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DISTRICT COURT (CIVIL PROCEDURE) RULES, 2004

 

      Rule        

ORDER 8

UNDEFENDED SUITS

 

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.


Special leave to defend where rule 3 not complied with

6. Where a defendant fails to deliver the affidavit under rule 3 but subsequently fIles an affidavit which

(a) discloses a defence on the merits, and

(b) satisfactorily explains why the affidavit was not delivered, the Court may at any time before judgment is entered permit the defendant to defend the action on terms that the Court considers just.

Disposal of undefended suits

7. Where a defendant fails to deliver the affidavit under rule 3, and the defendant is not permitted to defend in accordance with the provisions of rule 6, the Court shall deal with the suit as an undefended suit, and give judgment without calling on the plaintiff to summon witnesses to prove the plaintiff's case formally.

Saving of Court's powers

8. This Order does not preclude the Court from hearing or requiring oral evidence, if the Court thinks it fIt to do so at any stage of the proceedings.

 

 

 

 

 

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