 33 and rule 1 of Order 33 there is substituted the following:

"ORDER 33

ACCOUNTS AND INQUIRIES

1. Summary Order For Account.

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

(2) An application under this rule must be made by summons and, if the Court so directs, must be supported by affidavit or other evidence.

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

Rule 3—Rules Revoked.

(1)  The following provisions of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) are hereby revoked:—

rules 19 and 21 of Order 12

Orders 14A, 16A, 17 and 18

rules 10 to 16 of Order 21

rule 15 of Order 27.

(2) Rules 2 and 3 of the High Court (Civil Procedure) (Amendment) Rules, 1977 (L.I. 1107) are hereby revoked.

SCHEDULE

ORDER 14—SUMMARY JUDGEMENT

Rule 1—Application by Plaintiff for Summary Judgement.

Where in an action begun by writ a defendant has been served with a statement of claim and has entered an appearance, the plaintiff may apply to the Court for judgement against him on the ground that he has no defence to a claim included in the writ, or to a particular part of such a claim, or that he has no defence to such a claim or part except as to the amount of any damages claimed.

Rule 2—Manner of Making Application.

(1) The application must be made by summons setting out or having attached thereto the reliefs sought by the plaintiff, and supported by affidavit verifying the facts on which the relevant claim or part of a claim is based.

(2) The affidavit must state that in the deponent's belief there is no defence to that claim or part, or no defence except as to the amount of any damages claimed.

(3) The summons, a copy of the affidavit in support and of any exhibit referred to therein must be served on the defendant not less than 4 clear days before the return day.

Rule 3—Defendant May Show Cause.

(1) A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.

(2) Where the defendant shows cause, the Court may order him (or, in the case of a body corporate, any director, manager, secretary or similar officer thereof, or any person purporting to act in any such capacity) to attend and be examined on oath if it appears to the Court that special circumstances make this desirable, or to produce any document.

Rule 4—Affidavits.

Unless the Court otherwise directs, an affidavit given under rule 2 or 3 may contain statements of information or belief with the sources and grounds thereof.

Rule 5—Hearing of Application.

(1)  On hearing the application the Court may—

(a) give such judgement for the plaintiff against the defendant on the relevant claim or part of a claim as may be just having regard to the nature of the remedy or relief sought unless the defendant satisfies the Court, with respect to that claim or part, that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part; or

(b) give the defendant leave to defend the action with respect to the relevant claim or part of a claim either unconditionally or on terms as to giving security or time or mode of trial or otherwise; or

(c) dismiss the application with costs to be paid forthwith by the plaintiff, if it appears that the case is not within this Order or that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend the action.

(2) The Court may by order, and subject to any just conditions, stay execution of a judgment given against a defendant under this rule until after the trial of any counterclaim made or raised by the defendant.

Rule 6—Directions.

(1) Where leave to defend is given or execution stayed under rule 5, the Court may give such directions as to the further conduct of the action as might be given on a summons for directions, and may order the action to be set down for trial forthwith or at such date as the Court thinks proper.

(2) A Short Cause List shall be kept for the trial of actions in which leave to defend has been given under rule 5, and which the Court considers will not require a prolonged trial; and the Court may order any such action to be put into that list.

(3) If the parties consent the Court may direct that the claim in question and any other claim in the action be referred to a Judge in Chambers.

Rule 7—Unliquidated Damages.

Where the Court gives interlocutory judgment under this Order in a claim for unliquidated damages, the value of the goods and the amount of damages (or the damages only) to be awarded shall be determined by a Judge in Chambers, unless the Court orders that they or either of them shall be ascertained in any other way that the Court may direct.

Rule 8—Delivery up of Chattel.

Where the Court gives judgment under this Order for the delivery up of a specific chattel, it shall have the same power to order the defendant to deliver up the chattel without giving him an option to retain it upon paying its assessed value as if the judgment had been given after trial.

Rule 9—Relief Against Forfeiture.

Where the Court gives judgment under this Order for possession of land on the ground of forfeiture for non-payment of rent, a tenant shall have the same right to apply for relief as if the judgment had been given after trial.

Rule 10—Costs.

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

Provided that if no trial afterwards takes place, or no order as to costs is made, the costs are to be costs in the cause.

Rule 11—Setting Aside Judgment.

A judgment given against a defendant who does not appear at the hearing of an application under this Order may be set aside or varied by the Court on such terms as it thinks just.

Rule 12—Application for Summary Judgment on Counterclaim.

(1) Where a defendant to an action begun by writ has served a counterclaim on the plaintiff, the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such a claim, apply to the Court for judgment against the plaintiff on that claim or part.

(2) Rules 2 to 11 shall apply in respect of an application under this rule with the following modifications:—

(a) references therein to the plaintiff and defendant shall be construed as references to the defendant and plaintiff respectively;

(b) the references in rules 5 and 6 to the action shall be construed as references to the counterclaim to which the application made under this rule relates; and

(c) in rule 5 (2) the words after "trial" shall be omitted.

Rule 13—Actions and Claims Excluded.

Summary judgment shall not be given under this Order in respect of:—

(a) a probate or maritime action;

(b) a claim or counterclaim for defamation, malicious prosecution, seduction or breach of promise of marriage;

(c) a claim or counterclaim based on an allegation of fraud.

ORDER 15—CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES

Rule 1—Joinder of Causes of Action.

(1) Subject to rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action—

(a) if the plaintiff claims, and the defendant is alleged to be liable, in respect of all the causes of action; or

(b) if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate or successor under customary law in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others; or

(c) with the leave of the Court.

(2) An application for leave under this rule must be made ex parte and supported by affidavit before the issue of the writ or originating summons, and the affidavit must state the grounds of the application.

Rule 2—Counterclaim Against Plaintiff.

(1) Subject to rule 5 (2), a defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter.

(2) The defendant must add the counterclaim to his defence.

(3) Rule 1 shall apply in relation to a counterclaim as if it were a separate action and as if the person making it were the plaintiff and the person against whom it is made a defendant.

(4) A counterclaim may be proceeded with although judgment is given for the plaintiff in the action or the action is stayed, discontinued or dismissed.

(5) Where a defendant establishes a counterclaim against the claim of the plaintiff and there is a balance in favour of one of the parties, the Court may give judgment for the balance, but without prejudice to the Court's discretion in respect of costs.

Rule 3—Counter-claim against Additional Parties.

(1) Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject-matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject-matter of the action, then, subject to rule 5 (2) he may join that other person as a party against whom the counterclaim is made.

(2) Where a defendant joins a person as a party against whom he makes a counterclaim, he must add that person's name to the title of the action and serve on him a copy of the counterclaim.

(3) Where a copy of the counterclaim is to be served on a person who is already a party to the action, the defendant must serve it within the period within which, under these Rules, he must serve on the plaintiff the defence to which the counterclaim is added.

(4) Where a copy of the counterclaim is to be served on a person who is not already a party to the action, the provisions of these Rules relating to service of process, entry of appearance and default of appearance shall apply in relation to the counterclaim and the proceedings arising from it as if—

(a) the counterclaim were a writ and the proceedings arising from it an action; and

(b) the party making the counterclaim were a plaintiff and the party against whom it is made a defendant in that action.

(5) A copy of a counterclaim required to be served on a person who is not already a party to the action must be endorsed with a notice in the prescribed form addressed to that person—

(a) stating the effect of Order 12, rules 1 and 2, as applied by paragraph (4);

(b) specifying the appropriate office for the entry of appearance by that person to the counterclaim; and

(c) stating that he may obtain forms of the requisite documents from the appropriate office and explaining how he may do so.

(6) A person on whom a copy of the counterclaim is served under paragraph (2) shall, if he is not already a party to the action, become a party to it as from the time of service with the same rights in respect of his defence to the counterclaim and otherwise as if he had been duly sued in the ordinary way by the person making the counterclaim.

(7) A person who is not already a party to the action shall enter an appearance to the counterclaim at the Registry.

Rule 4—Joinder of Parties.

(1) Subject to rule 5(1), two or more persons may be joined together in the same action as plaintiffs or as defendants with the leave of the Court or where—

(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

(2) Where the plaintiff in any action (other than a probate action) claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any enactment and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.

(3) Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons so liable are added as defendants.

Rule 5—Court may Order Separate Trials, etc.

(1) If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may—

(a) order separate trials; or

(b) confine the action to some of the causes of action, and exclude the others; or

(c) order the plaintiff or plaintiffs to elect which cause of action shall be proceeded with, or which plaintiff should proceed and which be struck out; or

(d) prevent a defendant from being embarrassed or put to expense by being required to attend proceedings in which he has no interest; or

(e) make such other order as may be expedient.

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

Rule 6—Misjoinder and Non-Joinder of Parties.

(1) No proceedings shall be defeated by reason of the misjoinder or non-joinder of any party; and the Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings.

(2) At any stage of the proceedings the Court may on such terms as it thinks just and either of its own motion or on application—

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any person who ought to have been joined as a party, or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, to be added as a party.

(3) No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(4) An application by any person for an order under paragraph (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the proceedings.

(5) An application for an order under paragraph (2) 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.

Rule 7—Change of Parties by Reason of Death, Etc.

(1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.

(2) Where at any stage of the proceedings the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, order that other person to be made a party and the proceedings to be carried on as if he had been substituted for the first mentioned party.

(3) An application for an order under this rule may be made ex parte.

(4) Where an order is made under this rule for a person to be made a party and he is already a party on the other side of the record, the order shall be treated as containing a direction that he shall cease to be a party on that other side.

(5) Where an order is made under this rule for a person to be made a party and he is already a party on the same side but in a different capacity, the order may contain a direction that he shall cease to be a party in that other capacity.

(6) The person on whose application an order is made under this rule must procure the order to be noted in the cause book, and after it has been so noted he must, unless the Court otherwise directs,—

(a) serve the order on every other person who is a party to the proceedings or who becomes or ceases to be a party by virtue of the order; and

(b) serve with the order on any person who becomes a defendant a copy of the writ or originating summons by which the proceedings were begun.

(7) A person may, within 14 days after he is served with an order made ex parte under this rule, apply to the Court to discharge or vary the order.

Rule 8—Provision Consequential on making of Order under Rule 6 or 7.

(1) Where an order is made under rule 6, the writ by which the action was begun must be amended accordingly and endorsed with—

(a) a reference to the order in pursuance of which the amendment is made; and

(b) the date on which the amendment is made, and the amendment must be made within such period as may be specified in the order or, if no period is so specified, within 14 days after the making of the order.

(2) Where under rule 6 a person is ordered to be made a defendant, the rules as to service of a writ of summons shall apply to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the cause book.

(3) A person ordered under rule 6 to be added as a party shall not become a party until the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him.

(4) A person ordered under rule 7 to be substituted as a party shall not become a party until the order has been served on him under rule 7(6) or, if not required to be served on him, has been noted in the cause book; and where he becomes a party all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the old, except that entry of appearance by the old party shall not dispense with entry of appearance by the new.

(5) Where under rule 6 or 7 a person is ordered to be made a defendant, the rules as to entry of appearance shall apply to entry of appearance by him, subject, in the case of a person ordered to be made a defendant under rule 7, to the modification that the time limited for appearing shall begin with the date on which the order is served on him under rule 7(6) or, if the order is not required to be served on him, with the date on which the order is noted in the cause book.

(6) This rule shall apply to an action begun by originating summons as it applies to an action begun by writ.

Rule 9—Failure to Proceed after Death of Party.

(1) If after the death of a plaintiff in any action the cause of action survives, but no order under rule 7 is made substituting as plaintiff any person in whom the cause of action vests, the defendant may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff who has died, but the Court shall not make such an order unless satisfied that due notice of the application has been given to the personal representatives or customary successor (if any) of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified.

(2) If after the death of a defendant in any action the cause of action survives, but no order under rule 7 is made substituting the personal representatives or customary successor of the deceased defendant, those representatives or that successor may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the defendant who has died.

(3) Where in any action a counterclaim is made by a defendant, this rule shall apply in relation to the counterclaim as if the counterclaim were a separate action and as if the defendant making the counterclaim were the plaintiff and the person against whom it is made a defendant.

Rule 10—Actions for Possession of Land.

(1) Without prejudice to rule 6, the Court may at any stage of the proceedings in an action for possession of land order any person not a party to the action who is in possession of the land (whether in actual possession or by a tenant) to be added as a defendant.

(2) An application by any person for an order under this rule may be made ex parte, supported by an affidavit showing that he is in possession of the land in question and if by a tenant, naming him.

(3) A person added as a defendant by an order under this rule must serve a copy of the order on the plaintiff and must enter an appearance in the action within such period, if any, as may be specified in the order or, if no period is so specified, within 8 days after the making of the order, and the rules as to entry of appearance shall apply accordingly to entry of appearance by him.

Rule 11—Relator Actions.

Before the name of any person is used in an action as a relator, that person must give a written authorisation so to use his name to his lawyer and the authorisation must be filed in the registry of the Court in which the action is proceeding.

Rule 12—Persons under Disability.

(1) A person under disability may not bring, or make a claim in, any proceeding except by his next friend.

(2) A person under disability may not defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.

(3) Subject to the provisions of these Rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these Rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.

(4) A next friend or guardian ad litem of a person under disability must act by a lawyer.

(5) No order for the appointment of a next friend or guardian ad litem shall be necessary, but the lawyer applying to enter an appearance shall make and file an affidavit in Form 14 in Appendix A, Part V, with such variations as circumstances may require.

 

(6) In all proceedings to which a person under disability is a party, any consent as to the mode of taking evidence or as to any other procedure shall be valid if given by the next friend or guardian ad litem with the consent of the Court.

(7) In this rule, "person under disability" means a person under the age of eighteen years or a person who by reason of mental disorder or infirmity of mind is incapable of managing and administering his property and affairs.

Rule 13—Stools, Family Heads, Etc.

(1) The occupant of a stool or skin (or where the stool or skin is vacant, the regent or caretaker of that stool or skin) may sue and be sued on behalf of or as representing such stool or skin.

(2) The head of a family in accordance with customary law may sue and be sued on behalf of or as representing such family.

Rule 14—Representative Proceedings.

(1) Where numerous persons have the same interest in any proceedings (other than proceedings mentioned in rule 15), the proceedings may be begun and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms (if any) as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where in exercise of such power the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding him as a defendant.

(3) A judgment or order given in proceedings under this rule shall bind all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against a person not a party to the proceedings except with the leave of the Court.

(4) An application for the grant of leave under paragraph (3) must be made by summons which must be served personally on the person against whom it is sought to enforce the judgment or order.

(5) Notwithstanding that a judgment or order binds the person against whom the application is made, he may dispute liability to have the judgment or order enforced against him on the ground that he is entitled to be exempted from such liability by reason of facts and matters particular to his case.

(6) The Court hearing an application for the grant of leave under paragraph (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined.

Rule 15—Representation of Interested Persons who cannot be Ascertained, Etc.

(1) Subject to paragraph (2), in any proceedings concerning—

(a) the administration of the estate of a deceased person; or

(b) property subject to a trust; or

(c) the construction of a written instrument, including an enactment, the Court, if satisfied that it is expedient to do so, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.

(2) The Court shall not exercise its power under paragraph (1) unless it is satisfied—

(a) that the person, the class, or some member of the class cannot be ascertained or cannot readily be ascertained;

(b) that the person, class or some member of the class, though ascertained, cannot be found;

(c) that, though the person or the class and the members thereof can be ascertained and found, it is expedient (having regard to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.

(3) Where the Court exercises its power under paragraph (1), a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall bind the person or class represented by the person or persons so appointed.

(4) Where, in any proceedings to which paragraph (1) applies, 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—

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

(b) the absent persons are represented by a person appointed under paragraph (1) 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 it shall bind the absent persons, and they shall be bound accordingly unless the order was obtained by fraud or non-disclosure of material facts.

Rule 16—Representation of Beneficiaries by Trustees, Etc.

(1) Any proceedings, including proceedings to enforce a security, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and a judgment or order given or made in those proceedings shall bind those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators could not or did not in fact represent the interests of those persons in the first-mentioned proceedings.

(2) Paragraph (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under rule 15.

Rule 17—Representation of Deceased Persons Interested in Proceedings.

(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question and that he has no personal representative or customary successor, the Court may on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings.

(2) Any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative or customary successor of that person been a party to the proceedings.

(3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.

Rule 18—Parties to Administration Actions.

(1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration action relates must be parties to the action, and where the action is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff must be made a defendant.

(2) Notwithstanding anything in rule 4 (2), and without prejudice to the powers of the Court under this Order, all the persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, to which an administration action relates need not be parties to the action; but the plaintiff may make such of those persons, whether all or any one or more of them, parties as he thinks fit having regard to the nature of the relief or remedy claimed in the action.

(3) Where, in proceedings under a judgment or order given or made in an action for the administration under the direction of the Court of the estate of a deceased person, a claim in respect of a debt or other liability is made against the estate by a person not a party to the action no party other than the executors or administrators of the estate shall be entitled to appear in any proceedings relating to that claim without the leave of the Court, and the Court may direct or allow any other party to appear either in addition to, or in substitution for, the executors or administrators on such terms as to cost or otherwise as it thinks fit.

(4) In this rule, "administration action" means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.

Rule 19—Service of Notice of Judgment on Person not a Party.

(1) Where in an action for—

(a) the administration of the estate of a deceased person; or

(b) the execution of a trust; or

(c) the sale of any property,

the Court gives a judgment which affects the rights or interests of persons not parties to the action or directs any account to be taken or inquiry made, the Court may when giving the judgment or at any stage of the proceedings under the judgment direct notice of the judgment to be served on any person interested in the estate or under the trust or in the property, as the case may be.

(2) Any person duly served with notice of a judgment in accordance with this rule shall, subject to paragraph (7), be bound by the judgment to the same extent as he would have been if he had originally been made a party to the action.

(3) The Court may direct a notice of judgment to be served personally or in such manner as it may specify on the person required to be served, or if it appears to the Court that it is impracticable for any reason to serve such notice on any person it may dispense with service of the notice on that person.

(4) Before notice of a judgment is served the notice must be endorsed with a memorandum in Form 15 in Appendix A, Part V.

(5) The party prosecuting the judgment must leave at the judge's chambers the stamped copy of the memorandum of appearance of any person served with notice of the judgment or, as the case may be, a certificate that no appearance has been entered by him.

(6) Where the Court dispenses with service of notice of a judgment on any person, it may also order that the judgment shall bind him to the same extent as if he had been served with notice of it, and he shall be bound accordingly unless the judgment was obtained by fraud or non-disclosure of material facts.

(7) A person may, within one month after he is served with notice of a judgment, and without entering an appearance, apply to the Court to discharge, vary or add to the judgment.

(8) A person served with notice of a judgment may, after entering an appearance to the notice, attend the proceedings under the judgment.

(9) In this rule, references to a judgment shall be construed as including references to an order.

Rule 20—Abatement, etc of Action.

(1) Where after an action has been set down for trial it becomes abated, or the interest or liability of any party to the action is assigned or transmitted to or devolves on some other person, the lawyer for the plaintiff or other party having the conduct of the action must, as soon as practicable after becoming aware of it, certify the abatement or change of interest or liability in writing to the Registrar, who shall make the appropriate entry in the list of actions set down for trial.

(2) Where in any such list an action stands for one year marked as abated or ordered to stand over generally, it shall be struck out of the list on the expiration of that year unless, in the case of an action ordered to stand over generally, the order otherwise provides.

Rule 21—Dispute as to Representative, Etc.

(1) If a dispute arises as to who is the personal representative or customary successor of a deceased plaintiff, the Court may stay the action until the fact has been determined in another action or decide at or before the hearing of the action who shall be admitted as such representative or successor for the purpose of the action.

Rule 22—Death of Party before Judgment.

Where a party to an action dies after the finding of the issues of fact and before judgment is given, judgment may be given notwithstanding the death, but without prejudice to the power of the Court to make an order under rule 7 (2) before giving judgment.

Rule 23—Conduct of Proceedings.

The Court may give the conduct of any action, enquiry or other proceeding to such person as it thinks fit.

ORDER 16—THIRD PARTY AND SIMILAR PROCEEDINGS

Rule 1—Third Party Notice.

(1) Where a defendant who has entered an appearance to an action claims against a person not already a party to the action—

(a) any contribution or indemnity; or

(b) 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,

then, subject to paragraph (3), the defendant may issue a third party notice against that person.

(2) Where a defendant who has entered an appearance to an action requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and defendant but also as between either or both of them and a person not already a party to the action, then, subject to paragraph (3), the defendant may issue a third party notice against that person.

(3) The defendant may issue the third party notice—

(a) without the leave of the Court, if the action was begun by writ and he has not yet served his defence on the plaintiff; or

(b) with the leave of the Court, if he has already served his defence on the plaintiff or if the action was begun by originating summons.

Rule 2—Application to the Court.

(1) An application for leave to issue a third party notice under rule 1(1) may be made ex parte.

(2) An application for leave to issue a third party notice under rule 1(2) must be made by summons.

(3) Every such application must be supported by an affidavit stating—

(a) the nature of the claim made by the plaintiff in the action;

(b) the stage which proceedings in the action have reached;

(c) the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and

(d) the name and address of the person against whom the third party notice is to be issued.

(4) The order granting leave to issue a third party notice may contain directions as to the period within which the notice is to be issued.

Rule 3—Form and Issue of Notice.

(1) A third party notice issued under rule 1(1) must be in Form 1 in Appendix B (with such variations as circumstances may require), containing a statement of the nature of the claim made against the defendant and of the nature and grounds of the claim made by him.

(2) A third party notice issued under rule 1(2) must be in Form 1A in Appendix B (with such variations as circumstances may require), containing a statement of the nature of the claim made against the defendant and of the question or issue required to be determined.

(3) Issue of a third party notice takes place upon it being sealed by an officer of the office out of which it is issued.

(4) No third party notice shall be sealed unless at the time it is tendered for sealing the person tendering it leaves at the office at which it is tendered a copy thereof signed by himself or by his lawyer.

(1) There must be served with every third party notice a copy of the writ or originating summons by which the action was begun and of the pleadings (if any) served in the action.

(2) Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action (in this Order referred to as a third party) with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued.

(3) 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 on such terms, if any, as the Court thinks fit.

(4) The appropriate office for entering an appearance to a third party notice is the registry of the Court in which the action is proceeding.

(5) Subject to the foregoing provisions of this rule, the provisions of these Rules relating to service of writs and entry of appearance, except Order 9, rule 17, shall apply in relation to a third party notice and to the proceedings begun thereby as if—

(a) the third party notice were a writ and the proceedings begun thereby an action; and

(b) the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action.

Rule 5—Third Party Directions.

(1) If the third party enters an appearance, the defendant who issued the third party notice must, by summons to be served on all the other parties to the action, apply to the Court for directions.

(2) If no summons is served on the third party under paragraph (1), the third party may, not earlier than 8 days after entering an appearance, by summons to be served on all the other parties to the action, apply to the Court for directions or for an order to set aside the third party notice.

(3) On an application for directions under this rule the Court may—

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

(b) order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or

(c) dismiss the application and terminate the proceedings on the third party notice, and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant.

(4) On an application for directions under this rule the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action.

(5) Any order made or direction given under this rule may be varied or rescinded by the Court at any time.

Rule 6—Default of Third Party, Etc.

(1) If a third party does not enter an appearance, or having been ordered to serve a defence, fails to do so—

(a) he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in that third party notice; and

(b) the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court, before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of  the Court, in respect of any other relief or remedy claimed therein.

(2) If a third party or the defendant by whom a third party notice was issued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant or the third party, as the case may be, order such judgment to be entered for the applicant as he is entitled to on the pleadings or may make such other order as may appear to the Court necessary to do justice between the parties.

(3) The Court may at any time set aside or vary a judgment entered under paragraph (1) (b) or (2) of this rule on such terms, if any, as it thinks just.

Rule 7—Setting Aside Third Party Proceedings.

Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court.

Rule 8—Judgment between Defendant and Third Party.

(1) Where in any action a defendant has served a third party notice, the Court may at or after the trial of the action or, if the action is decided otherwise than by trial, on an application by summons or motion, order such judgment as the nature of the case may require to be entered for the defendant against the third party or for the third party against the defendant.

(2) Where in an action judgment is given against a defendant and judgment is given for the defendant against a third party, execution shall not issue against the third party without the leave of the Court until the judgment against the defendant has been satisfied.

Rule 9—Costs.

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.

Rule 10—Claims and issues between a Defendant and some other Party.

(1) Where a defendant who has entered an appearance to an action claims against a person who is already a party to the action—

(a) any contribution or indemnity; or

(b) 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,

then, subject to paragraph (2), the defendant may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim.

(2) Where a defendant makes such a claim as is mentioned in paragraph (1) and that claim could be made by him by counterclaim in the action, paragraph (1) shall not apply in relation to the claim.

(3) Where a defendant who has entered an appearance to an action requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and himself but also as between either or both of them and some other person who is already a party to the action, the defendant may, without leave, issue and serve on that person a notice containing a statement of the question or issue required to be determined.

(4) No appearance to a notice served under this rule shall be necessary if the person on whom it is served has entered an appearance in the action or is a plaintiff therein, and the same procedure shall be adopted for the determination between the defendant by whom, and the person on whom, such a notice is served of the claim, question or issue stated in the notice as would be appropriate under this Order if the person served with the notice were a third party and (where he has entered an appearance in the action or is a plaintiff) had entered an appearance to the notice.

(5) Rule 5 (2) shall have effect in relation to proceedings on a notice issued under this rule as if for the words "8 days after entering an appearance" there were substituted the words "14 days after service of the notice on him".

Rule 11—Claims by Third and Subsequent Parties.

(1) Where a defendant has served a third party notice and the third party makes a claim or requirement mentioned in rule 1 or rule 10, this Order (other than rule 1 (3)) shall apply, with any necessary modifications, as if the third party were a defendant; and similarly where any further person to whom by virtue of this rule this Order applies as if he were a third party makes such a claim or requirement.

(2) A third party may not issue a notice under rule 1 without the leave of the Court unless the action was begun by writ and he issues the notice before the expiration of 14 days after the time limited for appearing to the notice issued against him.

Rule 12—Offer of Contribution.

(1) An offer of contribution made by one party to another before the trial of an action shall not be brought to the attention of the judge at the trial until after all questions of liability and amount of debt or damages have been decided.

(2) For the purposes of this rule an offer of contribution means an offer to contribute to a specified extent to a debt or damages, made (without prejudice to his defence) by a party to the action who, either as a third party or as one of two or more tort-feasors 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 against that other party in the action.

Rule 13—Counter-claim by.

Where in any action a counterclaim is made by a defendant, this Order shall apply in relation to the counterclaim as if the subject-matter of the counterclaim were the original subject-matter of the action, and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

Mr. Justice F.K. Apaloo                                                      Chairman

Mr. Justice G.S. Lassey                                                       Member

Dr. G. Koranteng-Addow,   Attorney-General                    Member

Mr. Justice J.S.A. Anterkyi                                                  Member

Nene Azu Mate Kole                                                           Member

J.K.F. Adadevoh                                                                  Member

C.B.K. Zwennes                                                                  Member

F.T.C. Amorin                                                                     Member

E.D. Kom                                                                            Member

E.F. Short                                                                            Member

J.A. Wutoh                                                                         Secretary.

 

Date of Gazette Notification: 30th September, 1997.

 

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