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DISTRICT COURTS RULES OF NORTHERN NIGERIA
CHAPTER 33
DISTRICT COURTS
The District Court Directions
(Section 3)
Date of Commencement: 30th September 1960
1. These Directions may be cited as the District Court Directions.
2. For the purposes of the District Courts Law, Northern Nigeria shall be divided into the districts specified in the first column of the Schedule hereto with headquarters at the towns respectively allotted thereto, and each such District shall be designated by the name shown against it in the second column of the Schedule.
SCHEDULE
District Name
1. The Ilorin, Kano, Katsina, Niger, Sokoto and The Kano District
Zaria Provinces (excluding the Jema’a Division
of Zaria Province), the Capital Territory of Kaduna,
the Kabba, Igbirra and Kwara Divisions of Kabba
Province, and the Bedde Division and the Matsena,
Nguru and Yusufari Districts of Bornu Province, with
Headquarters at Kano.
2. The Adamawa, Plateau, Bauchi, Benue and The Jos District
Bornu Provinces (excluding the Bedde Division
and the Matsena, Nguru and Yusufari Districts
of Bornu Province), the Igala Division of Kabba
Province and the Jema’a Division of Zaria
Province, with headquarters at Jos.
THE DISTRICT COURT RULES
ARRANGEMENT OF RULES
Order I (1) -Title
Order II (2) – Form and Commencement of action (Form 1) & (Form 2)
Rule 1: Proceedings to be commenced by plaint
Rule 2(1): When plaint discloses no cause of action
Rule 3: All causes of action may be joined
Rule 4: Division of causes of action
Rule 5(1): Abandonment of part of claim to give Court jurisdiction
Rule 6: Loss of plaint note. (Form 3)
Order III (3) – Writ of Summons and procedure
Rule 1: Issue of summons to Defendant. (Form 4)
Rule 2: Court to fix time for appearance
Rule 3: Service not effected within one year; power to extend
Rule 4: Address for service
Rule 5: Effect of misnomer in plaint or summons
Order IV (4) – Service of process
Rule 1: Manner of addressing process for execution
Rule 2: Special bailiff
Rule 3(1): Normal mode of service. (Form 5) (Forms 6 and 7)
(2): (Form 8)
Rule 4: Substituted service. (Forms 9, 10 and 11)
(a): By delivery to agent.
(b): By advertisement. (Form 10)
(c): By notice
(d): By affixing summons to premises
Rule 5: Service on Government officers
Rule 6(1): Service out of the jurisdiction
Rule 7(1): Mode of service out of the jurisdiction
Rule 8: Varying order for service
Rule 9: Record and evidence of service
Order V (5) – Default summonses
Rule 1(1): In action for debt, Plaintiff may require Defendant to give notice of intention to defend on pain of judgment by default.
(Forms 12, 13, 14 and 15).
(2): Payment forthwith or by installment may be ordered. (Form 16)
Rule 2: Where Defendant gives notice to defend, notice of day of hearing to be served on both parties. (Forms 17, 18, 19 and 20)
Rule 3: Leave to defend may be given after failure to give notice.
Order VI (6) – Proof of process
Rule 1: Proof of service. (Forms 5, 6, 7, 21 and 22)
Rule 2: Penalties
Order VII (7) – Parties
Rule 1: Joinder of Plaintiffs
Rule 2: Joint claims
Rule 3(1): Joinder of Defendants
(2): Contribution
(3): (Form 23)
Rule 4: Procedure when persons jointly liable
Rule 5: Partners
Rule 6(1): Representative Plaintiffs and Defendants
Rule 7: Executors and Administrators
Rule 8: Misjoinder and Non-joinder
Order VIII (8) – Infants and persons of unsound mind
Rule 1: Definitions
Rule 2: Suits by persons under disability
Rule 3(1): Proceedings by infant or on behalf of lunatic
(2): (Form 24)
Rule 4: Transfer
Rule 5: Proceedings by infant without next friend
Rule 6(1): Powers of Court when proceedings commenced without next friend
Rule 7(1): Appointment of guardian ad litem
(2): (Form 25)
(3): (Forms 26 and 27)
Rule 8(1): Plaintiff may apply for appointment of guardian ad litem. (Form 29)
Rule 9: Who may be appointed
Rule 10: When guardian ad litem need not be appointed
Rule 11: Proceedings to continue
Rule 12: Transfer of proceedings without guardian ad litem
Rule 13: Death, etc., of guardian ad litem
Rule 14: Appointment of guardian ad litem to be entered in books of Court
Rule 15: Guardian ad litem not liable for costs
Rule 16: When Court may order new trial
Rule 17(1): Action in which money or damages claimed
Rule 18: General powers of guardian ad litem
Rule 19: English practice to apply
Order IX (9) – Alteration of parties
Rule 1: Order to carry on proceedings
Rule 2: Application to discharge order
Order X (10) – Transfer
Rule 1: Application for transfer under sections 30 and 33 of Cap. 33 N.N.L.N 153 of 1963
Order XI (11) – Consolidation and test cases
Rule 1: Consolidation of actions. (Form 34)
Rule 2(1): Test cases. (Forms 35, 36 and 37)
Order XII (12) – Sittings of court and audience
Rule 1: Public or private sittings of the Court
Rule 2(1): Adjournment of Court. (Form 38)
(3): (Form 39)
Rule 3: Right of audience
Order XIII (13) – Enlargement and abridgment of times
Rule 1(1): Enlargement and abridgment of times
Rule 2: District Court may grant time
Order XIV (14) – Amendment
Rule 1(1): Powers of amendment
Order XV (15) – Interlocutory applications
Rule 1: Interlocutory applications
Rule 2: Notice of application
Rule 3: Discharge and variation of ex parte order
Order XVI (16) – Injunctions, etc.
Rule 1: Appointment of receiver of property in dispute
Rule 2: Entry on land in dispute
Rule 3: Injunctions, etc., may be granted on terms
Rule 4: Notice
Rule 5: Ex parte Injunctions and orders
Rule 6: Discharge and variation of Interlocutory Injunctions and orders made ex parte
Order XVII (17) – Confessing and entering up judgment
Rule 1: Confessing of debts or parts of debts and judgment thereon (Forms 40 and 41)
Rule 2: Agreement as to amount of debt and conditions of payment
Order XVIII (18) – Security for costs
Rule 1: Security for costs. (Forms 42 – 47)
Rule 2(1): How security is to be given and enforced. (Forms 48, 49 and 50)
Rule 3: District Judge may direct security to be by deposit of money or otherwise
Rule 4: Where security is required to be given, a deposit of money may be in lieu thereof
Order XIX (19) – Payment into Court
Rule 1 (1): Payment into Court.
(2): Notice to Plaintiff. (Forms 51 and 52)
Rule 2: Admission of liability
Rule 3(1): Acceptance of sum paid in. (Form 53)
(2): Non-acceptance
Order XX (20) – Interim attachment of property
Rule 1(a): In what cases
Rule 2: Application for attachment
Rule 3: Form of order
Rule 4: Where Defendant fails to show cause or give security
Rule 5: Rights of third parties not to be affected
Rule 6: Removal of attachment
Rule 7: In what courts proceedings may be taken
Order XXI (21) – Witnesses
Rule 1: Service of summons to witnesses. (Forms 54 and 55)
Rule 2: Witnesses in general to be out of hearing. Cap. 40
Order XXII (22) – Affidavits and documentary evidence
Rule 1: Contents of affidavits. (Form 56)
Rule 2: Cross-examination of deponent
Rule 3: Alterations in affidavit
Rule 4: Affidavits by illiterate or blind persons
Rule 5(1): Evidence of witness about to leave district
Rule 6: Documents admitted in evidence
Rule 7: Documents not admitted in evidence
Order XXIII (23) – Procedure when both parties appear
Rule 1: Procedure when both parties appear
Rule 2: Written pleadings may be ordered
Rule 3: Illiterate parties
Rule 4: Record by Court of parties’ oral pleadings in lieu of written pleadings
Rule 5: Where pleadings, etc., ordered, rules to be observed
Rule 6: The pleadings to state all material facts relied on
Rule 7: How facts to be stated
Rule 8: The relief claimed to be stated
Rule 9: Grounds of claims founded on separate facts to be separately stated
Rule 10: Defendants’ pleadings to meet allegations in Statement of Claim
Rule 11: Allegations shall not be met generally but specifically
Rule 12: Denial of fact must answer point of substance
Rule 13: Admissions; their effect
Rule 14: Allegation of new facts in defence
Rule 15: Set-off or counter claim to be pleaded
Rule 16: Evidence in denial of allegations or in support of defence not pleading
Rule 17: Further pleadings
Rule 18: Costs in certain cases
Rule 19: Filing and service of pleadings
Rule 20: Striking out pleadings
Rule 21: No evidence to be given of any claim which is not in summons
Order XXIV (24) – Procedure when only one party appears
Rule 1(1): Procedure when Plaintiff fails to appear or to prove his case. (Form 57)
Rule 2: Counter-claim where Plaintiff does not appear
Rule 3: Costs of Defendant where Plaintiff does not appear
Rule 4(1): Procedure when Defendant fails to appear
Order XXV (25) – Judgments
Rule 1(1): Notice of judgment
Rule 2(1): Enforcement of judgments and penalties. Cap. 123
Order XXVI (26) – Costs
Rule 1: Stay of proceedings
Rule 2: Application of Cap. 49 in relation to legal practitioners
Rule 3(1): Agreements between legal practitioners and illiterate persons
Rule 4: Duty of legal practitioners in relation to costs
Rule 5: Suits by legal practitioners to recover fees
Rule 6: Legal practitioners to be officers of the Court
Order XXVII (27) – Appeals to the High Court
Rule 1(1): Applications for leave to appeal under s. 73(2) of Cap. 33
Rule 2(1): Notice of Appeal. (Form 58)
(3): Second Schedule
Rule 3(1): Appellant to supply copies of record to Respondents and Appeal Court
Rule 4(1): Enlargement of time
Rule 5: Time and place of hearing
Rule 6: Fees. Second Schedule
Rule 7: Allowances to witnesses. Cap.49
Rule 8(1): Stay of execution
Rule 9(1): Where Appellant fails to appear
Rule 10: Where Appellant appears
Rule 11: Appeal limited to grounds given in notice
Rule 12(1): Abandonment of Appeal
Rule 13(1): Order of Appeal Court to be certified to District Judge’s Court
Rule 14: Enforcement of orders
Rule 15(1): Security for costs of Appeal
Order XXVIII (28) – Case stated under Section 78
Rule 1(1): Form of case stated
Rule 2: Statement of case to be sent to Registrar of High Court
Order XXIX (29) – Recording of proceedings and use of forms
Rule 1: Cause Book. Form 1
Rule 2: Custody of records
Order XXX (30) – Fees of court and allowances to witnesses
Rule 1(1): Fees of Court. Second Schedule
(2)(b): Second Schedule
Rule 2: District Judge may suspend payment of fees
Rule 3: Allowances to witnesses
Order XXXI (31) – Custody of money in Court
Rule 1: Registrar to take care of fees and other payments
Rule 2: Registrar to account to Accountant-General of Northern Nigeria
Rule 3: Audit of Registrar’s account
Rule 4: Registrar to enter all moneys in cash book
Rule 5: Registrar to comply with financial instructions
Order XXXII (32) – Miscellaneous provisions
Rule 1(1): Duplicate of documents to be filed
Rule 2: Swearing of interpreters
FIRST SCHEDULE
Forms referred to in the Rules
SECOND SCHEDULE
Fees
The District Court Rules
(Section 89)
Date of Commencement: 30th September 1960
ORDER I (1). – TITLE
These rules may be cited as the District Courts Rules.
ORDER II (2). – FORM AND COMMENCEMENT OF ACTION
1. On the application of any person desirous of instituting proceedings and on payment of the prescribed fees, the Registrar of the Court shall enter in a book to be kept for this purpose in his office and called the Cause Book a statement in writing hereinafter called a plaint, stating the names and last known places of abode of the parties and the substance of the action intended to be brought and every one of such plaints shall be numbered in every year according to the order in which it shall be entered, and the Registrar shall deliver to the Applicant a plaint note.
2. (1) The Court shall refuse to entertain a plaint where such plaint, on the face of it, discloses no cause of action, or is in respect of a matter not within the Jurisdiction of the Court, or where the complainant fails to state his address, and the Registrar shall enter such refusal together with the grounds thereof in the Cause Book.
(2) Any person aggrieved with a decision of the Court under this Rule may appeal against such decision as if it were an order of the Court.
(3) The refusal to entertain a plaint under this section shall not by reason only of such refusal preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action.
3. A Plaintiff may unite in the same suit several causes of action, but the Court, if it thinks that such causes of action or some of them cannot be conveniently tried together, may order separate trials.
4. A Plaintiff may not split or divide any cause of action for the purpose of bringing two or more actions in any Court.
5. (1) When the debt, damage or demand exceeds the amount in respect of which the District Court has Jurisdiction, the Plaintiff may abandon the excess and thereupon the Court shall have Jurisdiction to hear and determine the action, so, however, that the Plaintiff shall not recover in the action an amount exceeding the amount of the Jurisdiction of the District Judge concerned.
(2) Where a Court has Jurisdiction to hear and determine an action by virtue of this rule, the Judgment of the Court in the action shall be in full discharge of all demands in respect of the cause of action and entry of the Judgment shall be made accordingly.
6. In the event of any plaint note being lost or destroyed, a duplicate thereof may be issued from time to time upon proof by affidavit to the satisfaction of the Court of the loss or destruction.
ORDER III (3). – WRIT OF SUMMONS AND PROCEDURE
1. Upon entering a plaint the Court shall thereupon, subject to the provisions of Order II, issue a summons directed to the Defendant, requiring him to appear at a certain time, being not less than seven days from the date of the service of such summons, and at a certain place, before the Court to answer to the plaint.
2. Subject to the provisions of the District Courts Law fixing the times and places for sittings of the Court the District Judge shall, in his discretion, fix the time for appearance by the Defendant.
3. In case a summons issued for the commencement of a cause or matter is not served within a year from the date thereof, the same shall become void; but the Court may, at any time before the expiration of the current period, from time to time renew the same for a further period not exceeding six months at any one time.
4. Where a Plaintiff taking out a summons, either alone or jointly with any other person, is ordinarily resident out of the particular jurisdiction of the Court, or temporarily therein, he shall inform the Court of an address within the District of the Court where notices and other papers issuing from the Court may be served upon him.
5. No misnomer or inaccurate description of any person or place in any plaint or summons shall vitiate the same, if the person or place is therein described so as to be commonly known:
Provided that if any such misnomer or inaccurate description appears to the Court at the hearing to be such that the Defendant has thereby been deceived or misled, the Court may make any necessary amendment, and, if it is expedient to do so, adjourn the further hearing of the case, upon such terms as it may think fit.
ORDER IV (4). – SERVICE OF PROCESS
1. All summonses or other process of whatever description shall be sufficiently addressed for execution by being directed –
a) to the Sheriff; or
b) to a person by name; or
c) to any police officer; or
d) to officers of the High Court or District Courts; or
e) to a native authority; or
f) to a native Court.
2. The Court may in any case, for reasons which shall seem to it sufficient, direct any summons to be served or process to be executed by a special bailiff, who for the time being shall have the privileges and liabilities of an officer of the Court. The expenses of such special bailiff shall be defrayed by the party on whose application he is appointed, unless the Court in any case sees reason to order otherwise.
3. (1) Subject to the provisions of the Law and of any other written law, service of a summons shall be effected by delivering the summons together with copy of the plaint annexed thereto –
a) if on an individual to him personally;
b) if on a firm or corporation –
i. to one of the partners; or
ii. to a director; or
iii. to the secretary; or
iv. to the Chief agent within the Jurisdiction; or
v. by leaving the same at the Principal place of business of the firm or corporation; or
vi. to anyone having at the time of service control of the business of the firm or corporation;
c) if on a native authority then in accordance with the provisions of Section 117 of the Native Authority Law;
d) if on a person under legal disability as defined in Rule 1 of Order VIII –
i. in the case of an infant who is not a lunatic, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;
ii. in the case of a lunatic so found by inquisition, on his committee, and in the case of a lunatic not so found; on the person with whom he resides or in whose care he is:
Provided that the Court may order that any summons which has been, or is to be served on the person under disability or on a person mentioned in this sub-paragraph shall be deemed to be duly served on the person under disability.
(2) Where service has been effected by leaving a summons to be served at an address given by the Plaintiff and the Court is doubtful that the Defendant has actual knowledge of such summons, the Court may require the Plaintiff to satisfy it that the summons has in fact come to the knowledge of the Defendant.
(3) The provisions of this rule shall, with the necessary modifications as to the document, apply to any process of whatever description.
4 Where it appears to the Court either with or without an attempt at service in accordance with the provisions of Rule 3, that for any reason such service in respect of any process whatsoever cannot conveniently be effected, the Court, after being satisfied by affidavit that it is necessary to do so, may order that service be effected –
a. 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 would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served; or
b. by advertisement in the Federal Gazette or in the Northern Nigeria Gazette or in some newspaper circulating within the jurisdiction; or
c. by notice put up at the court house or some other place of public resort of the district wherein proceedings in respect of which the service is made have been instituted, or at the usual or last known place of abode, or of business, of the person to be served; or
d. by affixing the document to the usual or last known place of abode or business of the person to be served; or
e. in such other manner as the Court may direct, and upon compliance with such order such service shall be deemed to be good and sufficient service of the said document upon the person to be served.
5. When a party to be served is in the service of the Government or of a corporation established by any Act or Law, the Court may transmit a duplicate of the document to be served to the head officer of the department in which such party is employed, for the purpose of being served on him, if it shall appear to the Court that it may be most conveniently so served, and such head officer shall cause the same to be served on the proper party accordingly.
6. (1) No summons for service on a Defendant out of the district of the Court issuing the summons shall issue without the leave of that Court.
(2) Every application to such leave to issue may be made either in open Court or in chambers and where an application is granted an entry to that effect shall be made by the Registrar in the Cause Book.
(3) Every application shall be supported by affidavit or other evidence showing –
a. that the Plaintiff has prima facie a good cause of action;
b. in what place the Defendant is or may probably be found;
c. the grounds on which the application is made;
d. that the proceedings have been commenced in the nearest Court within the District in which –
i. the Defendant or one of the Defendants resided or carried on his business at the time of commencing the action; or
ii. the cause of action or claim arose wholly or in part; or
iii. the land, person or thing that is the subject matter of the proceedings is.
(4) In dealing with any such application the Court shall consider whether it has jurisdiction in respect of the case and shall also consider whether it will be proper to report the case to a Judge for transfer to him, and, if it thinks fit, adjourn the application pending the decision of the Judge.
(5) Leave shall not be granted unless it appears to the Court that the case is a proper one for service out of the district of the Court issuing the summons.
(6) Where leave is granted, the time and place for the Defendant’s appearance shall be appointed for insertion in the summons to issue, such time to depend upon the place where the summons is to be served.
7. (1) When an application for service out of the district of the Court issuing the summons has been granted, the Court granting such application shall cause a copy of the plaint and the summons and a copy thereof directed to the Defendant to be sent for service to a Court within the District in which service is to be effected.
(2) When any order as to any particular form of service has been made a copy of such order shall be sent with the summons.
(3) The Court effecting service shall after having effected service endorse the summons for service and return the copy to the issuing Court duly endorsed in accordance with the provisions of Order VI and countersigned by the District Judge.
8. An order for service may be varied from time to time with respect to the mode of service directed by the order.
9. A book shall be kept at every Court for recording service of process, in such form as may be prescribed, in which shall be entered by the officer serving the process, or by the Registrar, the names of the Plaintiff or Complainant 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.
ORDER V (5). – DEFAULT SUMMONSES
1. (1) In any action in a District Court for a debt or liquidated money demand, the Plaintiff may, at his option, cause to be issued a summons in the ordinary form or, upon filing an affidavit to the effect set forth in Form 12 in the First Schedule and subject to the provisions of paragraph (3) of this rule, a summons in the form to the effect given in Form 13 in the Schedule, and if such last mentioned summons be issued it shall, unless otherwise ordered by the Court, be personally served on the Defendant and if the Defendant shall not within sixteen days after the service of the summons, inclusive of the day of service, give notice in writing signed by himself or his Legal Practitioner, to the Registrar of the Court from which the summons issued, of his intention to defend, the Plaintiff may, after sixteen days and within two months from the day of service upon proof of service or of an order for leave to proceed as if personal service had been effected, have judgment entered up against the Defendant for the amount of his claim and costs.
(2) The order upon such Judgment shall be for payment forthwith or at such time or times and by such installments if any, as the Plaintiff or his Legal Practitioner shall in writing have agreed to at the time of the entry of the plaint or of the Judgment.
(3) A summons as in Form 13 in the First Schedule shall not be issued without leave of the District Judge where the amount claimed exceeds twenty pounds, unless the action is for the price, value or hire of goods which or some part of which, were sold and delivered or let on hire to the Defendant to be used or dealt with in the way of his trade or profession or calling.
2. Where the Defendant shall have given notice of defence, the Registrar of the Court shall, immediately on receipt of such notice serve notice on the Plaintiff or his Legal Practitioner, stating therein that the Defendant has given notice of his intention to defend, and shall send to both Plaintiff and Defendant notice of the date fixed for the hearing, at least six clear days before such date.
3. Where the Defendant shall neglect to give such notice of defence the District Judge shall, upon an affidavit disclosing a legal defence or a defence upon the merits and satisfactorily explaining the Defendant’s neglect, allow the Defendant to defend upon such terms as he may think just.
ORDER VI (6). – PROOF OF PROCESS
1. Where any summons or other process issued from a Court is served by the Sheriff or such other person as is appointed by the Court, the service may be proved by endorsement on a copy of the summons or process under the hand of the Sheriff or such other person showing the fact and the mode of service.
2. Any such person effecting service who willfully endorses any false statement on a copy of a summons or other process shall be guilty of an offence, and on conviction thereof, shall be removed from his office or employment and shall be liable on conviction to imprisonment for three months or to a fine of twenty-five pounds, or to both such imprisonment and fine.
ORDER VII (7). – PARTIES
1. All persons may join as Plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally or in the alternative.
2. Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit.
3. (1) All persons may be joined as Defendants against whom the right to any relief claimed is alleged to exist, whether jointly, severally or in the alternative.
(2) Where Judgment is given against two or more Defendants jointly and severally they shall be entitled to contribution among themselves and any Defendant who satisfies the Judgment may apply to the Court by motion on notice for an order of contribution against any other or others of the Defendant.
(3) The provisions of this rule shall not affect the rights and liabilities between joint tortfeasors.
4. Where a Plaintiff has a demand recoverable under the Law against two or more persons jointly liable, it shall be sufficient to serve any of those persons with process, and Judgment may be obtained and execution issued against any person so served, notwithstanding that others jointly liable may not have been served or sued or may not be within the Jurisdiction of the Court.
5. Persons claiming or being liable as partners may sue or be sued in the name of their firm and any party to a suit may in such case apply to the Court for a statement of the names of the persons who are partners in any such firm, and the Court shall order such names to be given.
6. (1) Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court, be authorized by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.
(2) If the Plaintiff sues, or any Defendant is sued in any representative capacity, it shall be expressed on the Writ. The Court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.
7. An executor or administrator may sue and be sued in the Court in like manner as if he were a party in his own right, and judgment and execution shall be such as, in the like case, would be given or issued in the High Court.
8. The Court may at any stage strike out the names of any parties improperly or unnecessarily joined, and may, after due notice given to the parties affected, add the names of parties whose presence is essential to a just decision of the matter in dispute, and on proof of such notice the parties so served, whether they shall have appeared or not, shall be bound by the proceedings in the action.
ORDER VIII (8). – INFANTS AND PERSONS OF UNSOUND MIND
1. In this Order-
“lunatic ” has the meaning assigned to it by section 341 of the Lunacy Act 1890:
“person under disability” means a person who is an infant or a lunatic;
“proceedings ” includes cause and application
2. Subject to rules 5 , 8 (2) and 10 of this Order, a person under disability may not sue except by his next friend and may not defend except by his guardian ad litem.
3. (1) Where proceedings, other than proceedings under rule 5 (a) of this Order, are to be commenced, or a claim in interpleader proceedings is to be made by an infant or on behalf of a lunatic, the proceedings or claim shall be in the name of the infant or lunatic by his next friend.
(2) Before the proceedings are commenced, or, in the case of interpleader proceedings, before the Claimant’s particulars of claim are accepted by the Registrar, the next friend shall deliver to the Court a written undertaking as in Form 24.
(3) On delivering the undertaking the next friend shall be liable for costs in the same manner and to the same extent as if he were himself a Plaintiff, and, if the proceedings fail or are discontinued, an order for payment of costs may be made against the next friend whether an order for costs is or is not made against the person under disability, and proceedings may be taken on the order for the recovery of the costs as for the recovery of any amount payable under a judgment.
4. Where any proceedings in which a person is suing by a next friend are transferred from the High Court to a District Court, the Plaintiff shall lodge with the Registrar the next friend’s written authority to use his name as next friend in the High Court, or a certified copy thereof, which shall be deemed to be an undertaking within Rule 3.
5. Notwithstanding the preceding provisions of this Order-
(a) an infant may bring proceedings in the court for the recovery of any sum of money, not exceeding one hundred pounds, which may be due to him for wages or piece work or for work as a servant, in the same manner as if he were of full age; and
(b) any proceedings by an infant may proceed without a next friend if the Defendant consents.
6. (1) Where proceedings in which a next friend is required are commenced, or are transferred from another court, with a next friend the court may-
(a) on the application of any party or of its own motion appoint as next friend any person who consents to act and who delivers an undertaking in accordance with Rule 3 (2) of this Order; or
(b) order the proceedings to be struck out.
(2) Wherever a next friend is appointed under this Rule, Rule 3 (3) of this Order shall apply.
7. (1) Where any Defendant is a person under disability an application may be made to the court on behalf of such person at any time to appoint a guardian ad litem to such person.
(2) The application shall be made by filing an affidavit as in Form 25 together with a written consent of the proposed guardian to act.
(3) When the appointment is made, the Registrar shall send notice to the Plaintiff as in Form 27.
8. (1) When no application is made under Rule 7 and the Plaintiff knows that any Defendant is a person under disability, the Plaintiff shall apply to the Court to appoint a guardian ad litem to the person under disability.
(2) This rule shall not apply where an infant is sued for a liquidated demand, unless the court otherwise orders.
(3) The application shall be made by motion on notice to the person on whom the Summons was required to be served.
(4) The application shall be supported by an affidavit in Form 30 together with a written consent of the proposed guardian to act.
(5) Notwithstanding the provisions of paragraph (4) of this rule –
(a) the court may If it thinks fit accept ——
(i) oral evidence of the facts required to be deposed to in the affidavit or any of them;
(ii) an oral consent, which shall be recorded in the notes taken under section 48 of the Law; and
(b) the court may dispense with evidence of anything which is admitted or not in controversy
9. The court may appoint as guardian ad litem the person proposed in the application, if any, under Rule 7 of this Order, and in default of such application may appoint the person proposed in an application made under Rule 8, or, if not satisfied that the person proposed in such latter application is a proper person to be appointed or in default of such latter application may appoint any other person willing to act or in default of any person willing to act may appoint the Registrar.
10. Notwithstanding the provisions of this Order, any proceedings against an infant may proceed without the appointment of a guardian ad litem if the infant consents and, being represented by a Legal Practitioner, appears to be capable of instructing a Legal Practitioner, or, not being so represented, appears to be capable of conducting his defence.
11. Upon any appointment of a guardian ad litem not made upon application under Rule 7 of this Order, then, unless and until a guardian is appointed upon an application under Rule 7 the proceedings shall continue as if the guardian had been so appointed.
12. Where proceedings in which a guardian ad litem is required are transferred from the High Court without a guardian for the purpose of the suit or from another Court without a guardian ad litem, Rules 7, 8, 10 and 11 of this Order shall apply.
13. Where a guardian ad litem dies or is under disability or is absent from Nigeria or is for any reason unable to act, Rules 7, 8, 9, 10 and 11 of this Order shall apply as if no guardian ad litem had been appointed.
14. Where a guardian ad litem is appointed under this order, his appointment shall be entered in the books of the Court and in the title of the cause or application for the purpose of all subsequent proceedings.
15. A guardian ad litem to a person under disability shall not be personally liable for any costs not occasioned by his personal negligence or misconduct.
16. Where judgment has been obtained or an order made against a Defendant who was at the time a person under disability without a guardian ad litem having been appointed, the Court may set aside the judgment or order and order a new trial, or make such order as it thinks just.
17.(1) In any action in which money or damages is or are claimed by or on behalf of or for the benefit of a person under disability –
(a) no settlement or composition or acceptance of money paid into court, whether before or at or after the trial, shall be valid without the sanction of the Court; and
(b) no money or damages recovered or awarded in any such action whether by settlement, compromise, payment into Court or otherwise before or at or after the trial shall be paid to the next friend or guardian ad litem of any party or to any party’s solicitor, unless the court so directs.
(2) All money or damages recovered or awarded shall, unless the Court otherwise directs, be paid into Court.
(3) An application to the Court as to the mode of dealing with the money may be made by or on behalf of any person interested.
(4) Nothing in this rule shall prejudice the lien of a solicitor for costs.
(5) This rule shall not apply to any case in which an infant sues as if he were of full age by virtue of Rule 5(a) of this Order.
18. Subject to the provisions of these Rules, anything which in the ordinary conduct of any proceedings is required or authorized by a provision of these Rules to be done by a party to the proceedings may, if the party is a person under disability, be done by his next friend or guardian ad litem.
19. In any case not expressly provided for by this Order, the general principles of practice in the High Court of Justice in England may be adopted and applied to proceedings in a District Court.
ORDER IX (9). – ALTERATION OF PARTIES
1. Where after action has been brought any change or transmission of liability occurs in relation to any party to the suit, or any party to the suit dies or (being a woman) marries, or the suit in any other way becomes defective or incapable of being carried on, any person interested may apply to the Court for any order requisite for curing the defect, or enabling or compelling the proper parties to carry on the proceedings.
2 Any person served with such an order may, within such time not exceeding fourteen days as the Court in the order or otherwise directs, apply to the Court to discharge the order.
ORDER X (10). – TRANSFER
1. (1) An application under Section 30 or 33 of the Law for the transfer of a cause or matter shall be made to a Judge of the judicial division of the High Court within which is situated the District Court in which the cause or matter is pending:
Provided that where the application requests a transfer of the cause or matter to a Court in another judicial division of the High Court, the application shall be made to a judge of such other judicial division:
Provided also that in the absence of a judge from the appropriate division, the application may be made to the Chief Justice.
(2) The application shall be made in writing and state the grounds on which it is based.
(3) The application shall be filed in the District Court in which the cause or matter is pending, by which it shall be transmitted to the Registrar of the appropriate judicial division or the Chief Registrar, as the case may be, with a statement of the District Judge’s views thereon. In case of urgency the District judge shall by telegraph inform the Registrar aforesaid or the Chief Registrar of the title of the cause or matter, the name of the applicant, the grounds on which the application is based, and the court to which transfer is requested, and state his views on the application.
(4) The hearing of the cause or matter affected by the application shall not be proceeded with until the decision of the appropriate Judge or the Chief Justice has been communicated to the District Court in which the cause or matter is pending.
(5) The District Judge shall inform the parties concerned of the decision of the judge of the High Court or the Chief Justice on the application.
ORDER XI (11). – CONSOLIDATION AND TEST CASES
1. Actions or matters pending in the same court may be consolidated by order of a District Judge of his own motion or on the application of any party on notice whether or not such District Judge be the District judge who finally adjudicates thereon:
Provided that actions or matters may not be consolidated if the effect of such consolidation is to bring the total of the consolidated actions or matters above the Jurisdiction of the District judge adjudicating.
2.(1) Where several actions or matters by different Plaintiffs against the same Defendant are proceeding in the same court, in respect of causes of action or matters arising out of the same breach of contract, wrong or other circumstances, the Defendant may, on filing an undertaking to be bound so far as his liability in the several actions or matters is concerned by the decision in such one of the actions or matters as may be selected by the court, apply to the court for an order to stay the actions or matters other than the one selected, until judgment is given in the selected action or matter.
(2) Application under this paragraph shall be made on notice to the Plaintiffs who would be affected by any order made thereon.
ORDER XII (12). – SITTING OF COURT AND AUDIENCE
1. The sittings of the Court for the hearing of causes shall ordinarily be public; but the court may, for special reasons, hear any particular cause or matter in the presence only of the parties, the Legal Practitioners representing them (if any) and the officers of the Court.
2. (1) A District judge may, in his absolute discretion, if he thinks it expedient in the interests of justice, postpone or adjourn any cause or matter for such time, and to such place, and upon such terms, as he shall think fit.
(2) Where, by reason of death or unavoidable absence, a District Judge is not present at any sitting of a court, the Registrar after exercising any powers which he is authorised to exercise by or under the Law or any other enactment, shall adjourn generally all civil proceedings to such day as he thinks convenient, and enter in the minute book the cause of the adjournment.
(3) In all cases of adjournment, a District Judge may summon the parties to appear before the Court before the expiration of the period for which the case was adjourned.
3. In any proceedings in a court, any of the following persons may address the Court, namely —
(a) any party to the proceedings; or
(b) a legal practitioner retained by or on behalf of any party: or
(c) any other person allowed by law or by leave of the Court to appear on behalf or instead of any party.
ORDER Xlll (13). — ENLARGEMENT AND ABRIDGMENT OF TIMES
1.(1) The parties may not by consent enlarge or abridge any of the times fixed by the rules for taking any step or filing any document, or giving any notice.
(2) The court may, as often as it thinks fit, and either before or after the expiration of the time appointed by any judgment, order, or the rules, extend or adjourn the time for doing any act or taking any proceedings.
2. The District Judge may in any case make any order for granting time to the Plaintiff or the Defendant to proceed in the prosecution or defence of the action.
ORDER XIV (14). – AMENDMENT
1. (1) A District Judge may at all times before judgment amend all defects and errors in any proceedings in the Court, whether the defect or error is that of the party applying to amend or not, and upon due application being made, may make all such amendments as may be necessary for the purpose of determining the real question in issue between the parties.
(2) All such amendments may be made with or without costs and upon such terms as the District Judge may think just.
ORDER XV (15). – INTERLOCUTORY APPLICATIONS
1. Interlocutory applications may be made orally to the District Judge in whose court a cause or matter is pending:
Provided that the District Judge shall have power—-
(a) to direct the application to be reduced to writing;
(b) to direct notice thereof to be given to any person affected thereby;
(c) to direct in what manner evidence relating to the application shall be given by the applicant or any person affected thereby.
2. Where an application is not summarily disposed of, the District Court judge or Registrar shall appoint a day for the hearing thereof, and where notice of the application is to be given to another person, such notice shall specify the date on which the application will be heard and the manner in which evidence relating thereto shall be given by the applicant or any person affected thereby.
3. Any order made ex parte on an interlocutory application may be discharged or varied by the District Judge at any time on application made by any person aggrieved thereby after notice given to the party who obtained the order.
ORDER XVI (16): – INJUNCTIONS, ETC
1. In all cases in which it may appear necessary, the Court may appoint a receiver or manager of any property in dispute in a suit, and if need be commit the same to his possession or custody and grant him power to manage or preserve and improve the same and to collect the rents and profits thereof and to apply or dispose of them as may seem fit, and may grant him power to sell perishable goods.
2. The Court may authorise any person to enter upon or into any land or building in the possession of any party for the purposes of any appointment or order made as aforesaid.
3. In making an injunction or order under paragraph (g) of sub-section (1) of Section 13 of the Law, the Court may grant the same on such terms as to its duration, the keeping of an account, the giving of security or otherwise, as may seem just.
4. Where application is made for an interlocutory injunction or order under paragraph (g) of subsection (1) of Section 13 of the Law, the Court may direct notice thereof to be given to any person affected thereby.
5. Any such interlocutory injunction or order made ex parte shall be for a limited time only to be therein stated, and be served on the person affected thereby, but the court may extend the time if service has not been possible within such time.
6. Where an interlocutory injunction or order is made ex parte, the same may be discharged or varied by the Court at any time on application made by any person aggrieved thereby after notice given to the person who obtained the Injunction or order.
ORDER XVII (17): – CONFESSING AND ENTERING UP JUDGMENT
1. Any person against whom a plaint has been entered may, after the summons has been served upon him, file a written statement signed by himself admitting in whole or in part the claim in respect of which such plaint has been entered; and it shall be the duty of the Registrar of the Court in which the plaint was entered forthwith to send notice thereof to the Plaintiff by post, or by causing the same to be delivered at the address furnished in the plaint or at his usual place of abode or business, and thereupon it shall not be necessary for the said Plaintiff to prove the claim admitted as aforesaid, but the Court, at the next sitting thereof, whether the parties or either of them attend such Court or not, shall, if satisfied of the signature of the party filing such statement, enter up judgment for the claim so admitted.
2. If the person against whom a plaint has been entered agrees with the person on whose behalf such plaint has been entered upon the amount of the claim in respect of which such plaint has been entered, and upon the terms and conditions upon which the same shall be paid and satisfied, such persons respectively may, in the presence of the Registrar of the Court in which such plaint has been entered, sign a statement of the amount of the claim so agreed upon between such persons respectively, and of the terms and conditions upon which the same shall be paid or satisfied, and such Registrar shall receive such statement, and the Court shall at its next sitting enter up judgment for the Plaintiff for the amount of the claim so agreed on, and upon the terms and conditions mentioned in such statement; and such judgment shall to all intents and purposes be the same and have the same effect, and shall be enforced and enforceable in the same manner as if it had been a judgment of the District Judge of the said Court.
ORDER XVIII (18): – SECURITY FOR COSTS
1. In all proceedings the court may either of its own motion or on the application of any Defendant, if it sees fit require any Plaintiff to any suit, either at the commencement or at any time during the progress thereof, to give security for costs to the satisfaction of the court, by deposit or otherwise, or to give further or better security, and may likewise require a Defendant to give security, or further and better security, for the costs of any particular proceedings undertaken in his interest.
2.(1) When either party to a cause or matter makes an application to a District Judge that the other party shall give security whether with or without sureties and the District Judge is of the opinion after hearing the parties, that such security should be given, he shall specify the amount of security and direct whether with or without sureties and whether such security shall be given by way of cash deposit.
(2) Where a party is required to give security and such security is by way of a bond with or without sureties or by any way other than a cash deposit, such security shall be at the cost of the party giving it.
(3) Where the court has ordered that the security, other than a cash deposit, be given, such security shall be given to the satisfaction of an officer of the court unless the court directs that such security be to the satisfaction of the other party.
(4) In any case where security, other than a cash deposit is required to be given, the officer of the Court or the party to whose satisfaction the security is to be given may require the District Judge to direct that the value of the security offered or the standing of the sureties, If any, be verified by affidavit of the party offering the security or by some other person with a knowledge of the security or the sureties.
(5)The Court in which any action on the security shall be brought may, by order give such relief as may be just and such order shall have the effect of a defeasance of any bond taken or the fulfillment of such security.
3. The District Judge may, if he thinks it expedient, direct that a party required to give security may, instead of entering into a bond, give such other security, by deposit of money with the Registrar or otherwise, as the District judge may deem sufficient.
4. When a party is required to give security by bond, he may in lieu thereof deposit with the Registrar a sum equal in amount to the sum for which he would be required to give security and the Registrar shall give to the party paying a written acknowledgment of such payment; and the District Judge, when the money shall have been deposited in the Court, may, on the same evidence as would be required to enforce or avoid such a bond as in rule 2 is mentioned, order such sum so deposited to be paid out to such party or parties as he shall think just.
ORDER XIX (19).——PAYMENT INTO COURT
1.(1) The Defendant may, at any time before the hearing, pay into court an amount in full satisfaction of the Plaintiff’s claim or of part thereof, together with costs incurred up to the time of such payment-in.
(2) The Registrar shall cause notice of such payment-in to be served upon the Plaintiff in like manner as provided for in rule 1 of Order XVII.
2. Payment into court, whether made in satisfaction of the Plaintiff’s claim generally or some part thereof, shall operate, unless the Defendant in his defence denies liability, as an admission of liability, to the extent of the amount paid in, and no more, and for no other purpose.
3.(1) The Plaintiff may accept any sum paid into court in full satisfaction and discharge of the claim in respect of which it was paid in and may apply by motion for payment of the money out of court to him, whereupon the court shall make such order as to stay of further proceedings, and as to costs and other matters as may be just.
(2) If the Plaintiff does not so apply, and having proceeded with the Claim, recovers an amount not more than that paid into Court —
(a) the judgment shall be satisfied out of the amount paid into court, and the balance repaid to the Defendant;
(b) the court may in its discretion award to the Defendant costs incurred after payment-in, together with a sum not exceeding five pounds by way of compensation, and may make an order against the Plaintiff to this effect in like manner as if judgment had been given against him.
ORDER XX (20). — INTERIM ATTACHMENT OF PROPERTY
1.(a) Where the Defendant in any suit for an amount or value of ten pounds or upwards with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove any such property from Northern Nigeria; or
(b) Where, in any suit founded on contract or for detinue or trover in which the cause of action arose in Northern Nigeria—
(i) the Defendant is absent from Northern Nigeria, or there is probable cause to believe that he is concealing himself to evade service; and
(ii) the Defendant is beneficially entitled to any property in Northern Nigeria in the custody or under the control of any other person in Northern Nigeria or such person is indebted to the Defendant, then in either such case, the Plaintiff may apply to the court either at the time of the institution of the suit or at any time thereafter until final judgment to call upon the Defendant to furnish sufficient security to fulfill any decree that may be made against him in the suit, and on his falling to give such security, or pending the giving of such security, to direct that any property movable or immovable belonging to the Defendant shall be attached until the further order of the court.
2. 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.
3. 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 decree, it shall be lawful for the court to order the Defendant, within a 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 same, or such portion thereof as may be sufficient to fulfill the decree, or to appear and show cause why he should not furnish security. Pending the Defendant’s compliance with such order, the court may by warrant direct the attachment until further order of the whole, or any portion, of the property specified in the application.
4. If the Defendant fails 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 fulfill the decree, shall be attached until further order. 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.
5. The attachment shall not affect the rights of persons not parties to the suit, and in the event of any claim being preferred to the property attached before judgment, such claim shall be investigated in the manner prescribed for the investigation of claims to property attached in execution of a decree.
6. 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, or upon an order for a non-suit or striking out the cause or matter.
7. The application may be made to the District Court in the district where the Defendant, or in case of urgency where the property proposed to be attached may be, and such Court may make such order as shall seem just. In case an order for the attachment of property shall be issued by a different Court from that in which the suit is depending, such court shall, on the request of either of the parties, transmit the application and evidence therein to the Court in which the suit is so depending, retaining the property in the meantime under attachment or taking sufficient security for its value, and the court in which the suit is depending shall thereupon examine into and proceed in the application in accordance with the foregoing provisions, in such manner as shall seem just.
ORDER: XXI (21).——WITNESSES
1. Either of the parties to any cause or matter may obtain from the Registrar of the court summonses to witnesses, with or without a clause requiring the production of the books, deeds, papers and writings in the possession or control of the person summoned as a witness and such summons shall be served in accordance with the provisions of Order IV.
2. Immediately prior to the hearing of any cause or matter in which witnesses are to be examined, the District Judge shall direct that all witnesses shall leave the court and upon such direction the provisions of section 186 of the Evidence Law shall apply:
Provided that the District Judge may in his discretion permit professional and technical witnesses to remain in court:
And provided further that failure to comply with the provisions of this rule shall not invalidate the proceedings.
ORDER XXII (22).——AFFIDAVITS AND DOCUMENTARY EVIDENCE
1. All affidavits shall be made by some person who has knowledge of the facts stating ——
(a) the deponent’s residence and occupation; and
(b) what facts are within his own knowledge and his means of knowledge; and
(c) what facts are deposed to on information derived from other sources and what the sources are.
2. Where a party desires to cross-examine a deponent who has made an affidavit on behalf of the opposite party the following provisions shall apply-—
(a) he may serve on the opposite party a notice requiring the production of the deponent for cross-examination at the hearing;
(b) If the party served with the notice does not produce the deponent at the hearing, he shall not be entitled to use the affidavits as evidence without the leave of the court;
(c) a witness summons may be issued on the application of the party served with the notice for the purpose at summoning the deponent to attend for cross-examination.
3. Unless the court otherwise orders, no affidavit shall be filed or used in any proceedings—
(a) which is blotted so as to obliterate any word; or
(b) which is illegibly written; or
(c) which is so altered as to be illegible: or
(d) which is so imperfect by reason of having blanks therein or otherwise, that it cannot be easily read or understood; or
(e) if there is any interlineation, alteration or erasure in the body of the affidavit or jurat, unless the person before whom the affidavit was sworn has initialed the interlineation or alteration, and in the case of an erasure has rewritten and signed in the margin of the affidavit any words or figures written on the erasure.
4. Where it appears to the person administering the oath that the deponent is illiterate or blind, he shall certify in the jurat that —
(a) the affidavit was read or interpreted in his presence to the deponent;
and
(b) the deponent seemed perfectly to understand it; and
(c) the deponent made his signature or mark in his presence,
and the affidavit shall not be used in evidence without such a certificate, unless the Court is otherwise satisfied that it was read over and appeared to be perfectly understood by the deponent.
5. (1) At any time after a cause or matter is begun and before the
the trial, the court may take the evidence of a witness who is about to leave the district, or who, from illness or old age or any other sufficient cause, is not likely to be able to be present at the trial.
(2) The note of the evidence shall be signed at the time by the District Judge taking the same.
(3) The evidence so taken and recorded may not, except for special reasons to be recorded in the District Judge’s notes, be admitted as evidence at the trial unless it is shown that the party against whom it is offered had an opportunity of cross-examining the deponent.
6. Every document admitted in evidence shall be put in and read or taken as read by consent and shall be marked by the Court or Registrar with a distinguishing mark or letter and a note of the date and character of all material documents admitted in evidence shall be made by the court in the record of the case, and each document admitted shall be retained by the court until the end of the proceedings, or in the case of an appeal until the final determination of the cause or matter, when it shall be returned to the party who put it in, or from whose custody it came, unless the court for any reason orders it to be detained in the custody of the court.
7. Where a document is produced and tendered in evidence and rejected by the Court, the document shall be marked as having been so tendered and rejected:
Provided always that this rule shall not apply when the rejection has been made on the grounds that the document is irrelevant or that a sufficiency of documents to a similar effect has already been admitted by the court.
ORDER XXIII (23).—PROCEDURE WHEN BOTH PARTIES APPEAR
1. If on the day of hearing both parties appear, the plaint shall be read to the Defendant, and the District Judge shall require him to make his answer or defence thereto, and, on such defence or answer being made, the District Judge shall immediately record the same and shall, except where the court considers it necessary to order otherwise, proceed in summary way to hear and determine the cause without further pleading or formal joinder of issue.
2. In all suits written pleadings may be ordered by the court.
3. In making any such order, the court shall have regard to the condition of the parties, and shall not require any party to file a written statement who, from want of education, is incapable of preparing or understanding the same. lf in any case the Court considers it necessary, in the interest of justice, that any statement of such party should be reduced into writing previous to the hearing the court may direct that the same be taken down in writing by the Registrar or other fit officer of the court and, after verifying the statement so prepared by oral examination of the party where necessary, may direct if it thinks fit, that such statement be filed as a pleading.
4. When the court for any reason decides not to order written pleadings, the court either itself or by the Registrar shall at or before the trial take from each party, or from the barrister or solicitor of each party, and record, a short statement of the facts and pleas upon which such party relies sufficiently definite and detailed to enable the court and the parties to know as far as possible at the outset of the trial the issues of fact and law which fall to be decided at the trial. Such record shall be read over by the court to the parties as soon as made and shall thereupon bind the parties to the same effect as if such record were pleadings filed under this Order.
5. Wherever any pleading, statement of claim, or defence is ordered to be filed, the provisions of the following rules shall be observed.
6. Every Pleading shall contain a statement of all the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively and each paragraph containing as nearly as may be a separate allegation.
7. The facts shall be alleged positively, precisely and distinctly and as briefly as is consistent with a clear statement.
8. Every statement of claim shall state specifically the relief which the Plaintiff claims, either simply or in the alternative, and may also ask for general relief and the same rule shall apply to any counterclaim made or relief claimed by the Defendant in his defence.
9. Where the Plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, 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 set-off or counterclaim founded upon separate and distinct facts.
10. The Defendant‘s pleading or defence shall deny all such material allegations in the petition as the Defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted, shall be taken as established at the hearing.
11. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the Defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise.
12. When a party denies an allegation of fact he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given.
13. The defence shall admit such material allegations in the statement of claim as the Defendant knows to be true, or desires to be taken as admitted, and such allegations may be taken as established without proof thereof.
14. The defence must allege any fact not stated in the Statement of claim on which the Defendant relies in defence, as establishing for instance, fraud on the part of the Plaintiff, or showing that the Plaintiff’s right to recover or to any relief capable of being granted on the petition has not yet accrued, or is released, or barred, or otherwise gone.
15. Where any Defendant seeks to rely upon any facts as supporting a right of set-off or counterclaim, he shall, in his Statement of Defence state specifically that he does so by way of set-off or counterclaim, and the particulars of such set-off or counterclaim shall be given.
16. The defence of a Defendant shall not debar him at the hearing from disproving any allegation of the Plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where the defence is such as, in the opinion of the Court, ought to have been expressly set up by the defence, or is inconsistent with the statements therefore, or is, in the opinion of the Court, likely to take the Plaintiff by surprise and to raise new issues not fairly arising out of the pleadings, as they stand, and such as the Plaintiff ought not to be then called upon to answer.
17. The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix the real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.
18. Where the Court shall be of opinion that any allegations of fact denied or not admitted by any pleading, ought to have been admitted, the court shall make such order as may be just with respect to costs.
19. Every pleading shall be filed at such time as the Court directs, and be served on the opposite party or his solicitor, if the Court thinks fit, at such time and in such manner as it directs.
20. The court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action as the case may be, or on the ground that it is embarrassing, or scandalous, or vexatious, or an abuse of the process of the court, and the Court may either give leave to amend such pleading, or may proceed to give judgment for the Plaintiff or Defendant, as the case may be, or make such other order, and upon such terms and conditions, as may seem just.
21. Subject to the power of amendment conferred by these rules, no evidence of any claim shall be given by the Plaintiff on the trial or hearing except of such claim as shall be stated in the Summons or other proceeding under the Law or these rules directed to be issued or taken.
ORDER XXIV (24).——PROCEDURE WHEN ONLY ONE PARTY APPEARS
1.(1) If, on the day of hearing or at any continuation or adjournment of the court or cause, the Plaintiff shall not appear, or sufficiently excuse his absence, the cause shall, unless the court sees good reason to the contrary, be struck out except as to any counterclaim by the Defendant, and if the Plaintiff appears but does not make proof of his claim to the satisfaction of the court, the District Judge may non—suit him or give judgment for the Defendant; and in either case, where the Defendant appears and does not admit the claim, the District Judge may award the Defendant, in addition to costs, such further sum, not exceeding five pounds, by way of compensation for his trouble and attendance, as the District Judge in his discretion may think just. Such sum shall be recoverable from the Plaintiff in like manner as any debt or damage ordered to be paid by the Court can be recovered; and no action shall be brought by the Plaintiff in respect of the same cause of action until such sum and costs have been paid.
(2) If the Plaintiff does not appear when called upon but the Defendant appears and admits the cause of action to the full amount claimed, the District Judge may, if he thinks fit proceed to give judgment, with or without costs, as if the Plaintiff had appeared.
2. Where the Defendant to a cause which has been struck out under Rule 1 has a counterclaim, the court may, on due proof of service on the Plaintiff of notice thereof proceed to hear the counterclaim and give Judgment on the evidence adduced by the Defendant, or may postpone the hearing of the counterclaim and direct notice of such postponement to be given to the Plaintiff.
3. In every case where the Plaintiff shall not appear on the day of hearing, or at any continuation or adjournment of the court or cause and the Defendant shall appear, the court may award the Defendant such sum as the court shall think just; such sum to include an amount by way of costs and may include a further amount not exceeding five pounds by way of compensation for the Defendant’s trouble and attendance, and the sum so awarded shall be recoverable from the Plaintiff in like manner as any debt or damage ordered to be paid by the court can be recovered.
4. (1) If on the day of hearing or at any continuation or adjournment of the court or cause the Plaintiff appears and the Defendant does not appear or sufficiently excuse his absence or neglects to answer when called in court, the District Judge may, on due proof of service of the summons and upon his being satisfied that the time between the date of service and the date of hearing was sufficient for the Defendant to have appeared had he wished so to do, proceed to the hearing and determination of the cause on the part of the Plaintiff only, and the judgment thereon shall be as valid as if both Parties had appeared.
(2) When the District Judge is not so satisfied that the Defendant has had such reasonable time, the District Judge shall adjourn the hearing to a convenient time.
(3) When the District Judge has heard and determined any cause or matter in the absence of the Defendant under the provisions of paragraph (1) of this rule and the Defendant has filed a counterclaim, the counterclaim shall; unless the court sees good reason to the contrary, be struck out.
ORDER XXV (25). – JUDGMENT
1.(1) Where the court reserves judgment the parties shall be served with notice to attend and hear judgment, unless the Court at the hearing has stated the day on which judgment will be delivered.
(2) All parties are deemed to have notice of the judgment if pronounced at the hearing.
(3) All parties served with notice to attend and hear judgment are deemed to have notice of the Judgment when pronounced.
2.(1) The provisions of the Sheriffs and Civil Process Law shall apply to Judgments given by any court under the District Courts Law.
(2) The payment of any penalty imposed by any court under the District Courts Law may be enforced upon the order of the District Judge –
(a) in like manner as payment of any debt adjudged by the Court to be paid under the District Courts Law, or
(b) in like manner as payment of a sum adjudged to be paid on summary conviction may be enforced.
ORDER XXVI (26)— COSTS
1. Where the court orders costs to be paid or security to be given for costs by any party, the court may, if it thinks fit, order all proceedings by or on behalf of that party in the same suit or proceeding, or connected therewith, to be stayed until the Costs are paid or security given accordingly but such order shall not supersede the use of any other lawful method of enforcing payment.
2. The provisions of the High Court Law and the rules made thereunder regulating the fees of legal practitioners, the taxation and recovery of such fees and disbursements and the payment out to them of money which has been paid into court, shall in so far as they are not incompatible with the provisions of this Order, apply mutatis mutandis to any legal practitioner engaged in any proceedings in a District Court.
3.(1) Any agreement made by a legal practitioner with his client for an inclusive fee for the conduct of a case in a District Judge’s court shall, if the client is illiterate, be null and void unless it shall have been made in duplicate and the practitioner and his client shall have signed and made their mark, or sign or signature respectively on both copies in one and the same transaction and in the presence of a witness, other than an employee or casual employee of the practitioner who understood the language and script in which the agreement was written and explained its terms to the client and was present at the transaction of the signing and marking thereof and set his signature also to the agreement; and unless one of the copies so signed shall also have been given to the client in the presence of the same witness and as part of the same single transaction of signing and marking them.
(2) The onus of proof that the requirements of this rule have been complied with shall be on the legal practitioner seeking to enforce any such agreement.
(3) For the purpose of this rule the word illiterate shall include any person who may be able to read but may nevertheless not be able to understand the purport of such an agreement, and the onus of proof that a person is not illiterate in this sense shall be upon the legal practitioner.
4. When any legal practitioner has conducted a case under an agreement for an inclusive fee or has conducted a case not under an inclusive charge but has presented his bill and the fee or bill has been paid in full and costs awarded to his client by the court are subsequently paid to the practitioner, the practitioner shall refund to the client an amount equal to the costs received; if the fee or bill has not been paid in full but the receipt of the costs awarded causes an excess, an amount equal to the excess shall be refunded to the client. When no excess is caused, the amount of cost received shall be deducted in computing the balance due from his client under the agreement or on the bill.
5. In any suit brought by a legal practitioner to recover from his client any sum of money due under an inclusive agreement for conducting a proceeding in a District Court, the court may reduce the amount claimed if it thinks the same or any part thereof to be harsh and unreasonable, but before doing so shall have regard to the degree of skill, labour and responsibility involved and to the nature of the practice of the practitioner.
6. Every Legal Practitioner while retained for a case in a District Court shall be an officer of the court and when retained for a matter, other than a proceeding in court, which subsequently develops into a proceeding in court, he shall be deemed to have been an officer of the court from the date of his original retainer.
ORDER XXVII (27) — APPEALS TO THE HIGH COURT
1. (1) An application for leave to appeal under subsection (2) of Section 73 of the Law shall be made to the Appeal Court in the Judicial division in which is situated the Court of the District Judge whose decision is complained of.
(2) The application shall state the reference number of the Civil proceedings in which the decision complained of was given, the names of the parties, the date of the decision, a short summary of the decision, and the grounds of appeal.
(3) The application shall state an address within the judicial division to which notices may be sent for the Applicant, and such notice may be sent to him by registered post.
2.(1) An appeal against any decision of a District Court shall be brought by notice of appeal, which may be given either –
(a) by written notice lodged in the Court below within thirty days of the decision; or
(b) orally in court at the time when the decision is announced and in the presence of the other party or of the Legal Practitioner representing him:
Provided that when notice of appeal is given orally, the Appellant shall within thirty days of the decision also lodge a written notice of appeal.
(2) Any written notice of appeal shall be accompanied by a Certified copy of the decision and shall state –
(a) the reference number of the proceedings in which the decision was given;
(b) the names of the parties;
(c) the date of the decision;
(d) the grounds of appeal in full;
(e) the Appellant’s address for service.
(3) At the time of giving written notice of appeal, the Appellant shall pay all such fees, including fees for service on the Respondent, as are payable in accordance with Part 3 of the Second Schedule.
(4) The Registrar shall cause a copy of the written notice of appeal to be served on the Respondent.
3.(1) The Appellant shall within six weeks of the decision appealed from apply to the Registrar of the Court below for as many type-written copies of the proceedings required for the consideration of his appeal as there are Respondents thereto, together with two copies for the Appeal Court. Save where the fees for preparing such copies are remitted, a deposit decided upon by the Registrar as likely to cover such fees shall be made at the time of ordering the copies and thereafter the copies shall be prepared by the Registrar.
(2) The Registrar of the Court below shall within a week of being supplied with the copies aforesaid send the same to the Registrar of the Appeal Court in the Judicial Division in which the Court below is situated.
(3) When notifying a Respondent of the day fixed for the hearing of the Appeal, the Registrar of the Appeal Court shall send him a copy of the proceedings.
4.(1) On the application of the Appellant, the Appeal Court may enlarge any of the times prescribed in this order on such terms, if any as may be just.
(2) The application shall be made by Motion on Notice to the Respondent and supported by an affidavit setting out the facts relied upon to justify the delay, unless the Appeal Court sees fit to dispense with such affidavit.
(3) Where the time available to the Appellant for the taking of any step has expired before such step has been taken or completed, the Appeal Court may on its own motion or on motion by the Respondent on notice to the Appellant strike out the appeal.
5. The Appeal shall come on for hearing at such time and at such place as the Registrar of the Appeal Court shall notify to the parties.
6. The fees prescribed in the Second Schedule shall be payable in relation to appeals:
Provided that no fees shall be payable by a Government officer acting in his official capacity:
Provided further that the District Judge or Appeal Court may waive or remit such fees on the ground of poverty where it appears that the grounds of appeal are substantial.
7. Allowances may be made to witnesses in accordance with these rules or with rules made under the High Court Law according as the witnesses are summoned before a District Judge or before the High Court.
8.(1) On application being made for stay of execution under section 72 of the Law, the Court below or the appeal court may impose one or more of the following conditions –
(a) that the Appellant shall deposit a sum fixed by the Court not exceeding the amount of the money or the value of the property affected by the decision or judgment appealed from or give security to the Court’s satisfaction for the said sum;
(b) that the Appellant shall deposit a sum equal to the amount of the costs allowed against him or give security to the Court’s satisfaction for the said sum;
(c) that the Appellant shall where the decision or judgment appealed from relate to possession of lands or houses, give security to the Court’s satisfaction for the performance of the decision or Judgment in the event of the appeal being dismissed;
(d) that the Appellant‘s property shall be seized and attached pending the making of a deposit or the giving of security as aforesaid; including a deposit or security for the expenses incidental to the seizure and attachment;
(e) that the Appellant’s property shall be seized, attached and sold and the net proceeds deposited in Court pending the determination of the appeal.
(2) Any order made on any such application shall limit the time (not being more than thirty days) for the performance of the conditions imposed and direct that in default of such performance within the time so limited execution may issue or proceed.
(3) (a) An application for stay of execution under section 72 of the Law may be made at any time after lodgment of the notice of appeal and shall in the first instance be made to the Court below:
Provided that where execution has been ordered by the High Court, application shall not be made to the Court below but to the High Court.
(b) The application may be ex parte but the court may direct notice thereof to be given to the other party to the appeal. Where an order is made ex parte, the Registrar of the court shall notify the other party of the order made.
(c) Where the applicant proposes to give security instead of making a deposit, the application shall state the nature of the security and the name of the surety proposed, if any.
(4) Any party dissatisfied with an order made by the court below may apply to the appeal court by motion (original or interlocutory as the case may require) with notice to the other party for a review of the order, and the appeal court may thereupon make such order as may seem fit.
9.(1) If on the day of the hearing or at any adjournment of the case the Appellant does not appear, the appeal shall be struck out and the decision shall be affirmed unless the appeal court thinks fit for sufficient cause to order otherwise.
(2) If in any such case the Respondent appears, the judgment shall be with costs of the appeal against the Appellant unless the appeal court expressly orders otherwise; but if the Respondent does not appear the costs of the appeal shall be in the discretion of the Court.
10. If on the day of hearing and at every adjournment of the case the Appellant appears, the appeal court shall, whether the Respondent appears or not, proceed to the hearing or further hearing and the determination of the case and shall give judgment according to the merits of the appeal without regarding any imperfection or defect of form:
Provided that if it appears or is proved to the court that the Appellant has not complied with the requirements precedent to the hearing of an Appeal hereinafter contained, the court shall dismiss the appeal and affirm the decision with or without costs of appeal against the Appellant.
11. On the hearing, it shall not be competent for the Appellant to go into any other reasons for appeal than those set forth in his notice of grounds of appeal:
Provided that where in the opinion of the Appeal Court other grounds of appeal than those set forth in the memorandum of grounds of appeal should have been given, or the Statement of grounds of appeal is defective, the court in its discretion may allow such amendment of the memorandum of grounds of appeal upon such conditions as to service upon the Respondent and as to costs as it may think fit.
12. (1) An Appellant may serve written notice upon the Registrar of the court below that he abandons his appeal and thereupon the provisions of Rule 9 of this order shall apply as if the Appeal Court had affirmed the decision of the District Judge.
(2) The Registrar of the court below shall give notice to the Registrar of the Appeal Court and to the Respondent of the abandonment of the Appeal.
13 (1) When a case is decided on appeal, the Appeal Court shall certify its judgment or order to the Court by which the decision appealed against was pronounced.
(2) The Court to which the Appeal Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the Appeal Court and, if necessary, the record shall be amended in accordance therewith
14. Any order made by the Appeal Court may be enforced by the Appeal Court or by the court below as may be most expedient.
15. (1) The Appeal Court may in special circumstances upon application on Notice by Motion (original or Interlocutory, as the case may require) supported by affidavit order the Appellant to deposit such sum or give such security as may seem fit for the Respondent’s costs of appeal including the costs incidental to the application.
(2) The order shall limit the time (not exceeding thirty days) within which the deposit or security shall be made or given and may direct that in default of its being made or given within the time so limited, the appeal shall without further order stand dismissed.
(3) Where an appeal so stands dismissed, the Respondent shall be entitled to all reasonable costs occasioned by the appeal and the amount of such costs may be stated in the order in anticipation or may be assessed at any time by the Appeal Court on its own motion or on application made ex parte or on notice, as to the Court may seem fit.
(4) Where an appeal so stands dismissed, the Appellant shall take no further step or proceeding therein save by leave of the Appeal Court for reinstatement of the appeal, which may be granted on such terms, if any, as may seem fit upon application by motion on notice given within a month of such dismissal, but not otherwise.
ORDER XXVIII (28) — CASE STATED UNDER SECTION 78
1.(1) Where a case is stated under section 78 of the Law, the statement shall be headed with the reference number and the names of the parties to the proceedings before the District Judge, and be divided into paragraphs setting out the circumstances in which the question of law reserved by him arises; and the question of law shall be separately stated in the final paragraph of the case stated.
(2) The statement of the case shall give the addresses of the parties concerned.
2. The statement of the case shall be sent to the Registrar of the High Court in the Judicial Division within which the District Court is situated and the Registrar of the High Court shall, if so directed, send notices to the parties of the date on which the Judge will hear argument on the case. Such notices may be sent by registered post and shall be accompanied by a copy of the case stated.
ORDER XXIX (29) — RECORDING OF PROCEEDINGS AND USE OF FORMS
1. The Registrar shall enter into a book to be kept for this purpose in his office and called the Cause Book particulars of all proceedings heard and determined by the District Judge. Such particulars shall include the number of the plaint, the date of filing the plaint, the name of the Plaintiff, the name of the Defendant, the substance of the plaint, the date of the Judgement, a minute of the Judgement, the name of the District Judge adjudicating and the costs.
2. All books and records kept for the purposes of the Law or of these rules shall remain in the custody of the Court, but may be removed by leave of the Court.
3. Subject to the express provisions, if any, of these rules, the forms contained in the First Schedule may, in accordance with any instructions contained in the said forms, and with such variations as as the circumstances of the particular case may require, be used in the cases to which they apply, and when so used, shall be good and sufficient in law.
ORDER XXX (30) — FEES OF COURT AND ALLOWANCES TO WITNESSES
1. (1) Subject and without prejudice to the provisions of section 80 and 81 of the Law and of these rules, the fees prescribed in the Second Schedule shall be taken in respect of the proceedings to which they relate, and such fees may be recovered as costs of cause if the Court so orders.
(2) When a native court case comes to a District Court on transfer, the same fees shall be charged for services or proceedings in the latter Court as are payable under these or any other rules in a case begun therein; and without prejudice to the fees aforesaid there shall also be charged the following –
(a) where the transfer is ordered on a party’s application, an initial fee (to be paid by him) equivalent to the fee which would have been charged for the summons if the case had been begun in the District Court;
(b) in appeals, the special fees set out in the Second Schedule.
2. Notwithstanding anything contained in the Law or these rules, a District Judge may, in any proceeding in which good cause appears to him for so doing, either remit any fees payable therein or suspend payment of any fee until the conclusion of such proceeding, in which case he may then direct such fees to be paid as costs by any party to the proceeding against whom he has power to order costs.
3. Persons required to attend or be examined as witnesses may where the Court so orders be allowed expenses and compensation for loss of time at the rates set out in Part 2 of the Second Schedule; and these rates shall also be deemed to be prescribed for the purpose of section 53 of the Law.
ORDER XXXI (31) — CUSTODY OF MONEY IN COURT
1. All fees payable in respect of civil proceedings under the Law, and all penalties, forfeitures and fines imposed under the Law, if not by the Law directed to be otherwise applied, shall be paid to the Registrar and accounted for by him to the Account-General of Northern Nigeria.
2. The Registrar of every Court from time to time as often as he shall be required so to do by the Accountant-General of Northern Nigeria, shall account in full to the said Accountant-General for all moneys which have been received by him under these rules and shall produce for examination all books and papers which the said Accountant-General shall consider necessary for the elucidation of such accounts and the proper checking thereof.
3. All accounts kept by a Registrar shall be audited at such time and in such manner as the Director of Audit may direct.
4. All moneys coming into the hands of the Registrar of every Court in the course of the business of the Court shall be entered into a book to be kept for that purpose to be called the Cash Book, which shall record the number of the plaint in respect of which each sum is paid, together with the folio of such plaint in the Cause Book. Every entry therein shall show whether the payment is made by the Plaintiff or Defendant, and whether for fees on process into Court, award, or costs as the case may be.
5. All moneys coming into the hands of the Registrar of every Court in the course of the business of the Court shall be retained, deposited and paid out in accordance with the provisions of the Government financial instructions or regulations for the time being in force.
ORDER XXXII (32) — MISCELLANEOUS PROVISIONS
1. (1) A duplicate or true copy of every document used in connection with any cause or matter shall be filed in the appropriate file of proceedings and a note showing on whose behalf it is filed shall be endorsed thereon by the person seeking to have the same filed, or where the said person is illiterate, by the Registrar:
Provided that no document shall be filed unless it bears the reference number of the proceedings and the names of the parties.
(2) The Registrar shall note on the document filed the date of filing.
2. Persons appointed as interpreters to the Court shall be sworn on first appointment and need not be sworn at each trial thereafter.
