HOW TO APPROACH THE COURT? Flashcards
(order 2, Rule 1, CPR)
Every pleading in civil proceedings shall contain information as to the circumstances in which it is alleged that the liability has arisen
What are pleadings and why are they important?
Pleadings are written statements of parties to a suit, which are served on each party – they set out in summary form the nature of the case and the material facts that support the claim
* In civil proceedings, it is imperative that the matter the claimant submitted to the court is clearly ascertained
* The parties are supposed to know the allegations that they are going to meet in court and should not be caught unaware
* The object of the pleadings is to establish the character of the dispute
* A party is entitled to know the case of their opponent so that they can meet it, i.e. the sole object of pleadings is:
a) To ascertain the real dispute or issue between the parties;
b) To narrow down the area of conflict;
c) To see where the two sides differ so as to preclude one party from taking the other by surprise; and
d) To prevent a miscarriage of justice
What should the pleadings contain according to CPR Provisions?
FORMAL REQUIREMENTS
* Every pleading shall have as its heading the court and the location of the court, as well as the title of the action
* Every pleading shall be divided into paragraphs labelled consecutively – each fact averred in a case should ideally be in its
own paragraph
CPR PROVISION WHAT IT STATES
Order 2, Rule 2(1) Each allegation should ideally be contained in a separate paragraph
Order 2, Rule 2(2) Dates, sums and other numbers should be expressed in figures
Order 2, Rule 3(1) The pleadings should contain a brief statement summarising the material facts on which the party pleading relies on for their claim or defence, but not the evidence that will prove the facts (as a general rule, you should never plead evidence in your pleadings)
Order 2, Rule 3(2) The effect of any document adduced as evidence or conversation referred to in the pleading shall be briefly stated, if need be, but the precise words of the document or the conversation shall not be stated, unless those words are themselves material
Order 2, Rule 3(3) Any fact presumed by law to be true shall not be pleaded unless specifically denied by the other party –E.g. you need not say ‘I am an adult of sound mind
What must a PLAINT CONTAIN?
(i) Description of the Court
(ii) Assigned case number
(iii) Names of the parties and designated as defined in the suit
(iv) The title ‘Plaint’ and the track system
(v) The description and place of residence of the Plaintiff, or their place of business
(vi) A similar description of the Defendant, including its address of service
(vii) If any party to the plaint is a minor, the plaint should contain a statement to that effect
(viii) It should contain facts constituting a cause of action
(ix) It should contain particulars of the state of mind of the defendant or action/omission allegedly undertaken
(x) The loss or damage caused in relation to the particulars
(xi) A statement declaring notification of the substance of the suit
(xii) Facts showing that the court has jurisdiction
(xiii) The prayers of relief sought, and amount (if any) or the value of the subject matter
(xiv) Date of the plaint
(xv) The signature of the Plaintiff or their agent
What must be pleaded in response to a plaint?
- A party, in pleading in reply to a plaint, must plead specifically any matter such as performance, payment, fraud, act of God, statute of limitation, or any fact showing illegality –
a) Which they allege makes the claim or defence of the other party not maintainable;
b) Which if not specifically pleaded, might take the other party by surprise;
c) Which raises issues of fact not arising out of the preceding pleadings (Order 2, Rule 4(1), CPR) * However, where a party is a defendant to an action for recovery pf land, then they need to specifically plead every ground of defence they intend to rely on (Order 2, Rule 4(2), CPR) - No party may, in subsequent pleadings, make allegations of fact or raise any new grounds that are inconsistent with their
previous pleadings in the same suit (order 2, Rule 6(1), CPR) - However, they may plead any relevant matter which has arisen before or since the filing of the suit (Order 2, Rule 5, CPR)
What particulars must be included in every pleading?
- Every pleading shall contain the particulars of any claim or defence, including:
a) Particulars of any misrepresentation, fraud or wilful default on which the party pleading relies; and
b) Where a party pleading alleges any condition of the mind, whether disability of the mind, malice, fraudulent intention, etc. the same must be contained (Order 2, Rule 10(1), CPR) * Where a party alleges as a fact that a person has knowledge or notice of some fact, the court may, on such terms as it
thinks just, order that a party to serve on any other party:
a) Where they allege knowledge, particulars of the facts on which they rely; and
b) Where they allege notice, particulars of the notice (Order 10, Rule 3, CPR) * This order should ideally be made after the filing of the defense, unless the order is necessary to allow the defendant to plead (Order 10, Rule 4, CPR) * No costs shall be awarded for a party who requests from such order unless notice has been sought as under Form No. 2, Appendix A (‘Request for Particulars’) served in duplicate
What are 17 important rules under Order 51 CPR?
ORDER 51, CPR WHAT IT STATES
Rule 1 All applications to the court shall be made by way of Notice of Motion and be heard in open court, unless the
court or the rules order that such application be made otherwise, i.e. by Originating Summons or Chamber
Summons
Rule 15 Upon hearing of an application, if the court deems that sufficient notice has not been given or that notice has
not been given to the other party at all, the court may adjourn the matter and order such notice to be served
upon terms that the court may deem to impose
Rule 11(1) It shall not be necessary in an Originating Summons, or any other application, to ask for costs, general or
other relief, as the same shall be granted by the court as it thinks just
Rule 11(2) The costs awarded on such applications shall not be taxed unless the curt makes such order. In any event,
costs should be taxed at the final conclusion of the suit
Rule 12 Applications shall be deemed to have been made when filed in court
Rule 13(1) The application shall be signed by the advocate making the proceeding on behalf of the applicant, or by the
applicant themselves if they are representing themselves
Rule 13(2) Every application shall bear at the foot the word: “if any party does not appear at the time and place above
mentioned such order will be made and proceedings taken as the court may think just and expedient”
Rule 13(3) The application shall be served upon the respondent, together with the list of authorities (if any), within 7
days of the hearing date
Rule 14(1) The respondent wishing to respond may do so by way of:
a) Notice of Preliminary Objection; and/or
b) Replying Affidavit; and/or
c) A statement of grounds of opposition
Rule 14(2) The reply should be served upon the applicant within 3 days before the hearing date
Rule 14(3) The applicant may, with leave of the court, file a supplementary affidavit to the respondent’s replying affidavit
or statement of grounds of opposition
Rule 14(4) If the respondent fails to respond to the application served upon them by the applicant or fails to serve the
applicant within 3 days before the hearing, the application may be heard ex parte
Rule 15 The court may set aside any order made ex parte
Rule 16 The court may, in its discretion, limit the time for oral submissions or allow written submissions
Rule 8 & 9 The court may order hearing in Chambers or in open court as it deems convenient to dispose of such
application
Rule 10(1) Not citing the enabling provision of the law will not be a ground of objection or necessitate striking out of the
application
Rule 10(2) An application shall not be defeated on a technicality or want of form that does not affect the substance of
the application
What is the ORIGINATING SUMMONS?
- The Originating Summons is only used where the CPR provide for it, or some other statutes especially permit that method
of approaching the court - The O.S. is intended for a simpler, shorter and speedier process
- Usually, when you approach the court by way of an O.S., there are no witnesses and evidence is by way of an affidavit
- The question for decision by the court is raised directly in the Summons and the evidence is raised in the Affidavit
- The issues are raised in a concise manner but with sufficient particulars to enable the court identify the issues and the
course of action - The remedy or relief sought is also clearly stated in the O.S.
Where and when is an ORIGINATING SUMMONS APPLICATION USED?
- Normally, the O.S. is used where the parties have a special (already existing) relationship, including:
CIVIL LITIGATION REVISION 2019/2010
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o Cases related with agreement for sale or purchase of immovable property (but, only in cases where the existence
of the agreement/contract is not in dispute and neither is its validity)
o Summons by the mortgagor, mortgagee and others for reliefs in the nature of sale, foreclosure, delivery of
possession up to the mortgagee by the mortgagor, redemption, reconveyance, delivery of possession to the
mortgagor, etc.
o Applications for caveats
o Applications for extensions of time under the rules of the Limitations of Actions Act
o Applications for land ownership by way of adverse possession
o Applications for files to be reconstructed
o Applications for fixing of the cause for directions by either party
What is the process under CPR for making an Originating Summons application?
ORDER 37 CPR WHAT IT STATES
Rule 14 Where necessary, an O.S. shall be served upon the other party according to the rules of service laid down in
the rules
Rule 15 The Summons shall be filed and entered in the Register of Suits with the letters ‘O.S.’ indicated after the serial
number so as to distinguish them from Plaints
Rule 16 The Registrar shall, within 30 days of filing the O.S., and with notice to the parties, list it for directions before
a judge in chambers
Rule 17 The date and hour of attendance under the O.S. to which an appearance is scheduled shall, after appearance,
be fixed for hearing in Chambers before the judge it has been assigned
Rule 18 If at the time of directions, the parties dispute the correctness and sufficiency of facts in the summons and
affidavits, the judge may order such further evidence as deemed necessary to support the summons, and
may give directions as he may deem just for trial or make any amendments necessary to make the summons
relevant to the facts
Rule 19 Where it appears to the court, at any stage of the proceedings commenced by O.S., that the proceedings
should be continued as if the cause had begun by filing a plaint, then the court may order the proceedings
continue as such and order any affidavits filed to stand as pleadings. The court may direct parties to or not to
file further particulars or to apply for particulars of those affidavits. If the court makes such an order, Order
11 shall apply to the proceedings
What is a Notice of Motion?
- A Notice of Motion must include a concise statement of the nature of the claim or the relief or remedy required and the evidence relied on, if any, should be by affidavit (Order 51, Rule 14, CPR)
- No Notice of Motion shall be made without notice to the other party (Order 51, Rule 3, CPR)
- However, if the court deems that delay may seriously prejudice the party making the application, it shall make the order ex parte with regard to such terms as to costs or otherwise and subject to such undertakings as the court may deem to be just, having regard to the party against whom the order is made. The party affected by such order may move the court to have it set aside
What are the instances where a Notice of Motion can be used?
- Instances when a Notice of Motion can be used include:
o Application for orders for Judgment on Admission;
o Application for Summary Judgment;
o Application for Stay of Proceedings;
o Application for lifting, variation or discharge of an injunction;
o Application for release orders, e.g. Habeas Corpus Order;
o Substantive application for Judicial Review;
o Burial Disputes; and
o Certain Constitutional Applications
What is a CHAMBER SUMMONS APPLICATION?
- Applications by way of Chamber Summons are used when seeking orders within a pending suit
- The Application must always be brought and sought under a specific rule
- Chamber Summons were historically heard in chambers, thus the name ‘Chamber Summons’
- These applications are normally used to request for certain orders, and the courts will not usually grant ex parte orders unless it has heard both sides – i.e. service is of the essence
- If it is an urgent matter and irreparable harm will be occasioned, the court can grant the order ex parte after hearing one side
- An ex parte order is only granted upon the undertaking by that party that they shall file the substantive suit and/or serve
the other side within a period of time specified by the court - Every summons shall state in general terms the grounds of the application, usually supported by evidence in an affidavit
- In this country, the practice of transacting court business in Chambers as opposed to open court is no longer differentiated (Pius Wamamlabe v The Attorney General)
What is an AFFIDAVIT?
- The general rule is that the manner of proving facts in a court of law is by oral evidence – however, sometimes the court may order that evidence be presented to the court by way of an Affidavit
- Affidavits may also be used in certain applications where the statute provides for it
