CIVIL PROCEDURE NOTES IMAT CLASS.

TUTOR- (BA FODAY

ESQ)
HIGH COURT RULES 2007
INTRODUCTION
The High Court Rules are Rules made pursuant to the
constitution of Sierra Leone, pursuant to section 145 of the
Constitution of Sierra Leone Act No.6 of 1991. The Rules of
Court Committee are the people that are charged with the
responsibility of making or drafting Rules for the Various Courts
whether the Magistrate Court, High Court, Court of Appeal,
Supreme Court. It is the Rules of Court Committee which is
usually chaired by the Chief Justice that draft these Rules. The
Court Committee Comprised the following people: 1. A.R.D
Renner Thomas- Chief Justice- Chairman 2. M.E Tolla
Thompson- Justice of the Supreme Court Member 3. Salamatu
Koroma - Justice of the Court of Appeal- Member 4. A.
Showers- Justice of the High court- Member 5. O.V Robbin-
Mason- A.G Director of Public Prosecution Member 6. J. Aryee-
A.G First Parliamentary Counsel- Member 7. Bertham Macaulay
Jrn- Legal Practitioner- Member 8. E.E Roberts- Nominee Of
Attorney General and Minister of Justice- Member 9. Y.
Williams- Legal Practitioner- Member (NOTE: MUST READ THIS
INTRODUCTION) In the High court Rules, we do not have
Sections, we have Orders and Rules. But generally, the Body of
Rules is called 'The High Court Rules'. It starts from Order 1 to
Order 62. The Rules were meant to enhance a proper,
organized hearing and determination of matters in the Civil
Courts. The High Court, The Court of Appeal and The Supreme
Court all have Civil Jurisdiction. So, the Rules of The High Court
are meant to Organize, coordinate and regulate Presentation of
cases in the Civil Courts and up to their determination. So, if
there were no High Court Rules, perhaps the way matters are
presented to the High Court may have been a bit haphazard
and uncoordinated, but the High Court Rules makes provision
for it to be done in a proper way. It tells you what you should
do at a particular circumstance and what you should not do,
and it even went further to tell you the time within which you
can do a certain thing under the Civil Proceedings of the High
Court and the time within which you cannot do a certain or
somethings under Civil Proceedings in the High Court, and in
furtherance, it tells you what the powers of the Court are,
which matters the High Court has Original Jurisdiction and
which matters it does not. It is just like the Court of Appeal,
which has an Appellate Jurisdiction, of course the High Court
has an Appellate Jurisdiction for matters coming from the
Magistrate Court, but the Court of Appeal has an 'Original
Appellate Jurisdiction' ,which means you cannot commence
any matter in the Court of Appeal, whether it is by Writ Of
Summons , Petition or an Originating Notice Of Motion or by
an Originating Summons, you cannot commence an action in
the Court of Appeal, you cannot commence any Original
proceedings in the Court of Appeal. Original proceedings mean
- those proceedings that were begun for the very first time in
the Court of Appeal. The Local Court has Original Jurisdiction in
matters touching and concerning land situate in the provinces.
The High Court has Original Jurisdiction in matters touching
and concerning land in the Western Area. The Court of Appeal
has Original Jurisdiction in terms of matters that are on appeal.
And so Also the Supreme Court of Sierra Leone, it has Original
Jurisdiction to interpret either a legislation, an enactment or
the very constitution which is also a Legislation. So, any matter
touching and concerning either to construe the provision of any
law, either to determine the very constitution itself that
establishes the Supreme Court, the only Court that has Original
Jurisdiction to do so is the Supreme Court. You cannot go to the
High Court to determine a particular issue about any legislation,
to say let the High Court construe what Section 79 of the
Criminal Procedure Act says about Bail, whether it gives the
Court a discretion or it has a mandatory power, you cannot go
to the High Court for such matters , nor do you go to the Court
of Appeal. The only Court that has that Original Jurisdiction
which can invoke to determine matters on any legislation ( an
act, enactment, statute, law) any section, any provision of any
law other than the Supreme Court. The constitution itself gives
the Supreme Court Original Jurisdiction to determine matters
bothering on any legislation including the Constitution itself.
WHAT IS CIVIL PROCEEDINGS ? It basically tells you matters
that are been heard and determined in the Civil Courts in the
country. When you go to the constitution, it tells you we have
one superior court of judicature which comprises the High
Court, Court of Appeal and the Supreme Court. And the chief
Justice is a member of all these Courts, he can sit in the High
Court, Court of Appeal and of course he does sits in the
Supreme Court. He is the only man who can sit and preside
over any court without being told to do so. But all other Justices
or Judges can only sit if the Chief Justice assign them to sit,
which means a Judge of the High Court would only sit on a
matter if that matter is assigned to him by the Chief Justice. The
Justices of the Court of Appeal only sit at the court of Appeal if
the Chief Justice constitutes what we call the "panel" and it is
three justices of the Court of Appeal that makes one panel. So
also, the supreme Court, Justices of the supreme Court can only
sit (Sitting as a Supreme Court) if the Chief Justice " Empaneled"
them, which comprises five justices sitting as a panel. The Chief
Justice can set the supreme Court with or without Justices of
the Court of Appeal, so also, he can co-opt a Judge of the High
Court to sit with Justices of the court of Appeal. But a Chief
Justice cannot take a Judge of the High Court to go and sit in
the supreme Court by-passing all the Justices that are in the
court of Appeal. A Justice of the Court of Appeal can preside
over a matter in the High Court, so also is the Justice of the
Supreme Court. So by Hierarchical seniority, the Supreme Court
is Senior to the court of Appeal and the High Court and so is the
court of Appeal senior to the High Court. But the Chief Justice if
he so wishes can sit in any of these courts excluding the
Magistrate Court. So if you are asked “WHAT CIVIL PROCEDURE
IS ALL ABOUT? You say Civil Procedure is the body of Rules that
regulates the conducts of Civil Proceedings”. Civil Procedure
can take place in the Magistrate Court, in the High Court, in the
Court of Appeal or in the Supreme Court. It lays down the
methods whereby such proceedings are commenced or
initiated. The steps that are taken at any particular stage of the
proceedings and the way such steps are to be taken. Since the
Rules relates to Proceedings in the Civil Courts, it also says the
procedure for the enforcement of the resultant Judgement. As
far as the conducts of the proceedings is concerned, both the
parties to the action also called Litigants and Court are bound
by the Rules. It gives you the context in which Civil Proceedings
are carried on in the civil courts and it does not only stop at
giving you the procedure that are involved in carrying out Civil
Proceedings, it tells you also how you execute on the judgment.
Unlike Civil Procedure or Civil Proceedings, CRIMINAL
PROCEDURE or PROCEEDINGS usually also preoccupy itself with
the procedure involved for combating crimes in the state. In
Civil Proceedings, parties usually commence their actions and
the benefits derived at the end of the determination of such
action are usually enjoyed by the successful party. Machinery of
the state will only come in to assist the parties and the court in
the determination process of the matter and the enforcement
of the resultant judgement. In Civil Proceedings, unlike Criminal
proceedings it is the parties themselves that initiates
proceedings. If you owe me rent and you did not pay me the
rent, I go with you to court for ejectment proceedings. Whereas
if you took a knife and stabbed 'F' , it is the state that will take
you to court. So if there is any benefit to be enjoyed under Civil
Procedure, is the person who took you to court, the court will
ask you to pay what we call Arrears of rent, mesne profits and
costs. The costs are because you got me the pain of taking you
to court before I can get my money that is legitimately due me.
In Criminal now, even though 'F' was stabbed, the first point of
call is the police, you go to the police and make a report then,
the police will invite the perpetrator of the wound and they will
either detain him for certain period of time, they put him on
Bail and subsequently if they found out that the wound was
really inflicted on the victim, it was not a self-inflicted wound
then, they will prefer charges against the perpetrator.
ORDER 1. APPLICATION AND INTERPRETATION.
RULE-1 These Rules shall apply to all proceedings in the Court
and Court here means the High Court. "Appropriate Form"-
means the Appropriate form in Volume 2 of the English
Supreme Court Practice Rule 1999, with such modification as
may be necessary or as the particular circumstance may require
(The White Book- Volume 1 has the Substantive Law, Volume 2
has the precedents of forms and Volume 3 is the Index). "Cause
Book"- means the book or record kept in the High Court
Registry at Freetown and Every District Registry. Each and every
matter is recorded in the Cause Book, it is like where if you file
a Writ of Summons, they write it, you enter an Appearance
they write it, you file a defense they write it, you file an
application they write it. So, if you want to search you go to the
Cause Book, you search it in the Registry because the file would
have been with the Registrar or with the Judge dealing with the
matter. But when you pay your search fee, you go to the
Registry, they will give you the Cause Book, if you look at it and
you are not satisfied, you go to the Registrar, or you ask the
Registrar in the High Court to ask for the file to know whether
he had collected the file from the Court's Registrar- because
you have a "Registrar in the Registry of the High Court then,
you have the various Judges Registrar". That Registrar in the
Registry of the High Court has the power to ask any Registrar
attached to any judge. There is a procedure, when you come
with the file that Registrar attached to the court will enter it
into his own book and the Registrar in the Registry of the High
Court will also enter it into his own book and each of them will
sign so that at the end of the day, if that file got missing, they
will know the person with whom it was last. So, you search the
Cause Book and then, again you search the file but the
templates are all in Volume 2. "District Registry"- means any
District Registry in either Makeni, Bo or Kenema. These are the
District Registry. If you institute proceedings in the provinces,
you don't have to come and file in the High Court Registry here
in Freetown. They all have the same powers as does the
Registry in Freetown. "Division"- means the Appropriate
Division of the High Court. The High Court has several Divisions
such as, 'Family and Probate Division', ' Land Property and
Environmental Division', 'Commercial and Admiralty Division',
'Anti-Corruption Division', 'General Division' etc. But there are
two Jurisdiction of the High Court, you have "The Civil
Jurisdiction" and the Criminal Jurisdiction". "Judgement"-
means Order, Ruling or Decree of the Court. So, if any Order is
made let us say an Interlocutory Application, that Order is also
called the Judgement. Equally so, if the Judgement is
pronounced at the end of the matter, you will give that
Judgement into an Order of court and you take it to the Master
and Registrar for his signature. So, when we talk about
Judgement in Civil Proceedings, we are also talking about an
Order, Ruling or Decree but usually Decree are in Matrimonial
Causes. We are not talking about a Military Junta that is been
ruled by Decree, we are talking particularly about the
Matrimonial Causes wherein we have a Decree Nisi and a
Decree Absolute, so that means that Decree Absolute is the
Judgement. “Master"- means the Master and Registrar and
includes, A deputy Master and Registrar and a District Registrar.
They are all charged with the responsibility of signing
Judgements, Orders, Rulings or Decrees.
"Originating Notice Of Motion"- means every Notice of Motion
other than a Notice Of Motion in a pending cause or matter.
Originating Notice of Motion as the words goes originates
action, it initiates an action, it begins or commences an action.
Whereas, a Notice of Motion is an application that is done
during the subsistence of a matter. That is, the matter is
already on, like you say oh! I have made a mistake, a substantial
mistake in paragraph one of my indorsements, I want to change
it. You come by a Notice of Motion because the proceedings
are already on, but you want to do certain things in your
proceedings, so you come by Application, that Application if it
is provided that you have to do it to the court then, you come
by a Notice of Motion. But if it says by a Judge then, you come
by Judges Summons.
But if you are taking a matter to the Court for the very first
time and the procedure that is to be followed is by a Notice of
Motion, that Notice of Motion that takes the matter to the
Court for the very first time is what we call an 'Originating
Notice of Motion', a method in Civil Procedure that begins or
initiates or commences an action. "Originating Summons"-
means every Summons other than a summons in a pending
cause or matter.
If you are going to court pursuant to a legislation as provided
for in ORDER 5 of the High Court Rules, you have to go by an
Originating Summons.
So, if you are going to Court pursuant to a legislation, a law, a
Statute, an enactment, you go by an Originating Summons.
Except if the particular Legislation or Rules or Statutes or
Enactment makes provision for its own Procedure.
For example, we have what is called the "Adoption Act of
1989", if you want to apply or want to adopt a child in our
country, you have to do that pursuant to the provision of the
Adoption Act which id by originating summons.
This is because, when you look at the Adoption Act, it tells you
that an application on Adoption Order has to be made to the
court, Example, if Section 10 of the Adoption Act says an
application for an Adoption Order shall be to the court, then,
you ask yourself the question, is it supposed to be by a Notice
of Motion? Certainly No! Because you are trying to initiates
proceedings and a Notice of Motion does not initiate
proceedings. The Legislation never said that an application for
an Adoption Order to the court has to be made by an
Originating Notice of Motion, it just says an application for an
Adoption Order has to be made to the court. Then you look at
the Adoption Act, does the Act made any provision as to such
Procedure? It does not make such provision then, in that
circumstance you come to ORDER 5 of the High Court Rules
because an application for an Adoption Order is a civil
procedure/ proceedings and ORDER 5 tells you how you initiate
Civil Proceedings in the High Court.
And ORDER 5 of the High Court Rules says proceedings by
which an application is to be made to the court or a judge
under any Enactment shall be begun by an Originating
Summons except whereby these Rules or by any other
Enactment the application is expressly provided for, required
or to be made by some other means.
So, if you want to go to court for an Adoption Order pursuant
to the Adoption Act, you go by an Originating Summons
because the entirety of the Adoption Act does not make
provision for the procedure. It only tells you where you go with
your application and under the definition section of the
Adoption Act, it tells you the Court is the High Court. So how do
you know the procedure that you are to adopt in taking a
matter to court under any specific circumstance? First and
foremost, you try to know whether the matter is being
governed by a legislation. Whether there is an existing
legislation for such matter and you look whether there is any
procedure there for taking matters to Court under or in that
legislation.
Also, for example, the Matrimonial Causes Act and the
Matrimonial Causes Rules, they make provisions for the taking
of proceedings in the High Court for the Dissolution of
Marriages and that procedure is by a 'Petition'.
So 'Originating Summons is like an Originating Notice of
Motion'- what they do is to begin or commence or initiates or
originates an action.
JUDGES SUMMONS works the same way as a NOTICE OF
MOTION'- A judges Summons is an application brought to
court which is Interlocutory just like a Notice of Motion. A
Judges Summons does not initiate a matter in court, it does
not originate or commences a matter in court, it does not take
to court a matter. It only comes into play after a matter had
been taken to court and that matter is yet to be determined
and that is what we call a 'pending matter', which means
'pending determination'. A Judges Summons will only come into
play within the Hearing and Determination. Anything that
happens in the middle, if it is provided that it has to be done by
a judge then, you have to come by Judges Summons. On the
contrary, between the Hearing and the Judgement,
If an application is made to the court, it tells you that you
have to come by a Notice of Motion. It is just like you applying
to read law at FBC, when the acceptance Is given to you, you
start at year one. So all that is going to happen between year
one to year two and between Hons1 and Hons2, the tests, the
exams, the registration etc, is what we call 'Interlocutory
Matters'. If the HOD says if you want to come to the HOD who
serves as a judge in the department for example, it means you
come by 'Judges Summons'. But if he issues instruction today
and you saw it on the Notice Board, All Students wanting to see
the HOD must do so to the Court, it means you come by Notice
of Motion. " Probate Actions"- Talks about matters touching
and concerning people who have died. In Probate Action, you
have Probate Action dealing with Estate that is Intestate and
you have Estate for which the owner died leaving a will. So
when we talk about Probate Action, is an action touching and
concerning the Estate of Deceased person. That deceased
person can either be the deceased Testator or the deceased
Testatrix that is, He or She had died living a will or a deceased
Intestate that is, He or She had died not living a will. So every
matter touching and concerning the Estate of Deceased person
whether he died living a will or he died without living a will that
is what we call "Probate Action". If he died living a will you
would have to take what we call 'Probate of the will' by the
Executors (The Wills Act 1837). "Registry"- means the High
Court Registry in Freetown and includes a District Registry.
"Signature"- Includes a thumb-Print or mark. There is no law in
the world that tells you that you have to sign a particular way
for it to be known as your signature. There is no particular law
telling you to sign in a specific way in Law. You can draw a clock
on your cheque book on the back and each time they saw a
clock on your cheque list, they will order your cheque. That is
why the Bank will always ask for your specimen. You should just
be consistent in the way you sign but there is no law telling you
to sign ABZ. But if you are signing with a thumb-Print, the law
says the person preparing the document must attached what
they call the "Illiteracy Clause", CAP 12 Of The Laws Of Sierra
Leone, which says every document that is to be signed by an
illiterate must carry with it the Illiteracy Clause. Which means
to say, 'After the content of this document, I have audibly read
and explained to the within name MOHAMED LION KAMARA
who is an Illiterate. The content of this document who seems
appeared to have understood the same after it has been read
and interpreted to him in the Krio, Mende, Themne language
etc, then the thumb-Print.
 ORDER 1 RULE 3 SUB-RULE (1) Which means at the
commencement of this Rule, if there was anything that was to
be done pursuant to the Old Rule, the moment that one is
before the Court, you should stop and prepare the new Rules.
You can now rely on the New Rules and that is without
prejudice to the Old Rule because we have in the end of the
Rules what we call Miscellanea Clauses, which says any
proceedings which had begun under the Old Rules will continue
as if those Proceedings were begun under the New Rules but
those proceedings are now governed by the provision of the
New Rules.
ORDER 5- MODE OF BEGINNING CIVIL PROCEDURE
When your client approaches you with a matter, your first step
of action is to properly listen to the brief, and after that you
identify where this particular claim falls within the Eight
Divisions of the Court. This is so because every matter is best
suited in the Divisions created for it, hence you do not just file
to the High Court for it sakes. When you file to the wrong Court
or Division, the opposing Counsel might if he picks that up files
for Jurisdictional objection to be taken against you hence,
leading to the throwing out of your matter because the said
Court lacks the Jurisdiction to sit, hear and determine such
matter hence, ends the matter therein.
In order to fully understand the Jurisdiction of the Courts,
Constitutional Instrument No. 4 of 2019 is the way to that as it
divides the Court into Divisions (8 Divisions). Thus, they are as
follows: 1. Land Property and Environmental Division 2. General
Division 3. Sexual Offences Division 4. Industrial And Social
Security Division 5. Anti-Corruption Division 6. Family and
Probate Division 7. Fast Track Commercial and Admiralty
Division 8. Criminal Division In order for you to institute any
action in any of these Divisions, you must know the mode or
method in which to institute your action, and the mode or
method are also determined by the nature of the claim. Which
means the particular vehicle through which you use to come to
court is determined by the nature of the claim.
WAYS BY WHICH AN ACTION IS INSTITUTED.
There are four means by which you originate, commence or
initiate an action in the High Court. If you look at ORDER 5
RULE 1, It highlights the four methods or means by which you
are expected to commence an action in the High Court. They
are as follows:
 Writ of Summons
 Originating Summons
 Originating Notice of Motion
 Petition
Each of these four methods is inspired by the nature of the
claim you are seeking to bring to the court. That is, what causes
you to come to the court by Writ of Summons, Originating
Summons, Originating Notice of Motion, Petition is contingent
on the nature of the claim. So, you first look at your client's
case and determine the Division under which your matter falls
and then the mode through which you approach the Court or
Division.

ORDER 6- WRIT OF SUMMONS Generally, Writ of Summons

are principally used to initiate, commence, begin or originate
an action in the High Court where there are SUBSTANTIAL
DISPUTE AS TO FACT.
In other words, dispute concerning where one party is denying
the existing or existence of a contract, or where a party is
challenging the title to a land or property, or where one is
questioning the authenticity of a contract, or where one is
trespassing on another person's land.
Where there are disputes or contention as to title, it is advised
that, it is initiated through a Writ of Summons as provided for
by Judicial decision that all contentious decisions where there
are dispute or argument MUST be commenced through a Writ
of Summons.
This is so because a Writ of Summons contains documentary
evidence as well as pleadings which are only applicable in a
Writ of Summons.
Because in a Writ of Summons, if a matter concerns an
allegation of Fraud, automatically that allegation is best
proven by a Writ of Summons, because you have to give
Particulars of Fraud alleged. And in achieving that goal to
proving Fraud, there is need to call a witness to prove
documentary evidence, which is not possible in an Originating
Summons or Petition. There is need to also call an expert
witness to prove the allegation of Fraud involving two parties
claiming ownership over the property. In proving the fact as to
the true owner, factual witness, or documentary evidence, all
of these are not applicable for Originating Summons.
TYPES OF WRITS OF SUMMONS
 Generally Indorsed Writ
 Specially Indorsed Writ
RULE 3 (a) Those actions the court considers as actions that
must be brought by Writ of Summons but specifically by a
specific kind of Writ (Specially Indorsed Writ).
Note: there are exceptions to the above rule and the exception
helps you to understand the difference between a Specially
Indorsed Writ and a Generally Indorsed Writ.
The exceptions are found in RULE 3 (a), this leads us to the
different types of Writs.
A SPECIALLY INDORSED WRIT is a Writ of Summons that
contains both the Statement of Claim, Particulars of Claim and
the Reliefs sought by the party.
The Structure of such a Writ of Summons contains:
Top- Statement of Claim Body- Particulars of Claim Bottom-
Reliefs (Wherefore). The Statement of Claim comes first before
the Particulars of Claim, at the top, stating the claims word for
word. The Particulars of Claim basically narrates exactly what
transpired between the parties, details of the contract. If it is
trespass, it explains the type of Trespass. If a Land, it states the
history of the land etc. When a Writ of Summons contains all
these, it is referred to as "Specially Indorsed Writ ". That is, (The
Statement of Claim, Particulars of Claim and Reliefs sought).
That is why if you look at ORDER 6, RULE 3, from (a-f), those
are claims you can institute by way Specially Indorsed Writ,
however, with the exception of (g), serving as an exception.
GENERALLY INDORSED WRIT. A Generally Indorsed Writ is that
type of Writ that does not have a Particulars of Claim, nor
reliefs Indorsed on it. Therefore, what a Generally Indorsed
Writ has is just "The Statement of Claim".
Note: Where the dispute is arising from the following (Libel,
Slander, Malicious Prosecutions, Seduction, Breach of Promise
of Marriage, and Actions in which Fraud is alleged by the
plaintiff) ORDER 6, RULE 3 (g) says these actions must be
commenced by a Generally Indorsed Writ.
In summary, any claim for actions touching and concerning the
above, as a lawyer advising your client, you first issue what is
called a 'Generally Indorsed Writ ', which entry contains the
Statement of Claim and then serve the person.
After serving this particular document, you can now come and
serve on him the Specially Indorsed Writ. So therefore, if the
claim falls from ORDER 6, RULE 3 (a-f), you serve a Specially
Indorsed Writ, but where it falls within ORDER 6, RULE 3 (g),
you serve first the Generally Indorsed Writ, to be followed by
the Specially Indorsed Writ.
However, both can be “served concurrently “ , So if you fail to
serve the Generally Indorsed Writ when the Subject matter of
the dispute falls within the bracket earlier, both the service will
be struck out, as it is Jurisdictional and not even procedural,
because the Court will not sit on it. JOHN V FOFANAH 1976.
However, there has been a shift from that old law. The new
approach to this law now does not countenance that ruling in
the above case, as in that case, an appeal was won against
FOFANAH for merely serving the Generally Indorsed Writ
instead of the Specially Indorsed Writ. In FRANCESS SMITH V
ABRAHAM SMITH Here, a Generally Indorsed Writ was allowed
to subsists when it was supposed to be the other way. And the
cure which was done in the above case was in consistent with
the High Court Rules 2007 Specifically ORDER 2(3) which deals
with time, place, manner, form or content (ORDER 2- EFFECT
OF NON-COMPLIANCE).
ORDER 7, ORIGINATING SUMMONS
These are Originating Processes that are used to start or
institute an action where there are substantial questions of
law.
Note: Originating Summons cannot be used where there are
substantial questions as to facts. Where there is substantial
dispute as to fact, an Originating Summons is inappropriate and
inapplicable. It is only used where you come to court on the
basis of questions of law or crucially for the construction of a
Will, Deed, a Contract.
Note: A specific clause in the contract and not the contract in
whole). It is worth noting that where the parties to a matter
before the court are not concern about the existence of the
contract but rather, the construction of the words which is tied
to law, then you come by Originating Summons. If it concerns
the existence of a contract and not law, you come by a Writ of
Summons. This is sufficiently supported by ORDER 5, RULE 4
(2) (b) of the High Court Rules 2007. It states that Proceedings
which may be begun by Originating Summons or Writ: (2) (a)
Proceedings in which the sole or principal question at issue is or
is likely to be one of the constructions of an enactment or of
any deed, will, contract or other document or some other
question of law, you come by Originating Summons. EXCEPTION
ORDER 5, RULE 4, (2) (b), but where the subject matter touches
and concerns substantial dispute as to fact, you come by Writ
of Summons. Note:
IN SUMMARY, So basically in summary, what ORDER 5, RULE 4
is saying is that, there are certain actions that you can begin
either by a Writ or Originating Summons. However, it is best
befitting that these particular actions that are contained in
RULE 4 (2) (a) must begun by Originating Summons, and these
actions are: the construction of an enactment or of any deed,
will, contract or other document or some other question of law,
you come by Originating Summons. But when it concerns
dispute as to fact which RULE 4 (2) (b) is trying to make sense
of, you come by Writ of Summons.
EXCEPTION TO THE ORIGINATING SUMMONS RULE. The rule
governing Originating Summons is not an absolute Rule,
meaning it has its exceptions, one of which is where a party
seeks Summary Judgement, he does not have to come by
Originating Summons rather, he comes by a Writ even if it is
for the interpretation of a contract, a deed or will. But this is
only for an application for a Summary Judgement (ORDER 16
OF THE HIGH COURT RULES 2007, deals with applications for
Summary Judgement). SAHR SAMUEL NYANDEMOH V AIAH
NYANDEMOH The same principle of law upheld in the above
Supreme Court matter was also upheld in the case of ANITA
PRATT V PRATT. Both matters were concerned with Jurisdiction
and the mode of initiating a matter bothering on substantial
issues of law and as well as fact. If it bothers on fact, you come
by WRIT, if it bothers on law, you come by ORIGINATING
SUMMONS. NOTE: The above cases distinguished between an
Originating Summons and Judges Summons. ORIGINATING
SUMMONS originates, commences and institute the action. It
begins the action. JUDGES SUMMONS on the other hand is
used for Interlocutory Applications. In other words, an
Interlocutory Applications means there is a subsisting matter
before the court for which the party seeks reliefs, For
Garnishee or Summary Applications.
An Interlocutory Application can begin either by a Writ or
Originating Summons requesting the court for certain reliefs
pending the outcome of a matter which is already before the
court for determination. When this happens, you are not
initiating an action rather, you are seeking for an Interlocutory
relief.
NOTE.
WRIT OF SUMMONS
These are pleadings (ORDER 21). WHILE, ORIGINATING
SUMMONS are not pleadings. They are backed with Affidavit,
and Affidavit contains only fact and nothing but law. FIRETEX V
SIERRATEL
ORIGINATING NOTICE OF MOTIONS Originating Notice of
Motions are essentially used if either the Rules, that is the High
Court Rules 2007 makes provisions that it must be used or an
enactment says this is the particular mode that is to be used.
Note: An Originating Notice of Motion is not dependent on
the nature of the claim. Example: For Judicial Reviews, This
the High Court Rules says must be begun by Originating Notice
of Motion (ORDER 52). All Judicial Review proceedings must be
begun by Originating Notice of Motion. Judicial Review
proceedings simply means where one contests a court ruling
and ask the court to review that matter because he feels
dissatisfied with the process, that application for the review of
that matter must be brought by a way of Originating Notice of
Motion pursuant to ORDER 52 of the High Court Rules 2007.
Originating Notice of Motion can also be used in the Supreme
court to initiate an action through the Court's Original
Jurisdiction for an interpretation of the Constitution.
Note: this is completely different from "Notice of Motion", for a
Notice of Motion, it is only used during the subsistence of a
matter. In other words, it is used for Interlocutory Applications
where as Originating Summons commences or begin an action.
In summary, the matter must be subsisting before you can
come by Notice of Motion unlike Originating Summons which
begins the matter.
PETITION ORDER 9 This is a method by which you institute an
action and that method is directed or said to be used either by
an enactment or the High Court Rules, just as how Originating
Notice of Motion is. Example:
The Company's Act of 2009 says for every winding up of a
company, it must be done by a way of PETITION, Same as
Divorce matters, as well as Bankruptcy as the Act says, when
filing for a bankruptcy, you come by Petition. Also, for
Matrimonial causes Act and the Matrimonial causes Rules, you
come by Petition. Failure to abide to the dictate of these
enactments, your matter will be thrown out of court for lack of
compliance to the Rules.

ORDERS 10 AND 11 SERVICE- GENERAL PROVISIONS SERVICE

OF ORIGINATING PROCESSES.
ORDER 10 deals with SERVICE generally. By way of law and
general rule, every Originating process must be served
personally, (kindly see the processes referred to above in
ORDER 5, RULE 1) against whom it is instituted. (General Rule).
It is a mandatory provision of the law.
The forms of service for Originating process are as follows:
(1) Personal Service
(2) Deemed Service
(3.) Substituted Service
(4). Ordinary service
These are the four most commonly used method of service and
there are differences between them.
ORDER 10, RULE 2(1)- PERSONAL SERVICE. This ORDER says by
way of general rule, service must be done personally. As stated
earlier, this rule is not absolute hence, there are exceptions.
These exceptions come into play in situations in which personal
Service is impracticable or impossible. Personal Service here
simply means where an action is brought to court through the
registrar. Service of Summons is required to be made to the
party against whom an action is been taken.
In serving him/her, the Rule says you must serve him
personally. Meaning, you cannot serve his
wife/husband/children/gateman or anyone but the party
himself. Thus, this is the general rule. The purpose of this rule is
for the person to aware or know that an action has been
instituted against him so that he can prepare or take the
necessary steps to defend the action. "The Implications of not
serving the party personally, that party can apply for that writ
of Summons to be struck out on the basis of Irregularities". And
of top most importance is that, you cannot enter "judgement in
default" if the other party against whom the action was
brought against is unaware that an action has been instituted
against him. But when he is served personally, he will be fully
aware that an action has been taken against him, hence, he is
obliged to enter appearance. Failure to enter appearance after
personal Service, would allow the party bringing the action to
enter a "DEFAULT OF APPEARANCE" (ORDER 13). “ORDER 10,
RULE 2. (1)
Except otherwise prescribed by these Rules, an originating
process shall be served personally by delivering to the person
to be served a copy of the document duly certified by the
Master as being a true copy of the original process filed,
without exhibiting the original of the document”. As earlier
stated, the above position of the law regarding service is only
but "the General Rule".
There are situations in which Service is intended to be made
personally but was met with resistance which makes it
impossible to deliver personal Service. However, in such
situations, you are required to throw it at him, and then after
that you file an Affidavit explaining exactly how the service was
done and why.
It is important to note that the main requirement governing
Personal Service is for the Defendant to be aware that an action
has been taken against him. So by throwing the Writ at him is
enough to indicate service. See ORDER 10, RULE 2 (2), which is
the exception to the General Rule.
ORDER 10, RULE 2 (1) says you must serve personally. “ORDER
10, RULE 2 (2) Where personal service of document is hindered
by violence or threats or other acts of obstruction of that
person or of any other person with or under that person it shall
be sufficient service to leave it as near that person as may be
practicable”. It is important to note at this earliest of time that
the above position of the law comes to play where the party
not evading service which would have warranted for
Substituted Service, rather, what he is merely doing is to
discourage you from delivering the Service which is why
throwing the notice at him suffices to mean service has been
made.
ORDER 10, RULE 3 (DEEMED SERVICE) ORDER 10, RULE 3 (1) is
setting the conditions and ORDER 10, RULE 3 (2) is the Service
itself. Situations or circumstances where the court, even though
you are not served personally, may give an instruction that X
must receive service on your behalf. This is practicable in
circumstances where an action is instituted against Abu Bakarr
Taylor Kamara and Taylor Kamara has his friend who is a lawyer
by the name Fuad Ahmed Sesay, and Taylor Kamara calls and
instructs his lawyer Fuad Ahmed to receive service which is to
come at specific date.
Note: "Deemed Service" is any service other than personal
Service on the instruction of the Defendant or person being
sued.
Also note…..So, where a service is received by another person
other than the Defendant himself, the instructed receiver
cannot just go ahead and receive the Summons because he has
been asked by the Defendant to receive it on his behalf. What
happens is that going back to our example, before Fuad Ahmed
Sesay, the lawyer receives the Summons, he, after the
instruction from Taylor Kamara must state in "Writing" (Key
element- must be stated in writing), that he is desirous to
accept service on behalf of Taylor Kamara.
ORDER 10, RULE 3 (1), the Rule says, the service of a Writ or
any other Originating process is only valid when the person
other than the Defendant enters an undertaking in writing to
indicate acceptance of service. “ORDER 10, RULE 3. (1) No
service of a writ of summons or other process on the defendant
shall be necessary when the defendant, by his solicitor
undertakes in writing to accept service” “ORDER 10, RULE 3 (2)
Where a solicitor undertakes in writing to accept service of a
writ on behalf of a defendant, the writ shall be deemed to have
been duly served on that defendant when served on the
solicitor”. Where after acceptance by the solicitor on behalf of
his client, once it is served on the Solicitor, it is automatically
deemed that the Defendant cannot come later to say he has
not been served. Note: the acceptance letter to receive service
on behalf of the Defendant is written to the opposing Counsel
and not to the court because the action itself has not started
yet to involve the court.
NOTE. ORDER 10, RULE 3 (3) says, where a party enters
appearance when he is not served, it is taken to mean that he
has been served. “
ORDER 10, RULE 3 (3) (3) Subject to rule 15 of Order 12, where
a writ is not duly served on a defendant but he enters
appearance to the writ, the writ shall be deemed, unless the
contrary is shown, to have been duly served on him and to have
been so served on the date on which he entered appearance
However, it is important to note this important element to the
above Rule "Entry of Appearance not waiver". ORDER 12
(APPEARANCE), ORDER 12, RULE 15 “15. The entry of
appearance by a party shall not be construed as a waiver by
him of any irregularity in the originating process or service
thereof or in any order giving leave to serve the process out of
the jurisdiction or extending the validity of the process for the
purpose of service or on any other ground “ So it says the entry
of appearance does not waive an Irregularity to the Originating
Process. This means, the suing party cannot say because the
Defendant has entered appearance ignorantly when he was not
served, or when the Originating Process was faulty, the court
should just ignore that irregularity and proceed with the matter
now. It is so because the main purpose of entering an
appearance is for you the Defendant to have Locus to stand in
front of the court and defend yourself on the action. One
cannot defend an action in court if he does not have the locus
to do so. And what gives the Defendant the locus or recognition
to stand in front of the court is by entering appearance. But
that appearance is not in any way a waiver to any irregularity.
If the Writ is defective, you the Defendant can raise it, if the
process by which the Summons was initiated was faulty, you
can raise it. So when you look APPEARANCE, UNDER ORDER 12,
RULE 15, you will see it is also another method of Deemed
Service as stated above.
ORDER 10, RULE 5 (1)- SUBSTITUTED SERVICE This is different
from the substitution in which threats to the delivery of the
Summons was made. This happens where the Defendant
invades service either by him hiding anytime, he suspects
service is to be made on him. When this happens then,
substituted service can now be made to any person granted by
the court.
NOTE. However, it is important to note that before an
application for a substituted service is granted by the court,
there are certain criteria that must be fulfilled. The Rule says if
a document is required to be served on any person, before the
court can consider to grant that service on that other person,
the court must have seen that "three or more attempts have
been made without success to effect personal Service, and that
any further attempt after those three attempts would be an
exercise in futility or would result to undue delay".
Note: The three attempts referred to here in the Rules means
that an attempt to serve personally on three different occasions
which all three proved futile. What constitutes these three
attempts is also important. The three attempts must not be
made in a single day, they must be made on different days
and time, to constitutes or stand any chance of success for an
application for substituted service. In that application for a
substituted service, you must be able to show that any further
attempt to serve personally would either be an exercise in
futility or would lead to an undue delay (ORDER 10, RULE 5 (1)
(a). Secondly, that you have tried all means to see the
Defendant to effect personal service but you have not, that in
fact, there is no way you are going to see the Defendant and
serve him, it's impracticable (ORDER 10, RULE 5 (1) (b). “5. (1) If
a document is required to be served on any person and it
appears to the Court- (a) that three or more attempts have
been made without success to effect personal service, and that
any further attempt to effect personal service may result in
undue delay; or (b) that it is otherwise impracticable for any
reason to serve the document personally, the Court may make
an order for substituted service of that document “
Note: This means that a party applying for substituted service
must come by an "Ex-parte Notice of Motion supported by an
Affidavit", as provided for by ORDER 10, RULE 5 (2). “RULE 5 (2)
An application for an order for substituted service shall be
made ex parte and shall be supported by an affidavit stating the
facts on which the application is founded”. This is so because
making an application through an "Interparte Notice of Motion"
would not serve the purpose of justice, because the Defendant
was not found as at the time of making the application hence,
he is unlikely to be seen or make appearance in court. Hence,
an "Ex-parte Notice of Motion" which allows the plaintiff alone
is but the best possible option. When it is granted, you make
your case as to why you want to apply another means of
service, and this can be done either through Newspapers,
WhatsApp, Email, posting or by affixing it, if it concerns land
dispute on the subject matter. Any means you would use would
be allowed by the court after it has chosen one or two of the
means listed above.
Note: There are certain times in which the Defendant
whereabouts is not known, and nobody knows where he is
likely to be. So in such a situation, it is deemed impracticable. It
is not like he is evading service, but rather cannot be seen or his
whereabouts is not known. In most cases, the court would say
or give a go ahead for the service to be published in a
newspaper or radio. The court is even in these modern times
receptive to technological advancement. Meaning you can
serve the Defendant through the leave of the court on
Facebook, Instagram etc. That is the extent to which the court
is ready to go in the delivery of justice. Landmark judgements
has been made through virtual trials. WURUH TIMBO, where
justice Kamanda give a ruling on the subject above. NADIA
BASMA, justice Binneh also gave ruling regarding same.
ORDER 10, RULE 4 (1) and (2).ORDINARY SERVICE Basically,
Ordinary Service is that process of service that are not
Originating in the strict sense. They can be Notice of Motion,
Judges Summons, non-Interlocutory processes.
4.(1) Service of a document not required to be served
personally may be affected by..
(a) By leaving it at the proper address of the person to be
served;
(b)Sending it by registered post bearing a return address and
addressed to the person to be served at the address of the
person; or
(c) In such other manner as the Court may direct. These are
processes in its simplest term you can serve on the Defendant's
Solicitor without the Solicitor having to make
undertaking in writing before receiving”. These are processes
you can serve on the proper address of the Defendant. What is
proper address as suggested in the Rules? A "Proper Address"
means: “ORDER 10, RULE 4 (2) (a) the Defendant usual or last
known place or business place.
(b) In the case of individuals who are suing or being sued in the
name of a firm, the principal or last known place of business of
the firm in Sierra Leone.
(c) In the case of a body corporate, its registered or principal
office; or
(d) In any other case, the business address of any solicitor who
is acting for the person in the cause or matter in connection
with which the document is to be served.
ORDER 10, RULE 4 (2)”. In summary, address of service simply
means the known address of the Defendant. Note: In service,
where an enactment says or prescribes how service is to be
made, notwithstanding the position of the law in the High Court
Rules, you go by that enactment or statute. ORDER 10, RULE 8
(3). “ORDER 10, RULE 8 (3) Nothing in this rule shall invalidate
or affect any other mode of service in force at the time this rule
comes into operation”.
After service of ordinary, you now prepare an Affidavit of
service. This is to support your claim that you served the
Defendant through his lawyer as the case may be, without the
Affidavit, the court would find it hard to believe that you
served.
ORDER 10, RULE 6. (Affidavit of service). “ORDER 10, RULE 6 –
6. (1) Subject to subrule (2), an affidavit of service of a
document must state by and on whom the document was
served, the day of the week and the date and the hour on
which it was served, where it was served and how it was
served.
 An affidavit of service of a document sent by registered
post in accordance with this Order shall state by whom
the document was posted, the registered number of the
letter and the name of the person to whom the document
was posted and the address to which the document was
posted; and the certificate of posting issued by the post
office shall be exhibited with the affidavit.
 An affidavit of service signed by the person who effects
 service shall, on production without proof of signature, be
prima facie evidence of service”. The Affidavit of service
must state how did the service and on whom the service
was done, where was it done and how was it done or
effected, the time of service and the date of service.

ORDER 10, RULE 6 (1), (2),(3).

Note: Service can also be made on a local agent, and that
service can be considered valid by the court. Example: Where
Fuad is the principal and Farouk is the agent, and Farouk enters
into a contract on behalf of Fuad, his principal, and then there
is a breach of contract to the terms of the contract, and the
party, let's say Sorieba who entered the contract with Farouk
on behalf of Fuad, wants to sue for the breach, he is going to
sue Fuad, the principal even though the contract was between
Farouk and Sorieba. After issuing the Writ, if the principal who
is Fuad and that he is not around to be served, Sorieba can
serve the Writ on Farouk who is the agent for Fuad and that
service can be said to be a valid one for that contract.
INDORSEMENT OF SERVICE/ WRIT- ORDER 10, RULE 7 When
you serve an Originating Notice of Motion or any summons, by
law, you are to indorse it at the back. Example: I, Fuad Idriss
Kamara. Serve first the Defendant within a time frame of "three
clear days". The three clear days by the Rules means, example:
you serve the Writ on Monday, you wait till Friday to indorse it.
The same applies to when you file a Writ in court, you would
have to wait for two clear days before you can move the
motion. “RULE 7, The person serving a writ of summons shall,
within 3 clear days at most after the service indorse on the writ
the day of the month and week of service of the writ and shall
immediately after the Service file a copy of the writ”. SERVICE
FOR POSSESSION OF LAND-ORDER 10, RULE 10. “10. Where a
writ is indorsed with a claim for the possession of land, the
Court may- (a) if satisfied on an ex parte application that no
person appears to be in possession of the land and that service
cannot be otherwise effected on any defendant, authorize
service on that defendant to be effected by affixing a copy of
the writ to some conspicuous part of the land; (b) if satisfied on
such an application that no person appears to be in possession
of the land and that service could not otherwise have been
effected on any defendant, order that service already effected
by affixing a copy of the writ to some conspicuous part of the
land shall be treated as good service on that defendant “. This
concerns dispute over land which forms the basis to the subject
matter. Note: the land should not be occupied by anyone, but
somebody is making claim on the said land because it is difficult
to apply for an Originating means of process, what you do is
you apply for a substituted service. Once the application is
granted by the court, what you do is to take the notice and
paste it at the gate or give it to the caretaker if there is one or
affix it at a conspicuous place which can either be a nearby
mango tree etc. and evidence of the pasting most be tendered
to the court either by video or snapshot. (So everything under
ORDER 10 generally regards Service).
ORDER 11.SERVICE OF PROCESS OUT OF THE JURISDICTION -
Key points to note that distinguishes ORDER 10 from ORDER 11
is that, ORDER 10 principally deals with general service, this
means that the Defendant is living in Sierra Leone but keeps
dodging service. He does not want to be served notice. While
ORDER 11 principally deals with service out of the Jurisdiction.
Meaning the Defendant is not residing in the country or
Jurisdiction.
If you look at RULE 1 (1) , it gives you a long list of actions that
warrants for service out of the Jurisdiction. “1. (1) Service out of
the jurisdiction of a writ of summons or notice of a writ of
summons may be effected with leave of the Court in cases
where-
 A relief is sought against a person domiciled in Sierra
Leone;
 an injunction is sought ordering the defendant to do or
refrain from doing anything within Sierra Leone (whether
or not damages are claimed in respect of a failure to do or
the doing of that thing);
 The claim is brought against a person duly served in Sierra
Leone or out of it and a person out of Sierra Leone is a
necessary or proper party to the action;
 The claim is brought to enforce, rescind, dissolve or
 otherwise affect a contract, being (in either case) a
contract which- (i) was made in Sierra Leone; (ii) was
made by or through an agent trading or residing outside
Sierra Leone; (iii) is by its terms or by implication
governed by Sierra Leone law;
 The claim is brought in respect of a breach committed in
Sierra Leone of a contract made in Sierra Leone and
irrespective of the fact, if such is the case that the breach
was preceded or accompanied by a breach committed
outside Sierra Leone that rendered impossible the
performance of so much of the contract as ought to have
been performed in Sierra Leone;
 The claim is founded on a tort and the damage was
sustained or resulted from an act committed in Sierra
Leone;
 The whole subject matter of the action is land situate in
Sierra Leone (with or without rents or profits) or the
perpetuation of testimony relating to land so situate;
 The claim is brought to construe, rectify, set aside or
enforce an act, deed, will, contract, obligation or liability
affecting land situate in Sierra Leone;
 The claim is made for a debt secured on immovable
property or is made to assert, declare or determine
proprietary or possessory rights, or rights of security in or
over movable property or to obtain authority to dispose
of movable property in Sierra Leone;
 The claim is brought to execute the trust of a written
 instrument, being trust that ought to be executed
according to Sierra Leone law and of which the person to
be served with the writ is a trustee or for any relief or
remedy which might be obtained in such action;
 The claim is made for the administration of the estate of a
person who died domiciled in Sierra Leone or for any
relief or remedy which might be obtained in such action;
 If the action begun by the writ is by a mortgagee of
immovable property situated within Sierra Leone and
seeks the sale of the property, foreclosure of the
mortgage or delivery by the mortgagor of possession of
the property but not an order for payment of any moneys
due under the mortgage;
 If the action is by a mortgagor of immovable property
situate within Sierra Leone and seeks redemption of the
mortgage or delivery by the mortgagee of possession of
the property but not a personal judgment; or
 If the action begun by the writ is in respect of a contract
which contains a term to the effect that the Court shall
have jurisdiction to hear and determine any action in
respect of the contract”.
Note: If the claim for which you are serving the
Originating Process does not fall within these fourteen
(14) conditions or points then, you need to seek direction
from the court called practice direction.
If you look at the list you will find where you claim is
ought to be. If the claim falls within the 14 categories,
 then, it requires service out of the Jurisdiction which is
to be done by way of application to the court to serve
out of the Jurisdiction. (You seek leave of the court first-
ORDER 11 , RULE 1 (1)).
Note: The application for the service out of the Jurisdiction is
done by an Ex-parte Notice of Motion supported by an Affidavit
before you can serve out of the Jurisdiction. See ORDER 6,
RULE 8, which deals with "issue of Writ out of the
Jurisdiction"- (So you tie ORDER 6 RULE 8, with ORDER 11 (1)
and (3). “ORDER 6, RULE 8.
NOTE. No writ of summons for service out of the jurisdiction or
of which notice is to be given out of the jurisdiction shall be
issued without the leave of the Court or a Judge”. “3. (1) An
application for the grant of leave under subrule (1) of rule 1
shall be supported by an affidavit stating-
(a) The grounds on which the application is made;
(b) That in the deponent’s belief the plaintiff has a good cause
of action;
(c) In what place or country, the defendant is or probably may
be found; and
(d) where the application is made under paragraph (c) of
subrule (1) of rule 1, the grounds for the deponent’s belief that
there is between the plaintiff and the person on whom a writ
has been served a real issue which the plaintiff may reasonably
ask the court to try. (2) No leave shall be granted unless it is
made sufficiently to appear to the Court that the case is a
proper one for service out of the jurisdiction under this Order “.
ORDER 11 (3) is important to this discuss of an application for
service out of the Jurisdiction because the application is always
supported with an Affidavit which would state the reasons as to
why the court should grant you an application for service out of
the Jurisdiction. In the Affidavit also, you must show that you
have a good cause of action for the application. These causes of
actions include those categories in ORDER 11, RULE 1 (1) ((a) to
(n)) which are fourteen (14) conditions.
This is because the court does not want you to waste their time
on frivolous matters or vexatious subject. More importantly,
you are required to know where the Defendant is as of the
time.
Note: If the person you are to serve is out of the Jurisdiction
and he is a Sierra Leonean, you serve him concurrent Writ of
Summons first.
See ORDER 6, RULE 7, which tells you that Writ of Summons
are only issued by the Master's office or Registry and not by the
plaintiff's Counsel and must be signed and stamped. “ORDER 6,
RULE 7. (1) Every writ of summons shall be issued out of the
Master’s Office or a District Registry and shall be signed and
sealed by the Master or District Registrar and shall thereupon
be deemed to be issued. (2) Every writ of summons shall bear
the date of issue”. After first serving him the Writ, you then
proceed now to produce a replica of the Writ of Summons you
had earlier served.
NOTE. The replica must be "word for word", no changes are
required. The only difference from the first Writ of Summons
to the replica produced is "at the backing". (At the backing of
the original Writ, you have "Writ of Summons", while the
replica has at it back "concurrent Writ"). This is because it is
the concurrent Writ that would be served on the Defendant
who is a Sierra Leonean but not residing in the Jurisdiction.
In summary, you first issue a Writ to the Master, and after that
you reproduce the same Writ again and then file again, but only
when the Defendant is a Sierra Leonean but does not reside
here in Sierra Leone or within the Jurisdiction.
Note: After first serving the original Writ, before you file the
concurrent one, you make an application by way of Ex-parte
Notice of Motion for services of a concurrent Writ. Only when
this is done, and the court grant then, you can now serve the
Defendant.
In the Ex-parte Notice of Motion, you would pray for certain
Reliefs which includes for the court to grant you leave to serve
the Defendant a concurrent Writ, and that the concurrent Writ
be served on the Defendant out of the Jurisdiction. If the court
grants the application, you can now come and prepare the
concurrent Writ and then file service out of the Jurisdiction.
This is all what ORDER 6, RULE 9, (1) is saying, which deals
with "concurrent Writ". “ORDER 6, RULE 9 (1) At the request of
the plaintiff, one or more concurrent writs may be issued at the
time when the original writ is issued or at Any later time after
the original writ is issued and before the original writ ceases to
be valid”.
Note: THE LIFE SPAN OF WRIT AND IT CONCURRENT WRIT
The life span of a concurrent writ is dependent on the original
writ which is 12 months beginning with the date of issuance.
However, it can always be renewed.
You must serve your Writ of Summons within 12 months
otherwise it will expire. ORDER 6, RULE 10 (1). "Duration and
Renewal of Writ". For the purposes of service, a writ other than
a concurrent writ shall be valid in the first instance for 12
months beginning with the date of issue, and a concurrent writ
shall be valid in the first instance for a period of the validity of
the original writ which is unexpired at the issue of the
concurrent writ”. Because the concurrent Writ is an offspring of
the main Writ which had earlier been filed. It validity is
dependent on the validity of the Writ of Summons.
ORDER 12- APPEARANCE This order talks about the time within
which a Defendant that is properly served should enter
appearance within 14 days. And it’s for service within the
Jurisdiction.
However, if the service concerns serving out of the Jurisdiction,
the court in it wisdom will decide on the best time for the
Defendant to enter appearance.
Note: ORDER 11, RULE 5 is tied with ORDER 12- APPEARANCE.
That is, if the person you want to serve the Writ of Summons is
NOT A SIERRA LEONEAN, you don't serve the Writ of Summons
on him, neither apply for a concurrent Writ. What you do is to
apply to the court by a way of a Notice of Motion Ex-parte
supported by an Affidavit to issue a Notice of existence of the
Writ.
In summary, ORDER 11, RULE 5. When the defendant is a non-
citizen notice of the writ, and not the writ itself, shall be
served”. In simple terms, you do not serve a Writ of Summons
or concurrent Writ on a non- Sierra Leonean who is not residing
in the Jurisdiction but rather, you apply to the court by Notice
of Motion and supported by an Affidavit, "serving on him a
Notice of the Writ only ".
The reason for this is that because the Writ of Summons is
served on the name of the president, His Excellency. Hence,
the president's powers do not extend to someone who is not
a Sierra Leonean and does not reside in Sierra Leone.
However, if he is a foreigner but within Sierra Leone, you serve
on him the Writ of Summons because he is within the
Jurisdiction of the president.
Generally, when you are served with an Originating process, it
is mandatory for you to enter an appearance to that Originating
process.
The four (4) Originating processes in the High Court Rules are:
(a) Writ of Summons
(b) Originating Summons
(c) Originating Notice of Motion
(d) Petition.
If you are served with any of these processes wherein, they sue
for an action to be instituted against you, you are obligated to
make an appearance or you call for an appearance to be
entered in your favor. This is because if you fail to enter an
appearance, there are consequences for failing to enter an
appearance to those Originating processes.
The Consequences for failing to enter an appearance are:
(1) Judgement in Default of appearance would be entered
against you.
(2) You will not be heard or you will lose the possibility to be
heard because appearance gives you presence and recognition.
Where a judgement is entered against a Defendant for failing to
make an appearance, the prayers prayed for in the Summons
by the plaintiff would be granted by the Court and an
enforcement would be made against you and you will lack any
appeal opportunity thereafter. Also, after the enforcement of
the judgement, you will not be heard after that on any grounds,
be it appeal or any other means. These two consequences are
what makes it obligatory on you to enter appearance when you
are served with any Originating process or Summons, because it
simply means that you have accepted the claims by the plaintiff
hence you have no defense to make against those claims.
Note: Appearance does not mean physical Appearance rather,
the papers filed by your Solicitor on your behalf. Once that is
done, you now have the locus to stand Infront of the court to
argue and challenge those claims against you in the Summons
served.
WHERE TO ENTER APPEARANCE- ORDER 12, RULE 1 & 2.
A Defendant cannot just enter an appearance. Appearance has
it prescribed ways upon which to be entered, and the
procedure that must be followed in making an appearance are
contained in ORDER 12 of the High Court Rules of 2007. Failure
to comply with these Rules, it will be construed to mean that
you have not entered an appearance.
Note: if you are in Freetown, you enter an appearance at the
Master and Registrar's office at the High Court, for appearance
and as well Notice of Appearance. ORDER 12, RULE 1. If you are
in the provinces, upon Service of the Originating Summons, you
make appearance in the District Registry within the 14 days
allocated by the Rules. ORDER 12, RULE 2. ORDER 12, RULE 1
AND RULE 2. “RULE 1. Except in the cases otherwise provided
for by these Rules, a defendant shall enter his appearance in
the Master’s office”. “RULE 2. If a writ is issued in a District
Registry the defendant shall enter his appearance in the District
Registry”. Note: for that appearance otherwise known as
memorandum to be considered value, it must be stamped and
sealed. Failure for it to be sealed, means the Defendant has still
not entered appearance and consequently, judgement will be
entered against him and as well, he would not be heard on any
grounds for an appeal because he lacks the locus to stand in
front of the court on the subject matter.
HOW TO ENTER AN APPEARANCE AND WHEN? A Defendant
after properly been served enters an appearance by filing what
is known as a "Memorandum of Appearance"
ORDER 12, RULE 3. “3.
(1) A defendant shall enter his appearance to a writ of
summons by delivering to the Master a memorandum in
writing dated on the day of its delivery, and containing the
name of the defendant’s solicitor, or stating that the defendant
defends in person.
(2) The defendant shall, at the same time deliver to the Master
a duplicate of the memorandum which the Master shall seal
with the official seal, showing the date on which, it is sealed,
and then return it to the person entering the appearance; the
duplicate memorandum so sealed shall be a certificate that the
appearance was entered on the day indicated by the seal”.
Note: while filing the memorandum to enter appearance, the
date of filing must be there. It is a must for it to be there, that
is, the date of delivery. Failure to do so, it will not be recorded
and once it is not recorded, it is taken to mean no appearance
was entered hence, the same consequences would befall the
Defendant for failure to enter an appearance.
 In summary a "Memorandum of appearance must be signed,
but most importantly, sealed and dated". Because the seal and
date is what gives it validity, as it is the only indication to show
that the memorandum came from the Master and Registrar's
office. In such situation also, the name of the Defendant and as
well as that of his Solicitor must be on the document. Date,
name and address of either the Solicitor if he is entering
appearance for and on behalf of a client. The same is to be
done when the Defendant himself enters.
Note: A Defendant is expected to prepare four memorandums
to be filed to the Master's office and the duplicates are sealed
by the master. The memorandum must be followed or rather
goes with a "Notice of Appearance " ORDER 12, RULE 4. This is
to inform the plaintiff that an appearance in respect of his
claims has been entered accordingly. So the Memorandum
together with the Notice of Appearance together would be
served on the plaintiff. ORDER 12, RULE 4. “RULE 4. (1) A
defendant shall, on the day on which he enters appearance to a
writ of summons, give notice of his appearance to the plaintiff’s
solicitor, or, if the plaintiff sues in person, to the plaintiff
himself”. “(2) The notice shall, in either case be accompanied by
the sealed duplicate memorandum”. Further Note: that the
Memorandum and Notice of Appearance are one and the same.
The only difference between them is that for the
Memorandum, it is stated "Entered Appearance", whilst on the
Notice, it is stated ("Take Notice" that Fuad Ahmed and
Partners on this 10th day of July entered appearance at the
Master and Registrar's office, at the main law court Building
Siaka Stevens Street, Freetown for and on behalf of the
Defendant). And it is the duty of the Defendant to serve the
plaintiff or his Solicitor. That is why on the Summons, you have
the address of either the plaintiff or the Solicitor serving the
process on his behalf. In order for the plaintiff to be fully
knowledgeable whether the Defendant has entered
appearance or not, the Defendant upon entering appearance
does so through memorandum and backed up with a Notice of
Appearance. The Notice of Appearance follows the
memorandum and then served on the plaintiff before the
commencement of the action.
In summary, the memorandum gives you locus to stand in
front of the court to be heard on the claims or the Summons.
While the Notice informs the other party mainly the plaintiff
that an appearance has been entered.
ORDER 10, RULE 5 This Rule under ORDER 12 touches and
concerns Jurisdictional purposes, that is, address of the person
entering appearance. It is very important to note. “RULE 5. The
solicitor of a defendant appearing by a solicitor shall state in
the memorandum his place of business and a place to be called
his address for service which shall not be more than 5 miles
from the Master’s Office or 7 miles from a District Registry”.
When a Defendant is entering an appearance, it is required to
state your address of service on that appearance. Example:
take notice that Fuad Idriss and Associates entered an
appearance for and on behalf of the Defendant. The address of
service is important and paramount for two main reasons. (1)
to determine whether the Defendant is within the prescribed
radius to enable him enter appearance. This is because the Rule
says if you are five miles away from the court, you cannot enter
appearance. (for freetown). Example: if you are in Waterloo or
Mashiaka and your chambers is in the central business District
which is five miles away from Siaka Stevens Street, you cannot
enter an appearance because you lack the Jurisdiction. You can
only enter appearance if your address (chambers) is within the
five miles radius prescribed by the Rules from the court. If you
are not within the "five miles" radius, you cannot enter an
appearance. Note: this also applies when you are in the
provinces.
However, when you are in the provinces, the Rule says you
must not be beyond "Seven miles" in order to be able to enter
appearance. When a Defendant enters appearance but falls
outside the geographical location, of five miles for service
within Freetown and seven miles for service in the provinces,
that appearance will not be entered. And when it is not
entered, you are deemed to have failed to enter appearance.
Consequently, the same two punishments will be meted against
you. They are: (1) Judgement in Default will be entered against
you. (2) you will not have the locus to stand in front of the
court on an appeal, that is, you will be denied audience. On
emphasizing the point about address in the Originating Process,
ORDER 12, RULE 7 talks FICTITIOUS OR NO ADDRESS. “RULE 7.
If the memorandum does not contain the address referred to in
rules 5 and 6 it shall not be received but if the address is illusory
or fictitious, the appearance may be set aside by the Court on
the application of the plaintiff”.
So basically, failure to enter address has two limbs.
(1) where a Defendant gives wrong address, this does not mean
the Defendant did not create an address rather, the address
entered in the memorandum is not "correct or fictitious ".
(2) where a Defendant deliberately fails to state an address or
gives a wrong address, going by the Rules, the Master will not
receive it and once he did not receive it, the appearance would
not be registered. Until this happens, the appearance cannot be
said to have legitimacy hence, no appearance is considered to
have been entered. Consequently, a judgement in default
would be entered against you. "
Of extreme importance therefore, where a wrong or fictitious
address is entered and the registrar fails to pick it up and he
register that appearance only to be noticed or picked up by the
plaintiff, where this happens, the plaintiff can file a Notice of
Motion supported by an Affidavit stating why the appearance
should be set aside on the basis that, the address stated in the
Memorandum is fictitious or false. If he is successful in that
application, the Memorandum would be set aside hence, it
would be deemed to mean that the Defendant has not entered
appearance and judgement in default would be entered against
you ".
In summary, when a memorandum does not have an address,
it would not be registered. However, when it has but it is a
fictitious one, an application will be made by the plaintiff for it
to be struck out and if such application is successful, it will be
set aside by the court.
ORDER 12, RULE 11- TIME LIMITED FOR APPEARANCE After a
Defendant has been served, he is by law registered to enter
appearance within 14 days from the time of service of the
Originating Process on him. Note: the 14 days is exclusive of the
day of service. However, this Rule is only applicable to
Defendants not residing in Sierra Leone (ORDER 12, RULE
11(a)). Where the Defendant does not reside in Sierra Leone
then, the court will appropriately decide the time upon which
an appearance is to be made. This is done by a way of filing
Notice of Motion Ex-parte backed up with an Affidavit stating
the reasons why the court must allow you serve the Defendant
and ask the court to fix time for the Defendant to enter
appearance (ORDER 12, RULE 11 (b)). ORDER 12, RULE 11 (a)
and (b) “RULE 11- 11. In this Order, references to the time
limited for appearance are references- (a) in the case of a writ
served in Sierra Leone, to 14 days after the service of the writ
or where that time has been extended by the Court, within that
time as extended; and (b) in the case of a writ or notice of a
writ of summons served outside Sierra Leone, to the time
limited by an order of the Court authorizing service of a
defendant’s agent or within such time limit as an order granting
leave to serve a notice out of the jurisdiction may be granted or
where that time has been extended, to the extended time”.
ORDER 13 -DEFAULT OF APPEARANCE It is important to note
that when you are served with an Originating process, you are
under an obligation under the laws of Sierra Leone, specifically
the High Court Rules to enter an appearance. Failure to do so
comes with severe consequences. These are: (a) judgment in
default would be entered against you. (b) you will lose your
right to be heard on the subject matter. Not only the above
consequences will befall the party that fails to enter
appearance but as well, when you fail to enter appearance
within the 14 days prescribed by the Rules, automatically
ORDER 13, which is Default of appearance kicks in. As a matter
of procedure, a party seeking to enter an appearance must and
is expected to comply with the Rules. The same can be said to a
party seeking to enter judgement in default against a party that
had failed to enter appearance after the 14 days stipulated in
the Rules, so that party must as well comply with the Rules.
Failure to follow those Rules, the judgement the plaintiff is
seeking would not be accepted as the basis of irregular
judgement. It is important therefore to note that because the
judgement you are seeking, the Defendant is not present
hence, the plaintiff or applicant must ensure to comply with all
the Rules. "He who comes to equity must come with clean
hands ". ADAMS V ALL A simple breach of those Rules would
render the application for a judgement in default to be set
aside as irregular judgement. The procedure that a plaintiff
must comply with before entering a default in appearance are:
(1) the plaintiff must show by an Affidavit in evidence that
you have served a Notice against the person you are
seeking a default in judgement. You show the court the
Affidavit service as proof. But even though you have
shown the court an Affidavit of service, that is still not
enough for you to enter a default judgment against the
Defendant.
(2) You have or under an obligation to search the registry to
make sure the Defendant has not entered an
appearance. If there is no record to show that the
Defendant has entered appearance through the
registry, you ask for a receipt to enter an Affidavit of
search. ORDER 13, RULE 1. The receipt is what shows
that you have searched the registry and register and
that you have not seen any records showing appearance
of the Defendant, and it must be exhibited in the
Affidavit of service seeking for a default judgment.
ORDER 13, RULE “1. Where any defendant fails to
appear to a writ of summons and the plaintiff is desirous
of proceeding upon default of appearance under this
Order or under these Rules, he shall, before taking such
proceedings on default, file an affidavit of service and an
affidavit of search”. The above two requirements are a
must for the plaintiff to fulfill if he is to succeed in his
application for a default judgment. In summary
therefore, before an application for a judgement in
default is granted by the court, the applicant must fulfill
 two key conditions. These conditions are to be fulfilled
before making the application. (1) file an Affidavit of
service showing he had served the Defendant the Writ
of Summons or Notice of Motion and the Defendant
failed to enter appearance. (2) Affidavit of search,
showing that the Defendant has not entered
appearance.

In trying to fully understand what ORDER 13 is trying to make

sense of, it is important to establish the differences between

REGULAR JUDGEMENT AND IRREGULAR JUDGEMENT, FINAL

AND INTERLOCUTORY JUDGEMENT, LIQUIDATED AND
UNLIQUIDATED CLAIM. The above if fully understood would
help in understanding whether a judgement is REGULAR OR
IRREGULAR OR FINAL OR INTERLOCUTORY. REGULAR
JUDGEMENT:
What is a Regular Judgment? This is a Judgement that has
complied with and followed all the Rules stated in the High
Court Rules of 2007.
Irregular Judgement: This is a judgement that has not complied
with the Rules and procedures stated in the High Court Rules of
2007.
How do you know that this is a Regular Judgment and this is
an Irregular judgement? In order to fully understand these
differences, the Court has given a guide in the famous case of
WESTON V WHITE.
In the above case, the features of an Irregular judgement were
stated. One of them being that there was an Improper Service.
Where service is Improper, it can be said to be an Irregular
judgement.
The question now is, what constitutes Improper Service ? An
Improper Service constitutes the following:
(a) Where Service was not done personally as stated in the
General Rule of Service in ORDER 10 and 11 and does not have
any knowledge of the action brought against him. Where this
happens and judgement is entered against him, that judgement
is considered an Irregular judgement. Except the plaintiff is able
to show that through an application he employed all other
means of service. That is, Substituted, deemed service, that
judgement is said to be an Irregular judgement.
(b) The second difference between an Irregular judgement and
Regular Judgment is that, for an Irregular judgement
"Judgement is entered before the time for the entry of an
appearance has expired, which is 14 days if you are in the
Jurisdiction". On the flip side, if an application for a judgement
in default is entered after the time frame stipulated in the High
Court Rules, that Application if granted and judgment handed
out, that judgement can be said to be a Regular Judgment.
Meaning "it is a valid Judgement ".
(c) The third feature on the difference is "when you enter
judgement for the wrong amount, that can be said to be an
Irregular judgement". This is because, the plaintiff has entered
a wrong amount that exceeded the right amount. Read the case
SIERRA LEONE OXYGEN FACTORY. (SLOF) V. PYNE BAILEY
Note: "A Regular Judgment is one dependent on the discretion
of the court". While an "Irregular judgement is one that is of
right to the Defendant. And the Defendant does not only have
the right to ask the court to set it aside, but as well ask for costs
". ALSO NOTE THIS EXCEPTION (FLIP SIDE) "So in as much as
the Defendant can through the court set aside an Irregular
judgement and ask for costs, where the mistake as to the right
amount was done genuinely and honestly, an amendment
would be allowed to be entered under the Flip Rule. Hence, no
costs will be awarded ". ANITA V PASSIE.
(d) The fourth difference is that where the judgement is
entered as a final judgement when it ought to have been
Entered as an Interlocutory Judgement. In such a situation, that
judgement will be considered to be an Irregular judgement. Or
where the judgement was ought to have been entered as an
Interlocutory Judgement instead of Final judgement, vice versa.
(e) Another difference is that, where you enter Judgement
without the leave of the court when you ought to have sort the
Court's leave. That Judgement is Irregular. "In essence
therefore, one cannot enter judgement of any kind without
the leave of the court ", pursuant to ORDER 13, RULE 12.
ORDER 13, RULE 12. (1)
In any action in which the plaintiff claims is for any of the
following reliefs: –
(a) Payment of moneys secured by a mortgage
(b) Sale of property subject to a mortgage
(c) Delivery of possession of mortgaged property to the
mortgagee by the mortgagor or by any other person in, or
alleged to be in possession of the property;
(d) Redemption of property subject to a mortgage;
(e) Discharge of a mortgage; or
(f) Delivery of possession of a mortgaged property by a
mortgagee.
In all of the above, judgment shall not be entered in default of
appearance except by leave of the Court". At this point, it is
significant to note that these features in so far as an Irregular
judgement is concerned are not cohesive. In other words, there
are more features that can render a judgement Irregular.
FINAL VERSUS INTERLOCUTORY JUDGEMENT There are also
differences between Final Judgement and Interlocutory
Judgement. RICHARD MUKAVARA V GOVOWA In order to
understand the differences between them, you must be able to
understand it determination to Rights and Liabilities. A FINAL
JUDGEMENT is that Judgement that determines the rights as
well as the liabilities of the parties. In other words, A Final
judgement is conclusive in it determination or award of rights
and Liabilities". In determining what Final Judgement means,
two key words must be noted, these are "RIGHTS AND
LIABILITIES". After a Final Judgement, the only remedy a party
may have is the right to appeal that judgement, and "the
appeal comes as of right". Meaning, " you need not seek the
leave of the court to do that".
One of the crucial elements of a Final Judgement is that it
renders the court "functus officio" the doctrine of functus
officio holds that once an arbitrator renders a decision
regarding the issues submitted, he lacks any power to
reexamine that decision again. So therefore, whatever comes
after a Final Judgement, the court that delivered that Final
Judgement lacks the Jurisdiction to sit on that matter again or
do anything in respect of that matter again.
AN INTERLOCUTORY JUDGEMENT: This is a judgement that is
given during the subsistence of an existing matter. An
application for injunction does not determine the right and
Liabilities of the parties. The judgement on an Injunction does
not end the matter. It basically maintains the status quo until
the matter is determined. "So, it is done during the pendency of
the matter". An Interlocutory Judgement is also subject to
appeal. And the right of appeal lies as a discretion to the court
and not as of right in the case of final judgement.
LIQUIDATED CLAIMS- (ORDER 13, RULE 2) AND
UNLIQUIDATED CLAIMS- (ORDER 13, RULE 3).
A LIQUIDATED CLAIM: This is a claim for a sum certain. A claim
for a sum of money ascertainable and capable of being put in a
data.
Note: Liquidated claims are claims entered in Final Judgement.
AN UNLIQUIDATED CLAIM on the other hand, it is a claim that
is not ascertainable. It cannot be calculated neither it is a fixed
sum. It is only proved by circumstances of the case and
assessment of the court, such as an assessment of Damages.
Note: ORDER 13, RULE 2 , "where the writ of summons is
indorsed for a liquidated demand only and the defendant fails
to enter appearance, the plaintiff may, after the time limited
for appearance against the defendant lapses, enter final
judgment for a sum not exceeding the sum indorsed on the
writ, together with interest at the rate specified, if any, or if no
rate is specified, at the rate of 5 per cent to the date of the
judgment and costs, and proceed with the action against the
other defendants, if any".
So where one is served with a Writ of Summons and the person
fails to enter appearance and that Writ of Summons is Indorsed
with a "Liquidated claim" e.g recovery of the sum of 3,000,000
for special damage etc, and you fail to enter appearance, the
plaintiff will enter final judgement against that Defendant. For
ORDER 13, RULE 3 "Where the plaintiff’s claim against a
defendant is for an unliquidated demand only, and the
defendant fails to file appearance, the plaintiff may, after the
time limited for appearance, enter interlocutory judgment
against the defendant for damages to be assessed and proceed
with the action against other defendants, if any".
So where you are served with a Writ of Summons and it is
Indorsed with unliquidated claim, but you fail to enter
appearance, the plaintiff can enter judgement in default of your
failure to enter appearance. However, in this circumstance, the
type of judgement that would be entered is "Interlocutory
Judgement ". An Interlocutory Judgement needs assessment,
and that assessment can either be done by the Master or the
Court through a Judge. "Wherever the Plaintiff chooses to go, it
is accepted".
Note: when applying for an Interlocutory Judgement, you go by
"Unliquidated claims", this is because you are not sure of how
much the damage is, hence, you leave that to the court to
assess the amount through by the pieces of evidence you the
plaintiff would have provided with the court to your claims. In
summary, you apply for an Interlocutory Judgement and after
that you apply for a Final Judgement.
Note: There are certain circumstances in which the Writ of
Summons has both the Liquidated and Unliquidated claims. In
such a situation or circumstance, at the backing of the
Summons or Documents, as For Liquidated claims (Final
Judgement) is entered. For Unliquidated claims (Interlocutory
Judgement) is entered.
CLAIM IN DETINUE- ORDER 13, RULE 4 " 4. (1)
Where the plaintiff’s claim against a defendant relates to the
detention of goods only, and the defendant fails to file
appearance, the plaintiff may, after the time limited for
appearance lapses, enter judgment against the defendant-
(a) For the delivery of the goods or their value to be assessed
and costs;
(b) For the delivery of the goods and costs; or
(c) For the value of the goods to be assessed and costs, and
proceed with the action against the other defendants, if any”.
“(2) Where the plaintiff enters interlocutory judgment for
damages under rule 3 or for the value of goods under this rule,
on an application by the plaintiff the Court shall fix the date on
which the damages or value shall be assessed and direct that
notice of it shall be given to the defendant against whom the
interlocutory judgment has been entered”. “(3) A defendant
who is served with such a notice is entitled to attend at the
assessment and be heard on the issue of damages only".
Note: So where a Defendant owes either the tangible Property
or goods, or the proceeds from the sale of the goods or
properties. Where the above happens, three options are
available to the plaintiff. 4.(1) (a) In the Writ of Summons, the
plaintiff can choose to go for either specific delivery of the
goods or assessment of the value. ( So you go for the goods or
you go for both). In this case, if the Defendant fails to enter
appearance within the time prescribed, the plaintiff can enter
default judgment for the first prayer in the summons, which is
the specific delivery of the product or the second or both. You
go for Final Judgement. So this is applicable for the (b) aspect as
well. (c) where the plaintiff is no longer interested in the goods,
you either go for its specific value and costs. In the Writ of
Summons, you state or indorse it for recovery of the value of
the goods or product. In doing so, you apply for Interlocutory
Judgement. In summary, the type of judgment you apply for is
born out of the indorsement you make in your Writ of
Summons.

RECOVERY OF LAND - ORDER 13, RULE 5 For the recovery of

land, the plaintiff can enter Final Judgement. And the same
goes for arrears of rent and mesne profits, the plaintiff goes for
Final Judgement.
MIXED CLAIMS ORDER 13, RULE 6 Mixed claims are those
claims that fall from RULE 2 to RULE 5 of Order 13.
Where a Defendant is served with a Writ of Summons that is
Indorsed with mixed claims. A Writ of Summons could have all
those claims, that is Liquidated or unliquidated claims etc,
where all those from Rule 2 to 5 are in one Writ, it is called
mixed claims.
How does a plaintiff enter judgement where all those claims
are in one Writ?
When a Defendant is confronted with for example, breach of
contract, arrears of rent, recovery of goods as the case may be
all in one document. In such a situation, the claim is referred to
as "Mixed Claims". A judgement is only entered in such a
circumstance when you look at the claims that are capable of
been entered for Final Judgement, you enter the Final
Judgement for them, and for the other claims on the Writ, you
enter an Interlocutory Judgement.
Note: At the backing of the Writ, you indicate (Final and
Interlocutory Judgement) because they are Mixed.
When this happens, for the first limb, you go for judgement, for
the second limb, you go for assessment and after the
assessment, you come again to enter Final Judgement.
Note: In summary, in respect of all the above touching and
concerning ORDER 13, RULE 1 to 6, which concerns with
entering Judgement in Default, because the action is instituted
by a Writ of Summons, you only enter Default Judgement or
summary Judgement if the action was instituted by Writ of
Summons.
RULE “6. Where the plaintiff makes two or more of the claims
to which rules 2 to 5 applies against a defendant and there is no
other claim and the defendant fails to file appearance, the
plaintiff may after the time limited for appearance, enter
judgment against that defendant in respect of such claim as the
plaintiff would be entitled to enter under those rules if that
were the only claim made and proceed with the action against
the other defendants, if any”. Because the procedures
governing Originating Summons are different pursuant to
ORDER 13, RULE 10. “RULE 10. Where a defendant or
respondent to an originating summons to which an appearance
is required to be entered fails to appear within the time limited,
the plaintiff or applicant may apply to a Judge for an
appointment for the hearing of such summons, and after the
filing of a certificate that no appearance has been entered, the
Master shall notify the plaintiff of a time for the hearing of such
summons”.
ORDER 13, RULE 7 Actions not specifically provided for
between RULE 2-6. From Rule 2-6 are actions you enter
judgement for in the office of the Master and Registrar because
those claims are administrative in nature.
RULE 7 of ORDER 13, principally talks about situations for
claims that are not provided for between RULE 2 to RULE 6. In
other words, the plaintiff has a claim at hand that is not
Liquidated, not for Unliquidated, nor for Detinue or Recovery of
Land. In such a situation or circumstance, the plaintiff cannot
enter Judgement. But rather you set down the action or motion
for judgement by filing a Notice of Motion supported by an
Affidavit. This is what is called setting down the action or
motion for Judgement. It is different from when you enter a
judgement in the office of the Master and Registrar for Default
of appearance for claims that falls within Rule 2 to Rule 6. In
this circumstance therefore, any claim that falls under RULE 7,
the Defendant has to go before a Judge and prove his case.
Even though you are going in default of appearance, but
because the subject matter falls outside of Rule 2 to 6, you have
to appear before a Judge through a notice of Motion and
explain to the judge why you prayers in the face of the motion
should be granted. It is not like Rule 2 to 6, where you just draft
and go to the Master and the Master signs. These situations
that falls outside of Rule 2 to 6, but are under Rule 7 are: (a)
where you make an application to the court for a declaration of
title, which deals with ownership of the property, you must go
before a judge. And this declaration of title is not provided for
under Rule 2 to 6, hence, you go before a Judge on a Notice of
Motion supported by an Affidavit and not to enter Judgement
to the Master. If the plaintiff does that, that judgement would
be considered an Irregular judgement because the master lacks
Jurisdiction to give judgement on an application that falls under
RULE 7. (b) when going for a receivership Order, the application
for a receiver does not require judgement to be entered. (c) For
Injunction, you do not enter judgement for an application for
injunction but rather, you file a Notice of Motion and Affidavit.
(d) Specific Performance, you file a Notice of Motion. (e)
Account, where a witness is to give an account of something.
“RULE 7. (1) Where the plaintiff makes a claim of a description
not mentioned in rules 2 to 6 against a defendant, and the
defendant fails to file appearance, the plaintiff may, after the
time limited for appearance and upon filing an affidavit proving
due service of the writ and statement of claim on the
defendant, set down the action on motion for judgment, and
such judgment shall be given as upon the statement of claim
the Court shall consider the plaintiff to be entitled to”. “(2)
Notice of an application for leave to enter judgment under
subrule (1) shall be served on the defendant against whom it is
sought to enter judgment”. However, Note: there are situations
wherein the plaintiff is going for a Declaration of title, in the
same Writ of Summons he is asking for Injunction, arrears of
rent, as well as recovery of possession. In such a situation, you
will realize that there are portions that do not fall between
RULE 2 to 6 and these portions are : Declaration of title and
Injunction, and that are portions that falls within Rule 2 to 6,
which is the recovery of possession, arrears of rent. What
happens in such situations? Remember this is not mixed claims
as Mixed Claims falls under Rule 2 to 6. What a Plaintiff is
expected to do in such a situation is to expressly Abandon
Declaration of title and Injunction which falls outside of Rule 2
to 6 and enter judgment for recovery of possession, for arrears
of rent which falls within Rule 2 to 6. The judgement is entered
in the office of the Master and Registrar. After entering
Judgement for the arrears of rent, you can now set down an
action on Notice of Motion supported by an Affidavit to enter
Judgement for the Declaration of title. And this is done before a
judge and in the presence of the plaintiff to come and prove
that he is indeed the true owner of the property in question,
where he got the land from and from whom even though the
Defendant is not there because he did not enter appearance.
He should explain why the Injunction should be granted. This
process is not within the ambit of the Registrar. You expressly
set aside the Claims that falls outside of Rule 2 to 6 pursuant to
the principle in MORLEY LONDON DEVELOPMENT V RIGHTSIDE
PROPERTIES LTD and enter judgment for those claims that falls
within Rule 2 to 6, and later come back to file a Notice of
Motion supported by an Affidavit to prove those others that
falls outside Rule 2 to 6. RULE 7(2) After the plaintiff would
have served the Notice of Motion supported by an Affidavit,
and had done Affidavit of service as well as an Affidavit of
search as the Rules demands, the plaintiff is also expected to
send a notice to the Defendant even though he had earlier
failed to enter an appearance on the subject. The notice is to
properly notify him that the matter would be coming up in this
court, at this date and time. Failure to serve the Defendant this
notice and judgement is entered against him, that Judgement
would be considered as an Irregular judgement for failure to
follow the Rules under Rule 7 (2). And the setting of that
Judgement is as of right. Note: The reason the plaintiff is
obliged to serve a notice on the Defendant for the last time
even though the Defendant had earlier failed to enter
appearance after service of the motion as Well as an Affidavit
of search to ensure he had not entered appearance is because
he can still enter late appearance pursuant to ORDER 12 (12) of
the High Court Rules which talks about (late appearance)-
ORDER 12, RULE 12 " Nothing in this Order shall be construed
as precluding a defendant from filing appearance after the time
limited for appearance, but if the defendant does so, he shall
not, unless the Court otherwise orders, be entitled to serve a
defense or do any other thing later than if the defendant had
appeared within that time". Note: where a Defendant does late
appearance, it automatically puts a stop to the application for a
judgement in default. However, costs would be awarded
against him for late entry. But the plaintiff would be stopped
from entering Judgement in Default. ORDER 13, RULE 8 (One of
the several defendants in default) This Rule talks about
situations where there is more than one Defendants to the
action. And one of the Defendants to the action fails to enter
appearance. May be the claim against him in the Writ of
Summons is one that falls under Rule 7 for example:
Declaration of title, in this circumstance, the Rule says the
Defendant may either choose to enter default judgment against
that one Defendant before the commencement of the action in
court, or wait when the matter comes up for trial. Rule 8. (1)
"Where, in any action as mentioned in rule 7, there are several
defendants, then, if one of such defendants’ defaults, the
plaintiff may either (if the cause of action is severable) set down
the action at once on motion for judgment against the
defendant so defaulting, or may set it down against him at the
time when it is entered for trial or set down on motion for
judgment against the other defendants". Note: the claim must
be severable, meaning, despite all the Defendants are in one
Writ, the claims are different hence, each Defendant has his or
her own claim brought against him by the plaintiff. You do not
just enter Judgement in such a situation because one or two of
the Defendant had not enter appearance. You must make sure
the cause of action is severable. Note: the same notice of
default judgment given under Rule 7 (2) applies under Rule 8.
Meaning, the plaintiff is expected to serve a Final Notice on the
Defendant informing on the default judgment that you are
seeking the court to grant. In that notice, it must show when
the matter is coming up, where and date. Failure to serve this
Notice and Judgement is given, it would be considered an
Irregular judgement and can be challenged in court. Note:
Default Judgements are entered only for actions instituted by
Writ of Summons. You do not enter judgement for actions
instituted by Originating Summons or Processes. Only actions
for example: ORDER 13, which deals with Default of
Appearance, ORDER 22, which deals with Default of Pleadings
and ORDER 16, which deals with Summary Judgements. These
are exclusively reserved for judgements where the actions were
instituted by a "Writ of Summons". For Petition, has it own
procedure, same for Originating Summons. ORDER 13, RULE 10
(Default of appearance to originating summons). How do you
enter Judgement for Originating Summons? Where the actions
must be commenced or instituted by Originating Summons and
then, the Defendant or party is served personally with that
notice, but after the 14 days period elapses to enter
appearance, because this is an Originating Summons, what you
do first is to apply to a judge to set down matter for hearing
(compare Rule 1 and Rule 10). In Rule 1 of ORDER 13, when a
Defendant fails to enter an appearance, in seeking default in
judgement by the plaintiff, he is to prepare and file an Affidavit
of service and an Affidavit of search. (Because the action was
commenced by a Writ of Summons. While Rule 10 of ORDER 13
says, a Defendant must prepare and file a certificate of no
appearance, ( and under Rule 10, the action is commenced by
an Originating Summons – “ORDER 13, RULE 10. Where a
defendant or respondent to an originating summons to which
an appearance is required to be entered fails to appear within
the time limited, the plaintiff or applicant may apply to a Judge
for an appointment for the hearing of such summons, and after
the filing of a certificate that no appearance has been entered,
the Master shall notify the plaintiff of a time for the hearing of
such summons”). But the same method is employed just as in
Rule 1, that is, you go to the Registry to search. However, in
Rule 1, you are to provide an Affidavit of search. While in Rule
10, you produce a certificate of no appearance after the search.
After that you apply to a judge to set down an action for
hearing. In summary, Rule 1 of ORDER 13 concerns itself with
actions that are instituted by Writ of Summons. And in entering
Judgement in Default, you do so to the Master and Registrar
after doing the following: (a) Service of the Writ on the
Defendant. (b) Affidavit of search to show that no appearance
was entered. (c) And finally, you enter judgement in the
Master's office. For Rule 10 of ORDER 13, which concerns itself
with actions that are instituted by Originating Summons. In
entering Judgement in Default, you do so by first filing an
application for a judge to set down an action for hearing, and
prove of no appearance, and produce and file a certificate of
nonappearance, and finally, the Master would now have to fix
time and date for the hearing. ORDER 13 RULE 12 (Action on
mortgages.) “12. (1) In any action in which the plaintiff claims
any of the following reliefs:– (a) payment of moneys secured by
a mortgage; (b) sale of property subject to a mortgage; (c)
delivery of possession of mortgaged property to the mortgagee
by the mortgagor or by any other person in, or alleged to be in
possession of the property; (d) redemption of property subject
to a mortgage; (e) discharge of a mortgage; or (f) delivery of
possession of a mortgaged property by a mortgagee, judgment
shall not be entered in default of appearance except by leave of
the Court”. “(2) The Court may require the application for leave
to be supported by evidence which entitles the applicant to
relief and may direct that notice of the application shall be
given to the defendant and to such other person as the Court
may consider proper”. What this Rule is saying is that there are
certain claims for which the plaintiff cannot just enter
Judgement. The plaintiff for such claims must seek leave of the
court before entering Judgement. Such claims are mortgages,
even where the Defendant has failed to enter appearance, the
plaintiff would have to seek leave of the court first before
entering Judgement in Default. The Rule does not specify the
type of mortgage. Whether it is mortgage for the sale of a
property or discharge of the mortgage Property, whatever the
type of mortgage agreement. It is incumbent upon the plaintiff
to seek leave of the court before entering Judgement in
Default. Note: the plaintiff does not only seek leave of the court
but he is as well obliged to give notice to the Defendant and
any other person (s) connected to the mortgage.
Note: HOW A LEAVE OF THE COURT IS SORT? So, you seek
leave of the court either by a notice of Motion, and Affidavit or
judges summons. Judges Summons are heard in chambers
while Notice of Motion are heard in an open court.
SETTING ASIDE JUDGEMENT. What remedy is available to a
party on whom Judgement in Default is entered? The General
presumption of the court is that where any action is instituted
against a party and that party failed to enter an appearance. It
is construed as if that party has accepted indirectly or tacitly to
all the claims and allegations contained in that Writ of
Summons. CRIBB V FRIEBAGGER However, despite the above
position of the law in respect of Appearance of the Defendant,
"the court is also quick to say a judgement in default of
appearance is not a judgement on the merit of the case".
MOHAMED V OPPERHEIM. "This position in respect of
judgement on the merit of the case is predicated on the fact
that fair hearing and the principle of natural justice has not
been fully utilized. Meaning, the party was never heard hence,
it is not fair and it defeats the principle of natural justice".
That is why ORDER 13, Default in judgement is otherwise
known as Paper Judgement because it is purely administrative
in nature as the substance of the case is not dealt with in
judgement in default. A judgement is deemed to be a
judgement on it merit when all parties to the action have been
heard, evidence admitted and opportunity given for cross
examination of witnesses even though a judgement in default is
a proper and valid Judgement, but because it has not given the
Defendant an opportunity to be heard, it is therefore referred
to as "Paper Judgment", and can be "set aside at any time
because it was not heard on it merit". The principle is that until
and unless a judgement is heard on it merit, the court reserves
the express and coercive powers to set it aside based on the
fact it was one sided. EVANS V BARTLAND is the authority for
setting aside judgment.
The law has said no matter the negligence on the side of the
Defendant or reluctant to abide by the Rules or how the
Defendant treats the court with levity despite all those, if he
applies to the court for a judgement to be set aside, if the
application is made by Notice of Motion supported by an
Affidavit and the validity of the reasons on the Affidavit, the
court may set it aside if the the Defendant has a meritorious
defence.
GROUNDS FOR THE SETTING ASIDE OF A JUDGEMENT BY THE
COURT.
Pursuant to a Supreme court ruling in Sierra Leone BATHAN
MACAULEY V JIM DIAMANTPOULOS. As earlier stated, the
attitude of the Defendant in respect of appearance is not
material when considering the application for setting aside of a
judgement. What is important to the court is whether the
Defendant has a "meritorious defense" for the court to stay the
application.
WHAT CONSTITUTES THEN A MERITORIOUS DEFENCE? In
determining what constitutes a meritorious defense, the courts
in Sierra Leone and other common wealth Jurisdiction, the legal
authority in respect of that is ALPHINE BULK TRANSPORT
INCORPORATION V SANDI EAGLE SHIPPING INCORPORATION.
In the above case, the court outlined those conditions to fulfill
on the side of the Defendant if he is to be successful on an
application to set aside a judgement.
(1) Arguable Case. The Defendant must be able to show that his
case is arguable. What constitutes an arguable defense is
dependent on the evidence you have to adduce before the
court for your defense to be valid.
(2) A Reasonable Chance of Success: The Defendant must
ensure he has a reasonable prospect of success before the
court can admit his application to hear him. For example, in a
sale of land, the Defendant must be able to show that he has a
valid conveyance and that he bought the land genuinely from
somebody with a worthy reputation.
(3) The defense must have some degree of conviction: This
means the claims must not be a mere fantasy. It is worth noting
that at this level, the court is not concerned with the merit of
the case. What the court is concerned with is that "your
defense has some degree of conviction". In summary therefore,
there is no definite answer as to what is an arguable case, what
is a reasonable chance of success, and what is the degree of
conviction, because all of these is dependent on the evidence
before the court to guide its conclusions to say you have a
meritorious case. Note However, In order for you to be
entertained to have any locus to stand before the court to
make an application for a judgement to be set aside, "you must
have first entered appearance, or make late appearance
pursuant to (ORDER 12 (12) -late appearance). If the Defendant
had failed to enter appearance, she should have no such
opportunity to stand before the court and make such
application. A CASE WHERE THE COURT REFUSED TO SET ASIDE
A JUDGEMENT In the famous Supreme court matter in
KAMARA V DAVIS AND OTHERS, the supreme court set aside
the application for setting aside a judgement on the basis that
the "defence lacks meritorious standing". Also in DARAMY,
KABIA V OTHERS etc.

METHODS BY THE WHICH THE COURT CAN SET ASIDE

JUDGEMENT There are two methods through which the court
can set aside a judgement obtained by default.
(1) EX-DEBITOR JUSTICIA (As of Right). In this case, the
Defendant coming with an application to set aside the
judgment, is coming to set it aside as of right. The
 reason he is coming as of right to set aside the judgment
is primarily based on the fact that the judgement was
obtained irregularly. The principle of meritorious
defense does not apply here because the application is
as of right hence, the court is obliged to listen to you. If
there is a good defence then good. You are coming to
set it aside on the basis of irregularities.
Note: the application for setting aside Judgement must be
made after 14 days of entry elapses. Anything less renders it
irregular. Where the Defendant succeeds in his application
for setting aside a judgement, costs would be awarded
against the plaintiff for entering an Irregular judgement.
(2) BASED ON THE DISCRETION OF THE COURT This is the
second grounds for which the court can set aside a
judgement. This comes into effect where all procedures
are followed by the plaintiff. When the Defendant
makes an application for setting aside of that
judgement, will be the plaintiff coming up with a
meritorious defense, that is, a reasonable chance of
success, degree of conviction and the case arguable
before that Application can be granted. However, what
is important is that it is up to the court to decide even
with all the fulfilment of those. The court reserves the
discretion to do or not to do based on other factors.
Where the application fails, the court will award cost
against the Defendant this time on the basis that the
 Defendant failed to make appearance when he was
served Notice.
SITUATIONS UNDER WHICH THE COURT MAY REFUSE TO SET
ASIDE THE JUDGEMENT USING ITS DISCRETION
(1) Where setting aside the judgment will be highly prejudicial
to the other party. In this circumstance, the court may refuse to
exercise its discretion to set aside the judgment.
(2) where there has been an inordinate delay. Pursuant to
ruling in SINGH V AUTEMBROOK Where a judgement was given
for example, in 2000 and an application to set it aside comes in
2020. The court may not grant that application using its
discretion because of third party right and the principle of Bona
Fide Purchaser for Value without Notice.
ORDER 16- SUMMARY JUDGEMENT Summary Judgement
essentially, is a quick Judgement where there is no defense.
Where a Defendant is sued for a specific action, for example,
breach of contract, arrears owed etc, and the Defendant does
not have any valid defense to the action against him then, the
plaintiff can make an application through what is known as
"judges summons" for a Summary Judgement to be entered on
his behalf to the extent or the absence of any valid defense by
the Defendant.
PURPOSE OF SUMMARY JUDGEMENT
These are the two main basis upon which Summary Judgement
can be applied for by the plaintiff.
  Lack of Defense. The purpose of Summary Judgement is to
allow a plaintiff who has instituted an action against a
Defendant to get quick judgment in circumstances where
the Defendant has no defense to the claims against him.
This is the position of the law in HOME V OVERSEAS
INSURANCE LTD V METRO INSURANCE CO LTD.
 Sham Defense. The second limb for the purpose of
Summary Judgement is where the Defendant has a
defense but the defense is a sham. So in essence, there
are two limbs for a purpose of a Summary Judgement: (1)
where the Defendant has no defense to the claims against
him. (2) where he has a defense but the defense is a sham.
Note: It is not every case that is proper for Summary
Judgement. There are specific cases that do not fall within the
ambit for Summary Judgement, hence, Summary Judgement
cannot be applied, because if a plaintiff files for Summary
Judgement and the subject of the claims for which he is
bringing an action does not fall within the prescribed
category, costs would be awarded against the plaintiff. These
requirements must be met and be fulfilled. See ORDER 16,
RULE 1 (2) (a) and (b). These are the exceptions. "(2) This rule
applies to every action begun by writ other than- (a) an action
which includes a claim by the plaintiff for
libel, slander, malicious prosecution, false imprisonment or
seduction; and (b) an admiralty action in rem". This must be
backed by an Affidavit, and in that Affidavit, it must be stated
that "I believe that the Defendant has no defense", and "the
proposed defense exhibited is a Sham". Where the above fails
to appear on the plaintiff's Affidavit, the court cannot grant that
application for Summary Judgement. This is a matter of law
and it is called "positive averment".
REASONS FOR THE GRANT OF SUMMARY JUDGEMENT Before
the court can grant an application for Summary Judgement, it
first looks at two requirements. These requirements are
loaded. They are laid down by the court of Appeals of Sierra
Leone by JUSTICE REGINALD FYNN as the basis upon which
consideration must be given before granting a Summary
Judgement.
In AIR COTE D'VOIRE V IBEACHUSI OKECHUKWU. In deciding
this matter through by reversing the High Court decision,
JUSTICE REGINALD FYNN established these two requirements
and said:
(a) "Preliminary Technical Consideration In order for a party
to apply for Summary Judgement, he must fulfill it.
(b) "Substantive Consideration ". He said it is only after the
fulfilment of these two conditions or requirements, that
the application for Summary Judgement will be granted.
Note: where the first requirement (Preliminary
Technical Consideration) is fulfilled and the second
requirement (Substantive Consideration) is not fulfilled,
Summary Judgement would not be granted. But where
the Substantive Consideration is fulfilled as a
 requirement and the Preliminary Technical
Consideration is not, the court may use it discretion to
grant the Summary Judgement.
WHAT ARE THE PRELIMINARY TECHNICAL CONSIDERATIONS?
Before applying for Summary Judgement, the applicant must
first ensure:
(a) All actions for an application for Summary Judgement must
have been initiated by Writ of Summons.
If an action is instituted by Originating Summons, you cannot
make an application for Summary Judgement. The actions must
be instituted by Writ of Summons and no other form can be
accepted.
(b) Service of the Writ on the defendant. The second
requirement is to show that you serve on the Defendant that
Writ of Summons. You show service of Writ on the Defendant
by exhibiting an Affidavit of service. Failure to serve the
Defendant the Writ of Summons, the application for Summary
Judgement cannot be granted.
Note: The Rule that says "every Summary Judgement action
must be instituted by a Writ of Summons is not absolute", that
is, there are certain actions that are begun by a Writ of
Summons but cannot entertain Summary Judgement
application. This is pursuant to RULE 1(2) (a) and (b) of ORDER
16. They are actions as stated above touching on or claims on
(a) an action which includes a claim by the plaintiff for libel,
slander, malicious prosecution, false imprisonment or
seduction; an all an admiralty action in rem.
NOTE: "For those actions, Summary Judgement cannot be
granted on them no matter what circumstance, Even though
they are commenced by a Writ of Summons". This is the
exception to the General Rule which says "only actions that are
begun by Writ of Summons are granted Summary Judgement ",
even though they are commenced by Writ of Summons. This is
both a matter of law and procedure.
(c) The third requirement is for the plaintiff to show that in the
action he is filing, a Summary Judgement does not fall amongst
any of the actions under RULE 1 (2) (a) and (b) of ORDER 16. (d)
the fourth requirement is stated under ORDER 16, RULE 2, that
is the means and method by which you apply for Summary
Judgement, (Manner in which application under Rule 1 shall be
made.) "2. (1) An application under rule 1 shall be made by
summons supported by an affidavit verifying the facts on which
the claim, or the part of a claim, to which the application
relates is based and stating that in the deponent’s belief there
is no defense to that claim or part, as the case may be, or no
defense except as to the amount of any damages claimed".
So this Rule is saying for every Application for Summary
Judgement, it must be done "by judges summons, supported by
an Affidavit". Any other method or means cannot be granted by
the court for failure to comply with the Rules.
(e) The fifth requirement is appearance. The Defendant must
have entered an appearance within the 14 days period
provided for in the Rules before an application for Summary
Judgement can be granted.
So, where the "Defendant failed to enter appearance, you file
for Default in judgement and not Summary Judgement".
Note: Having fulfilled the above preliminary requirements, does
not guarantee the acceptance of an application for Summary
Judgement by the Writ. What this simply means is that, the
court now has Jurisdiction to hear and determine the
application, because the failure to comply with the above
requirements, counsel on the opposing side does not even
need to file an Affidavit in opposition. But where the plaintiff is
of the subject belief after a thorough looked at the Defendant
defense papers and concludes that the Defendant has no
defense to the claim or where even if there is a defense, that
that defense is a sham defense, the plaintiff can now go ahead
and file for a Summary Judgement based on "the lack of
defense or a sham defense". This is supported by the authority
in NORIARTY V MANNING, where it was stated that "the
purpose of Summary Judgement is to avoid delay in
proceedings ".
It is worth noting that "an application for Summary Judgement
must be supported by an Affidavit". Where an application fails
to have an Affidavit along that Application would not be
countenance by the Writ. This is supported in the case of
LAGOS V GRUNWALDT. The reasons why it will not be
countenance are found in the authority SYMON & CO V
PALMER'S STORE. This is so because it is the Affidavit that the
plaintiff has deposed off that is going to verify the fact that the
plaintiff is relying on. Secondly, it is the Affidavit that is going to
say the plaintiff verily believes that there is no defense to the
claim. If you look at ORDER 16, RULE 2 (2), it says "(2) Unless
the Court otherwise directs, an affidavit for the purposes of this
rule may contain statements of information or belief with the
sources and grounds thereof". So it is saying you must state the
source and belief of your information. Where you fail to state
these, it would not be countenance because Affidavit is
evidence and, on that evidence, you must not lie. If you lie on
it, it would be considered Perjury and Perjury is a Strict Liability
Offence.
WHAT IS A SHAM DEFENCE? In giving the true meaning of
Sham Defense as one of the bases through which a plaintiff can
make an application for a Summary Judgement, JUSTICE FYNN
in the matter of AIR COTE D'IVOIRE Said, "a Sham Defense is a
false and fictitious Defense, interposed in bad faith (mala fide)
without relevance. It is insufficient and it is bereaved of merit".
In reliance of the description, he quoted the BLACKSTONE
DICTIONARY and as well the case of MCLAUDY V SLATEURM.
Note: In an application for Summary Judgement, the applicant
must give four (4) clear days to allow the Defendant file an
Affidavit in Opposition pursuant to ORDER 16, RULE 2 (3). "(3)
The summons, a copy of the affidavit in support and of any
exhibits referred to therein shall be served on the defendant
not less than 4 clear days before the return day". So it says you
must give four clear days’ notice to the Defendant. If you do
not wait for the four clear days to elapse, your application for
Summary Judgement would be deemed premature and also the
court will not have Jurisdiction to hear and determine the
matter. The above position touches on what JUSTICE FYNN
considered as Preliminary Technical Consideration as a
fulfillment for an application for Summary Judgement.
WHAT IS SUBSTANTIVE CONSIDERATION? It is not enough for a
plaintiff to just fulfill the Preliminary Technical Consideration
and then, expect his application for Summary Judgement to be
granted, for Preliminary Technical Consideration are basically
procedural in nature. In order for an application for a Summary
Judgement to be granted, it is a must for the applicant to fulfill
these Substantive Considerations. In fact, in the AIR COTE
D'VOIRE matter, all the Preliminary Technical Considerations
were followed and complied with. The bone of contention was
whether the Substantive Consideration containing the fact of
the issue were followed. The Substantive Considerations were
stated in the Locus Classicus case of AMINATA CONTEH V THE
ALL PEOPLE’S CONGRESS (APC). It is a supreme court decision
and it is "the leading authority for Summary Judgement in
Sierra Leone ". In that case, JUSTICE RIGHT in the Supreme
court laid down the criteria as to what Substantive
requirements are in order for the court to grant an application
for Summary Judgement. ORDER 16, RULE 3 (1) gives you an
indication as to what the plaintiff must fulfill as a substantive
requirement. "3. (1) Unless on the hearing of an application
under rule 1, either the Court dismisses the application or the
defendant satisfies the Court with respect to the claim or the
part of a claim, to which the application relates, that there is an
issue or question in dispute which ought to be tried or that
there ought for some other reason to be a trial of that claim or
part, the Court may give such judgment for the plaintiff against
that defendant on that claim or part as may be just having
regard to the nature of the remedy or relief claimed".
Note: In the above Supreme court case, it was said that in order
for a Summary Judgement to be granted, the plaintiff or
applicant must be able to show in the Affidavit that there is or
are no dispute as to fact. That is, there must not be any issue as
to fact that you are seeking the court for a full blown trial. That
there are no triable issues touching on facts that would warrant
the court to go into full blown trial. This position of the court in
respect of that was decided in the case of ISATU THOLLEY
BANGURA V FAISAL DEBEIS. This matter touched on contract
for lease in which there are terms contained and the
interpretation of those terms can only be done through trials.
In summary, "where there are issues as to fact, Summary
Judgement cannot be granted". "But if is for the
interpretation of the terms in a contract, Summary Judgement
would be granted, for as long as it is not a dispute".
Remember, interpreting terms of a contract is different from
saying there is a dispute on that contract or the interpretation
of that contract. So in such cases, Summary Judgement would
be granted. Relying on the case of COASTAL BERMUDA V ESSO
PETROLEUM JUSTICE FYNE said, even if there is issue or where
a matter comes before a Judge for a Summary trial for the
construction of a contract, It is not important for the judge to
go into a full blown trial but rather grant Summary Judgement.
Note: The only time that the court would not allow Summary
Judgement is where there is a triable issue or issues as to fact".
This position of the law has also been supported by a High
Court decision by JUSTICE BINNEH in WURIE YILLAH.
What the substantive requirement is simply looking at is the
content of the application, to see whether there are triable
issues to be looked at and possibly go into a full-blown trial
especially issues as to dispute to facts, before Summary
Judgement can be granted or not.
Note Also: If there is any need to cross-examine a witness,
then, there will be trial and not Summary Judgement”. A single
issue of dispute would warrant a trial as against Summary
Judgement. Where there is need to produce a document, there
would be trial". The above are some of the grounds on which
Summary Judgement cannot be granted hence, full blown trial
would be preferred.
The second requirement to be fulfilled on an application for a
Summary Judgement under the Substantive Consideration is
where the Defendant has no defense, see SWAIN V HILLMAN.
In SWAIN V HILLMAN, the court even went further to say it is
not enough to say that there is no Defense, rather, the Defense
must be one that is fanciful and with little or no chance of
success. This must be stated in the plaintiff's Affidavit that he
verily believes that the Defendant has no Defense, and that
even if he has a Defense, the Defense is a Sham. Note: (there is
contention of SWAIN in our Jurisdiction). However, the above
authority as was cited in the Supreme court decision AMINATA
CONTEH V APC, has been widely considered as an OBITER
DICTUM (Something said in passing; incidental remarks or
opinions made by a judge that are not essential to judgment in
a case) and not constitutes part of the judgement. The issue of
fanciful and no prospect of success is not part of the judgement
for AMINATA CONTEH but rather, just an OBITER and that is
just a guide leading to the judgement. In the famous case of
ANGLO ITALIAN BANK V WELLS, it says the purpose of
Summary Judgement is for the Defendant to show that there
are issues in dispute which the court must consider and refuse
Summary Judgement. Or for some other reasons, the court
should not grant Summary Judgement. This is where ORDER 16,
RULE 3 is premised or built. To further emphasize what ORDER
16, RULE 3 is trying to say is that, when an application for
Summary Judgement comes before the court, the court can
either dismiss that application based on lack of merit or the
Defendant shows to the court that there are issues in dispute
which warrants for a trial or for some other reasons we have to
go to trial. Where there are no issues as to fact, the court may
grant the application. ORDER 16, RULE 4 (Leave to defend). "4.
(1) A defendant may show cause against an application under
rule 1 by affidavit or otherwise to the satisfaction of the Court".
So the Defendant has options but he must satisfy the court
before he is granted leave to defend the action. But first, the
Defendant must be able to show that he has a meritorious
Defense. After that, that there are triable issues in the action
for the court to look at and call for trial, leave ought to be
granted by the court for the Defendant to come and defend the
action in full blown trial. These two conditions must be fulfilled
before the Defendant can a right to defend. And once those
two requirements are met, leave to defend is a must. ON THE
SIDE OF THE DEFENDANT, THE REQUIRED OBLIGATIONS TO BE
FULFILLED
(1) The Defendant must be able to show that he has a
meritorious defense to make.
(2) That there are triable issues on the action that should
warrant a full-blown trial.
Where these conditions are met, the court is obliged to grant
the Defendant leave to defend. It will be a travesty of justice for
a Defendant to have fulfilled all the conditions and still denied
leave to defend or appeal. SAW V HAKIM. Similarly, so in the
cases such as RAY V BAKER, they are all supporting cases to the
above position in respect of travesty of justice.
COUNTER CLAIM UNDER ORDER 16 RULE 5 (Application for
summary judgment on counterclaim). Rule 4, which is the flip
side of Rule 1-4, Basically touches on where the plaintiff wants
to enter Summary Judgement against the Defendant. This
surrounds itself with Rule 1 to 4. Now Rule 5 of ORDER 16
basically concerns itself with the flip side to the above position
touching on where the plaintiff wants to enter Summary
Judgement against the Defendant. For this Rule (Rule 5 of
ORDER 16), here the Defendant wants to enter Summary
Judgement against the plaintiff. The entire principles of law that
were earlier discussed applies to the Defendant ipsissima verba
as it applies to the plaintiff in so far as the High Court Rules is
concerned. Note: A Defendant who has filed a defense and
makes a counterclaim in an action can as well make an
Application for Summary Judgement against the plaintiff for the
same action where after he has filed the counterclaim.
A COUNTERCLAIM IS DISTINCT AND SEPARATE FROM THE
ORIGINAL ACTION. Where the plaintiff refuses to file a defense
to that counterclaim, or the plaintiff files a defense to the
counterclaim but that defense is a sham in the belief of the
Defendant, the Defendant may apply for Summary Judgement.
Even where the plaintiff files a defense to some counter claims
in the action brought by the Defendant and failed to file a
Defense to the others, those claims he failed to file a defense
to, or even where he filed, but the Defendant in his belief
thinks those Defenses are sham, he can still file for Summary
Judgement for those claims left out by the plaintiff. The same
procedure used by the plaintiff, that is, judges summons and
Affidavit are also to be used by the Defendant in the
application for a Summary Judgement pursuant to ORDER 16,
RULE 5. "5. (1) Where a defendant to an action begun by writ
has served a counterclaim on the plaintiff, then, subject to
subrule (3), the defendant may, on the ground that the plaintiff
has no defense to a claim made in the counterclaim, or to a
particular part of such a claim apply to the Court for judgment
against the plaintiff on that claim or part of the claim".
Note: Where a Defendant files for Summary Judgement under
counterclaim, he is doing so as the "PLAINTIFF" in the face of
the law. NONETHELESS, "the application details on the face of
the motion does not change, that is, the plaintiff who initiated
the action earlier still remains the plaintiff and the Defendant
still the Defendant".
However, Before a Defendant can file a counterclaim under an
action against him, he must have first filed a Defense to the
claims made against him by the plaintiff before he can
successfully file for a counterclaim. Failure to file a defense first
or where the defense is a sham, Judgement in Summary would
be granted against him as a result of that failure".
NOTE: The unique aspect of filing a claim is that, if the plaintiff
has gotten a Summary Judgement against the Defendant, and
the Defendant has filed a counterclaim, and a trial of that
counterclaim is ongoing, the plaintiff would not be allowed to
execute that Judgement granted in his favor earlier until after
the trial of the counterclaim". IN ESSENCE, there would be a
stay of execution on that summary Judgement, because the
outcome of that Judgement may affect the trial of the
counterclaim".
NOTE It is worth noting that an application for a counterclaim is
made by judge’s summons supported by an Affidavit pursuant
to ORDER 16, RULE 2
This is basically an Interlocutory Application that is filed during
the subsistence of a Substantive Application.
In summary, the Considerations in respect of claim and
counterclaim are one and the same. Where the plaintiff is
bringing an action against the Defendant, and in that action the
Defendant sees an opportunity for a counterclaim, he would
have to fulfill the same requirements the plaintiff fulfilled in the
original matter. Failure to do that, his application for a
counterclaim would not be accepted by the court.
So, when the Defendant files his counterclaim before Summary
Judgement is granted to him, he must show that:
(a) there are no triable issues
(b) there is no dispute as to facts
(c) he must show that the plaintiff in the original action has no
defense to his counterclaim, or even if there is a defense that,
that defense is a sham.
In such a situation, after completing the above and the court
comes now to look at the application. This is an Interlocutory
Application while the original matter may be by a Writ of
Summons, Originating Notice of Motion or Petition.
ORDER 16 rule 7(1) (Cost). If the plaintiff makes an application
under rule 1 where the case is not within this Order or if it
appears to the Court that the plaintiff knew that the defendant
relied on a contention which would entitle him to unconditional
leave to defend, then, without prejudice to Order 57 and, in
particular, to subrules (1) to (3) of rule 4 of that Order, the
Court may dismiss the application with costs and may, if the
plaintiff is not a pauper require the costs to be paid by him
forthwith".
ORDER 57 (Rule) 4 (cost).
(1) When the plaintiff’s claim is for a liquidated demand only,
and the defendant within the time limited for appearance pays
the amount claimed to the plaintiff or the solicitor or agent of
the plaintiff, the plaintiff shall be entitled, without an order of
the Court to costs of the action.
(2) Where a plaintiff by notice in writing and without leave
either wholly discontinues an action against any defendant or
withdraws any particular claim made by the plaintiff against
any defendant, the defendant shall be entitled, without an
order of the Court, to costs of the action or costs occasioned by
the matter withdrawn.
(3) Where a defendant by notice in writing and without leave
discontinues a counterclaim against any party or withdraws
any particular claim made by the defendant against any party,
that party shall be entitled, without an order of the Court to
costs of the counterclaim or costs occasioned by the claim
withdrawn, incurred up to the time of receipt of the notice of
discontinuance or withdrawal". So therefore, to avoid wasting
the Court's time, there are penalties that follows where it is
evident that one deliberately wasted the Court's time.
Where a party files for Summary Judgement but verily believes
that he ought not to have done so. Because for example: let us
say there are triable issues in the action he is desirous of the
court making Summary Judgement, or there are dispute as to
fact etc, the court will award costs against that applicant for
wasting the Court's precious time, and as well dismiss his
application.
In summary, if the requirements for a Summary Judgement
mainly the substantive requirements are not met and then, a
party files for Summary Judgement, the action will be dismissed
and costs would be awarded against you.
WAYS IN WHICH A PARTY CAN RESIST/CONTEST A SUMMARY
JUDGEMENT.
There are three different ways in which a party can
resist/contest a Summary Judgement.
(1) By file an Affidavit in Opposition to the application for
Summary Judgement. The affidavit will state in detail that there
are triable issues and that you have a valid defense to the
action against you. It is the Affidavit in Opposition that will
contend the application for the Summary Judgement. All of
these must be in the Affidavit. Where the Affidavit in
Opposition is not able to show that there are triable issues or
exhibit your defense which is a valid one, then, Summary
Judgement would be entered against you.
(2) A party can also resist a Summary Judgement by filing a
Defense. However, it is important to note that the defense
itself cannot sufficiently resist an application for a Summary
Judgement, rather, it is the substance or content of the defense
that renders it valid to be able to resist an application for a
Summary Judgement. In other words, it is not enough for you
to file a Defense and say we should go for trial, No. You first
must show that there are triable issues and there is a Defense,
and one way or the other they have prospect of Success.
So, where the defense fails to show that it has merit as was
stated in the case of AMINATA CONTEH then, you have not
resisted the application for Summary Judgement. The defense
must speak to the fact that they are meritorious and that there
are triable issues.
(3) You must be able to raise triable issues during the course of
your oral submission.
ORDER 16, RULE 11 (Setting aside Judgement). Any judgment
given against a party who does not appear at the hearing of an
application under rule 1 or rule 5 may be set aside or varied by
the Court on such terms as it thinks just". Rule 11 has two
ambits. You can either appeal the decision or you can set it
aside and vary. (Varying might also be the third ambit).
So, Rule 11 gives you options, it gives you remedy.
Under what circumstance do you set aside or vary?
So, you set aside because you were not present. You were not
there when the application for summary Judgement was being
argued or moved. The opportunity for you to resist it was not
available. So what do you do? Is that you apply to set it aside,
because this was an application just as in default judgment that
was not heard on it merit, only one side was heard. You
entered appearance, but you were not there when the
application was being argued. And under what circumstance do
you appeal? On the issue of appeal, you were present, you
argued the summary judgment against the other side and
Judgement was granted against you. But you are dissatisfied
and now you are appealing that Judgement. So the major
difference is: (1) you appeared and once you have appeared
and argued, Judgement was delivered on it merit, so you
cannot come and set it aside. What you do is to file an appeal if
you are dissatisfied with the outcome of the judgement,
because you argued, so opportunity was given to you.
(2) when a Judgement is set aside, is essentially a situation or
circumstance wherein, you were not there at all, and summary
judgment was granted against you, in such a situation, the
principle of Natural justice was not met, so you must apply and
set aside.
WHAT ARE THE REQUIREMENTS TO SET ASIDE A JUDGEMENT?
 It has to be arguable.
 You have a defense that has some prospect of success.
 The defense is not a fanciful one.
So basically, you set aside when you are not there. And you
appeal when you are present but dissatisfied with the outcome.
(3) Now the third limb which is variation. It applies to both.
Variation means you could be there but you do not
intend to appeal the summary judgment, what basically
you want is for the court to vary some portion of the
judgement that you think it is not true or you are not
contesting it at all, you just want some portions to vary.
So to vary simple means to change the terms, to alter.
For instance, "The summary judgment might have said,
okay, we have found out that Patrick owns the land, and
Patrick has given you 10 days to leave the land. You that
Patrick have said should leave his land in 10 days, you
are now coming to the court to say, court, 10 days is too
quick for me to find another place, please I want you to
give me 40 days. That is what we call variation (varying
the terms of the Judgement). Or the court has made a
judgement that Jelloh owes Antar 50 million, Antar on
whose behalf Judgement was entered now says, Jelloh
pay me in two days, Jelloh now says Antar, I cannot pay
this money in two days, please give me an extension for
30 days, that is what we call variation. That is when you
 want the terms of the judgement to be Altered or to
favour you". But is different from setting aside, here,
you just want may be some portions of the judgement
to be varied, or altered, or modified, or amended. That
is what you want and, in this case, you might be present
or absent. Crystal clear therefore, "For appeal, you were
present, you argued it and you are dissatisfied with the
outcome, so you are appealing". "Setting aside, you
were not there at all, and summary judgment was
granted against you, in such a situation, the principle of
Natural justice was not met, so you must apply and set
aside". "Variation, you might either be there or might
not be there, what basically you want is for terms of the
judgement to be Altered or modified. And if the court in
it discretion thinks it is reasonable and the other side
accept, they will modified or vary terms of the
judgement".
ORDER 17- DISPOSAL OF CASES ON POINT OF LAW.
Now, there may be situations or circumstances wherein parties
to an action are not desirous to go into full blown trial because,
may be the only issue that is in contention is on a point of law.
If that point of law is interpreted, there would be no need to go
into full blown trial. May be the whole essence of the
proceedings or the only reason why they come to court by Writ
of Summons, pleadings etc was for an interpretation of that
point of law. If a party on it own Application or the court on it
own motion (that is, Suo moto) thinks that the whole Pleadings
or all the documents are and can be disposed off on the point
of law, then, there would be no need for a full blown trial. That
is what ORDER 17 is about. For example: Let us say X died
intestate leaving behind Real property, upon his demised,
letters of administration were taken, (now When you died
Testate, you died with a will, when you died Intestate, you did
not leave behind a Will). Now this letter of administration that
would be taken is dependent on the year that you died. So let
us say if X died before 2007, your properties would be
administered in accordance with "CAP 45 OF THE
ADMINISTRATION OF ESTATES ACT OF 1960 OF THE LAWS OF
SIERRA LEONE ". If you died in 2007 upwards, your properties
would be administered by the DEVOLUTION OF ESTATES ACT
OF 2007.
Now, if you died as a Muslim (Mohammadan), your properties
would be administered by virtue of CAP 96 (THE
MOHAMMADAN ACT), which tells you that letters of
administration must be taken by the eldest son, where as for
the other documents, they will tell you that letters of
administration must be taken by his spouse. So now, let us say
X died Intestate in 2005, and then, letters of administration of
his estates were taken and then, the administrator sold the
properties or part of the properties without Order of the court,
and then an action is instituted against the administrator. Now
“SECTION 21 OF THE ADMINISTRATION OF ESTATES ACT tells
you that no property forming the part of the estates of the
deceased person cannot be sold without either the consent of
the beneficiaries or an order of the Court” So you cannot sell it
unless you have the consent of the Beneficiaries or an Order of
the court. Then, now X has sold the properties and without the
consent of the beneficiaries or a court order whatsoever then,
an action is instituted against X. "Now, such actions that are
instituted against X could best be disposed of on a point of law
". Because the question to be disposed of is whether by virtue
of SECTION 21 OF THE ADMINISTRATION OF ESTATES ACT, X
was entitled to dispose of or sell the properties of the
beneficiaries without their consent or a court order. That is the
question of law". First of all, there is nothing in contention. (1)
there is no argument as to dispute as to who the true owner of
the property is. So there is nothing in dispute. (2) there is
nothing in dispute as to whether the property has been sold or
not. It is clear. The only problem now is whether X taking out
the letters of administration has the right to sell without the
consent of the beneficiaries or an order of court. And if the
court is able to answer the question then, the matter is
finished. THIS IS WHAT THE PURPOSE OF DISPOSAL OF CASES
ON A POINT OF LAW IS. You need not go through a full-blown
trial.
Note. After parties to the action have filed their pleadings, any
of them can dispose of the action on the point of law pursuant
to ORDER 17, RULE 1. "1. (1)
The Court may as well on the application of a party or on its
own motion determine any question of law or construction of
any document arising in any cause or matter at any stage of the
proceedings where it appears to the Court that-
(a) The question is suitable for determination without a full trial
of the action; and
(b) The determination will finally determine subject only to any
possible appeal, the entire cause or matter or any claim or issue
in the cause or matter". So it could be on an application of any
party or the court itself.
So, if the parties look at the papers and say this is not
something we should go into a full-blown trial for, this is
something that we can dispose of on a point of law. Where this
happens then, one of the parties can file a motion or summons
to dispose of the matter on a point of law.
HOWEVER, where both Parties think that this is a matter that
is suitable for disposal on a point of law, BUT the court on it
own motion (suo moto/the judge), thinks it can easily dispose
the Matter on a point of law it will dispose on the point of
Law.
Because if you look at ORDER 17 (1), it gives two options: the
court may either on the application of a party or of its own
motion. So the first limb is any of the parties, that is, either the
defendant or the plaintiff, would come to the realization or the
conclusion that we do not need to go to trial, there is no need
for trial. Let us file and then, dispose this matter on a point of
law. Now, if the parties did not do it, then, the Court will look at
the papers and say there is no need for a full-blown trial on this
matter. So in that circumstance, the court would take it upon
itself (suo moto) and give directions to the Parties that they
should file papers for the matter to be dispose of on a point of
law.
Note, a party applying for the matter to be disposed off on a
point of law must raise questions on that point of law for the
court to answer. If the court answers those questions, that is
the end of the matter. For instance:
(1) Whether on the true construction of section 21 of the
Administration of Estate Act, the Administrator in this action
ought to dispose of the properties without the consent of the
beneficiaries?
(2) The second question is whether on the true construction of
the principle of Bona Fide Purchaser, the party that bought
those properties ought to have done due diligence? (Whether
the buyer did due diligence search before he proceeded to
buy?).
(3) Whether on the true construction of the principle of Nemo
dat Rule, whether the Administrator has a valid or good title to
pass on the property?
(4) Whether the third party here has the fee simple absolute in
possession title?
Once the court is able to answer those four questions, and
come to the conclusions that, these are issues of law, they are
questions of law, we do not need to go into full blown trial.
There is nothing as to dispute to all those questions to say the
deceased person is not the true owner of the property or the
property never formed part of his Estates, that in fact, there is
no issue as to dispute, the court would dispose of the issue on a
point of law.
In summary, for there to be a successful application of
disposal on the point of law:
(1) There must not be anything contentious in the action (2)
You must be able to show that the issue that you want to
dispose of are issues that bother on Legality. REQUIREMENTS
TO BE FULFILLED FOR AN ACTION TO BE DISPOSED OF ON A
POINT OF LAW.
(PRELIMINARY REQUIREMENTS)
(1) The action must have been instituted by either a Writ or
Originating Summons.
(2) An appearance must have been entered.
(3) A defense must have been filed.
These are the preliminary requirements to be fulfilled before an
application for disposal of an action on can be successful.
SUBSTANTIVE REQUIREMENTS
(1) You must be able to show the court that this point of law is
crucial in the sense that once it has been disposed of there
would be no need for a full-blown trial.
(2) You must show the court that a disposal on a point of law
would not require anything whatsoever to go into a full-blown
trial.
So let’s say this question of law affects the case of the
substratum itself that once a decision, an interpretation has
been placed upon this point of law automatically, there is no
need for there to be a full-blown trial.
ORDER 17, RULE 1
(a) the question is suitable for determination without a full trial
of the action". This is the first requirement, that you should be
able to show that the construction of a disposal of a point of
law will not require a full-blown trial. And there is a (b) part to
Rule 1.
(b) the determination will finally determine subject only to any
possible appeal, the entire cause or matter or any claim or issue
in the cause or matter". It is basically saying the determination
on a point of the question of law will conclude the matter. It
will finally determine the matter. (a) is that there would be no
need for a full-blown trial (b) is that it will lead to a final
conclusion of the matter (subject only to an appeal).
Note: on a disposal of a case on a point of law, the judgement
that is granted there is a final judgement.
WHAT IS THEN A FINAL JUDGEMENT
A Final Judgement is a judgement that determines right and
Liabilities of parties. And the only remedy that is available to
you after a Final Judgement is to Appeal).
So for clarity sake, you must be able to show that an
interpretation on a point of law do not require a full blown trial.
A determination or interpretation on the point of law would
determine the whole matter. It finishes or concludes the entire
matter subject only to the remedy of Appeal.
FURTHER REQUIREMENTS
(1) It says that the consent of the other party must be sort. So
you do not dispose a case on the point of law unless the
consent of the other side is sort. Consent here is not used in
Literal sense. You file synopsis (reasons). If after filing the
synopsis and services of it, if the other party fails to oppose it
implies he has consented.
So, when after the application for disposal on a point of law is
done and you serve the synopsis (reasons) on the other party
stating the reasons for your desire to dispose which requires
the other party to reply but failed to do so, then, it can be
deemed to mean he accepted or consented. So it clearly
provided for in ORDER 17, RULE 1 (3) (b). ORDER 17, RULE 1 (3)
(b) "(3) The Court shall not determine any question under this
Order unless the parties have either- (b) consented to an order
or judgment on the determination". The next limb is that an
opportunity should be given to him to be heard. The other side
must be heard. That is the other requirement.
ORDER 17, RULE 1 (3) (a) "(a) had an opportunity of being heard
on the question".
So Unlike Summary Judgement, Default summons where you
come by Notice of Motion, for the disposal of a case on a
point of law, you are at liberty to use any of them" (Notice of
Motion/Judges Summons).
When you look at ORDER 17, RULE 2, it is there. ORDER 17,
RULE 2 tells you that for an application for a disposal on a point
of law can be either by Notice of Motion or by Judges
Summons. "2. An application under rule 1 may be made by
summons or motion".
Note: What you must note is that the question of law to be
disposed of on a point of law must be on a law that is existing,
it must not be an hypothetical law". The authority for this is
the case of X (MINOR) V BEDFORDSHIRE COUNTY COUNCIL
Here, the court said the question of law to be disposed of must
be on a law that is existing. The law must not be hypothetical.
In other words, the point of law to be disposed of must be on a
law that is in existence, the law must already be into being and
it must not be hypothetical. For instance, a bill in parliament
that has not become a law cannot be disposed of on a point of
law, unless it has been passed into law. For instance, Last year
we had the Cyber Security Bill, and has now become a law. So
let us say you had a disposal on a point of law on that bill, you
cannot dispose it based on the authority of X the MINOR
because as at that time it was not a law. So you cannot dispose
of a case on a law that is non-existent. The law must be
existing and must not be hypothetical or imaginable. So the law
must be there.
Also in the case of ALLEN V GULF OIL REFINING LTD, the court
said the question of law that you want to disposed of must be
clear, precise, unambiguous and must not create any difficulty
for an interpretation. So the questions of law that you are
seeking the court to interpret or dispose of the matter on, must
be clear, unambiguous, precise and must not be difficult in so
far as its interpretation is concerned. In the case of ROYSTER V
CAVEY, the court said the fact upon which a party is coming to
court to dispose of a case on a point of law must not be
fictitious (lies). The fact must be true, they must not be false or
fictitious or contrived to deceive the court. Also, in the case of
SUMNA V WILLIAM HENDERSON AND SONS. The principle in
this case is similar but not the same with the one in ROYSTER V
CAVEY, because of the words that were used. In SUMNA, the
court said that the fact upon which you rely on to dispose of a
case on a point of law must not be futuristic or hypothetical
(assumptions). (The facts have not even arisen, they are
futuristic). It is different from fictitious but similar. ROYSTER is
saying fake, false, fictitious. SUMNA is saying if you are coming
to dispose of a fact on a point of law, those facts as it were
must not be futuristic or hypothetical, the facts must be in
existence. It is almost the same with the X (MINOR) V
BEDFORDSHIRE COUNTY COUNCIL case. Where as in X
(MINOR) ,it is the law that must be in existence. Here in
SUMNA, it is the fact that must be in existence.
ORDER 23 AMENDMENT
Normally as human beings, we are bound to make mistakes, we
are bound to make errors. And because we are bound to make
mistakes or make an error, the court gives us the opportunity
to amend.
The General principle is that a party should be allowed to
prepare for his case to the best of his ability, as best as he
thinks by allowing him to amend his Pleadings where it is
shown that there is a mistake.
NOTE Amendment is neither a privilege nor a favor granted by
the court to a party making the application, but rather, a right
provided for by the Rules".
Reasons for this is that parties should be allowed to prepare
their case as best as they thinks fit. And if there is a mistake or
an error, they should be allowed to amend it.. It should also be
noted that the court over the years have said no Case should
fail because of technical error, mistakes or omission on the part
of a party. To do so would lead to injustice.
NOTE: Of crucial importance is that the court at all times
should allow a party to amend his pleadings at any stage of
the proceedings as longs as that Amendment will not cause
injustice to the other side". "And the court went further to say
in numerous cases that, an injustice could be compensated or
cured by costs. In other words, if you are of the view that this
person is late in the day to amend, almost towards the tail end
of the trial then, if the court sees that the issues in controversy
would best be determined by that Amendment, the court will
award costs against that party for late amendment. But they
will not prevent the party from amending".
So Generally, Amendment is allowed to ensure that justice is
done, to ensure that a party's omission, mistake or error or a
matter is not determined based on a mere technicality. So long
as it is not causing injustice or as long as it is not prejudicial, a
party is allowed to amend his suit to fit the issues in
controversy.
SNEADE V WORTHERTON PRINCIPLES THAT THE COURT OVER
THE YEARS HAVE DEVELOPED IN DETERMINING WHETHER
THEY SHOULD GRANT AMENDMENT OR NOT. CONDITIONS
UNDER WHICH THE COURT ALLOWS FOR AN AMENDMENT
This was first put forward by the master of the Rolls (BRETT
M.R) in the case of CLARAPEPE V COMMERCIAL UNION
ASSOCIATION. In this case, BRETT M.R set out what he thinks
are the guiding principles in determining whether a party
should be granted an amendment. He says "No matter how
negligent or careless the first omission might have been, no
matter how late the proposed amendment that is sought have
been made, it is the duty of the Court to grant an amendment
where it will not cause injustice to the other side, and if it is
shown that an injustice can be compensated by costs then, an
amendment should be granted". And what he is trying to say is
this: you might have been careless in preparing your papers,
without making due diligence to basic Rules, spelling mistakes
then, you failed in picking these up may be until after the
prosecution has closed their case, now you have been late but
you still make a move to the court for amendment, the basic
requirement is you should be allowed to amend as long as it
will not occasion injustice to the other side. And even if it is
possible for the amendment to cause injustice but if that
injustice can be compensated by the court, then, the
amendment should be allowed. "So the crucial or overriding
consideration is whether justice or injustice will be done". So if
it is shown that such an amendment will cause injustice, it will
be rebuked for not every injustice will be compensated or
cured by costs. But if it appears to the court that the injustice
which might be late amendment as a result of a mere error or
spelling mistakes etc, taking place will be compensated by
costs, then, the court says that Amendment should be granted.
In furtherance, In the case of CROPPER V SMITH, which is the
leading case in so far as amendment is concerned. Here,
Statement was made by BOWEL L.J. This case expanded the
principles, the guidelines, as well as the law in so far as
amendment is concerned.
The court in deciding the above case says, "The major role,
object, function for which the court exists, is to determine the
rights of the parties in the proceedings, and not to punish them
for the errors or mistakes that they might have made during
the course of proceedings". The judge went further to say " I
know of no mistake or error which if not intended fraudulently
or aimed at overreaching that ought not to be corrected. He
says, Courts do not exists for discipline or punishment but
rather to determine the issues in controversy. If it appears that
the way a party has framed his case, it is such that it will be
difficult to determine the issues in controversy, that party
ought to be allowed to amend.
So basically, what the judge was saying was that if the real
question, the way it is framed, is so convoluted or there are so
many mistakes or errors that you will not be able to decipher
real justice from technical Justice, he says if such a party applies
to amend so that his case will be clear and straight forward,
they will allow that party to amend his case. He says because
the duty of the court is not to discipline a party because he has
made mistakes in his paper, he says the duty of the court is to
determine the issues in controversies.
If you look at ORDER 23, RULE 7(1). It tells you clearly the
purpose of amendment, which is to determine all issues in
controversies. "7. (1) For the purpose of determining the real
question in controversy between the parties to any proceedings
or of correcting any defect or error in any proceedings, the
Court may at any stage of the proceedings and either of its own
motion or on the application of any party to the proceedings
order any document in the proceedings to be amended on such
terms as to costs or otherwise as may be just and in such
manner (if any) as it may direct.
In CROPPER V SMITH, the court said amendment is not a
privilege or favour. You must be granted the right. So, the
crucial Consideration is as long as it does not cause injustice or
prejudice to the other side, and it will aid the court to
determine the real issues in controversies.
CONDITIONS UNDER WHICH AMENDMENT WOULD NOT BE
GRANTED
(1) Whether an amendment will cause injustice to the other
side, if the answer is YES, it will not be granted.
(2) Whether that injustice is capable of being cure or
compensated by costs, if the answer is NO, amendment will not
be granted.
(3) Whether the failure to amend will deprive the court from
determining the real issues in controversies, if the answer is
NO, then that amendment will not be granted". The above are
the principles that guides the court in granting an amendment.
Furthermore, in the case of TILDESLEY V HARPER, Here, a
statement was made by BROWN WELL L.J (Lord Justice).
According to the judge, he said "it is my practice to always grant
an amendment unless, (he put the qualifier there “unless",
which simply means I, BROWN WELL L.J will not grant an
amendment), it is shown that the party seeking an amendment
has acted MALA FIDE (in bad faith), or has caused an act that is
injurious or prejudicial to the other party". So you will see that
the court always is willing to grant an amendment. What the
court is concerned about is justice in determining the questions
in controversies.

WHEN IS AMENDMENT ALLOWED?

NOTE: You can amend at any stage of the proceedings, even
after trials have closed and before the submission of closing
addresses, you will be allowed to amend, even during the
course of Judgement, you can amend.
Note: The only time amendment would be rejected by the
court is after judgment is given
That is the power which the court gives to parties to amend, so
that all the issues in controversies will come out.
WAYS AMENDMENT IS DONE
There are only two ways by which a party can amend his
pleadings. They are:
(1) Amendment with the leave of the court
(2) Amendment without the leave of the court
AMENDMENT WITHOUT THE LEAVE OF THE COURT For
amendment without the leave of the court, all the provisions
from RULE 1 to RULE 3 of ORDER 23 do not require the leave
of the court. So those are the situations within which you do
not need the leave of the court to amend with the exception of
subrule (3) of RULE 1.
So in as much as you do not need the leave of the court under
Rule 1 of ORDER 23, there are certain exceptions under subrule
(3) of Rule 1.
In other words, Rule 1 is only a general proposition, it is not
absolute because under Rule 1, you have circumstances where
in you need leave and you have circumstances where in you do
not need leave. So, RULE 1 (3) of ORDER 23, serves as an
exception. So, if these three circumstances below under
subrule (3) of Rule 1 occurs, then, you need the leave of the
court). "(3) This Ggeneral rule shall not apply, in relation to an
amendment which consists of –
(a) the addition, omission or substitution of a party to the
action or an alteration of the capacity in which a party to the
action sues or is sued;
(b) the addition or substitution of a new cause of action; or (c)
without prejudice to subrule (1) of rule 3, an amendment of the
statement of claim, if any, indorsed on the writ, unless the
amendment is made before service of the writ on any party to
the action".
RULE 1 (1) of ORDER 23 has crucial wordings. So pay attention
to Rule 1 (1) for the purpose of scenario questions. If you look
at RULE 1, it says "1. (1) Subject to subrule (3) the plaintiff may,
without the leave of the Court, amend the WRIT once at any
time before the pleadings in the action begun by writ are
deemed to be closed". So it means, a party is allowed to
amend his Writ once without the leave of the court before
pleadings are deemed closed.
NOTE: RULE 1 (1) is saying “AMENDMENT OF WRIT”. So, the
distinction lies under RULE 3, which talks about “AMENDMENT
OF PLEADINGS”. In RULE 1 (1), it is only the Writ. So pay
attention to the differences. RULE 1 (1) says "Writ", it did not
mention "pleadings". The only position where pleadings is
mentioned is where it say
“you are allowed to amend your Writ once before pleadings are
deemed closed".
NOTE:
(1) It is the Writ that is amended.
(2) The amendment must be made before pleadings are closed.
(3) You do not need the leave of the court.

WHEN DO PLEADINGS CLOSED? Pursuant to ORDER 21 RULE

18 pleadings are deemed closed after the 14 days and service of
the last paper. ORDER 21, RULE 18 "18. (1)
In other words, pleadings in an action are deemed to be closed:
(a) At the expiration of 14 days after service of the reply. or, if
there is no reply but only a Defense to a counterclaim, after
service of that defense to a counterclaim.
(b) If neither a reply nor a defense to a counterclaim is served,
at the expiration of 14 days after service of the defense.
Pleadings in an action are deemed to be closed at the time
provided by subrule (1) notwithstanding that any request or
order for particulars has been made but has not been complied
with at that time".
WHAT CONSTITUTE PLEADINGS:
(1) Statement of Claim
(2) Defense
(3) Counter Claim
(4) Defense to Counter Claim
(5) Reply
The above are the stages of pleadings.
Now, it is highly possible that they might go through all the
stages or not. But what the Rule is saying is that the 14 days
after the last stage. Because sometimes, the Defendant would
just file a defense, and that is where the matter ends, the
plaintiff would not file a reply. So if the 10th is the last day after
the last paper is filed, 14 days after the filing of the defense,
pleadings are deemed closed.
Note: The Defendant may not only file a defense, he might also
file defense and counterclaim, now if he files defense and
counterclaim and no paper is filed in response to his defense
and counterclaim, 14 days after the filing of the defense and
counterclaim, it will be deemed as if pleadings are closed. If he
files the defense and counterclaim and then, the plaintiff files a
defense to his counterclaim then, 14 days after the defense to
his counterclaim has been filed, that is when pleadings will be
closed.
NOTE: During the period pleadings are opened, you are allowed
to amend your Writ of Summons before the 14 days lapses".
Basically, what is meant by pleadings is the papers that are
going to be exchanged by the parties, making their case, on the
writ.
NOTE: For any new paper filed, the 14 days starts to run all
over again until you reach "Reply".
By the provision of CAP 58 which deals with Public Holidays,
weekends are exempted. See ORDER 3 for TIME and also look
at the INTERPRETATION ACT OF 1971.
So basically, if you look at Subrule (1) of RULE 1, your Writ can
be amended before pleadings are deemed closed. Subrule (3)
of RULE 1 serves as the exception. Because if you look at
Subrule (1) of Rule 1, it is subject to subrule (3) of Rule 1. So
once a subrule is subjected to another subrule, it simply means
that subrule is an exception. It says subject to subrule (3), it
simply means that subrule does not apply for where you can
amend without the leave of the court. You must seek the leave
of the court for subrule (3) of Rule 1. So subrule (3) of Rule 1
are situations or circumstances which you cannot amend
without the leave of the court.
So, where a party's amendment is to ADD, OMIT or
SUBSTITUTE, he can only do with the leave of the court.
Explaining why do you want to add the party? why do you want
to omit the party? what is the Nexus of this case and this party?
What is the relationship or connections of the issues in this
matter and this particular party? Or you are seeking to omit
that party from the proceedings in such a case or in such a
situation or circumstance, you are not going to be allowed to
do this omission, addition or Substitution unless you seek the
leave of the court.
The method by which you approach the court for an
amendment under subrule 3 of Rule 1 of Order 23 is by
NOTICE OF MOTION supported by an Affidavit
So, the notice of Motion filed is to be supported by an Affidavit
explaining all that has just been explained that is, Reasons you
want to add, Omit or Substitute and the fourth one which is an
alteration with the capacity in which a party to the action sues
or he is sued. So whatever situation that arises in this particular
situation, you are to seek the leave of the court. And this was
the situation in two cases. Because these were cases in which
parties wanted to add and wanted to Substitute. So, if the court
says on what basis? You have to at all times justify the grounds
upon which you are adding, substituting, omitting or altering a
party from the proceedings.
The court would always ask these two questions before
granting the leave to amend
(1) why should leave be granted for you to add?
(2) why would you want to Substitute?
DAVIES V ELS BY AND CO.LTD as well as
W.J WITHAM V DANIELS AND BROTHERS LTD.
NOTE: In both above cases, leave was granted because the
issues in controversies will not be determined without adding,
this is for the first case. (This was for Addition, this party
needed to be added for the issues in controversies to be
determined). This was examined in the case of DAVIES V ELS BY
AND CO.LTD. Here a party is basically seeking to add another
party. And the court said "The addition of that party is so
material to determine all the issues in controversies and
therefore, this party ought to be added".
For the issues in controversies in the second case, the party
need not be around for it to be determined. (Substitution, this
party need not be around for the issues to be determined).
The authority for this was W.J WITHAM V DANIELS AND
BROTHERS LTD. Here, "it was very clear that amendment would
be granted, because for the issues in controversies to be
determined, this party need not be part of this proceedings.
So, the principle is, if you are adding, omitting, substituting or
altering the capacity of a party you cannot do so unless you
expressly seek the leave of the court by a Notice of Motion,
supported by an Affidavit explaining reasons why you think the
alteration, the addition, the Substitution or the omission is
fundamental in determining the issues in controversies". That is
the principle in both cases.
Subrule (3) (b) talks about a new cause of action. Here, you are
now coming to seek leave for the addition or Substitution of a
new cause of action.
WHAT IS A CAUSE OF ACTION? Cause of action basically means
"what brings you to court, it is basically the issues in
controversy".
Note: A party wishing to amend his writ or pleadings to include
a new cause of action, MUST seek leave of the court.
If you do not have a Cause of Action, the court will throw your
case out. Those issues you cannot amend without the leave of
the court if you amend anyone without the leave of the court,
you will not be entertained by the court for breach of the
procedure.
NOTE the case of SYLVIA BLYDEN, DR SAMURA V MAADA BIO
AND NATIONAL ELECTORAL COMMISSION (NEC). One of the
objections that was raised by the lawyers representing the
president was that the other side had not shown any cause of
action. It is like for example, you coming to court to say your
phone is missing, and you do not even know who stole it, the
court would not be able to establish any connection, so there is
no cause of action. And Cause of action is defined in the High
Court Rules.
So, it is crucial for you to note that cause of action is essentially
what brings the parties to court. E.g., X borrowed my money
and has refused to pay", or "X is trespassing on my land", or "W
has done XYZ to me". So you must be able to show that you
have suffered a wrong. If you are not able to show that you
have suffered a wrong or your rights has been infringed upon,
or there is a contract that has been breached. Whatever
situation is then, there is no cause of action.
Also, in AUGUSTINE MARAH V SIERRA LEONE POLICE (SLP).
Augustine (plaintiff) said there is no law that prohibits him from
driving on elections day. The Sierra Leone police took his
vehicle and he was arrested, detained for over 5 hours. His
right to vote was denied and his right to movement was denied.
So that is a cause of action that compelled him to go to court.
You do not just go to court and thinks you can file any paper.
In fact, one of the grounds in which an amendment can be
refused is wherein you want to bring a new cause of action
that accrued to you when the action is already on. So let us say
you want to include a Relief that you have not prayed for, you
have to require a new cause of action, if you have mistaken in
your relief, what you wanted is not what you pleaded, and you
want to amend it, you have to seek the leave of the court.
Note: Without seeking the leave of the court, RULE 4 will
apply, that is (Application for disallowance of amendment
made without leave). So as emphasized, at any stage of the
proceedings you can amend, amendment must be given to you
as of right, it is not a privilege or a favour. So based on that
premise, as long as it is not going to cause injustice or prejudice
on the other party, it ought to be allowed at any stage, even
after the conclusions of trial, but it is not in all situations, there
are exceptions to that law. So paragraph (b) of Rule 1 subrule
(3) is saying if you are seeking to amend a new cause of
action, that amendment would not be allowed unless you ask
the permission or leave of the court.
If a party fails to seek the leave of the court to amend a cause
of action, his amendment would be construed as irrelevant.
So, in the case of DORNAN V ELLIS AND CO, "the court said a
party seeking to amend a cause of action has a duty to apply to
the court to seek leave before such an amendment would be
granted". So that shows the fundamental importance of
seeking leave.. So similarly in the case of CAVE V CREW.
So at all times you must seek leave for under subrule 3. So you
will see that in as much as ORDER 23, RULE 1 (1) is saying a
party can amend his Writ without the leave of the court before
pleadings are deemed closed, it is not in all situations or
circumstances that is allowed. Just as explained over and again,
if you want to add, omit, Substitute and alter the capacity of a
party, you must seek the leave of the court.
Paragraph (a) of subrule (3). If you want to amend your cause
of action, you have to seek leave of the court, paragraph (b) of
subrule (3).
Similarly, where the relevant period of limitation has elapsed,
you have to seek leave of the court Paragraph (c) subrule (3)
of Rule 1.
So, where a breach of contract occurred in 2014, and in 2020
you institute an action for the matter, so you will be within the
time limit for the limitation period because it is 6 years and now
you want to amend some portions in 2022.
What you must note is whether this cause of action you are
seeking to amend is a new action or not, In such a case, the
effects of amendment is that the amendment will take effect
as if it was done from the moment the original action was
instituted. So it would be construed as if it was done in 2014.
Note: The party is only coming to amend his cause of action, if
he was coming to add a completely different or new cause of
action, he would not have been allowed because it would have
been out of the limitation period.
See RULE 5, subrule (5) of ORDER 23. And it says "(5) An
amendment may be allowed under subrule (2)
notwithstanding that the effect of the amendment will be to
add or substitute a new cause of action if the new cause of
action arises out of the same facts or substantially the same
facts as a cause of action in respect of which relief has already
been claimed in the action by the party applying for leave to
make the amendment".
So, the pivotal point to note from the above is "...if the cause of
action arises out of the same facts or substantially the same
facts...". So, you should note it will not be something from the
oblivion, it would be either it is related from the same fact or
substantially to the same fact. Hence, you cannot be caught by
period of limitation. And the effect will be that you will go back
to the time the original action was instituted. So crucially what
you must Note: Even though the relevant period of limitation
might have elapsed but it will not affect any amendment which
arises from that same fact.
RULE 2 (1) OF ORDER 23 (Amendment of Appearance). "2. (1)
Subject to subrule (2),
Pursuant to Rule 2 (1), and general rule, A party may amend
his memorandum or notice of appearance without the leave
of the Court… but such amendment shall not involve the
addition of a new defendant EXCEPT with the leave of the
court".
It says you can amend your appearance without the leave of
the court but in amending that appearance, you should not
alter/add any other Defendant unless you seek the leave of the
court.
It’s in twofold:
(a) So, in rule 2(1) it says you cannot add a new defendant. If
you want to add a new Defendant, you must seek the leave of
the court.
So let us Originally say, Fuad Ahmed Sesay Esq entered
appearance for his clients Muzay and Kai samba, and now Fuad
Ahmed Sesay Esq, later on wants to enter appearance for
Yeama. If Fuad wants to add Yeama, he must seek the leave of
the court before he can add Yeama. Note: But if it was just a
mistake in the name of Muzay or Kai samba or Fuads
chambers name or whatever it is, Fuad can amend without
the leave of the court.
(b) And the second fold is saying you must serve after you
have amended it. RULE 2, Subrule "(2)
Where a memorandum or notice of appearance is amended
under this rule, the amended memorandum or notice shall be
indorsed, filed and served in the same way as the original
memorandum or notice".
NOTE: What we dealt with in RULE 1 (1) is for "Writ of
Summons "
Now RULE 3 (1) concerns itself with "pleading". So, they are
not the same.
Crucially, RULE 3 (1) is basically dealing with you amending
your pleading.
WHAT ARE THESE PLEADINGS?
PLEADINGS ARE:
(a)Statement of claim (b) Defense (c) Counterclaim
(d) Defense to counterclaim (e) Reply. These are your
pleadings.
The law says you can amend those pleadings once but before
pleadings are deemed closed. It is similar to RULE 1 (1), the only
difference is the use of the word "Writ". Here, it is "pleading".
"PLEADING basically is the content of the Writ itself".
Rule 3. (1) says, a party may, without the leave of the Court,
amend any pleading of his once at any time before the
pleadings are deemed to be closed and, where he does so, he
shall serve the amended pleading on the opposite party".
So basically, your pleading is in the content of the Writ. WHEN
DOES PLEADING CLOSE? Basically, 14 days after the last paper
is filed. See ORDER 21(18), as explained above.
Rule 3. WHAT ARE CONSEQUENTIAL PLEADINGS? "These are
pleadings that are done in response to a pleading that had
already been done".
If you look at the Rules, it tells you if Fuad Ahmed Sesay Esq as
the plaintiff amends his statement of claim, Nat as the
defense counsel will amend his defense, if Nat amends his
defense, Fuad Ahmed Sesay Esq will amend his reply.
It is a back and forth pleading that is done. Once you amend
your statement of claim as of right, I should amend my defense.
Once I amend my defense, if you are filing a reply, you should
amend your reply.
So, in simple terms It is an amendment that is done in
response or as a result of or in consequence of a party
amending his pleadings.
If you look at the case of SQUIRE V SQUIRE, where it was stated
that "if a party fails to amend his pleadings after another party
had amended his pleadings, it will be construed as if he has
accepted what is contained in the pleadings of that particular
party".
The above is supported by the Rules specifically ORDER 23,
RULE 3 (6). And where that happens, (that is where a party
amends his pleadings and the other party fails to amend his) it
will be taken that the part relies on his pleading served earlier.
Hence, subrule (2) of Order 21, shall have effect in such a case
as if the amended pleading had been served at the time when
that pleading, before its amendment under subrule (1) was
served".
So, the principle in SQUIRE V SQUIRE is stated in subrule (6) of
RULE 3, ORDER 23. Hence, at every stage you should accept or
amend. It is prudent on you to amend because at the end of
the day an amendment may alter the original cause.
So generally, a party is allowed to do his case as he thinks, for
amendment is neither a privilege or favour but rather, right. It
is also important to note that, at all times or at any stage, a
party should be allowed to amend as long as it will not cause
injustice or prejudice subject to compensation in costs.
However, even though the statement in BRETT M.R in
CLARAPEPE, BROWN WELL in the case of TILDESLEY V HAPER,
we also talked about the principle stated in CROPPER V SMITH
by LORD BOWEL L.J. All those principles are to the fact that it’s
for the court to truly determine the issues in controversy, they
must at all times allow a party to amend if a party has framed
his case in such a way that it would not help the court to
determine the real issue in controversy.
RULE 4, of ORDER 23 SITUATIONS OR CIRCUMSTANCES UNDER
WHICH AN AMENDMENT CANNOT BE GRANTED. This Rule is
the (EXCEPTIONS).
The general rule that says Amendment can be allowed at any
stage of the proceeding for as long as it does not tilt the scale
of justice or prejudicial is not absolute.
That is, it is not in all cases that an amendment is allowed, that
is what RULE 4 is about. The circumstances are:
(1) The first case in which an amendment will not allowed is
wherein a party amends his Pleadings or statement of claim or
Writ of Summons without seeking leave of the Court when he
ought to have sought leave of the court. Or even if he had
sought the leave of the court, he would have been refused that
amendment. That is the first ground upon which an
amendment is refused. So, where a party add, Substitute, omit,
or add a new cause of action, without seeking leave of the
court, the Consequence would be that amendment would be
refused. So, the first exception to the General Rule which says
amendment should be allowed at any stage is that at any stage
if you amend improperly, it will be refused. And what
constitutes an Improper amendment is wherein you ought to
have sought leave and you did not seek leave and you went
ahead to amend.
(2) The second exception or ground on which an amendment
will not be allowed is wherein the amendment is immaterial
and inconsistent. In the case of WOOD V EARL OF DURHAM. In
this case, the court says, "an amendment that is immaterial,
would not be allowed". However, "what constitutes Materiality
and Immateriality" was defined in the case of SINCLAIRE V
JAMES. In the above case, the court says "an amendment is
immaterial if it is inconsistent and useless". It means, your
amendment should be so important that one way or the other,
if it is not done, justice would be affected. But if the
amendment is such that, it does not have any impact, or
Consequence or outcome of the case, it is useless. For
instance, if I wanted to sue Kai samba and I sued Kai Sesay, that
will have an impact on the case in so far as enforcement of
Judgement on that case is concerned. Because If I did not
amend that, I will not be able to enforce against Kai Samba. So
that amendment would be material. Any amendment that does
not have any direct impact or outcome or justice of the case, it
will be considered as useless, or deemed immaterial
WHAT IS INCONSISTENT AMENDMENT? Inconsistent
amendment is an Immaterial and useless amendment.
(3) The third ground on which an amendment would be
refused is wherein the amendment is frivolous, futile and
Mala Fide (things that are done in bad faith). So, if your
amendment is futile, it is frivolous or Mala Fide then, it has a
direct connection with Immateriality, then, that amendment
will not be allowed. Anything that seeks to delay proceedings,
or necessarily wasting the Court's time, or anything that does
not have any direct impact on the overall outcome of the
action, it would be construed as frivolous, futile and Mala Fide.
(4) The fourth ground on which an amendment would be
refused is where it is aimed at embarrassing the other side's
Pleadings or the other party. See MACHADO V FONTES. In this
case, "the court struck out an amendment because it was
embarrassing to the other party and their Pleadings". ORDER
21, RULE 17 is very instructive on that. It says "17. (1) The
Court may at any stage of the proceedings order to be struck
out or amended any pleading or the indorsement of any writ
in the action, or anything in any pleading or in the
indorsement, on the ground that-
(a) It discloses no reasonable cause of action or defense as the
case may be;
(b) It is scandalous, frivolous or vexatious;
(c) It may prejudice, embarrass or delay the fair trial of the
action; or
(d) It is otherwise an abuse of the process of the court, and
may order the action to be stayed or dismissed or judgment to
be entered accordingly, as the case may be". And paragraph (c)
of this Rule (RULE 17 of ORDER 21 is very instructive on this
case), the court has the power to strike out any Pleading or
amended Pleading if it has the effect of embarrassing the other
side or the action. That was the principle in MACHADO, the
court struck out the amendment on the grounds that it was
embarrassing. So this is another ground upon which an
amendment would not be allowed.
(5) The fifth ground on which an amendment would not be
allowed is wherein a party consciously made an admission in his
Pleadings and later wants to change it. So, where you have
consciously admitted to a claim in your Pleadings, you will not
be allowed to amend it. To do so would be prejudicial and to a
very large extent embarrassing. See the case of HOLLIS V
BURTON. Here, the court says "an admission consciously made
will not be allowed to be amended. Except you are able to
show that there was a genuine mistake in you making that
admission". So let us the say if the admission was not
consciously Done, it was a result of genuine mistake, then, you
will be allowed to amend it. What constitutes "Genuine
mistake" is now an application of the subject matter for the
court.
(6) The sixth ground on which an amendment would not be
allowed is where the amendment you are seeking to make is
outside the period of limitation, that amendment will not be
allowed. And this relates to a new cause of action that was not
included in your cause of action. NOTE: It is different from what
we were discussing under subrule (3), RULE 1 of ORDER 23
which deals with "relevant period of limitation". Here, it is a
completely new cause of action that has accrued to you. It
does not arise substantially from the same facts or similar on
the same facts. It is completely new. It has come to you and
you want to include it. And in such a case, it will not be allowed.
Let us use the same analogy again, you institute the action in
2014, and then, during the course of the action in 2022, a new
cause of action is accrued to you, but it did not arise from this
cause of action whether substantially or whatsoever, but you
want to include it in this cause of action. In this situation,
because the period of limitation has lapsed, it will not be
allowed to be added.
NOTE: Subrule (5), of RULE 5, ORDER 23. It says "(5) An
amendment may be allowed under subrule (2)
notwithstanding that the effect of the amendment will be to
add or substitute a new cause of action if the new cause of
action arises out of the same facts or substantially the same
facts as a cause of action in respect of which relief has already
been claimed in the action by the party applying for leave to
make the amendment".
This means, if the cause of action that you want to bring in
disbarred by limitation is not arisen from the same facts or
substantially the same facts, it will not be allowed.
AMENDMENT THAT REQUIRES THE LEAVE OF THE COURT.
RULE 5 (1)
ORDER 23, RULE 5 OF THE HIGH COURT RULES deals with
amendment that requires the leave of the court.
Subject to rules 6, 9 and 10 of Order 18 and this rule, the Court
may at any stage of the proceedings allow the plaintiff to
amend his writ, or any party to amend his pleading, on such
terms as to costs or otherwise as may be just and in such
manner (if any) as it may direct".
It basically says in all situations with exceptions referencing
Rule 6, 9 and 10 of ORDER 18, which deals with causes of
action and joinder parties
Rule 6 of ORDER 18 talks about (misjoinder and non-joinder of
parties). It says No cause or matter shall be defeated by reason
of the misjoinder or nonjoinder of any party; and the Court may
in any cause or matter determine the issues or questions in
dispute so far as they affect the rights and interests of the
persons who are parties to the cause or matter".
Rule 9 of ORDER 18 talks about (change of parties by reason of
death). It says Where a party to an action dies or becomes
bankrupt but the cause of action survives, the action shall not
abate by reason of the death or bankruptcy".
And Rule 10 of ORDER 18 (Deals with the amendment as a
result of the existence of Rule 6 and Rule 9).
Rule “10. (1) says, where an order is made under rule 6 the writ
by which the action in question was begun shall be amended
accordingly and shall be indorsed with–
(a) A reference to the order in pursuance of which the
amendment is made.
(b) The date on which the amendment is made, and the
amendment shall be made within such period as may be
specified in the order or, if no period is so specified, within 14
days after the making of the order". Remember we have
spoken about situations under amendment wherein you
cannot add, omit, substitute or alter the capacity of a party
unless you seek leave of the court (ORDER 23, RULE 1, subrule
(3) (a).). Now, if you look at Rule 5 (1) of ORDER 23, it says
subject to Rule 6, 9 and 10 of ORDER 18. Now if you look at
Rule 6 of ORDER 18, it is basically talking about situations
wherein you wrongly joined a party, called a misjoinder. So, it
ought not to have been a Defendant.
E.g., Assuming I added Kai samba as a Defendant in my action,
and Kai samba has nothing to do with that action whatsoever, it
will be considered as a misjoinder, I have joined the wrong
person, so it is a misjoinder.
So, in such a situation or circumstance, having regards to
ORDER 23, RULE 1, subrule (3) (a), Which options should I use
to eliminate Kai samba? Is it omission? Is it Substitution? Is it
addition? Is it alteration? So, in such a situation, the answer is
two folds: "If there is no party to be added, that ought not to
have been there, you Omit the Defendant". '"But if there is a
party to be added, the option you use is Substitution". So, both
applies, but you cannot say it is "addition", as it is a situation
wherein you are not going remove.
And the second limb of Rule 6 is "Non joinder of parties".
WHAT IS A NON-JOINDER? (Non-Joinder Simply means you
were supposed to add another defendant or another party but
you did not add that party.
As the proceedings are ongoing you realized you did not add
that particular party, so you want to come and join the party.
So as a result of that non joinder, you are now going to join
that party. Once you have joined that party it is known as
"Addition").
So, it has a direct relationship with ORDER 23, RULE 1 (3) (a).
(So for Misjoinder, you either Substitute or Omit. For Non
joinder, you add).
Rule 9 of ORDER 18, (which talks about Substitution or change
of parties by reason of death). Let us say Y was the defendant in
this action then, Y dies. You cannot continue to sue a dead
person; therefore, you should make an application for Y to be
substituted with either someone running his Estates or any
other person related to him, or his personal representative or
his next of kin. So in such a situation or circumstance, "what
you do basically is to apply for the deceased person to be
substituted and be replaced by either his personal
representative, or his next of kin or any other person that you
know is fit and proper to replace Y (Deceased) person".
Moreover, if you look at Rule 10 of ORDER 18, which talks
about (Provisions consequential on making of order rule 6 or
9).
Basically, what this Rule is saying is that whatever you do,
whether it is a Rule 6 Application or a Rule 9 application, you
must amend it. If you are substituting a party as a result of a
misjoinder, you must amend you Writ because you are
substituting. If you are adding a party as a result of non-joinder,
you must amend you Writ. If you are replacing a party by
reason of death, you must amend your Writ. So, in all these
situations, whether misjoinder, or non-joinder or you are
changing the capacity of the party or the parties that are
suing, you must seek the leave of the court.
In substituting (misjoinder), you must seek the leave of the
court and amend. If it is non joinder, you are adding and
because you are adding, you must seek the leave of the court
and amend. If you are replacing or substituting a party by
reason of death, you must seek the leave of the court and
amend you Writ.
Crucially, there is a saving grace under Rule 10 of ORDER 18. If
you read Rule 10, it tells you, you must amend your Writ in
such a situation.
WHY ARE THESE RULES (RULE 6, 9 AND 10 OF ORDER 18)
REFERRED TO ORDER 23? "It is simply because you cannot do
these amendments (whether misjoinder, non-joinder or
Substitution by reason of death) without the leave of the court.
So in these situations if you are amending the amendment,
you have to make the application pursuant to ORDER 23, RULE
5. That is why Rule 5 (1) of ORDER 23 says subject to Rule 6, 9
and 10 of ORDER 18, which means Rule 5 basically deals with
AMENDMENT THAT REQUIRES THE LEAVE OF THE COURT".
NOTE: Wherever you see Ex-parte it is referred to as Notice of
Motion.
Also NOTE: You can amend Viva voce for minor amendment.
And not major one). In addition, if you go to subrule (2) of Rule
5, you will know that we will not be discussing subrule (3), (4)
and (5) of Rule 5. Now.
ORDER 23, RULE 5 (2) says, where an application to the Court
for leave to make the amendment mentioned in subrule (3),
(4) or (5) is made after any relevant period of limitation
current at the date of issue of the writ has expired, the Court
may nevertheless grant such leave in the circumstances
mentioned in that subrule if it thinks it just to do so". But why
are not going to labor on subrule (3), (4), and (5) of Rule 5? "It
simply because we have explained them. When you look at
Rule 1 (3), paragraph (a), (b), and (c) that state the exceptions
upon which you must seek leave of the court, that is what that
has been transposed to subrule (3), (4) and (5) of Rule 5.
(Substitution, addition, omission, alteration of capacity, a new
cause of action, limitation period whatsoever).
So, it is basically what has been transposed or transported.
That is why subrule (3) (a), (b), (c) of Rule 1 serves as an
exception, and when you look at them, they are all what has
been transposed under subrule (3), (4) and (5) of Rule 5. All
those cases that were dealt with under subrule (3) of Rule 1
applies here ipsissima verba.
ORDER 23, RULE 6. ACTION BEGUN BY O.S
Now what we have been dealing with in respect of
amendment are actions that are begun by Writ of Summons
(Rule 1 to Rule 5 of ORDER 23).
Now if you look at Rule 6, it talks about AMENDMENT TO
OTHER ORIGINATING PROCESSES.
Remember there are four originating processes.
(1) Writ of Summons
(2) Originating Summons
(3) Originating Notice of Motion
(4) Petition.
Amongst these four Originating Processes, "Writ of Summons"
is in contemplation from Rule 1 to Rule 5 of ORDER 23.
Now there are other three originating processes as highlighted
above. And Rule 6 applies to those three originating
processes. And when you look at Rule 6, it should be noted that
it says all what applies to Originating Summons other than Writ.
So it is basically the same procedure and processes. Rule 6 "6.
Rule 5 shall have effect in relation to an originating summons, a
petition and notice of an originating motion as it has effect in
relation to a writ".
So essentially, in order for you to amend any of these
documents, you have to seek leave, but you should also note
that if any of the situations arise between Rule 1 and 3, it may
be used by the Court to decide. The reason for this is that in
any Originating Summons, in any Originating Notice of
Motion, in any Petition, you do not file "Pleadings". The
evidences are extracted by an "Affidavit". Its only in Writ of
Summons that u plead
So, in almost all these other 3 proceedings above, i.e.
Originating Summons, Originating Notice of Motion and
Petition you seek the leave of the court to amend.
That is why Rule 5 applies. The simple reason for this is that in
these three Originating Processes, you do not file Pleadings. So
Rule 3 will not apply which says " Pleadings are done without
the leave of the court".
Rule 1 will not apply because Rule 1 exclusively deals with
writ. So, the only Rule that applies is Rule 5.
But Note: The court may allow you to amend any of these
papers without really seeking the leave of the court, that is
the discretion of the court.
But the POSITION OF THE LAW is that in an application to
amend any Originating Process other than a Writ of Summons,
you must seek the leave of the court.
Only a Writ of Summons that you would say I can amend
without the leave of the court or with the leave of the court
depending on the action.
NOTE, for WRIT OF SUMMONS, you can amend without the
leave of the court before Pleadings are deemed closed. (See
Rule 1 of ORDER 23).
FOR PLEADINGS you can amend before the last Pleadings is
served on you. (See Rule 3 (1) of ORDER 23). NOTE: if you look
at Originating Summons, Originating Notice of Motion,
Petition, they do not have "Pleadings". Remember we have
said Pleadings refers to as: Statement of Claim, defense,
defense to counter claim, Reply etc. These are what we refer to
as Pleadings.
Pleadings do not exist in an action begun by either Originating
Summons, Originating Notice of Motion or in an action begun
by Petition. They are exclusively guided by "Affidavit Evidence".
So whatever amendment that you want to make in any of the
three originating processes save for writ is subject to the leave
of the court.
So, If I began an action by Originating Summons, I file what is
known as "Affidavit in Support". Now if Kai Samba wants to file
against my Affidavit in support, he files what is known as
"Affidavit in Opposition", and if I want to file against Kai
Samba's Affidavit in Opposition, I file what is known as
"Affidavit in Reply".
This is the last paper, after which, I will not file any other
Affidavit unless I seek the leave of the court. Affidavit in Reply
is the last Affidavit, so for any Affidavit that is to come after An
Affidavit in Reply, you must seek the leave of the court first
before you can amend any affidavit. Because the evidence is
extracted from the Affidavit, so you need the leave of the court
to amend the Affidavit of these Originating Processes.
ORDER 23, RULE 7 (AMENDMENT OF CERTAIN OTHER
DOCUMENTS). Now if you remember in our very introductory
class on amendment, what did we say is the purpose of
Amendment? What did we say in the case of CROPPER,
HARPER, CLARAPEPE ETC? Particularly in CROPPER V SMITH?
We stated that the purpose of the court is to determine the
issues in controversies.
Court do not exist for discipline or punishment. So, if you look
at CROPPER V SMITH, it is basically what was said, modified
and planted into our Rules, Rule 7 (1) of ORDER 23. Which is for
the purpose of determining the real question in controversy
between the parties to any proceedings or of correcting any
defect or error in any proceedings, the Court may at any stage
of the proceedings and either of its own motion or on the
application of any party to the proceedings order any
document in the proceedings to be amended on such terms as
to costs or otherwise as may be just and in such manner (if any)
as it may direct. (2) This rule shall not have effect in relation to
a judgment or order". Now if you look at Rule 1 to 6, it dealt
with Writ of Summons Originating Summons, Originating Notice
of Motion, and Petition. Remember, Amendment is of right, it is
not a privilege neither a favour. So Rule 7 (1) is saying if there is
any mistake in your documents, you are allowed to correct it. If
there is a mistake in opinion evidence, you are allowed to
correct it, if there is a mistake in any other documents including
these Originating Processes, you are allowed to correct it, if
there is a mistake on your Affidavit, you are allowed to correct
it. So any other documents that is connected to the
proceedings, you are allowed to amend it because parties are
to do their case as they thinks fit. The court will not allow any
Case to fail for mere technical issues or errors if it can be shown
that these technical issues or errors can be shown and
compensated by costs as long as it does not cause injustice. So
fundamentally and crucially, you must note and appreciate the
fact you would be allowed to amend.
So, RULE 7 is the BLANKET AND MOST FUNDAMENTAL RULE
BECAUSE IT COVERS EVERYTHING IN SO FAR AS AMENDMENT
IS CONCERNED. It contemplated on all other documents that
are crucial to the proceedings. So, If the amendment is not
substantial, you can do it by Viva voce, but if it is substantial
then, you have to file papers. So Rule 7 is not only limited to
other documents, but all-inclusive to other Interlocutory or
Originating Applications.
ORDER 23 RULE 8 (USUALLY REFERRED TO AS ORDERED
AMENDMENT) This is a situation or circumstance wherein the
court will usually Order a party to amend his documents within
a specified period of time and if no period is so specified, a
period of 14 days after the order was made.
ORDER 23, RULE 8, where the Court makes an order under this
Order giving any party leave to amend a Writ, Pleading or other
document, then, if that party does not amend the document in
accordance with the order before the expiration of the period
specified for that purpose in the order or, if no period is so
specified, of a period of 14 days after the order was made, the
order shall cease to have effect, without prejudice, however, to
the power of the Court to extend the period". Remember,
Courts are there to determine the Issues in controversies, they
should not be inquisitorial, they should not be there for
discipline or punishment. What they are there for is to
determine the issues in controversies and whatever they can do
that will ensure that the issues in controversies is determined,
they will ensure that they do it. So where the court sees that
someone's particular document requires an amendment, they
will give an Order to that effect but that someone will be time
bound.
Let us say the court may give you 10 days, 14 days,15 days etc.,
if you fail to amend within the time frame given by the court,
the Order will elapse. So based on the discretion of the court,
they can give you time within which to amend. But however,
the court can always allow you to renew subject to costs, as the
court almost always will grant costs.
ORDER 23, RULE 10 (Amendment of judgment and orders). It
is also known as "SLIP RULE". Remember we have said
amendment can be done at any time before trial, during trial or
after trial. That is how relevant or amendment is.
Now, where a Judge has read a judgement but there are
mistakes like clerical errors or typos in that Judgement known
as "Accidental Slip" or "Slip Rule", then, that judge is allowed
to amend that Judgement. under the principle of "SLIP RULE".
Note: However, the purpose of that amendment or the
purpose of invoking the SLIP RULE is not to correct the
SUBSTANCE OF THE JUDGEMENT. (LAW) BUT RATHER
ACCEDENTAL SLIP
In other words, the judge is not allowed to correct an error of
law. In ATTORNEY GENERAL V RISK INSURANCE AND RE
INSURANCE SOLUTION that the purpose of the SLIP RULE is
basically to amend accidental mistakes or clerical errors
caused by the judge and NOT the LAW.
In other words, he is not allowed to correct any subject as to
law, for that is only subject to appeal".
PURPOSE OF THE SLIP RULE: It is said that the purpose of the
SLIP RULE is to reflect the true intention of the judge and not to
alter the substance of the law in that ruling.
WHAT ARE THESE SLIPS THAT CAN BE CORRECTED BY THE
JUDGE? These slips were stated in the case of FALCON
INSURANCE COMPANY V FLAGSHIP UNDERWRITING
MANAGEMENT. The court said the purpose of the SLIP RULE is
purposely to correct "the descriptions as to parties or
mistakes as to date" and not to completely change the
substance of the case or the law.
NOTE: This is because, a judge cannot verify, alter or vary his
Judgement after he had delivered the judgement or once that
Judgement has been drawn up unless there is a clerical
mistake or error. See also the case of SLOF V PYNE BAILEY.
THYNNE V THYNNE MEIR V MEIR. A judge is only or has only a
window of grace to change the law or substance of the case
where he has not delivered the judgement.
But where he has delivered the judgement, and there are
errors in that judgment, in respect of law, he cannot amend.
(Some E.g of accidental slips are mistake in names, mistake in
parties etc).
ORDER 23, RULE 10. Clerical mistakes in judgments or orders,
or errors arising in the judgments or orders from any accidental
slip or omission, may at any time be corrected by the Court on
motion or summons without an appeal". So, unless there is a
clerical mistake for the court is considered "Functus officio".
Which means having discharged his duty. The judge or
magistrate, (or tribunal member) who passed his order become
"functus officio", meaning, once the order is passed, it cannot
be retired or reheard by the same judge or the same magistrate
on the same matter.
Once a court has passed a valid sentence after a lawful
hearing, it is functus officio and cannot reopen the case.
ORDER 23, RULE 11 (Amendment of Pleadings by
agreement/amendment by consent). There would be
situations or circumstances wherein you would have to inform
your colleague on the other side that you want to amend but
you do not want to file paper. That is what Rule 11 (1) is about.
So this type of amendment happens where a party seeking an
amendment would have to seek the consent of the other party
to amend. Where the other party agrees to the amendment,
then, both of you can amend, and that consent has to be in
"writing". That is why there is always a camaraderie between
and amongst colleagues.
ORDER 23, RULE 11 (1) Notwithstanding rules 1 to 10, any
pleading in any cause or matter may, by written agreement
between the parties, be amended at any stage of the
proceedings".
But Note: There is an exception to the above.
Rule 11 subrule (2). “This rule shall not have effect in relation
to an amendment to a counterclaim which consists of the
addition, omission or substitution of a party".
So, where the proposed amendment touches and concerns
Substitution, addition or omission a party, you cannot unless
you seek the leave of the court before such an amendment
can be granted.
In simple, when the amendment sought is related to
Substitution, addition or omission, the consent of the other
party is immaterial. Thus, you have to seek the leave of the
court. So what you should grasp under amendment are: (1) The
introduction (2) The principles (3) General Rule and the
Exceptions, That is, the situations/circumstances you need
leave or you do not need leave.
ORDER 24- WITHDRAWAL AND DISCONTINUANCE Generally, a
party has a discretion to choose whether he has to pursue or
carry on with his action or discontinue his action.
What is the difference between "Withdrawal and
Discontinuance"?
WITHDRAWAL: It simply means a party WITHDRAWS only a
portion or a part of his claim, while the other part survives.
DISCONTINUANCE: It simply means a party TERMINATES the
entire action; nothing survives.
When you look at the Rules, the words that are used
consistently, they said when you want to withdraw your claim
or when you want to discontinue your action.

So you will note that for Withdrawal, you have issued it by

Writ of Summons, but you noticed that you want to withdraw
paragraph (1), paragraph (2), and paragraph (3) of your
Statement of Claim, you do not want them to be part of that
Pleadings, but paragraph (4), paragraph (5) and paragraph (6)
are safe. So, you withdraw a portion. Or you have asked for
Specific Performance, you have asked for Injunction, you have
asked for Remedies that you think should not be asked for, so
you withdraw them. So, withdrawal only deals with you
removing a portion of the claim and then, the action survives.
Whereas for Discontinuance, you terminate the action itself.
ORDER 24, RULE 1 (1) & 1 (2). (WITHDRAWAL OF APPEARANCE
NOTE: If a party makes an appearance to an action that he
thought that he is not supposed to be part of that action, he
can withdraw his appearance. But only with the leave of the
court.
This is because, the party would have to explain to the court
why he is withdrawing his appearance. Then, he I expected to
say as far as he is concerned, the claims in this action have no
relation to him. I ought not to have entered appearance. In
fact, I was not even supposed to be there as a Defendant, it was
a mistake on my part, so I can withdraw my appearance in such
a case.
In summary, you can withdraw your appearance but with the
leave of the court:
(1) Where you ought not to have become a party or you
wrongly entered appearance to a suit.
(2) Where you have no relationship or connection whatsoever
to the relief that is sought or you have no Liability whatsoever
to the plaintiff.
(3) where you must have entered appearance when you should
not have entered appearance at all.
In such a situation, you have an obligation to tell the court that
you are withdrawing your appearance. See ORDER 12).
THE EFFECT/CONSEQUENCE OF WRONGFUL APPEARANCE TO
AN ACTION, THE FAILURE TO WITHDRAW FROM IT AS WELL AS
THE FAILURE TO FILE A DEFENSE.
Where a party enters an appearance to an action he is not in
the first place supposed to have entered an appearance and
fails to withdraw from that action but more importantly fails to
file a defense, the consequence will be "ORDER 22" that is
"Judgement in Default of defense, will be entered against him.
Remember, ORDER 22 is word for word with ORDER 13. with a
slight difference though.
So now, where a party enters an appearance to a suit that he
ought not to have entered appearance to, because he is not
connected to the action whatsoever, but fails to withdraw his
appearance, the plaintiff can enter judgement in default of
defense against him.
Or when you ought not to have entered appearance, you were
not even a party to the writ of Summons, you went ahead and
entered an appearance. Its enforcement now is completely
different because you are not a party and you entered
appearance.
The Question is whether a judgement can be enforced against
you?
For Order 22 which deals (Judgement in Default of Pleadings)
…… But I am there as a party, I entered appearance and I look
at the action and see that I am not related whatsoever to the
action, I did not file a defense. Instead of doing the necessary
things to file a Notice of Withdrawal of appearance, you did
not. Now that plaintiff can file an ORDER 22 Application
(Judgement in Default of Pleadings). And Judgement will be
entered against you, unless you apply to set it aside.
So basically, ORDER 24, RULE 1 is saying where you have
entered appearance you can withdraw your appearance with
the leave of the court, by filling a Notice of Withdrawal of
appearance, and serving it on all parties involved. Because
once you have entered appearance, you have a locus before
the court. And court will see you as a proper party before the
court.
NOTE: If you do not notify them, your Withdrawal will not be
considered.
Subrule (2) of Rule SAYS:
(1) First, you must seek leave. if granted to you;
(2) You notify all the others that are involved, that you are no
longer a party to the proceedings.
Why should you give Notice? Remember, Withdrawal or
Discontinuance can be done either with leave of the court or
without the leave of the court.
WITHDRAWAL OR DISCONTINUANCE WITHOUT THE LEAVE OF
THE COURT. RULE 2 (1) of ORDER 24. It says: The plaintiff in an
action begun by writ may, without the leave of the Court,
discontinue the action, or withdraw any particular claim made
by him in the action, as against any or all of the defendants at
any time not later than 14 days after service of the defense on
him or, if there are two or more defendants, of the defense
last served, by serving a notice to that effect on the defendant
concerned".
So as long as you (the Plaintiff) have been served a defense
and 14 days has not yet lapsed after the service of that
defense on you, you can Discontinue or Withdraw without the
leave of the court.
GROUNDS ON WHICH YOU CAN WITHDRAW WITHOUT THE
LEAVE OF THE COURT ARE:
(1) The first ground is wherein you have prepared and filed the
Writ of Summons but you have not yet served it on the
Defendant. In such a case, you can Discontinue the action or
withdraw a portion of the claim without the leave of the court.
NOTE: Even wherein I have served Kai Samba the Writ of
Summons and Kai Samba Entered an appearance on the 9th of
June, 2022, I can discontinue the action or I can withdraw a
portion of the claim on the 11th, 12th, 13th, 14th, 15th, 16th,
17th, 18th, 19th, 20th, 23rd, 24th, 25th, 26th, 27th, 30th. So
now, if I have filed the Writ of Summons, but have not served
Kai Samba at all, I can Discontinue the action without the leave
of the court.
(2) The second ground is I have filed the Writ of Summons and I
have served Kai Samba the Writ of summons; he enters
appearance but he has not filed a defense yet, I can withdraw a
portion of the claim or discontinue the action at any time
without the leave of the court.
(3) The Third ground is, I have issued and filed the Writ, I have
served Kai Samba the Writ of Summons, Kai Samba have
entered appearance and served defense on me, now I have the
right to either withdraw a portion of the claim or discontinue
the action within 14 days after he served on me his defense.
However, note: Once it reaches 15 days from the day the
plaintiff is served with the defense, he can no longer
Withdraw a portion of the claim or Discontinue the action
unless he seeks the leave of the court".
NOTE: An application for discontinuance or withdrawal under
this order may be made by summons or motion or by notice
under rule 6 of Order 28".
NOTE ALSO: The Rule says 10 days after you enter an
appearance, you must file a defense,
ALSO NOTE: Discontinuance and Withdrawal is not as a result
of want of evidence. You may just think that I do not want to
continue with this action again. Or you have made a
fundamental mistake, you may in this circumstance Discontinue
and amend. So instead of amending a whole Writ which will
result to the Messy or disorderly condition of the Writ, you may
just Discontinue the action and amend and file it afresh.
However, costs will always be levied against you and you will
not be allowed to refile or continue with your new action
unless you have paid those costs. See Rule 5 of ORDER 24. "5.
(1) "Where a party has discontinued an action or counterclaim
a withdrawn any particular claim made by him in the action or
counterclaim and he is liable to pay any other party’s costs of
the action or counterclaim or the costs occasioned to any
other party by the claim withdrawn, then if, before payment
of those costs, he subsequently brings an action for the same,
or substantially the same cause of action, the Court may order
the proceedings in that action to be stayed until those costs
are paid”.
(2) An application for discontinuance or withdrawal under this
rule may be made by summons or motion or by notice under
rule 6 of Order 28". So Discontinuance of an action or
Withdrawal of portions of a claim without the leave of the
court is what Rule 2 (1),(2),(3),(4),(5),(6),(7) is all about.
NOW SUBRULE (2) OF ORDER 24 RULE 2, IT GIVES THE
DEFENDANT THE SAME RIGHT TO WITHDRAW HIS DEFENSE.
A defendant to an action begun writ may, without the leave of
the Court-
(a) Withdraw his defense or any part of it at any time;
(b) Discontinue a counterclaim, or withdraw any particular
claim made by him in the claim or counterclaim, as against any
or all of the parties against whom it is made, at any time not
later than 14 days after service on him of a defense to the
counterclaim or, if the counterclaim is made against two or
more parties, of the defense to the counterclaim last serving a
notice to that effect on the plaintiff or other party concerned".

Why does the Rule use the words "withdraw his defense"
under paragraph (a)?
The simple reason is that "a defense is not an action. It is only
a response. You Discontinue only an action; you do not
Discontinue what is not an action". Is a defense a claim? A
defense is simply a response to the allegations in Writ.
That is why you have paragraph (b) which deals with
COUNTERCLAIM. If you have a COUNTER CLAIM which is AN
ACTION, you Discontinue it. You do not withdraw a Counter
claim.
Now the Defendant files his defense in paragraph (a) under
Rule 2 (2). The Defendant wants to withdraw his defense
because, a defense is not an action it is merely a response to
the allegations that are contained in the Writ of Summons
either denying them, or admitting them, or putting the plaintiff
to Strict proof. So therefore, you cannot Discontinue a defense,
on the basis that you can only Discontinue an action rather you
withdraw it.
Now, if you go to paragraph (b) of subrule (2) of Rule 2, which
talks about Counter Claim.
If a Defendant files a defense and a Counter claim, then, that
Counter claim is treated as an action.
NOTE: A Counter Claim is an independent and separate action
from the original action.
A Counter Claim can stand on its own as an action. It can be
pursued by the Defendant. And when the Defendant files a
Counter Claim, the position changes.
See ORDER 16, RULE 5, under Summary Judgement, where we
also discussed Counter Claim. So, the position of the parties’
changes when the Defendant files a Counter Claim. The
Defendant becomes the Plaintiff and the Plaintiff becomes the
Defendant. So, if it is a Counter Claim, you Discontinue the
counterclaim (paragraph (b)). You withdraw the defense for
(paragraph (a)).
NOTE: It is not only limited to the plaintiff to Discontinue or
Withdraw an action, as Subrule 2 (2) of Rule 2 have explained,
even the Defendant can Discontinue an action in situations
where he has a counter claim against the plaintiff or can
withdraw a defense.
NOTE: There are always rival titles. So essentially or of utmost
importance, what you must note in such circumstance or
situation, if the plaintiff has served his defense to the
counterclaim on the Defendant within 14 days, the defendant
can Discontinue his Counterclaim. It is the same Rule but the
roles are reversed.
Now when the Plaintiff becomes the Defendant, he has an
obligation to respond to this Counter claim and therefore, he
will file what is known as "A defense to Counter Claim". After
he has filed this defense to counter claim, and has served it on
the Defendant who is the plaintiff of the counter claim, within
14 days, the Defendant can choose to Discontinue his
Counterclaim without the leave of the court.
ORDER 24, RULE 2 (5) The plaintiff in an action begun by
originating summons may, without the leave of the Court,
discontinue the action or withdraw any particular question or
claim in the originating summons, as against any or all of the
defendants at any time not later than 14 days after service on
him of the defendant’s affidavit evidence or, if there are two
or more defendants, of such evidence last served, by serving a
notice to that effect on the defendant concerned".
It says, Where the action was not begun by Writ of Summons
but it was instituted by Originating Summons, then, the same
Rule that applies for 2(1) is the same Rule that applies for 2
(5):
(1) where you have issued your Originating Summons but you
have not yet served it on the Defendant, you can Discontinue
the action without the leave of the court.
Note: A Writ or an Originating process is deemed as issued
when it is signed, sealed and delivered, at the Master's Office.
(2) The second requirement is when you issued your Originating
Summons and then, you served it on the defendant and then,
the defendant enters an appearance, but he has not yet filed
an Affidavit in Opposition, you still have the right to
discontinue the action or withdraw a portion of your claim
without the leave of the court.
(3) The third requirement is wherein you have issued your
Originating Summons, you serve it on the defendant and then,
the defendant enters appearance and files an Affidavit in
Opposition and once you have filed that Affidavit in Opposition
and served it on the plaintiff, the plaintiff has the right to
Discontinue the action or withdraw a portion of the claim
within 14 days after the service on him of that Affidavit in
Opposition.
If you look at the Rules, it is basically repeating the same thing
for different Originating Processes. (What is said for Writ of
Summons, it is the same thing that is said for Originating
Summons. The only difference being that, for Originating
Summons, you prove your case by "Affidavit Evidence". While
for Writ of Summons, the evidences are by pleadings
(Statement of Claim, Particulars of Claim, defense, Counter
Claim, Reply".
NOTE: If an action is begun by Originating Summons, you do
not file a defense, you file an Affidavit in Opposition. You only
file a defense to an action begun by Writ.
CRUTIALLY NOTE: THE ONLY ORIGINATING PROCESSES THAT
YOU CAN DISCONTINUE AN ACTION OR WITHDRAW A
PORTION OF A CLAIM WITHOUT THE LEAVE OF THE COURT
ARE: "WRIT OF SUMMONS AND ORIGINATING SUMMONS".
In the case of RE DYSON'S TRADEMARK (1891). The Court said
" Rule 2 subrule (1-5) are only applicable to action that are
begun by Originating Summons and Writ of Summons. Any
other Originating Process like Originating Notice of Motion or
petition, or any other Originating Process other than these
two the court said you cannot Discontinue that action or
Withdraw a portion of that claim unless you seek the leave of
the court".
NOTE: That 14 days freedom that is granted to Writ of
Summons and Originating Summons does not apply here.
ORDER 24, RULE 3. Here, you seek the leave of the court. Here,
if you look at the first sentence of Rule 3,
"Except as provided by rule 2..." That is the exception. Which
means every action under the sun that you want to
discontinue, or withdraw a portion, you must seek the leave of
the court. "3. (1) Except as provided by rule 2, a party may not
discontinue an action (whether begun by writ or otherwise) or
counterclaim, or withdraw any particular claim made by him in
the action or counterclaim, without the leave of the Court, and
the Court hearing an application for the grant of such leave may
order the action or counterclaim to be discontinued, or any
particular claim made in it to be struck out, as against any or all
of the parties against whom it is brought or made on such
terms as to costs, the bringing of a subsequent action or
otherwise as it thinks just".
So, if you look at Rule 3, it is referring you to Rule 2. Remember
Rule 2 deals with situations or circumstances wherein you can
Discontinue an action or withdraw a portion of a claim without
seeking the leave of the court. What you must appreciate and
understand under Rule 3, is that, for every action, before you
Discontinue or withdraw a portion, you must seek the leave of
the court.
You cannot wake up and discontinue it without the leave of the
court. Similarly, so, you cannot wake up and withdraw any
portion of a claim without seeking the leave of the court.
So that is the General Rule or Position of the law. Every action,
whether they are begun by Writ of Summons, Originating
Summons, Originating Notice of Motion or Petition, if you
want to discontinue that action, or withdraw a claim you are
under an obligation to seek the leave of the court by filing an
application.
NOTE THE EXCEPTION it falls under Rule 2".
NOTE: If I have issued my Writ of Summons and I have served
Demba Sillah, and Demba have filed and served me a defense
to that Writ of Summons, I did not apply to discontinue my
action, and 15 days later, I want to discontinue that action.
What should I do in such a situation? (WHAT I SHOULD DO IS I
MUST SEEK THE LEAVE OF THE COURT BECAUSE THE 14 DAYS
TIME HAS LAPSED. SO, BECAUSE OF THAT ONE DAY THAT HAS
ADDED, I MUST SEEK THE LEAVE OF THE COURT).
So, it is of utmost importance for you to note that any
situation that arise that does not fall within RULE 2, you have
to seek the leave of the court. And the only situation in Rule 2,
is that situation that talks about time. If those 14 days period
has lapsed, you are under an obligation to seek the leave of
the court. So, for clarity sake, it is only when you are served
with a defense and you are within that 14 days period after
service, you can Discontinue without the leave of the court. Or
you are served with an Affidavit in Opposition and you are
within those 14 days period after service, you can Discontinue
without the leave of the court. But if it exceeded 14 days, then,
you need to seek the leave of the court.
SUBRULE (2) OF RULE 3 TELLS YOU THE PROCEDUR FOR
WITHDRAWAL OF A CLAIM OR DISCONTINUANCE OF AN
ACTION. Subrule 2 of Rule 3 says: An application for the
granting of leave under this rule may be made by summons or
motion or by ordinary notice under rule 6 of Order 28".
So, there are three means by which you are expected to seek
the leave of the court. They are:
(1) You can file what is known as a judges summons.
(2) You can file what is known as a Notice of Motion.
(3) You can file what is known as Ordinary Notice provided for
under ORDER 28, RULE 6. (Summons for Directions Notice).
NOTE: And that Ordinary Notice that is referred to in ORDER
28, RULE 6, is a notice that does not usually go without
Affidavit".
So, you can choose any of these means for you to seek the
leave of the court to either discontinue an action or withdraw a
portion of a particular claim that you have made.

ORDER 24, RULE 4 (EFFECT OF DISCONTINUANCE).

NOTE: Discontinuing an action is not a bar for you not bringing
the action. Because you have Discontinued an action, does not
mean you cannot come with the same action. The effects are:
(1) It does not bar you from bringing the same action again. You
can bring the same action asking for the same reliefs, made
from the same Order. Nothing stops you.
(2) It can also not serve as a defense for any subsequent action.
So basically, the Defendant cannot come and say, X has brought
this action once, so he cannot bring the same action again, it is
an abuse of process of the court no. its never an abuse of the
courts process. In fact, that is the most important effect.
RULE 4 of ORDER 24 says "Subject to any terms imposed by
the Court in granting leave under rule 3, the fact that a party
has discontinued an action or counterclaim or withdrawn a
particular claim made by him in the action or counterclaim
shall not be a defense to a subsequent action for the same, or
substantially the same, cause of action".
So, in essence, you can either bring the subsequent action with
modifications or you bring the same Action without any
modification or alteration. But of utmost importance, is that
the defendant cannot use it to say the plaintiff has
discontinued this action, why is he bringing it back.
What is significant in all of these is "Justice". If you want, you
can discontinue your action 10 times, 15 times etc, that is why
we have RULE 5 of ORDER 24.
HOWEVER, NOTE: When you continue to discontinue your
action, there is always a cost. So, for every Discontinuance
there is a cost. Now, the danger here is (If you do not pay that
cost, you are not going to be allowed to bring that new action
that you want to bring. You have to pay the costs otherwise,
what will happen is that the party against whom you
Discontinued your action, will file what is known as "A STAY
OF PROCEEDINGS APPLICATION" This is basically telling the
court that, X's action must be struck out or thrown out unless
he pay the costs for the earlier discontinuation he has done).
So usually, Discontinuation without the leave of the court
does not attracts costs because they have not filed any
Application to the court.
Therefore, you do not have to pay any costs. You just file a
Notice to Discontinue your action. Example:"
TAKE NOTICE that this action has been discontinued wholly by
the Defendant". Or if it’s a withdrawal
"TAKE NOTICE that paragraph X, Y, Z or paragraphs XYZ have
been withdrawn by the Defendant".
But where 14 days has lapsed, you have to seek the leave of the
court. And wherein you seek the leave of the court by reason of
the 14 days lapsed, costs would be given against you, because
you are "Discontinuing with the leave of the court", and as a
result, you are filing a Notice of Motion or Judges Summons.
But where you bring in a new action, do not mix it with a
proceeding that has no bearing or connection to this, if you
are going to bring any action connected to this, you are going
to pay those costs.
The same applies where the claims are going to be new or
whatever, as long as it is the same action and the same party
you want to institute the action against, you pay the costs.
The costs here is purely for the parties that are involved in that
action that you Discontinued. It is not for any other action that
are not connected or whatsoever. For Example: So, let us say X
and Z's action is for breach of contract. And F and S's action is
for Declaration of title to Land. The subject party are not the
same, the nature of the claims is not the same, the reliefs that
are going to be sort are not the same. So therefore, F and S's
action has no connection or relationship with X and Z's action.
Even if they are also bringing an action for breach of contract,
the fact that they are not the same party, it has no connection
whatsoever to the other action. So you must note these".
NOTE ALSO: So, by a way of a procedure, you can use any of
the applications under subrule 2 of Rule 3. It applies ipsissima
verba under this same subrule (Rule 5 (2)).

ORDER 24, RULE 6 (WITHDRAWAL OF JUDGES SUMMONS OR

MOTION). A party who has taken out a summons or motion in
a cause or matter may not withdraw it without the leave of
the Court".
What we have been dealing with are:
(1) Discontinuation of an action and
(2) Withdrawal of a portion of a claim, Begun by Originating
Processes.
Now if you look at Rule 6 above, it is purely talking about
Interlocutory Applications. In other words, it is talking about
Withdrawal or Discontinuation of Interlocutory Application.
INTERLOCUTORY APPLICATIONS: These are applications that
are made during the subsistence of a Substantive matter. In
other words, an action must have been begun by any
Originating Processes. Once an action is subsisting and you
want to bring an application in between the subsistence of that
action. It can be filing for an Injunction, it can be an application
for amendment, it can be an application for security for costs, it
can be an application for abuse of process, whatever
application that you want to bring in during the subsistence of
that main or Substantive action, that is what is referred to as
Interlocutory Application.
So, if you file an Interlocutory Application let us say for
instance: Injunction, and you realized that you have made
series of mistakes in that application and you want to
discontinue it, the Rule 6 allows you to withdraw or
discontinue BUT ONLY WITH THE LEAVE OF THE COURT.
In essence, there is no way you can discontinue any
Interlocutory Application unless you seek the leave of the
court through an application by either a "Judges Summons" or
a “Notice of Motion".
So, you should note for Interlocutory Applications, you have
an obligation to essentially seek leave of the court. If you do
not seek the leave of the court, then, it is a problem.
ORDER 2- EFFECTS OF NON-COMPLIANCE.
Prior to now, what we were using were the 1960 Rules. These
Rules as it were, were quite inflexible and rigid. What has
happened over the years particularly in 2007 is for the court to
put together what are known as Equitable Rules. These
equitable Rules are very much flexible and they are primarily
concerned with ensuring that a case is heard on its merits.
NOTE: under Amendment, it’s said that "no Case should fail for
mere technicality or error ". So it is on that very premise, the
court will not allow a case to fail because a party has not
complied with the Rules, as long as it is not going to cause
injustice, as long as it is not going to cause prejudice and as
long as it is not going to affect the integrity of the case.
So, what is of utmost importance is that unlike prior to 2007,
when we were using the 1960 Rules which were very rigid,
wherein a breach of the Rules or Non-Compliance with the
Rules is deemed as fatal error or lead to the matter either being
a Nullity or being struck out. The 2007 Rules are quite flexible
and equitable.
The 2007 rules are equitable in the sense because they have
created a platform to distinguish between "Mere Irregularity
and a Nullity". In other words, what were construed as mere
Irregularity will not now be struck out by the court for Non-
Compliance.
A Non-Compliance with these Rules will not lead to the
termination of the action or setting aside of the action, as long
as it does not cause injustice or prejudice to the other party,
unless it is quite clear that the breach is one that is incurable.
Therefore, the name Non-Compliance is essentially a misnomer
to what really the Order is about, Because the purpose of Order
2 is to cure any non-Compliance. For clarity’s sake, this Order
specifically deals with situations or circumstances wherein you
have not followed the Rules, you have not complied with the
Rules. So, because you have not followed the Rules, or you
have not complied with the Rules, that your dereliction from
the Rules is what is known as non-Compliance.
So, what you must note or appreciate is the fact that ORDER 2
is a "SAVING GRACE ORDER". It is what is used in all situations
whatsoever to ensure that Action that is begun wrongly or an
action that has not complied with the Rules is safe. The reason
for this was stated by the Supreme Court in the case of
IBRAHIM A.N BASMA V ADNAN YOUSEF WANZA.
In the above case, the court was more concerned with the
merit or the importance of a case as opposed to looking at it
not complying with the Rules.
It is a Supreme court decision delivered by JUSTICE TOLLA
THOMPSON. In this case, the Honourable Justice Tolla
Thompson deceased, says that, "Rules of court are not meant
to punish litigants, rather, they are "HAND MAIDEN OF
JUSTICE".
In this case, basically the applicant in the Supreme court, did
not comply with the Supreme court Rules in so far as time is
concerned and the particular documents that should be used to
file his application. So, because of those Irregularities, an
objection was raised by the respondent, and Justice Tolla
Thompson agreed with the objection. He said indeed the
applicant had not complied with the Rules, but he refused to
strike out the application of the applicant. What he did was, he
awarded costs against the applicant. And when he was giving
his Judgement, he said "Rules of court are not meant to punish
litigants, they are merely hand maiden of justice", so in other
words, "Rules of court are there to aid the course of Justice,
but they should not be used to punish litigants, they should
not be followed slavishly, so he said where the party has filed
his papers, and that paper has not complied with the Rules of
the court, the court cannot strike out that paper if it is not
causing injustice or prejudice to the other side, for these Rules
are not made to punish the parties".
So, what the court would do is to correct the papers and then,
award costs because the essence of the Rules is to ensure that
justice is attained, and a claim must be heard on its merits,
they should not be decided on mere technicalities or errors.
So, if a way the party has framed his case, it is such a way that
he has not complied with the Rules, the court will not strike
out that application in so far as the 2007 Rules are concerned.
What they will do is, they will allow that party to either
amend those portions that offence the Rules or they will tell
that party to Discontinue and refile, but they will not wholly
regard the action as a Nullity.
So let us say for Example: if the Rule says you should enter
appearance within 14 days, and then, a party enter appearance
17 days later, you cannot say he has not complied with the
Rules therefore, his rights to naturally justice should be
deprived. That is why ORDER 12, RULE 12 has a provision for
"LATE APPEARANCE" ("12. Nothing in this Order shall be
construed as precluding a defendant from filing appearance
after the time limited for appearance, but if the defendant does
so, he shall not, unless the Court otherwise orders, be entitled
to serve a defense or do any other thing later than if the
defendant had appeared within that time"). So basically, you
cannot come and say this person did not enter appearance
because of his lateness, you cannot deprive him of his right to
naturally justice. In fact, the importance of appearance is that it
gives you "Locus", meaning it gives you standing to defend the
action. So if you are deprived of entering that Appearance on
the basis that ORDER 12 RULE 11 says you must enter
appearance within 14 days, and you have entered appearance
the 15th day, which in literal translation, you have not
complied with the Rules therefore, you should not Defend that
action, it means you are going to be deprived of your
Constitutional right of fair hearing and natural justice. So no
court will say No to you to you filing your appearance. They will
rather give costs against you but they could not deprive you of
that right. So it is of utmost importance for you to note that the
Rules are "hand maiden of justice", they are there to aid the
cause of justice. But not to deprive the parties of their rights to
defend an action, of their rights to sue or pursue an action. To
do so will go against the very Rule which are there to guide
proceedings.
Similar sentiments were expressed by JUSTICE REGINALD
SYDNEY FYNN in the case of ISATU FOFANAH V SANTIGIE
FOFANAH. It is a court of Appeal Decision where an application
was filed to seek leave of the court for extension of time within
which to appeal. (If you look at the COURT OF APPEAL RULES,
PARTICULARLY RULE 10 AND 11, It tells the time frame within
which you must appeal. It says for Interlocutory Rulings, you
must appeal within 14 days, "RULE 10 (1) OF THE COURT OF
APPEAL RULES". For a Final Judgement, you must appeal
within three months "RULE 11 (1) OF THE COURT OF APPEAL
RULES"). The above case was a Final Judgement but they
appeal way out of the three months. So, when they applied for
an extension of time within which to appeal, an objection was
raised that they were way out of time and they should not be
allowed to file their appeal.
NOTE: "It is only the court of Appeal that can extend time, no
other court can extend time".
ORDER 3 (TIME) of the High Court Rules, gives the High Court
powers to Extend or Abridge Time". But when it comes to
appeal matters for purposes of appeal, only the court of
Appeal has that Jurisdiction (to extend time).
So the argument in that case was whether the party that
failed to comply with the Rules should be granted time to file
their appeal? JUSTICE REGINALD SYDNEY FYNN agreed again
with the argument that the party did not appeal within the time
limit for appeals, but quoting the decision of JUSTICE TOLLA
THOMPSON in IBRAHIM A.N BASMA V ADNAN YUOSEF
WANSA, he said he is going to allow the applicant to extend the
period within which to appeal subject to "costs". So he
emphasized Justice Tolla Thompson's point in that Supreme
court Case serving as a "Binding Precedent" in this case.
JUSTICE FYNN says "In neither of the cases cited including those
mentioned by the respondent is there a denial that this court
has a jurisdiction which is but inherent. Such inherent
jurisdiction is residual and the court must turn to it when it is
clear that the bare rules (which are a highly respected guide to
the judicial process) cannot in a particular case ensure that the
ends of justice are best served.
In the case of KORA SESAY AND OTHERS V ALLIE M. KAMARA
AND OTHERS (2000) 8/99 the Supreme Court did not refuse
the application for extension of time merely because it had
been brought outside the time limits but rather heard the full
arguments and based its refusal on the failure to demonstrate
good and sufficient grounds of appeal. The Court did not
disclaim jurisdiction to enlarge time. In MANSARAY V KENNY
AND ANOTHER (unreported) the Supreme Court
acknowledges the power of the Court of Appeal to enlarge
time in circumstances not unlike the present one. There the
extension of time was being sought fifteen (15) months after
judgment was delivered and Justice Umu Tejan- Jalloh CJ
opined: Clearly an application for extension of time within
which to appeal to the Court of Appeal made to the Trial Judge
15 months after the decision to appeal was both out of time
and made in the wrong forum. It is the Court of Appeal which
has jurisdiction to enlarge the time as provided for in Rule
11(1) of the Court of Appeal Rules 1985. In my judgment
therefore the Court of Appeal was right when it held that “only
the Court of Appeal can- extend the time and grant leave to do
so. The High Court is only empowered to grant leave to appeal
within the statutory period allowed for appealing and no
more”. It seems to me that post the year 2000 the Supreme
Court has consistently followed a path that favored allowing an
extension where the circumstances are such that the interests
of justice will be better served. Examples of this attitude are
found in OKEKEY FISHING COMPANY LTD V HAMID MOJOE
KAMARA 2012 (unreported) and DEVENAUX V. KAMARA 2014
(unreported).
In the latter case the Supreme Court whilst allowing an
extension of time approvingly quoted Justice M E Tolla-
Thompson JA; “Procedural rules are intended to serve as hand
maiden of justice and not to defeat it, and invoke the courts
discretionary power to waive strict application of the rules, in
order to ensure that the parties have a fair opportunity to
argue their case in the Supreme Court.” (see Civ App 4/2002
IBRAHIM A. N. BASMA V ADNAN YOUSEF WANSA
(unreported). In my judgment the provision of that section do
not mean and cannot mean that the practice and procedure of
the courts must be regulated in such a manner as to defeat its
ultimate purpose which is to ensure that justice is dispensed in
a fair organized simple speedy effective civilized and just
manner……..It is for this laudable reason that it has been the
practice in Commonwealth jurisdictions that whenever the
court is satisfied that substantial justice requires…..(it will)…
dispense with the strictness of its own rule except where a
matter is directly regulated by an Act of Parliament or Decree
as the case may be” Additionally, I take the view that the ambit
and reach of RULE 66 OF THE COURT OF APPEAL RULES 1985 is
such that it includes RULE 11 (6) of the same. I may very well
find at the determination of this application that this is not a
fitting case in which the court should turn to its inherent
jurisdiction dispensing with the strict application of the Court of
Appeal Rules. I may find then that this is a case the justice of
which demands that the letter of the rule must hold sway.
However, to enable me arrive at any one of these conclusions, I
hold that I must first hear the full application and make a
reasoned assessment of the same. I therefore overrule the
preliminary objection and will allow the applicant to proceed
with his application". NOTE: So basically, what is of utmost
importance is that procedural Rules are purely meant to
guide, they are not meant to punish the litigants. So wherein
the court sees it fit that they should not follow the strictness of
the Rules, let us look at justice and that substantial justice
requires that we should not follow the Rules in such a situation
or circumstance then, we should follow substantial justice. It is
so important to follow justice that if you look at ORDER 2,
RULE 1 (1), It says even where you begin the action by the
wrong Originating process, the court will not regard it as a
Nullity. "It says where, in beginning or purporting to begin
any proceedings or at any stage in the course of or in
connection with any proceedings, there has, by reason of
anything done or left undone, been a failure to comply with
the requirements of these Rules, whether in respect of time,
place, manner, form or content or in any other respect, the
failure shall be treated as an irregularity and shall not nullify
the proceedings, any steps taken in the proceedings or any
document, judgment or order in therein". When you look at
ORDER 2, RULE 1 (1), there are certain variables that are stated
there and if you blunder in any of those variables, your action
would not be treated as a Nullity. Such as: Time, Place, Manner,
Form, Content, or any other Irregularity. Example regarding
time, if the Rule says to do something within this time and you
do not do it, then, it means you have not complied with the
Rules. For appearance it says 14 days, to discontinue an action
it says 14 days after the service of your defense. Now
procedurally, when you file Notice of Motion, the Rules says
you cannot file that notice of Motion unless you give two clear
days to the other side. When you file an application for
summary judgment, the Rule says you cannot move that
Judges Summons or Summary Judgement, unless you give 4
clear days to the other side.
So, the Rules are guided by Time. Now assuming you did not
follow the time, you are either out of time or the time has not
yet reached, then, you go ahead to do a particular action, the
court says here the action will not be treated as a Nullity
because you have not complied with the time that is stipulated.
What they will do, is they will treat it as a mere Irregularity and
award costs against you and for you to go and correct that
time.
In another instance, now let us assume that there are
substantial disputes as to fact, so you were supposed to have
commenced an action by Writ of Summons, and then you
went ahead and instituted the action by Originating
Summons, the Rule says, they cannot treat the action as a
Nullity, they cannot strike out that Action. What they will do is
to treat it as a mere Irregularity and award costs against you
and for you to go and correct your papers or for you to apply
with the right process. NOTE: Writ of Summons are used
where there is a substantial dispute as to fact.
Where there are no substantial disputes as to fact, we use
Originating Summons.
NOTE: There is a trigging situation which will have to deal with
Time in so far as Renewal of Originating process is concerned.
See ORDER 6, RULE 10 (1) LIFE SPAN OF A WRIT OF
SUMMONS. It says "10. (1) For the purposes of service, a writ
other than a concurrent writ shall be valid in the first instance
for 12 months beginning with the date of issue, and a
concurrent writ shall be valid in the first instance for a period
of the validity of the original writ which is unexpired at the
issue of the concurrent writ". The Life Span of Concurrent Writ
is dependent on the Life Span of a Writ of Summons. The only
difference between a Concurrent Writ and the Original Writ of
Summons are the "backing". At the back of a concurrent Writ,
you write only "CONCURRENT WRIT", But they are exactly the
same, word for word, nothing changes. If that Writ expires,
you have to come to renew it by Notice of Motion Ex-parte.
ORDER 6, RULE 10. So the Rule is saying if the Writ has expired,
remember the validity of a Writ is 12 months and so within that
12 months you must serve. If that Writ has taken 13 months,
you have not served, you have not sought leave of the court
to serve within that 12 month and then, on the 13th or 14th
month, you went ahead to serve that writ and you want the
action to continue on that Writ, a party has the right to apply
to strike out that action for Non-Compliance and it cannot be
cured or rescued by ORDER 2. It can only be cured by ORDER
6, RULE 10 which gives you a method by which you can cure it.
Let us say "Y" filed an application to strike out the writ on the
basis that the time frame within which "X" ought to have
served has lapsed. It says 12 months and the writ of Summons
has been in "X's" possession for more than 12 months, then let
us say "X" served it on the 14th month. And then "Y" filed an
application to strike out "X's" Writ of Summons on the basis
that he has not complied with the Rules. Remember we have
said a lapsed of time can be cured but. But for this unique case
it cannot be cured. So you cannot rely on ORDER 2 (1) which
says no matter what the regularity with regards time etc, it can
be treated as a mere Irregularity. You cannot rely on that under
here. The reason for this is that this writ that has last for more
than 12 months can be cured only by ORDER 6, RULE 10 (2).
"Where a writ has not been served on a defendant within the
time limited for its service under this rule, the Court may by
order extend its validity from time to time for a period as may
be specified in the order, not exceeding 12 months at a time,
beginning with the day following that on which it would
otherwise expire, if an application for extension is made to
the Court before that day or such later day as the Court may
allow"
So, what you do is when a Writ expires, you have to file an
application supported by an Affidavit to the court seeking
leave of the court for you to extend time within which you will
serve that Writ.
But Note: The court in such circumstance may give you a week,
a month but the court will not extend 12 months. And in order
for the court to extend that time subrule (3) of ORDER 6 RULE
10 says there must be an Affidavit giving good and sufficient
reasons. "(3) An application for an order under subrule (2) shall
be supported by an affidavit showing all the circumstances
relied on, including the date of issue of the original writ if it has
already been renewed the date of the last renewal, and a full
explanation as to why it has not already been served". So you
should give full explanation as to what precluded you, what
stops you from serving 12 months. Even where you could not
see the person. You apply ORDER 10, RULE 5 (1) "5. (1) If a
document is required to be served on any person and it
appears to the Court that:
(a) that three or more attempts have been made without
success to effect personal service, and that any further
attempt to effect personal service may result in undue delay;
or
(b) that it is otherwise impracticable for any reason to serve
the document personally, the Court may make an order for
substituted service of that document".
NOTE: Service is examinable every year ORDER 10, Writ of
Summons also ORDER 6, Particularly that portion that deals
with the distinction between a Generally Indorsed Writ and a
Specially Indorsed Writ)
Also NOTE: When you look at last year question paper, you will
see the second question say: (a) With reference to the
appropriate Rules in the High Court Rules and relevant
examples, briefly state the circumstances in which you may use
the following Originating processes to commence a civil action.
1. Writ of Summons 2. Originating Summons 3. Originating
Notice of Motion. (b) With reference to ORDER 6, RULE 3 of the
High Court Rules, briefly explain the circumstances when you
may or may not do Specially Indorsed Writ in commencing a
civil action. Remember we spoke about those Claims: Fraud,
Libel, defamation, breach of promissory of marriage, seduction,
malicious prosecution. Those are the circumstances this
question is asking of. We referred to the cases of IBRAHIM
SMITH V FRANCESS SMITH, JOHN V FOFANAH etc. (c) What
constitutes Fresh step. So if the Rules says, enter appearance
within 14 days after service of the Originating Process on you,
and you entered appearance after 14 days, you have not
complied with the Rules. It is referred to as Non-Compliance. If
the Rule says, actions that has to do with Fraud must be
Begun by "Generally Indorsed Writ", and you went ahead and
commenced that action with "Originating Summons", you have
not followed the Rules, it is non-Compliance.
So the Effects of you not complying with the Rules, is what
ORDER 2 is about, and So the effects of that Non-Compliance
is what essentially ORDER 2 is for to cure.
NOTE: FOR CLARITY’S SAKE: Generally, the reason why the
court will not allow your Non-Compliance, or your failure to
follow procedure to defeat the purpose of justice or to defeat
an action, is primarily what was said by Justice Tolla Thompson
in the case of IBRAHIM A.N BASMA V ADNAN YUOSEF WANSA,
that the Rules of court are not meant to punish litigants but
Rather, they are "hand maiden of justice". What justice Tolla
Thompson was saying is that we cannot defeat an action or an
action could not be defeated because you have not followed
the Rules. So when the matter of IBRAHIM A.N BASMA V
ADNAN YUOSEF WANSA
In other words, Rules are there to aide justice, they are there to
promote justice. So essentially you cannot as a result of a
party's mistake or technical error or what have you, strike out
another party's application because Courts are there not as
disciplinarian. What courts are there for is to ensure that justice
is prevailed as long as it does not prejudice the other side. Even
if it may prejudice the other side, it will at all times be
compensated by costs.
So, it is of utmost importance for you to note that the essence
of ORDER 2 is to correct a Non-Compliance. The title is
basically "you have not complied" and because you have not
complied "How is it going to be cured?". So that is what
basically ORDER 2 is about.
If they say 4 clear days to serve summary judgment, and you
fail to give that 4 clear days’ Notice, you have not complied
with the Rules.
NOTE: SUMMARY JUDGMENT must begun by Judges
Summons,
While for DEFAULT JUDGEMENT, you must come by Notice of
Motion if party goes ahead and starts with something different,
you have not followed the form.
So Unless it has been stated by a statute and if it is stated by a
statute, it cannot be cured. Whereas Statute is a substantive
law and a breach of a Substantive law is incurably bad. But a
breach of adjectival law or procedural law can always be
corrected.
The court has always been receptive to those appeals on the
simple grounds that "these parties need to be heard". So if you
look at cases like KENYA V MANSARAY, 18 Months after
Judgement was given, that was when they filed to appeal. In
complete violation of RULE 10 and 11 of the court of Appeal
Rules. Because it makes it very clear the time within which you
must appeal a Final Judgement. Imagine 18 months. But the
court says, we are going to allow because Rules of court are not
meant to punish you, they are essentially there to guide and
promote Justice. But however, in the ABDUL AZIZ AHMED V
NIGERIA SHIPPING CASE, the very supreme court says the
extent of the time is quite difficult for it to allow a party to
proceed with the appeal. In such circumstance, it depends
firstly on the Bench. But where you are able to give good
reasons why you delay in filing your appeals, the courts are
always receptive to accommodate you because as it has over
and again been said "the purpose of these Rules are essentially
to promote or aide justice, they are not there to ensure that
parties suffer because of lack of following the Rules".
IRREGULARITY GENERALLY: It is simply a defect, failure, or
mistake in a legal proceeding or lawsuit; a departure from a
prescribed rule or regulation. An irregularity is not an unlawful
act, however, in certain instances, it is sufficiently serious to
render a lawsuit invalid. For example, a number of states have
statutes that require the appointment of a guardian to
represent the interests of a child who is being sued. The failure
to do so is an irregularity that can be used as a ground for
invalidating and setting aside a judgment entered against the
child. Other examples have been thoroughly explained above
with regards same. So, in other cases, however, the flaw might
be a simple Harmless Error that can be easily rectified, and,
therefore, does not render the proceeding invalid.
TYPES OF IRREGULARITIES
(1) PROCEDURAL IRREGULARITY
(2) JURISDICTIONAL IRREGULARITY
NOTE: There is a Distinction between PROCEDURAL
IRREGULARITY which ORDER 2 will cure and JURISDICTIONAL
IRREGULARITY which ORDER 2 will not be able to cure. There
is a world of difference between Procedural Irregularity and
Jurisdictional Irregularity. These differences will clearly tell you
which ORDER 2 covers.
(1) PROCEDURAL IRREGULARITIES: These are Irregularities that
essentially offend the Rules. In other words, they are at
variance or they are completely different to what the
Magistrate Court Rules, or High Court Rules, or Court of Appeal
Rules, or the Supreme Court Rules says. You have not followed
the Rules. For instance, if you are told to enter appearance
within 14 days and you failed, that is Procedural Irregularity. Or
if you are told to file a Writ of Summons and you went ahead
and filed something else, that is Procedural Irregularity. Or if
you are told that the content of a Generally Indorsed Writ
should not have Particulars of Claim, it should only have a
Statement of Claim, and you went ahead and issued out a
Specially Indorsed Writ, wherein you were supposed to issue
out a Generally Indorsed Writ, that is Procedural Irregularity.
If the Rules say actions that have to do with Fraud, must be
commenced by Generally Indorsed Writ and you went ahead
and start it by Specially Indorsed Writ, or any other form,
those are Procedural Irregularities.
Can Procedural Irregularity be Cured?"
In the case of JOHN V FOFANAH, Also IBRAHIM SMITH V
FRANCESS SMITH (must read case, as it has so many
Noncompliance issues that were dealt with by the Court of
Appeal, so many of them and at the end of the day the only one
that they refused to cure was the one that has to do with
Jurisdiction. In the recent English Court of Appeal case of TERRY
V BCS CORPORATE ACCEPTANCE LTD AND ORS (2018) EWCA
Civ 2422, Hamblen LJ (as he then was) said the primary means
of challenging a judgment obtained by fraud is by bringing a
fresh action seeking the equitable relief of setting aside the
judgment. See also the case JONESCO V BEARD).
In the case of IBRAHIM SMITH V FRANCESS SMITH, what
essentially happened is that there was an allegation of Fraud
but the action was not begun by Writ of Summons. What
happened was that the matter was Appealed. So, the Court of
Appeal says, even if there is an allegation of Fraud, it will be
cured by ORDER 2, RULE 1 (3)
it’s saying "The Court shall not wholly set aside any
proceedings or the writ or other originating process by which
they were begun on the ground that the proceedings were
required by any of these Rules to be begun by originating
process other than the one employed".
So essentially, the court will not set it side or strike it out
because you filed the wrong Originating process, they will
always allow you to go and come back. It will be amended, it
will be an error, it will be any other thing.
But Crucially Note: The court has "INHERENT JURISDICTION to
convert the action as if it was begun by that very Originating
process", as was in the case of AIAH MOMOH V SHAR SAMUEL
NYANDEMOH.
HOWEVER, the case went up to the Supreme Court and it was
later sent back to the High Court and was begun by a Writ of
Summons. It has to do with disputes as to Property. It has to do
with Declaration of title. So, the action was begun by
Originating Summons. So, at the end of the day an objection
was raised about the procedure used.
However, Note: the use of wrong vehicle is not a ground upon
which the action will be considered as a Nullity. It will be
deemed as a mere Irregularity because it is a Procedural
Irregularity.
So instead of striking the case out, what they will usually do is,
they will say go and come by the right process, go and amend.
That is why we have ORDER 23 (AMENDMENT) to correct
these defects.
In JOHN V FOFANAH, in this case, instead of beginning the
action with Generally Indorsed Writ, the action was begun with
a Specially Indorsed Writ. So, what you should note is that a
failure to follow Procedure is not in itself inherently grave, it
will at all times be cured unless, where it touches and
concerns JURISDICTION, that which cannot be cured.
(2) JURISDICTIONAL IRREGULARITIES:
Jurisdiction essentially refers to the power or the authority of
a court to hear and determine matters. A court that lacks
competent, a court that is bereft of Jurisdiction, cannot sit on
any matter of which it lacks Jurisdiction. If it does, whatever
outcome or procedure that matter brings out will be a Nullity.
For the definition of Jurisdiction, you have to look at the case
of DANIEL CAULKER V KOMBA KANGAMA 1974. It has to do
with whether the High Court has Jurisdiction to hear matters
that touches and concerns declaration of title to land in the
provinces.
SECTION 21 OF THE COURT ACT 1965 makes it very clear that
for declaration of title in the provinces, you do not go to the
High Court. So, for determining Ownership as to Declaration
of title to Land, you go to the Local Court.
So, the reason for this is basically because land disputes in the
provinces are primarily based on Customs and Traditions.
CAP 122, and also if you look at the LOCAL COURT ACT OF
2011, SECTION 15 (JURISDICTION), it vests the Local Court for
matters of Declaration of title in the provinces.
So, the only land matters that goes to the High Court is the
land matters that have to do with the WESTERN AREA, if it is
Declaration of Title.
So now if the land is in the provinces and you want to go for
Declaration of title, you go to the Local Court. If you are not
satisfied with the decision of the Local Court, you go to the
District Appeals Court (Magistrate Court). Where you are not
satisfied with their decision, you appeal to the Local Appeal
Division of the High Court, so on and so forth. NOTE: The High
Court is only vested with "Appellate jurisdiction" for matters
that have to do with Declaration of title in the provinces. It is
not vested with "Original Jurisdiction". It is the "Local Court
that is vested with Original Jurisdiction".
So, in CAULKER V KANGAMA, the action was on a declaration
of title for a land in the provinces. The High Court sat on the
matter and then, declared the Respondent as the owner of the
land. The Applicant appealed to the Court of Appeal, and the
Court of Appeal in overturning that decision made it very clear
that the High Court had no Jurisdiction to have sat on that
particular matter.
As a first instance court they cannot, so they had no
Jurisdiction to hear and determine that matter. And the court
went further to Define what is JURISDICTION: It says
JURISDICTION is not only the legal authority by which powers
are vested in the court. It is always referred to as the power by
which proceedings are commenced or begun in the court. So if
the court lacks Jurisdiction, ORDER 2 cannot cure it, for
whatever decision that court makes or takes is a Nullity. By
any stretch of the imagination, ORDER 2 cannot cure, amend
or correct anything where a court is bereft of Jurisdiction.
In fact, the case of PEOPLE'S MOVEMENT FOR DEMOCRATIC
CHANGE (PMDC) AND ANOTHER V SIERRA LEONE PEOPLE'S
PARTY AND ANOTHER, the court made it very clear that if a
court is bereft of Jurisdiction, not even the parties to the
Proceedings can consent to give that Jurisdiction. In other
words, there is nothing whatever as a waiver of Irregularity in
so far as Jurisdiction is concerned. So even if the parties to the
Proceedings, let us say Fuad V Farouk are the parties to the
Proceedings, and they say my Lord, yes, we are aware you do
not have Jurisdiction to sit on this matter but we have agreed
to subject ourselves to the Jurisdiction of this court to hear and
determine our matter in one week time. So, they said even the
parties cannot confer by their consent Jurisdiction for the court.
If they do, whatever comes from that court is a Nullity.
NOTE: Once a Jurisdictional objection is raised, as opposed to
a Procedural or Preliminary Objection then, the court must
seize proceedings and listen to that Jurisdictional objection,
because Jurisdiction goes to the competent of the court, it
goes to the power and authority of the court to hear and
determine matters.

A number of cases have gone to support the above position

on jurisdictional irregularity
Cases like ALHAJI ABDULAI BANGURA AND OTHERS V THE
ATTORNEY GENERAL AND MINISTER OF JUSTICE. It is a
Supreme Court Decision. See also MACFOY V UNITED AFRICAN
COMPANY LTD. All these cases have to do with Jurisdiction.
NOTE: For issues touching on that which has to do with you
not following the Rules (Procedural Irregularities) you now
know that IBRAHIM BASMA V ADNAN YOUSEF WANZA, this is
a supreme court decision, no High Court or Court of Appeal will
depart from it. You also have ISATU FOFANAH V SANTIGIE
FOFANAH, which is a Court of Appeal decision. No High Court
judge will depart from it. Even the Court of Appeal will not
depart from it because it is bound by its own Decision. For the
Court of Appeal, "section 128 of the 1991 Constitution says the
court of Appeal is bound by its own decisions".
So, what has been explained over and again is basically the
first limb of ORDER 2.

The second bit of ORDER 2 is FRESH STEP.

WHAT IS FRESH STEP? A Fresh Step is any Step that is
sufficient enough to constitute a waiver of any Irregularity. Is
any Step subsequent to you becoming aware of the
Irregularity in the paper of another party. It is not for you to go
start again as a result of your own mistakes.
The general Rule is once you take a Fresh Step you have waived
any Irregularity that emanate from those proceedings.
In simple terms, Fresh Step means any step that a party takes
after becoming knowledgeable or aware of the Irregularity in
the papers of another party.
If you becoming aware or knowledgeable that the other party's
papers are defective, they are marred with impropriety, or
infraction, essentially is a Fresh Step.
Note: Once you take that Step after becoming aware or
knowledgeable that the other party's papers are defective,
the effect is that you have waived all that procedural
Irregularity hence, you will be barred from raising any
objection because you have taken that Fresh Step.
So, by that Fresh Step that you have taken, by that action that
you have taken, you have automatically cured the other party's
Procedural breach or his procedural infraction. So, for it to be
deemed as a Fresh Step, it must have been taken at the
subsequent or after you have become knowledgeable or aware
of that Irregularity. And the effect or the Consequence of you
taking that Step is that you are curing his defects or his
procedural infractions or a proprietary or you are curing his
papers indirectly and therefore, you will be barred from raising
any objection because you have taken that Fresh Step.
Example: Y has filed papers to the court, but he did not file by
the right means, and he was to give two clear days’ Notice to
X, but he did not. He has therefore, failed to comply with the
Rules. So X now has an obligation to raise an Objection, it is a
preliminary objection on the basis that Y has not complied
with the Rules. But where X failed to raise that objection, and
went ahead and filed papers, he will be barred from raising
that objection because it will be construed as if X has waived
that Irregularity.
WHAT CONSTITUTES A FRESH STEP? IS THE ENTRY OF
APPEARANCE A FRESH STEP?
The answer is NO. An appearance does not constitute fresh
step.
ORDER 12, RULE 15 "The entry of appearance by a party shall
not be construed as a waiver by him of any irregularity in the
originating process or service thereof or in any order giving
leave to serve the process out of the jurisdiction or extending
the validity of the process for the purpose of service or on any
other ground". And when you look at the purpose of an
Appearance under ORDER 12, we made it very clear that the
purpose of an Appearance is to give the other side locus to
actually have presence to appear for the matter. So, an
Appearance is not a Fresh Step. Without Appearance you would
not even be able to raise the question that you want to raise
because you are not even in the court. So, for you to even have
the right to raise the preliminary objection that you want to
raise, you first of all have to enter "Appearance". That
Appearance is what gives you locus, it is what gives you
standing, it is what gives you presence to be heard in court. So
essentially without that Appearance it is impossible to even
raise a preliminary objection or whatever objection. So, the
Entry of Appearance by ORDER 12, RULE 15 is not a Fresh Step
and therefore, will not waive any Irregularity.
So, in dealing with Fresh Step, in the case of REIN V STEIN, the
court says "any action that you take after the entry of
appearance is what will amount to Fresh Step".
ACTIONS THAT WILL WAIVE IRREGULARITY AFTER A PARTY
HAS ENTERED APPEARANCE? This was examined in the case of
BOYLE V SACKER, the court said "The filing of a Defense is
automatically a Fresh Step".
So, the court showed us actions that could amount to a Fresh
Step. So, you will see a party enters appearance and after went
ahead in filing a defense. In such circumstance, you cannot
come and object to any Procedural Irregularity. So, these are all
actions taken after you have entered appearance.
Similarly in the case of FRY V MOORE, it says "if you file an
Affidavit in Opposition to an Originating Summons, it will be
deemed or construed as if you have taken a Fresh Step".
Why is an Affidavit in Opposition considered a Fresh Step? An
Affidavit in Opposition is construed or considered by an action
begun an Originating Summons as a defiance, just as in an
action begun by Writ of Summons, wherein you file a
defiance.
In furtherance, in the case of HUNT V WORSFOLD, an objection
was raised by a party for Non-Compliance, the other party
raised an Objection to the other objection saying he has taken a
Fresh Step. The other party denied saying No, I have not taken
a Fresh Step. What I have done is merely filing of an
Appearance. The court agrees with his argument saying the
mere filing of an Appearance is not a Fresh Step. For clarity’s
sake for example: Johnnette file an appearance but did not
follow the procedure. Rolanda Entered an appearance and
filed a Notice of Motion, to object to Johnnette's papers.
Johnnette counter object on the basis that Rolanda has taken
a Fresh Step by entering appearance and filing a Notice of
Motion. The court said No, Rolanda has not taken a Fresh
Step, that is not a Fresh Step.
They said a Fresh Step is essentially actions that are
subsequent to the appearance.
So now let us try to be logical. Is the Notice of Motion
subsequent to Appearance? Is it not after the appearance? Yes,
it is after the appearance. So why do you think it does not
amount to Fresh Step? Because if I am coming to raise an
Objection and then, file a Notice of Motion or a judges
summons, you cannot say I have taken a Fresh Step because
the vehicle which I am using to even come and raise the
objection is that particular vehicle, so it is not a Fresh Step. I
am merely making use of the vehicle to raise the objection
with regards your Non-Compliance.
That is why ORDER 2, RULE 2 (2) sets the means by which to
raise your objection. "An application under this rule may be
made by summons or motion and the grounds of objection
shall be stated in the summons or notice of motion". It says
you must come either by a summons or a motion. So therefore,
her raising the objection here that she has entered appearance
and then, she has filed a motion therefore, that is a Fresh Step.
The court said No, that is not a Fresh Step. And if you look at
the Rules, they tell you also when you want to apply to raise an
issue on Non-Compliance you come by this means. So it is not
all actions again that are subsequent to the appearance that is
Fresh Step. An action geared towards raising an Objection
according to REIN V STEIN is not a Fresh Step. And this was
also said in HUNT V WORSFOLD.
But NOTE: A Step taken to secure security for costs is a Fresh
Step.
E.g. This is wherein Kai sues Septimus, but Kai who sues
Septimus is not living in Sierra Leone. He is based in America.
So, because he is based in America, that action cannot proceed
unless he deposits what is known as Security for costs. In the
event he failed, Septimus will have something to fall on. So if
Kai sues Septimus and then, Septimus enters appearance and
then, he file for security for costs, it will be construed as a Fresh
Step. So an application for a security for costs like a defense,
like an Affidavit in Opposition, will be construed as a Fresh
Step and it will waive any Irregularity.
So, in the case of ASSUNTA, the Court said if you apply for
security for costs after you have entered appearance. This is
because, you are seeking an advantage, and because you are
now seeking an advantage, it will be construed as a Fresh
Step.
Note: In answering the Exams question on Fresh Step, you first
and foremost start by saying the entry of appearance does not
constitute a waiver. Now a brilliant student would now ask
what then constitutes the Irregularity? You start now by
explaining: what constitutes waiver of Irregularity essentially is
when a party takes a step that is subsequent to the entry of an
Appearance, as was stated in the case of REIN V STEIN. After
that, you now discuss what are the situations or
circumstances that amounts to a Fresh Step:
 Where a party files a Defense,
 Where a party files an Affidavit in Opposition,
 Where a party files for security for cost. (If you seek for
an advantage such as filing for security for costs)

So, these are what amounts to Fresh Step.

Note: An application for an objection, is not a Fresh Step.
Also note that it is not an absolute Rule. That is when you have
taken a Fresh Step you have waived your Irregularity.
The general Rule is once you take a Fresh Step you have
waived any Irregularity that emanate from those proceedings.
In order for an action to be considered as a Fresh Step that is
sufficient enough to waive any Irregularity is dependent on
the nature of the Irregularity. In RENDE LL V GRUNDY, the
court says, "In order for you to waive any Irregularity it is purely
dependent on the nature of the Irregularity".
EXCEPTION TO THE GENERAL RULE OF FRESH STEP. Where
even you have filed a defense, you have filed an Affidavit in
Opposition, which are Fresh Step as established in leading
cases.
However, the filing of the above i.e., defense and security for
cost WILL NOT WAIVE a JURISDITIONAL IRREGULARITY. In
other words, it is only Jurisdiction that a Fresh Step will not
waive.
So even where a party is aware of the irregularity and still
goes ahead and files a defense, he files an Affidavit in
Opposition, if he is raising a Jurisdictional objection, he will be
heard and the matter will be determined, the court cannot
waive that Irregularity because Jurisdiction goes to the heart
of the matter.
This is because, it is the legal authority that is conferred on
the court that determines the competent of the court.
A Fresh Step is purely meant for Procedural Breach; it does
not extend to Jurisdictional breach".
That is why in RENDELL V GRUNDY they said, the extent of the
waiver is dependent on the nature of the Irregularity. In
essence, it is only Jurisdictional Irregularity that a Fresh Step
cannot waive.
In the cases of AIAH MOMOH and also the case of REBECCA
JOHNSON, the late Tejan Cole raised the objection based on
Jurisdiction, it was said that because he has filed an Affidavit in
Opposition. The counsel on the other side said he has waived
his right on the basis that he has filed an Affidavit in Opposition.
The court therein said No, because it touches and concerns
Jurisdiction, he has not waived his right. The matter should be
determined based on Jurisdiction.
If the objection a party wants to raise is JURISDICTION, it is
perfectly immaterial whether he had filed a defense, whether
he had filed an Affidavit in Opposition, whether he had filed
for security for costs, for as long as it touches on
JURISDICTION that cannot waive the irregularity.
So, under ORDER 2, RULE 2 (1), you must also not delay. It
must be done within a reasonable time. What constitutes a
reasonable time is dependent on the court. You will note that
every case is decided on it own factor. So let us say the action is
for Mangoes, these are perishable goods. So applying to come
and set aside a judgement, for instance in the case of RENUS, it
says a delay for coming to set aside a judgement for more than
a year is prejudicial. That is unreasonable. Therefore, due to the
failure to comply, we could allow this because third party has
accrued to the property.
Also see DAUNTING V WOOD. They are saying if you delay in
setting aside a judgement that has been obtained against you
then, a third party right has accrued, you cannot come and set
it aside. So, what constitutes a reasonable time is dependent
on the fact of the case, the nature of the products in question
and the parties that are involved).
ORDER 19- THIRD PARTY PROCEEDINGS & SIMILAR
PROCEEDINGS
Third Party and Similar Proceedings are provided for in ORDER
19 of the High Court Rules of 2007.
NOTE: Third-Party Proceedings essentially is instituted by a
Defendant who has entered an Appearance to an action in
which he has been sued.
So, which simply means in order for there to be a Third-Party
Proceedings, there must be in existence an action that is
subsisting action in which the Defendant has already been
sued.
Now this is P, which stands for 'plaintiff' (Alpha Bah). This is D,
which stands for 'Defendant ' (Deen Tarawally). And this is T,
which stands for 'Third Party' (Farouk). Now the Plaintiff Alpha
Bah has sued the Defendant, Deen Tarawally, Deen Tarawally,
the Defendant entered an Appearance to this action that is
instituted by Alpha Bah, the Plaintiff. And then, Deen Tarawally,
the Defendant Decided to bring in Farouk as a Third Party.
Simply put “X sued B, B in turn brought in C”.
NOTE: In Third Party Proceedings, the plaintiff has no
relationship or business with the Third Party. Therefore, any
Judgement whatsoever entered from that Substantive action
should be enforced against the Defendant and not the Third
Party.
But for the Third-Party Proceedings, the relationship is
between the Defendant and the Third Party and whatsoever
Judgement entered for Third Party Proceedings should be
enforced against either the Third Party or the Defendant.
SITUATIONS OR CIRCUMSTANCES IN WHICH THIRD-PARTY
PROCEEDINGS ARE INSTITUTED.
Third Party Proceedings are allowed or limited to only four
circumstances.
(1) FOR "CONTRIBUTION"
Where the Defendant thinks that this action that has been
instituted against him, the Liabilities that arose therefrom,
were not as a result of his fault alone. There is another person
who contributed to these Liabilities that he is currently faced
with. Then, the Defendant will bring in that person as a Third
Party. So, where the Defendant believes that someone
contributed to cause the act, he has to bring in that someone.
So, when you look at ORDER 19, RULE 1, SUBRULE 1, It tells
you the circumstances in which you can bring in a Third-Party
Proceedings.
It reads “Where in any action a defendant who has entered
appearance - (a) claims against a person not already a party to
the action any contribution or indemnity; (b) claims against
such a person any relief or remedy relating to or connected
with the original subject-matter of the action and substantially
the same as some relief or remedy claimed by the plaintiff; or
(c) requires that any question or issue relating to or connected
with the original subject matter of the action should be
determined not only as between the plaintiff and the defendant
but also as between either or both of them and a person not
already a party to the action”.
So, if you look at ORDER 19, RULE 1 (1) (a), it has two limbs, it
has “CONTRIBUTION and INDEMNITY”.
So, the classic examples of CONTRIBUTION are usually
Negligent accident cases. So let us say Kai was driving and he
Parked properly where he is supposed to park. And there was a
traffic and Sankoh who was riding Okada was coming and
driving recklessly, and we have Okentu who always put on
glasses whilst driving because she could not see properly. Then,
Sankoh in trying to overtake Okentu Hits Okentu's Car who in
turn hit Kai's Car which was well parked.
And the principle of Negligence is that if X is driving coming
from behind, then, X has the Liability. Then, Kai sues Okentu,
that she is to repair his car and so and so. Okentu now will bring
in Sankoh who led her to Hit Kai's Car as a "Third Party" to
contribute. So Okentu is not denying she hit Kai's Car, but she is
saying I hit your car as a result of the Negligence of Sankoh and
so Sankoh must be brought in and in such a situation Sankoh
will be regarded now as a Third Party to contribute to whatever
Liabilities brought by Kai, whether it is to repair the car or
whatever Liabilities.
In summary, where a Defendant to the original action who has
entered appearance believes that there is someone who must
contribute to whatever action that is instituted against him or
her, that Defendant will bring in that person as a Third Party.
(2) FOR INDEMNITY
The second grounds in which a defendant to an original action
can institute Third Party Proceedings is wherein he believes
that you must be INDEMNIFY by a Third Party. This is usually
brought against Insurance Companies, wherein the Third Party
is the Insurance Company.
So, what usually happens is that if Fuad Ahmed has insured his
property and then it is damaged, or destroyed or accident
occurred, let us say Fuad hit a car then, he is sued. To pay the
person whose car he hit as a result of the accident, Fuad will
bring in the insurance company.
So, in summary, where a party thinks an individual ought to
indemnify him as a result of whatever accident or Liability
that has arisen for which the plaintiff is suing him, he is under
an obligation to bring in the Third Party usually Insurance
company to come and indemnify him.
So, if you think and believe that this action that has been
instituted against me can properly be settled by my insurance
company and it falls on all forms with the insurance package I
paid for then, on those grounds you can bring in the Third-Party
Proceedings against your Insurance company to Indemnify the
plaintiff.
Note: There is no relationship between the plaintiff and the
insurance company and so that is why the insurance company
would have to pay the Defendant and in turn the Defendant
will pay the plaintiff.
So, you must be able to show why the person should Indemnify
you or why the person should contribute. It is simply because
the Liabilities that arose from the action instituted by A against
B, B believes that C contributed to it and so therefore B is
bringing C as a Third Party to either Contribute or Indemnify to
whatever Liability that has been instituted against him by A.
So, ORDER 19, RULE 1, SUBRULE (1) (a) is divided into two
limbs (CONTRIBUTION and INDEMNITY). Vicarious Liability is
another best example for this area. In fact, almost all the cases
under this limb are Tort related cases. So even though in the
Rules, there are three grounds on which you can institute
Third Party Proceedings, but when you come to explaining the
Rules looking at paragraph (a) which has two limbs, you will
notice that there are four grounds in which you can institute
Third Party Proceedings, as Contribution and Indemnity are not
the same.

(3) FOR CONSOLIDATION

ORDER 19, RULE 1, SUBRULE (1) (b), which is the third grounds
on which you can bring Third Party Proceedings is wherein you
are saying the Reliefs or the remedies that the plaintiff is
seeking against you (the Defendant) are almost similar or are
the same as the remedies or reliefs that I will be seeking
against the third party.
So here, the Defendant is saying instead of instituting another
fresh action whilst the Substantive action is going on, why
would I not bring in the Third Party so that the entire action
will be consolidated.
Example: Let us say the plaintiff claims against the Defendant is
for: (a) The recovery of 500 million Leones. (b) Damages (c)
Special Damages (d) Interests (e) Costs This is what the plaintiff
is seeking against the Defendant. The Defendant will look at
these reliefs and remedies the plaintiff is seeking against him
and say these will be the same reliefs and remedies that I will
be seeking against the Third Party who has a direct connection
to the Liabilities that I had incurred here. So, because the
remedies or reliefs are the same or similar or they arose from
the same fact or transaction, instead of me instituting an action
against that person, let me just now bring him in as a Third
Party.
They are basically Related Reliefs, the Reliefs must either be the
same or they are similar, and in such a situation, it is only wise
for you (the Defendant) to bring another person as a Third
Party because the remedies or reliefs that the plaintiff is
seeking against you are similar or the same as the one you will
be seeking against the Third Party).
(4) ORDER 19, RULE 1, SUBRULE (1) (c).
The fourth grounds wherein you can institute Third Party
Proceedings is wherein the Issues that have arisen, you
believe and you think should be determined in the single trial
or same trial or same proceedings.
In others words, they are similar, they are interrelated and
therefore, these issues must be tried in a single proceeding.
Example: Let us say E, Antar instituted an action against D,
Jelloh. And then Antar filed for an Injunction against Jelloh
restraining Jelloh continuing building on the land, the subject
matter of the proceedings pending the determination and
conclusion of the action. Now Jelloh had applied or entered
into a contract with Septimus for the supply of cement and Iron
Rod. There is already an injunction restraining Jelloh from
building or continuing to build. Septimus is threatening Jelloh to
complete the contract, or he is going to institute an action
against him. Septimus is telling Jelloh that he must come and
collect the cement and Iron Rod. Now what Jelloh will do is to
bring in Septimus as a Third Party because he feels threatened
now and the issues Septimus is threatening him for are related
to the land. So Jelloh will bring Septimus as a Third Party in this
case.
Note: In this scenario, Septimus has no Liability to Jelloh, but
Jelloh is bringing him in because of the issues that have arisen
are similar or related to the issues to which he is in court. He
has been injuncted from building or continuing to build on the
land, so therefore, he cannot collect the cement and Iron Rod.
So Jelloh is bringing Septimus as a Third Party because of the
issues that are related to the building and can only be
determined in court.
So, looking again at ORDER 19, RULE 1, SUBRULE (1) "(c)
requires that any question or issue relating to or connected
with the original subject matter of the action should be
determined not only as between the plaintiff and the
defendant but also as between either or both of them and a
person not already a party to the action". Jelloh could not
collect the cement or Iron Rod because he has nowhere to park
them as he has been injuncted by Antar. So Septimus cannot
expect Jelloh now to collect cement or Iron Rod from him. So
the best thing Jelloh should do is to bring Septimus to the court
for him to know that the issues that have arisen are related to
the land and he is also bringing him in so that the court can
determine the matter.
Note that Septimus has any Liability he owes Jelloh but to
determine questions that have arisen to tell him that Jelloh is
not going to complete the contract for the time being Because
the subject matter is in proceedings, there is already problems
involving around it and you cannot force me to breach a court
order, It will be contemptuous.
NOTE: Do not mix this with Joint Charges. (It is essential to
note that Separate Trials in Criminal Procedure is similar to
Joint Charges in Civil Procedure. When you are Jointly Charge,
and you feel that on that Joint Charges you will be embarrassed
or you will be prejudiced then, the court will allow for what is
known as a "Separate Trial", which means in this case, Joint
Charges does not have Correlation or relationship with the
action. Under Joint charges, you will all be charged for the same
crimes or the crimes must be committed from the same
transaction. So where one person amongst you charged says,
no I am not supposed to be charged for all these crimes then,
he will be charged for separate trial.
When you look at the STATE V MOHAMED CONTEH AND 17
OTHERS, you will see wherein the court give reasons why joint
charges should be separated. Here under the separate trial, you
are bringing in someone wherein that person is liable to you.
Whereas for joint charges, it is a situation wherein you and the
person either criminally joined together to commit a crime, so
you are Jointly Charged. So you can jointly charge if the
offence arise from the same transaction, same place or same
area)).
NOTE: A Third-Party Proceedings is an independent
proceeding where in the plaintiff has no relationship
whatsoever with the Third Party.
So, in the very opening of ORDER 19, they tell you situations
or circumstances you can institute Third Party Proceedings.

REASONS FOR THIRD PARTY PROCEEDINGS

Which simply means why the court is allowing Third Party
Proceedings). So, this is completely different from the
situations or circumstances for which the Defendant who has
entered appearance brings in Third Party Proceedings. Which is
different from the situations or circumstances which should
compel a Defendant to bringing in Third Party Proceedings
(Why). BACKGROUND.
It should be noted from the KHEIRS FINANCIAL SERVICES
PROPERTY AND OTHERS V AUSSIE HOME LOANS PROPERTY
LTD case "That a Third-Party Proceedings is an independent
and a separate action from the Substantive or Original action
and can continue or subsist even when the Plaintiff has
Discontinued his Original action.
In the case of HARPER AND GRAY V WALKER, The Court says "a
Third-Party Proceedings will continue even where the plaintiff
has Discontinued his Substantive action". This goes to show the
extent of the independent and separated nature of a Third-
Party Proceedings.
NOTE: The separateness of Third-Party proceeding is evident
again where the plaintiff cannot cross-examine a Third Party,
he cannot enforce any Judgement against the Third Party".
So, a Third-Party Proceedings is primarily a sub-action under a
Substantive action but its lifespan does not depend on the
Substantive action". So basically, based on the principles that
were stated in these cases, KHEIRS FINANCIAL SERVICES
PROPERTY, THE HARPER CASE, WESTYORKSHIRE, Third Party
Proceedings is separate and Independent from the Substantive
or Original action.
WHY IS THIRD PARTY PROCEEDINGS TREATED OR CONTRUED
AS AN INDEPENDENT ACTION? It is simple treated as a
separate or independent action because there is no
relationship between the parties (The plaintiff and the Third
Party).
REASONS WHY THE COURT ALWAYS ALLOWS THIRD PARTY
PROCEEDINGS.
NOTE: Do not mix this up with a situations or circumstances in
which a Defendant can institute Third Party Proceedings. It is
different from the Reasons why the court allows Third Party
Proceedings.
REASONS
(1) TO PREVENT A MULTIPLICITY OF ACTIONS
In the case of BANK OF IRELAND V UNION BANK OF NIGERIA,
the court said "a fundamental importance or one of the reasons
why Third-Party Proceedings are important is to prevent a
multiplicity of Actions". So, it is very important that all issues
related to that subject matter in which the reliefs and remedies
are almost the same or similar, let it be brought under this
Substantive action. Essentially, even though it is separate and
Independent but it is essential that it comes under the
Substantive action to avoid a multiplicity of Actions. So, it will
prevent one action being heard in one court and an action that
is related to it being heard in another court. So to prevent that
multiplicity of Actions, that is why the court said Third Party
Proceedings is important.
(2) To prevent the same issues or the same subject matter or
the same remedies or reliefs being tried by Different court and
arriving at a separate conclusion. In RE- SALMAN AND
BENECKE V FROST, the court said "is to prevent the same issues
or the same subject matter or the same remedies or reliefs
being tried by Different court and arriving at a separate
conclusion, that is why Third-Party Proceedings are important".
The above position is supported by the High Court Rules Itself
in ORDER 4 as it makes provisions for consolidation wherein
the issues or subject matter are the same. ORDER 4 OF THE
HIGH COURT RULES TALKS ABOUT ASSIGNMENT, TRANSFER
AND CONSOLIDATION OF PROCEEDINGS. "ORDER 4, RULE 4,
SUBRULE (1) Where two or more causes or matters are pending
in the Court and on an application to the Court or Judge it
appears to the Court or Judge that - (a) some common question
of law or fact arises in both or all of them; (b) the rights to relief
claimed in the causes or matters are in respect of or arise out of
the same transaction or series of transactions; or (c) that for
some other reason it is desirable to make an order under this
subrule, the Court or Judge may order those causes or matters
to be consolidated on such terms as it thinks just or may order
them to be tried at the same time or one immediately after
another or may order any of them to be stayed until after the
determination of any of them".
So, for example, Where Y sues Frank, and the issues are the
same. Frank sues Dauda and the issues are the same. What
the court will do is to consolidate the action, to prevent
different conclusions from being arrived at by the court in
respect of the same issues or subject matter. In fact, it is either
the Solicitors that will apply for consolidation or the court on its
own motion will look at the papers and say these issues or
subject matter should be consolidated to avoid different
conclusions from being arrived at.
THE PROCEDURES THAT MUST BE FOLLOWED TO INSTITUTE
THIRD PARTY PROCEEDINGS.
Third Party Proceedings can be instituted either with the leave
of the court or without the leave of the court.
However, it must be noted that the court had said in the case
AIDEN SHIPPING COMPANY LTD V INTERBULK LTD, "That
Third Party Proceedings are not applicable where the actions
are begun by Originating Notice of Motion". In other words,
Third Party Proceedings can only be begun either by Writ of
Summons or Originating Summons.
In the case of INTERBULK, the court said in order for you to be
granted leave or allowed to bring in Third Party Proceedings,
you must be able to show that the action was not begun by
Originating Notice of Motion. In other words, if the action was
instituted or begun by Originating Notice of Motion, you are
not allowed as a Defendant to bring in Third Party Proceedings.
The only situation or circumstance where you will be allowed to
institute or bring in Third Party Proceedings, are actions that
are begun by either a Writ of Summons or Originating
Summons.
IN SUMMARY, The General Rule is you cannot file, issue or
institute a Third-Party Proceedings as a Defendant against a
Third Party unless you seek the leave of the court".
If a Defendant issues a Third-Party Proceedings without the
leave of the court, it will be set aside for Irregularity pursuant
to RULE 5, OF ORDER 19. "Rule 5. Proceedings on a third-party
notice may, at any stage of the proceedings, be set aside by the
Court". And one of the grounds for setting aside Third-Party
Proceedings is when you did not seek leave for Third Party
Proceedings when you ought to have sought leave to issue it.
THE EXCEPTION
“Actions begun by Writ of Summons”
If the action is instituted by a Writ of Summons you do not
need to seek the leave of the court". Provided the defendant
to the main action has only entered an appearance, but has
not yet filed a defense".
But where you file a defense, you can no longer issue that
Third Party notice as of right. You would have to go and seek
the leave of the court.
So it is not in all cases that the action is instituted by Writ of
Summons, that you should not seek the leave of the court. So,
Actions might be begun by Writ of Summons but circumstances
will force you to seek the leave of the court. And that is where
you have filed a defense and served it on the plaintiff, under
that circumstance, you are not allowed to issue a Third-Party
notice without first seeking the leave of the court pursuant to
ORDER 19, RULE 1, SUBRULE 1, (2) A defendant to an action
may not issue a third-party notice without the leave of the
Court unless the action was begun by writ and he issues the
notice before serving his defense on the plaintiff".
FOR BETTER UNDERSTANDING OF EVERYTHING WE HAVE
DONE SO FAR ON T.P.P CIRCUMSTANCES OR SITUATIONS YOU
CAN INSTITUTE THIRD PARTY PROCEEDINGS.
(1) So, the first grounds in which you bring in a Third Party is for
Contribution, so the Defendant will bring in the Third Party to
contribute to any Liability against him because of the
Contribution of the Third Party to the Liability.
(2) The second grounds the Defendant can bring in Third Party
is wherein the Defendant believes he should be Indemnified by
the Third Party.
(3) The Third grounds are Where the remedies and Reliefs
being sought by the plaintiff are similar or substantially the
same as the remedies or reliefs being sought by the Defendant
against the Third Party, so you apply for consolidation or the
court in it own motion will consolidate.
(4) FOR CONSOLIDATION. The fourth grounds are wherein the
issues that has arisen, you believe and you think should be
determined in the single trial or same proceedings because
they are interrelated.
THE REASONS OR OBJECTS OF THIRD-PARTY PROCEEDINGS
ARE:
(1) To avoid or prevent multiplicity of Actions between or
amongst the same parties as was in the case of BANK OF
IRELAND V UNION BANK OF NIGERIA.
(2) secondly, to prevent the same issues or the same subject
matter, or the same remedies or reliefs being tried by different
court and arriving at different conclusions. So, it is to prevent
One case being Decided by this court and the other case being
decided by another court. So, the court will prefer
consolidation. This was seen in the cases of RE-SALMAN and
BENECKE V FROST. PROCEDURES THAT MUST BE FOLLOWED IN
ORDER FOR YOU TO INSTITUTE THIRD PARTY PROCEEDINGS.
Third party proceedings can be instituted either with the leave
of the court or without the leave of the court. The General Rule
in taking out Third Party Proceedings is that you must seek
leave of the court.
IN WHAT METHOD OF INSTITUTING AN ACTION THIRD PARTY
PROCEEDINGS APPLIES? The action must be begun by Writ of
Summons or Originating Summons and NOT Notice of Motion.
The authority is AIDEN SHIPPING COMPANY LTD V INTERBULK,
which states you cannot institute Third Party Proceedings for
actions that are begun by Originating Notice of Motion. They
are primarily instituted by action that are begun by either Writ
of Summons or by Originating Summons. (1) And the Default
position is, you must seek leave of the court at all times when
you want to issue Third Party Proceedings. So, in this situation,
we go back to the default position which is the General Rule
and that is to seek the leave of the court.
WHAT IS THE NATURE OF THIRD-PARTY PROCEEDINGS? Third
Party Proceedings are separate, distinct and independent in
nature. That is, they are separate, distinct and independent
from the original action, in the sense that it is purely
proceedings that occurred between the Defendant and the
Third Party. There is no relationship whatsoever between the
plaintiff and the Third Party. The authority for this is KHEIRS
FINANCIAL SERVICES PROPERTY AND OTHERS V AUSSIE HOME
LOANS PROPERTY LTD. CAN THIRD PARTY PROCEEDINGS
CONTINUE AFTER THE PLAINTIFF HAS DISCONTINUED HIS
ACTION? Going further, Third Party Proceedings can continue
even after the Plaintiff has Discontinued his action. The
authority for this is HARPER AND GRAY V WALKER, where the
court said Third Party Proceedings can continue even after the
plaintiff has Discontinued the Substantive action in STOTT V
WESTYORKSHIRE ROADS CARS CO.LTD.
The second grounds on which the court can allow Third Party
Proceedings to continue without the leave of the court or the
Defendant to issue a Third-Party Proceedings without the
leave of the court is wherein a Third-Party Proceedings is
issued against a CO-DEFENDANT. So, if the Third-Party
Proceedings is issued against a Co-Defendant, then, you do not
need to seek the leave of the court to issue that Third Party
Proceedings. This is because the Co Defendant is already a
party to the action”. So basically, wherein the Defendant wants
to bring in a Third Party but, in this case, it is against a Co-
Defendant, where he believes that that Co-Defendant is liable,
or should Contribute or should indemnify him in so far, the
reliefs that the plaintiff is seeking is concerned, then, the
Defendant is at liberty to bring in that Co-Defendant.
And crucially, what is important or interesting is that if the
Defendant had entered appearance to the original action, he
need not enter appearance to the Third Party notice again, he
is now both the Defendant and Third Party. But because he did
not enter appearance, he now enters another appearance
again. When you look at ORDER 19, RULE, 7, which talks about
Claims and issues between a defendant and some other party.
Specifically ORDER 19, RULE 7, SUBRULE “(3) No entry of
appearance to a notice served under this Order shall be
necessary if the person on whom it is served had entered
appearance in the action or is a plaintiff in the action". So if you
look at this subrule, it tells you a Defendant who has entered
appearance do not need to enter appearance again. So that is
the purpose of the second exception. And if you look at the
proviso of SUBRULE (1) of ORDER 19, RULE 7. It tells you that
you do not actually need to seek the leave of the court if you
are bringing a Third Party Notice against a Co-Defendant. The
proviso says: "....subject to subrule (2) the defendant may,
without leave, issue and serve on that person a notice
containing a statement of the nature and grounds of his claim
or, as the case may be, of the question or issue required to be
determined".
PROCESSES OR PROCEDURES BY WHICH THIRD PARTY
PROCEEDINGS ARE ISSUED. Third Party Proceedings are issued
(1) You have to start by stating what the General Rule says.
(2) And after, you come to the exceptions and the exception to
the exception.
(3) And after, you explain the modes by which the application is
made. That is how you answer the question. And if look at
SUBRULE (2) of RULE 1 of ORDER 19, it tells you the procedure.
"(2) A defendant to an action may not issue a third-party notice
without the leave of the Court unless the action was begun by
writ and he issues the notice before serving his defense on the
plaintiff".
And if you look at ORDER 19, RULE 2, SUBRULE (1) and (2), it
tells you the methods or modes by which you approach the
court. "2 . (1) Application for leave to issue a third party notice
may be made ex parte but the Court may direct that notice be
given to the plaintiff or other interested party" . So ORDER 19,
SUBRULE (2) of RULE 1 and then RULE 2 are crucial points to
answer the B part of the question, which says what is the
process or procedure by which a Third Party Proceedings can be
issued? (1)So you start first by explaining what are the
procedures. Generally, a Defendant who is desirous of bringing
a Third-Party Proceedings must seek the leave of the court. (2)
Exceptions, if the action is begun by Writ of Summons before
the Defendant has served his defense, that is the Defendant
just entered an Appearance and did not go further.
(3) Where the third-party notice is against a Co-Defendant, you
do not need to seek the leave of the court. (4) And as an
exception to the exception, where the Defendant has filed and
served the Defense, you have to seek the leave of the court.
THE QUESTIONS ARE MOSTLY ON: (1) CIRCUMSTANCES IN
WHICH A DEFENDANT CAN ISSUE A THIRD-PARTY
PROCEEDINGS. (2) AND WHAT ARE THE PROCESSES OR
PROCEDURE BY WHICH A DEFENDANT IS REQUIRED TO ISSUE
THAT THIRD PARTY PROCEEDINGS. Now what we have dealt
with is the procedure. METHODS OR MODES BY WHICH THIRD
PARTY PROCEEDINGS ARE ISSUED/ HOW THE DEFENDANT
APPROACH THE COURT. That is why in the exams, you cannot
explain subrule (2) of Rule 1, which tells you the "procedure" to
issue Third Party Proceedings, without explaining Rule 2.
Because Rule 2 is about the "methodology or the mode" that
you are going to use to approach the court. So, if you look at
ORDER 19, RULE 2, (1) it says "2. (1) Application for leave to
issue a third-party notice may be made ex parte but the Court
may direct that notice be given to the plaintiff or other
interested party".

GROUNDS FOR THE REJECTION OF A THIRD-PARTY

APPLICATION PROCEEDING
Where the Third-Party Proceedings is primarily aimed at
embarrassing the Plaintiff or delay his action, the court will
not allow it"
If look at these two cases, SWANSEA SHIPPING CO.LTD V
DUNCAN and also BOWER V HARTLEY, it was stated the above.
So, the court will direct you to serve the plaintiff or other
interested parties this Ex-parte Notice of Motion that you want
to issue. So, the Court will look at the document that you have
filed and say No, there is no connection or relationship.
That is the reliefs that the plaintiff is seeking have no
relationship with the reliefs that you are seeking. So, they will
say you want to delay the plaintiff's proceedings, you want to
embarrass him. Where the court comes to that conclusion, it
will refuse your Third-Party Proceedings

BEFORE THE COURT CAN GRANT AN APPLICATION FOR THIRD

PARTY PROCEEDING IT MUST ENSURE THE FOLLOWING:
1) The Third-Party proceeding is not MEANT TO EMBARRASSED
OR DELAY THE PLAINTIFF'S ACTION. ORDER 19, RULE 2, “When
you are seeking or filing an Ex-parte Notice of Motion, what
should be in your Affidavit. Now based on that Affidavit, the
court will look at it and say there is no connection between
what the plaintiff is seeking against you and what you are
seeking against the Third Party.
(2) An application for leave to issue a third-party notice shall be
supported by an affidavit stating -
(a) That the nature of the claim made by the plaintiff in the
action;" Explanation This is for the nature of the claim by the
Plaintiff. You must state the nature of the claim of the Plaintiff.
They want to know whether the nature of the claim of the
Plaintiff correlate with the defendants claim against the third
party.
(b) The stage which proceedings in the action have reached;"
Explanation So you must establish at which stage the
proceedings is. In your Affidavit, you must state at what stage,
or at what level you have gone with the proceedings, have you
entered Appearance, have you gone to trial, have you taking
out summons for directions etc, so you must be able to state
the stage at which the proceedings are in your Affidavit, if you
do not state them, then, it is an error or a mistake. So you are
under an obligation to state at what stage the proceedings are.
(c) The nature of the claim made by the applicant or
particulars of the question or issue required to be determined,
as the case may be, and the facts on which the proposed third-
party notice is based; and. Explanation You are also under an
obligation to state the nature of the claim of the applicant,
because we have said in ORDER 19, RULE 1, (b), the
circumstances under which Third Party Proceedings are
allowed. So it says the Reliefs and the Remedies must be the
same or similar to that of the Plaintiff. So basically, the nature
of the claim must be stated.
IN SUMMARY, if the nature of the claim in (a) that is the
Plaintiff's claim. And the nature of the claim in (b) that is the
applicant's claim, (the Defendant who is applying for bringing
Third Party Notice), similar or the same, if the answer is in the
affirmative, they will grant leave to the Defendant to issue
Third Party Notice.
(C) The name and address of the person against whom the
third party notice is to be issued".
Explanation You have to put in the name and address of the
Third Party. FOR PURPOSES OF EXAMS: Assuming in exams you
are asked to prepare an Affidavit In Support for an application
to issue leave for Third Party Proceedings. What you should do
is to put in all what we were just explaining in the Affidavit, that
is, the Nature of the Plaintiff's claim, the stage at which the
proceedings are, the nature of the applicant's claim, the date
and address of the Third Party.
ORDER 19, RULE 3, (Third Party Directions). Where you issue a
Third-Party Notice as a Defendant, you are under an obligation
to seek the direction of the court as to the future conduct of
that matter. DIRECTION basically means for the court to direct
you. It is called CASE MANAGEMENT. It is basically giving you a
time line as to how events should occur. And you must comply
to those time lines, that is what we call Directions.
Your Third-Party Proceedings will not be heard if you do not
seek Directions from the court. The court will construe it as if
there is no Third-Party application in front of them. Because
the direction is the foundation upon which the trajectory or the
progress of the case is dependent upon. So, you have to have
time frame within which things should be done. When papers
should be filed.
BUT NOTE, just like in Summons for Directions, if you do not
take out a Third-Party Directions, the Third Party will apply to
set aside the Third-Party Proceedings or He will take out a
Summons for Third Party Directions.
A SUMMONS FOR DIRECTIONS generally is issued after
Pleadings have closed, the person that instituted the action
must take out what is known as "Summons for Directions".
Summons For Directions are Directions given by the court to
ensure that matters are tried speedily. It comes with definitive
timelines within which things should be done. Generally, it is
the Plaintiff that has that obligation. In this case, the
Defendant that has issued Third Party Proceedings. So,
without taking these Directions, the court will not hear the
application. See ORDER 19, RULE 3, "3. (1) If the third party
enters appearance, the defendant who issued the third-party
notice shall, by summons to be served on all the other parties
to the action, apply to the Court for directions".

BUT NOTE: It has a remedy, because if you look at ORDER 19,

RULE 3 (2) it says the Defendant against whom Third Party
Proceedings has been issued, within 7 days or after can either
apply for the Third-Party Proceedings to be set aside or
himself can take-out Third-Party Directions.
(2) If no summons is served on the third party under subrule (1)
the third party may, not earlier than 7 days after entering
appearance by summons to be served on all the other parties
to the action, apply to the Court for directions or for an order to
set aside the third-party notice". So basically, if you look at
RULE 3 (1), it puts the burden on the Defendant who has issued
Third Party Proceedings to take out a Third-Party Directions.
Where you fail in taking out that direction, the Third Party,
who is now the Defendant to the Plaintiff's Defendant in the
original action, who has issued the Third-Party Notice, can
apply to the court to either set aside the Third-Party
Proceedings on the basis that a Third-Party Directions has not
been taken or he himself can take out a Third-Party
Directions.
THIRD PARTY DIRECTIONS IS TAKE OUT BY SUMMONS TO
ISSUE OUT A THIRD-PARTY DIRECTIONS. So essentially when
you have taken out a Third-Party Directions, you as a Plaintiff,
that is the Defendant who is now the Plaintiff for the Third
Party, you are in essence in front of the court dismissing your
claim. But even if you fail in doing this, the Defendant has an
obligation to take out a Third-Party Directions or alternatively,
he will apply for it to be set aside. TRITTON V BLONKART.
ORDER 19, RULE 4 (It deals with Default Judgement on Third
Party Proceedings). Remember we have said based on the
principle in KHEIRS FINANCIAL SERVICES PROPERTY AND
OTHERS that Third Party Proceedings is an independent or
separate action. When the Third-Party Proceedings is issued by
the Defendant Automatically the Defendant is construed as the
Plaintiff and the Third Party is construed as a Defendant. For
that Third Party Proceedings, you have an obligation to enter
appearance as if it was a Writ that was served on you,
because remember when the Defendant is issuing a Third-
Party Proceedings against you, he will state in the document,
the date of the claim, the Reliefs that is sought against him,
the nature of the plaintiff's claims and again, he will serve you
together with the originating process and Third-Party Notice.

NOTE: Third Party Proceedings must be SERVED Personally.

A THIRD-PARTY PROCEEDINGS MUST BE SERVED PERSONALLY
LIKE AN ORIGINATING PROCESS. This is so because it is an
independent action. It is now treated as if it is an Originating
action. And because it is construed as an independent action, it
is therefore, proper and fit for it to be served personally just
like any Originating process.
NOTE: The Third Party can even Counter Claim against the
Third Party who is seeking the. He can file a defense to the
Third-Party Proceedings. He can Counter Claim against the
Defendant who is Seeking Third Party Proceedings against
him. So, it is a full-blown Pleadings.
But crucially note: once the Third-Party Proceedings is issued
against you and you failed to enter appearance, as provided
for in ORDER 12. "Judgement In Default of Appearance" will
be taken against you.
Or where you entered appearance, but you failed to serve
defense, "Judgement In Default of Pleadings" will be taken
against you.
So whatever Default that occur whether it is an ORDER 13
Default or ORDER 22 Default, Judgement in Default will be
taken against you (ORDER 19, RULE 4).
So, you are under an obligation at all times to enter appearance
and then, file your defense. ORDER 19, RULE 4, SUBRULE (1) (a).
"(1) If a third party does not enter appearance or, having been
ordered to enter appearance, fails to do so – (a) he shall be
deemed to admit any claim stated in the third-party notice and
shall be bound by any judgment (including judgment by
consent) or decision in the action in so far as it is relevant to
any claim, question or issue stated in that notice;"
LET US ASSUME THE DEFAULT JUDGEMENT WAS TAKEN
AGAINST THE DEFENDANT THAT ISSUED THE THIRD-PARTY
NOTICE, WHAT WILL HAPPEN IN THAT CASE? What is the
procedure that must be followed before satisfaction and after
satisfaction?
Note: for fuad Ahmed instituted an action against Sorieba. He
Entered Appearance, but he did not file any defense and then,
went ahead to take-out Third-Party Proceedings against Fuad
who applied for the Third Party proceeding. And then judgment
in Default is Entered against Sorieba, what happens in that
case?
The above can be found under ORDER 19, RULE 4, SUBRULE
(1) (b). " The defendant by whom the third-party notice was
issued may, if judgment in default is given against him in the
action, at any time after satisfaction of that judgment and, with
the leave of the Court, before satisfaction of the judgment,
enter judgment against the third party in respect of any
contribution or indemnity claimed in the notice, and, with the
leave of the Court, in respect of any other relief or remedy
claimed therein". This is a situation wherein Judgement in
Default has been entered against the Defendant that is issuing
a Third-Party Proceedings.
So, will that judgment be enforced against the Third Party or if
you have not yet satisfied it, how are you going to enforce it?
After satisfaction, before satisfaction. What is the procedure?
So which means you can enforce the judgment without the
leave of the court if you have satisfied the default Judgement in
the main action. So where in the main action, the default
judgement is entered against the Defendant and the
Defendant satisfied the remedies in that default judgment and
decide to enforce that default judgment against the Third
Party, he does not need to seek leave of the court.
ESSENTIALLY, you cannot enforce Judgement against the Third
Party unless you have satisfied the obligation in the
Substantive action you cannot enforce any judgement on a
third party.
Meaning, where the Defendant has not satisfied the default
judgment against him in the Substantive action, in order to
enforce it against the Third Party, he first has to seek the leave
of the court".
NOTE: A Defendant can enter default judgment against the
Third Party and the Third Party can also enter default judgment
against the Defendant. And that is provided for in ORDER 19,
RULE 4, SUBRULE (2). If a third party or the defendant by whom
a third-party notice was issued defaults in serving any pleading
which he is ordered to serve, the Court may, on the application
by summons of that defendant or the third party, as the case
may be, order such judgment to be entered for the applicant as
he is entitled to on the pleadings or may make such other order
as may appear to the Court necessary to do justice between the
parties".
So, which means both of them can apply for Default
Judgement. For the Third Party, this will occur when the he
has filed his defense and Defense to counter claim. The
Defendant did not file a Defence to that counter claim that
was filed by the Third Party. So once the Third Party filed a
defence and Defence to counter claim, the obligation of the
Defendant is to file a Defence to the counter claim. If he fails
to file a Defence to the counter claim, he has defaulted in
pleadings.
In such a situation, Judgement in Default will be entered by the
Third Party against you. And if you the Third Party fail to file a
Defence to the Defendant Third Party Proceedings, the
Defendant will enter Judgement in Default against you. So here,
both of them are at Liberty depending upon who defaulted, for
them to file a judgement in default or Pleadings.
ORDER 19, RULE 4 (3). "The Court may, at any time set aside or
vary a judgment entered under paragraph (b) of subrule (1) or
subrule (2) on such terms (if any) as it thinks just". Do not
confuse this Rule 4 (3) with Rule 5 of ORDER 19. ORDER 19,
RULE 5 "5. Proceedings on a third-party notice may, at any
stage of the proceedings, be set aside by the Court".
NOTE: They are both dealing with Setting Aside. The
fundamental difference is that in ORDER 19, RULE 4 (3), the
Third-Party Proceedings has not even been instituted. You
have not yet been granted leave to issue Third Party
Proceedings, so there is no Third-Party Notice that will
embarrass the Plaintiff at that stage.
The distinction between Subrule (3) of Rule 4 and Rule 5 of
ORDER 19 are very much pivotal. What subrule (3) of Rule 4
does primarily is to set aside any Judgement that has been
obtained in Default pursuant to Subrule (1) (b) and subrule (2)
of ORDER 19, RULE 4 and once the Judgement is set aside, an
opportunity will be given to both parties to now argue Inter-
parte. But the party that is seeking to set aside the judgment
must be able to show that they had a valid defense and that is
why the Judgement should be set aside.
NOTE: So essentially, it does not terminate the Third-Party
Proceedings. Setting Aside a judgement in Rule 4 (3) does not
in any shape or form terminates the Third-Party proceedings.
It only set aside that Judgement.
So, what terminates the entire proceedings is RULE 5, of ORDER
19. It terminates the entire proceedings.
NOTE: Rule 4, (3) is primarily to set aside or vary any
Judgement obtained pursuant to RULE 4, subrule (1) (b) and
subrule (2). Crucially, when that Judgement is set aside, it does
not terminate the Third-Party Proceedings, the Third-Party
Proceedings continue to exists. On the contrary, Under RULE 5,
once the Third-Party Proceedings is set aside, automatically
there is no Third-Party Proceedings in existence. So, Rule 5 is
essentially to terminates or do away with the entire Third-Party
proceedings. So, Rule 5 principally deals with situations or
circumstances a Third-Party Proceedings will be set aside.
And NOTE setting aside Third-Party Proceedings has nothing
to do with the Substantive or Original action. It has nothing to
do with the Plaintiff's claim or it will not affect it because it is
a separate or an independent Rule. Just like how the Third-
Party proceedings itself will not be affected in situation wherein
the Plaintiff chooses to either settle with the Defendant or
Discontinue the Third-Party Proceedings.
CIRCUMSTANCES UNDER WHICH THIRD PARTY PROCEEDINGS
WILL BE SET ASIDE.
There are two ways in which Third Party Proceedings will be set
aside.
(1) The first grounds in which Third Party Proceedings will be
set aside by provisions of Rule 5 is where it is initiated or
commenced by the Defendant improperly. So if the Defendant
fails to follow the procedure in initiating or instituting his Third
Party Proceedings, then, that Third Party Proceedings will be
regarded as an irregularity. And because it is considered
Irregular and based on those Irregularities, the Third-Party
Proceedings will be set aside. In the case of BAXTER V FRANCE,
an Objection was raised on a way a Third-Party Proceedings
was commenced. "And the court Ruled that a Third-Party
Proceedings that was improperly initiated will be set aside". So
wherein you initiate the Third-Party Proceedings improperly is
the first grounds on which Rule 5 will come into force in setting
aside a Third-Party Proceedings.
WHAT IS CONSIDERED IMPROPER BY THE COURT IN THIRD
PARTY PROCEEDINGS? The court considers improper
proceedings in situations wherein you were expected to seek
the leave of the court but you did not. If you fail to follow the
provision, which says before all Third-Party Proceedings are
taken out, the Defendant must seek the leave of the court
except where it is initiated by Writ of Summons, or before the
service of a defense, then, that Third Party Proceedings will be
considered as having been initiated improperly, and going by
the reason in BAXTER V FRANCE, the court will set aside that
Third Party Proceedings.
(2) The second grounds on which a Third-Party Proceedings will
be set aside is wherein the Defendant fails to take out a
direction. Known as Third Party Directions or the Future
conduct of a case, or for the case management generally then,
based on that lapsed, a Third-Party Proceedings will be set
aside. The Third Party will apply to the court for the Third-Party
Proceedings to be dismissed or set aside or The Third Party if he
is magnanimous enough, will essentially issue out a Third-Party
Directions. And NOTE: in the situation where, Third-Party
Proceedings is set aside, it terminates completely that Third
Party Proceedings, but it will not affect the original or
Substantive action because they are separate and has no
direct relationship with the Plaintiff.
NOTE: These are the two circumstances in which a Third-Party
Proceedings will be set aside, and they are regarded as the
principal grounds. But nothing precludes you from adding this
below as a Third grounds, but those above are the principal
grounds Third Party Proceedings will be set aside.
(3) The Third grounds on which a Third-Party Proceedings will
be set aside is wherein the
Third-Party Proceedings is meant to embarrassed or delay the
Plaintiff's action. The court will not allow it and that is why the
court will always direct you to serve the plaintiff and other
interested parties.
ORDER 19, RULE 6 (Judgment between defendant and third
party).
(1) Where in any action a defendant has served a third-party
notice, the Court may at or after the trial of the action or, if the
action is decided otherwise than by trial, on an application by
summons or motion, order such judgment as the nature of the
case may require to be entered for the defendant against the
third party or for the third party against the defendant.
(2) Where judgment is given for the payment of any
contribution or indemnity to a person who is under a liability to
make a payment in respect of the same debt or damage,
execution shall not issue on the judgment without the leave of
the Court until that liability has been discharged.
(3) For the purpose of subrule (2) “liability” includes liability
under a judgment in the same or other proceedings". Basically,
if you look at this Rule, it talks about three stages by which
Judgement can be granted. (1) it talks about situations where
Judgement can be granted at the trial.
(2) After the trial
(3) Or consensually, in others words agreed between the
Defendant and the Third Party.
NOTE: RULE 6, goes for both the Defendant and the Third Party,
which means Judgement can be granted in favour of the
Defendant against the Third Party or Judgment can be granted
in favour of the Third Party against the Defendant. What the
Rule is saying is that in such a situation, the judgment can be
entered either at the Trial, after the Trial or otherwise, which
means the parties agreed. The Defendant or the Third Party
may say, I have agreed to Indemnify you, so let us prepare what
is known as a Consent Judgment, they will agree on that and
prepare a consent Judgement, (Judgement by Agreement).
Now in such a situation, the Court says you can enter the
judgment either by Summons or Motion. But there is a Caveat
to it, HOW WILL YOU ENFORCE THAT JUDGEMENT? So, the
procedure is that should enter the judgment either by
Summons or Motion and with the "leave of the court", unless
he has discharged his Liabilities. RULE 6(2). So basically, the
procedure is I have agreed that I owe you, or it has been agreed
at the trial, or post trial that indeed I owe you, but it is possible
for the debtor or the Third Party to be liable to the Plaintiff
directly on the same debt. So, in such a situation now, if he is
liable to the plaintiff and his colleague Defendant brought in as
the Third Party, you cannot execute on that Judgement without
the leave of the court unless, he has discharged his Liabilities.
His Liabilities in this concept is to the Plaintiff. So once it has
been determined that the Third Party is liable to the Defendant
or the Defendant is liable to the Third Party, the procedure is
either by motion or summons. What you need leave for is to
enforce or to execute the judgment Particularly in situations or
circumstances where in this Judgement, the debtor is indebted
in the same judgment or Liability has aroused in that same
Judgement against him.
ORDER 19, RULE 7 deals with a Defendant bringing in a
Codefendant.
(1) Where in any action a defendant who has entered
appearance –
(a) claims against a person who is already a party to the action
any contribution or indemnity;
(b) claims against such a person any relief or remedy relating to
or connected with the original subject-matter of the action and
substantially the same as some relief or remedy claimed by the
plaintiff; or
(c) requires that any question or issue relating to or connected
with the original subject matter of the action should be
determined not only as between the plaintiff and himself but
also as between either or both of them and some other person
who is already a party to the action, then, subject to subrule
(2) The defendant may, without leave, issue and serve on that
person a notice containing a statement of the nature and
grounds of his claim or, as the case may be, of the question or
issue required to be determined".
NOTE: Is ORDER 19, RULE 7 (1) (a)(b)(c) different from ORDER
19 RULE 1 (1) (a)(b)(c). But the only difference is that ORDER
19, RULE 1 (1) (a) Specifically deals with Third Party
Proceedings that are initiated against persons who are not yet
parties to the proceedings; and ORDER 19, RULE 7 (1) (a)
Specifically deals with Third Party Proceedings initiated against
persons who are already a party to the Proceedings. So Rule 1
(1) (a) and Rule 7 (1) (a) of ORDER 19 are completely different
in so far as the status of the parties to the proceedings are
concerned. However, other that different, you will see that
every other thing is the same, the Indemnity, Reliefs claims,
remedies etc. So in this situation (ORDER 19, RULE 7 (1)(a),
what they simply means is that a person is already a party to
the action as a Defendant. Example: So let us say Sankoh sues
Bliss, he sues Kai Samba, and he sues Patrick. So Sankoh is the
Plaintiff (P). So he sues them all. Bliss is the first Defendant (D),
and Bliss is saying he would not have been here had it not been
for Kai samba who did or made XYZ to happened. So what is
Bliss going to do, he is bringing in Kai Samba as a Third Party
(T.P). So Bliss is now a Defendant in the Substantive or Original
action and a Third Party to a Co-Defendant. Now unlike what
we have been saying that a Third Party has no relationship with
the Plaintiff. In this case, in so far as the action is concerned Kai
Samba has a relationship with the Plaintiff (Sankoh) because he
is a party to the Substantive action. And all that the plaintiff is
concerned about here is that they are all liable to him.
Whatsoever transpires between the Defendants is not his
business. So principally Kai samba is now in a situation wherein
He is liable to Sankoh (P) and liable to Bliss (Co-Defendant). So
in essence, Kai samba now is a Defendant in the Substantive
action and a Third Party to Bliss. And For this Third-Party action,
Bliss is now Construed as the plaintiff and Kai samba the
Defendant. So the Reasons for which Bliss is bringing in Kai
samba are the same reasons that we dealt with when we
started Third Party Proceedings generally, so we are not going
to labor on it again.
But NOTE: what is crucial and different from what we have
been saying is that, in this situation, "Bliss do not need to seek
the leave of the court" to issue the Third-Party Notice against
Kai Samba.
However, note the general Rule. Which is, you must seek the
leave of the court before you issue Third Party Proceedings
except, where the action is begun by Writ of Summons before
Service of your defense. So, where you have served the
defense, you must seek the leave of the court.
Now in this case, because he is already a party to the
Proceedings you do not need to seek the leave of the court.
An Objection was raised in the case of TOWSE V LOVERIDGE, By
the defendant who was supposed to be made a Third Party. He
raised the Objection on the basis that the Defendant has not
followed the procedure, which is to seek the leave of the court
before bringing him as a Third Party, the court in this case said
"No, that Objection would not be upheld for the simple reason
that they are already a party to the Proceedings and therefore,
he needed not seek the leave of the court". Pursuant to
Subrule (1) of Rule 7. So, it is different from what we have been
discussing, which says for a party who is not a party to the
Proceedings, you have to seek the leave of the court. In this
situation, because he is already a party and based on the
reasoning of the TOWSE case, you do not need to seek the
leave of the court.
NOTE: The other unique thing about this Rule is that the
Defendant who is bringing in a Third Party needs not enter an
Appearance pursuant to RULE 7 (3). "No entry of appearance to
a notice served under this Order shall be necessary if the
person on whom it is served has entered appearance in the
action or is a plaintiff in the action".
In essence, It is crucial for you to note that the Rule is saying if
you had already entered an Appearance to the original action,
you do not need to enter Appearance again. The reason for this
is that the person bringing you and you yourself are both
Codefendants.
ORDER 19, RULE 8 (Deals with Claims by third party and
subsequent parties).
Where a defendant has served a third-party notice and the
third party makes such a claim or requirement as is mentioned
in rule 1 or 7, this Order shall, with the modification mentioned
in subrule (2) and any other necessary modifications, apply as if
the third party were a defendant; and similarly, where any
further person to whom by virtue of this rule this Order applies
as if he were a third party makes such a claim or requirement".
In essence, a Third Party just like a Defendant is entitled to
bring in another person who is not already part of the
proceedings known as subsequent party or 4th party.
So, in this case, the Defendant has already instituted an action
against a Third Party, but the Third Party is saying there is
another party who is liable to me, who should Indemnify me,
and because that person is existing, I am going to bring him in.
So that person is known as the 4th party or "subsequent party".
Do not misunderstand Rule 7 with Rule 8.
Rule 7 is independent of Rule 8. Rule 7 is primarily dealing with
a Defendant bringing in a Codefendant.
While Rule 8 is primarily dealing with a Third Party bringing in
4th party who is not a party to the proceedings known as
subsequent party.
NOTE: that subsequent party can also bring in another party.
So, what you should note is that there is no limit. What is
important is that Liability should be brought forward and
explained and people should be able to show to whom they are
liable. Example: Let us assume Deen is the Plaintiff, Mr Kopoi is
the Defendant. So let us assume that there is no other
Defendant. Now Deen who is the Plaintiff sues Mr Kopoi the
Defendant, and Mr Kopoi says no, I am not the only one that is
liable, so he brings in as per Rule 1 of ORDER 19 a Third Party,
Mr Demba. Now, Mr Demba too says, I am not the only one
liable to you Mr Kopoi. Now if the reliefs and the questions of
law are the same, what he would do is to bring in a subsequent
party and that subsequent party is known as a 4th party.
Also NOTE: the action between the Third Party and the
Subsequent party, has no business with the Defendant.
Equally so, the subsequent party has no relationship with the
Defendant. Just like how the Third Party has no relationship
with the Plaintiff. So, the person that brought the Third-Party
Proceedings is the only person that the Subsequent party has
relationship with and so on and so forth. In the case of
BUTTERWORTH V KINGSWAY MOTORS. And also the case of
FOWLER V KNOOP. In these cases, "they challenged the validity
of bringing them in as subsequent or 4th parties on the basis
that it has no foundation in law". In fact, the Rules at that time
did not make provisions for in FOWLER V KNOOP, what the
Rules primarily recognized was the Third Party. But the court
says it will be injustice if 'F' is liable to pay a debt to 'Y' and
then, that is all, 'F' was not given that opportunity to bring in
another party. But the civil procedure in England were
Developed were by a Third Party can bring in a subsequent
party. So, in FOWLER V KNOOP, the court says yes, a Third
Party could be brought in and a subsequent party could be
brought in and so on and so forth. It was also implemented in
the BUTTERWORTH case.
So, there was a challenge as to the validity or legality to a Third
Party bringing in a subsequent party questioning whether that
procedure was recognized by the laws of England? The court
says yes, this procedure is recognized by England for it brings
Justice. And so most importantly, this was done to prevent or
from bringing all those separate actions to the Queens Court,
so why not bring them all together in the same court rather
than, bringing them to different Judges. So you will note that
these procedures contained in Rule 8 are now recognized by
the court and they are now part of the civil procedure in
England and Sierra Leone.
NOTE: in summary,
(1) The General Rule is you cannot bring in a subsequent party
unless you seek the leave of the court.
(2) Again, if the action is not begun by Writ, you must seek the
leave of the court.
In essence, if the action is begun by writ of summon you do not
need to seek leave of the court. This serves as the exception to
point 2
(3) Where 14 days period has not expired, you need not seek
the leave of the court.
(5) There is also a further Exception to that Rule even when the
action is begun by Writ of Summons BUT where the 14 days
elapsed. You must seek the leave of the court. But before the
14 days, you need not seek the leave of the court.
Example: B issued an action against D, D issued a Third-Party
Proceedings against C, C has entered Appearance. C can bring
in a subsequent party before 14 days after the entering of
Appearance. So, within those 14 days period, C can bring in a
subsequent party without the leave of the court. But if it
counts on to 15 days, the Rules says even though the action
was begun by Writ of Summons, you cannot issue subsequent
Party Proceedings as of right because you have slept on your
right, so at this point you cannot issue the Subsequent party
proceedings Unless you seek the leave of the court.
But if the action is begun by Writ of Summons and THE 14 day
has not lapsed after the entering of Appearance, and you
want to bring a subsequent party, you do not need to seek the
leave of the court.
FOR CLARITY’S SAKE (Rule 1 of ORDER 19) Here, there is a
Plaintiff, there is a defendant and There is a Third Party, who
has no relationship with the Plaintiff. (Rule 7, of ORDER 19)
Here, there is a Plaintiff. Two or three Defendants And there is
a Co-Defendant bringing in a Third Party in the same action.
(Rule 8, of ORDER 19) Here, there is a Plaintiff, there is a
Defendant, there is Third Party and there is subsequent party
(ies).
CRUTIALLY NOTE: RULE 7 (2) Where a defendant makes such a
claim as is mentioned in subrule (1) and that claim could be
made by him by counterclaim in the action, subrule (1) shall
not apply in relation to the claim". In essence, where the
Defendant's claim can be properly pleaded in the Counter
Claim against the plaintiff and other Defendants, he need not
bring in a Third Party Proceedings and that is also provided for
in ORDER 18, RULE 3. "3. (1) Where a defendant to an action
who makes a counterclaim against the plaintiff alleges that any
other person (whether or not a party to the action) is liable to
him along with the plaintiff in respect of the subject-matter of
the counterclaim, or claims against such other person any relief
relating to or connected with the original subject-matter of the
action, then, subject to subrule (2) of rule 5, he may join that
other person as a party against whom the counterclaim is
made". So, ORDER 18 talks about (CAUSES OF ACTION,
COUNTERCLAIMS AND PARTIES).
ORDER 19, RULE 10 (Counterclaim by defendant). "10. You
should not exclusively have it in your mind that it is only the
Defendant that can issue Third Party Notice. Where in any
action a counterclaim is made by a defendant, this Order shall
apply in relation to the counterclaim as if the subject matter of
the counterclaim were the original subject-matter of the action,
and as if the person making the counterclaim were the plaintiff
and the person against whom it is made a defendant". So
basically, where a Defendant has counterclaim against the
Plaintiff and he has raised certain issues which the plaintiff
thinks he is not the only person that is liable, the plaintiff can
bring in a Third Party.
Example, The Plaintiff instituted the action against the
Defendant. The Defendant entered an appearance and as well
made a counter claim against the Plaintiff. And then, the
Plaintiff says, these reliefs, remedies or issues that you are
seeking in your counter claim, there is another person who
should be properly brought before the court to Indemnify me
or contribute to that.
NOTE: when the Defendant Counter Claim, he now becomes
the Plaintiff and Plaintiff becomes the Defendant. So, this
Plaintiff in the original action, once he has become the
Defendant, he can issue a Third-Party Proceedings against any
other person to come and Contribute or Indemnify him
towards that counter claim. In fact, if there are more than one
Plaintiff, the plaintiff can bring in a co-plaintiff as a Third
Party.
NOTE: The requirements for you to issue a Third-Party Notice
are the same requirements. You must show that the Reliefs and
remedies that the Defendant is seeking in the counter claim are
the same or similar reliefs and remedies that you will be
claiming against the Third Party. Or the issues or the questions
that has been raised by the Defendant in his Counterclaim, are
questions and issues that are similar or the same to what you
will be seeking against the Third Party that you are bringing in.
And you must show that he has come to Indemnify or
Contribute to that counter claim. As stated in the case of LEVI V
GOLD ANGLO-CONTINENTAL REEFS.
NOTE: Here the Plaintiff cannot seek leave because he initiated
the original action.
ORDER 59- CHANGE OF SOLICITOR
Principally, this Order deals with the Appointment, Removal,
Changing, and Suspension of a Solicitor.
ORDER 19, RULE 1 (Notice of change of Solicitor). So, what
basically this Rule is saying is that where a client is desirous of
changing a Solicitor, that change of a Solicitor will not come
into effect until certain pre-conditions are met. So even if the
client says I no longer want you as my Solicitor, the Court will
not consider any other Solicitor as been the new Solicitor unless
certain pre-conditions are met. If those pre-conditions are not
met, the previous Solicitor who has been sacked will continue
to be construed or regarded by the Court as the Substantive
Solicitor. ORDER 59, RULE 1 (1). "A party to any cause or matter
who sues or defends by a solicitor may change his solicitor
without an order for that purpose but, unless and until notice
of the change is filed and copies of the notice are lodged and
served in accordance with this rule, the former solicitor shall,
subject to this Order be considered the solicitor of the party
until the final conclusion of the cause or matter, whether in the
Court of Appeal or Supreme Court"
WHAT ARE THESE PRE-CONDITIONS? These conditions are in
the Rules but they are bundle up.
(1) So the first requirement you must do is to file a Notice of
Change of a Solicitor. Subrule “(2) Notice of a change of
solicitor shall be filed in the appropriate Registry".
(2) The second Requirement is to Lodge that Notice of Change
of Solicitor. ORDER 59, RULE 1 (3). Subrule "(3) The new
solicitor shall serve on every other party to the cause or matter
not being a party in default as to appearance and on the former
solicitor a copy of the notice indorsed with a memorandum
stating that the notice has been duly filed in the appropriate
Registry".
(3) The third Requirement is for you to serve the parties to the
proceedings.
Why do you serve the parties to the proceedings? You serve
them because the parties must know who your representative
is for the purpose of service, because they will not be sending
documents to that previous Solicitor. So the parties must know
who your representative is or are, so if the Plaintiff is changing
a Solicitor the Defendant must know, and if the Defendant is
the one changing Solicitor, the Plaintiff must know for the
purpose of service.
(4) The fourth requirement is to serve the Solicitors. So, if you
look at ORDER 59, RULE 1 (2) and (3), it captures almost all
these. So it is important for you to fulfill these condition
precedent before it would be said that you have properly
changed Solicitor. So looking at the last paragraph in subrule (1)
of Rule 1, if you do not follow these procedures, your previous
Solicitor will still be considered as Solicitor on records unto the
Supreme Court, particularly where there is an Appeal. So it is of
utmost importance that you file for a change of Solicitor. NOTE:
A Failure to do these is an Irregularity that can be waved, it is
not Fatal. DISTINCTION BETWEEN A SOLICITOR AND A
COUNSEL. There is a difference between a Solicitor and a
Counsel, they are not the same. A SOLICITOR is a person that
prepares all the paper works. A COUNSEL is a person that
appears in court. NOTE: This Rules do not apply to "a Counsel
who is only appearing in Court in the matter. He can appear
without filing a change of Solicitor". "But he will not be
allowed to file any paper unless he files a change of Solicitor".
So, he will be allowed to come to the court to argue on the
case, to make submissions, to lead proceedings, he will be
allowed to do all that as a Counsel. But if he wants to file for
instance, a Summons, a motion or any other paper, he will not
be allowed unless he filed a Notice of Change of Solicitor.
NOTE: The fusion in Sierra Leone (Solicitor and Counsel) does
not still take away the fact that, the Solicitor prepares the
paper works. And the Counsel do the representation in Court.
Example, a Solicitor, let us say FUAD AHMED, who has been
appointed by Kabbah to represent him as his Solicitor and
Counsel. He has been filing papers and he has been
representing in Court, now, FUAD is no longer wanted by the
Client Kabbah. Now what happens, Kabbah goes and hire
Samuel. Samuel can go to court makes submissions, argue,
because a Counsel has audience in all court except the Local
Court, he will not be objected to on the basis that he is a
Counsel. But if Samuel wants to go beyond arguing, he wants to
now file papers, let us say a motion, or a summary judgment or
whatever it is, he is under an obligation now, because he is now
coming to play the role as a Solicitor. So he is now under an
obligation to file a Notice of Change of Solicitor. NOTE: They did
not say notice of Change of Counsel, so even though the
profession is fused here, but a Counsel is not the same as the
Solicitor. Here in Sierra Leone, the Solicitor do all the paper
works, and that same Solicitor can appear in court. However,
that does not preclude the fact that another Counsel cannot
come and argue under that same matter or point of law. The
only thing that will preclude that counsel is if he wants to file
papers because papers are signed by Solicitors. So because he
is going to do that backing, he has to file a Notice of Change of
Solicitor. So failing to do these will be considered as an
Irregularity but an Irregularity that can be waved. So is not as
fatal as issues that has to do with Jurisdiction. In other words, it
does not affect the Substance of the case. In MASON V GRIGG,
And in the case of NORRIS V BAILEY. So in these two cases, "the
court says yes, it is an Irregularity but it is one that can be
waved".
NOTE: It is boldly written in the Rules. What is of utmost In all
of these, whether it is appointment of Solicitor, whether it is
Change of Solicitor, whether it is Suspension of Solicitor, you
do not need to seek the leave of the court. Importance is that
you should file, and lodge and serve. And you may not follow all
these, but as it has been elaborated on, they are Irregularities
but they can be waved, it will not affect the Substance of the
case.
ORDER 59, RULE 2 (Notice of appointment of solicitor). So,
where Rule 1 is talking about Changing a Solicitor. Rule 2 deals
with appointing. So that is why the application you are going to
file is two: You are going to file a Notice of Change of Solicitor.
And a Notice of Appointment of Solicitor. So, it is both Notice
and Memorandum that you are going to file. TAKE NOTICE that
X has been appointed to act for the first Defendant or the
Plaintiff as the case may be in this action instead of FUAD
IDRISS AND PARTNERS. So those are basically what you file. So
the first one talks about Changing and the second one talks
about appointment. But usually when you file, you file both the
appointment and the Changing.
NOTE: "In Rule 2, the person was Representing himself and
now wants to bring in A Solicitor. Rule 1, he was been
represented by a Solicitor and wants to change that Solicitor".
Example, Let us say Septimus is the Plaintiff and he sues
Kabbah, the Defendant, Septimus hired Demba Sillah to sue
Kabbah. Now in this first instance it was Demba Sillah (A
Solicitor) that sued Kabbah on behalf of Septimus. So in Rule 1,
Septimus wants to change Demba Sillah, so he is changing his
Solicitor because the action was begun or initiated by a Solicitor
(Rule 1 of ORDER 59). But in the second instance, it is Septimus
that was Representing himself in Court. So in this situation,
Septimus who has been representing himself have reached a
point where so much legal principles have involved, so he
decides to find a lawyer. Septimus now will go and appoint a
Solicitor. ( Rule 2, ORDER 59). So the major difference between
Rule 1 and Rule 2 is that: In Rule 1, you were originally
represented by a Solicitor and you are swapping that Solicitor
in favour of another Solicitor. For Rule 2, you have been
representing yourself. But now wants to appoint a Solicitor to
represent you. In doing so, you do not need the leave of the
court. All what you do is to file Notice of Appointment, lodge it
and serve it on the parties and the Solicitor that was
Representing the other side.

ORDER 59, RULE 3 (Notice of intention to act in person).

Where a party, after having sued or defended by a solicitor,
intends and is entitled to act in person, the change may be
made without an order for that purpose and rule 1 shall, with
the necessary modifications, apply in relation to a notice of
intention to act in person as it applies in relation to a notice of
change of solicitor except that the notice of intention to act in
person shall contain an address for service within the
jurisdiction of the party giving it". So basically, Rule 3 is the
opposite of Rule 2. Remember, under Rule 2, you were
representing yourself and then, now wants a Solicitor to
represent you. Under Rule 3, which essentially deals with an
intention to act in person, which means you were been
represented by a Solicitor in the action, and now you are
seeking to change that Solicitor for you to represent yourself.
So it is the flip side of Rule 2.
SO, FOR CLARITY’S SAKE
(1) Rule 1, you were represented by a Solicitor. So you are now
changing this Solicitor to be represented by another Solicitor,
(Solicitor- Solicitor).
(2) Rule 2, it is a situation wherein you were acting for yourself.
In other words, you do not have any lawyer during the course
of the Trial, but you have arrived at a stage wherein you think
you now need a lawyer. So you are now replacing yourself with
a Solicitor, (from acting in person to Solicitor).
(3) Rule 3, is the opposite of Rule 2, so for Rule 3, you were
been represented by a Solicitor, but now wants to change that
Solicitor to represent yourself, (From Solicitor to representing
yourself).
NOTE: The difference between Rule 3 and Rule 2 is that when
you are filing a Notice of Intention to represent yourself, the
Rule says you must state an address for service and that
address must be within the Jurisdiction for service.
The very last sentence of Rule 3 tells you that. ORDER 59, RULE
4 (Removal of solicitor from record at instance of another
party). So if you look at Rule 1,2,3, they are completely at
variance with Rule 4. So here, it is not the client as in Rule 1,
that wants to change Solicitor. It is not as in Rule 2, where the
client was Representing himself and he now wants to appoint a
Solicitor. It is not as in Rule 3, where he is not satisfied by the
services that is been done by the Solicitor, and so he now wants
to represent himself.
NOTE: So for Rule 4, a state of affairs must have existed for
the Solicitor to be removed. There must be special
circumstance that has existed, that will lead to an Order been
made for the removal of that Solicitor. If you look at ORDER 59,
RULE 4, SUBRULE (1) (a), it deals with circumstances or
situations where the Solicitor will be removed by the court. It
deals with 6 situations or circumstances that may arise that will
lead the court to remove you.
NOTE: Every year between the 1st to the 10th of January, you
must take out a new practicing certificate. If you do not renew
your certificate, you will not have audience in Court. So as long
as you are practicing, you will have to renew your practicing
certificate. So it is not enough for you to pass the Bar and say
you are a lawyer, every year you have an obligation to renew
your certificate. If you do not, Rule 4 will be invoked against
you.
SITUATIONS OR CIRCUMSTANCES RULE 4 WILL BE APPLIED. (1)
Firstly, where the Solicitor that was Representing the Client has
died. And because the Solicitor is dead, the client has an
obligation to change that Solicitor, if the client failed in filing to
appoint a new Solicitor, whatever that previous Solicitor filed
will be removed and it will be deemed as if the client has no
Solicitor on records.
(2) Secondly, where your Solicitor has been declared bankrupt
or a subject matter on a bankrupt proceeding, then, that
Solicitor should be changed by the Client. If the client do not
change that Solicitor then, the court will remove the Solicitor.
(3) Thirdly, where you as a Solicitor refused or failed to taking
practicing certificate, you will not be heard. That is also other
grounds on which your Solicitor will be removed.
(4) Also, your Solicitor will be removed where he is known for
some unethical behavior.
(5) Furthermore, where he is struck out from the Roll of Court.
Your Solicitor will be removed.
(6) Where he has been suspended. Your Solicitor can be
removed. So if any of those situations arise then, your Solicitor
will be removed and you will be left with no Solicitor. You will
see that all these factors are in paragraph (a) of ORDER 59,
RULE 4. "4. (1) Where– (a) a solicitor who has acted for a party
in a cause or matter has died or become bankrupt or cannot be
found or has failed to take out a practicing certificate or has
been struck off the roll of court or has been suspended from
practicing or has for any other reason ceased to practice;". And
if you look at paragraph (b), it says that Solicitor will be
removed. If the Solicitor is not removed then, the proviso will
come in. "(b) the party has not given notice of change of
Solicitor or notice of intention to act in person in accordance
with this Order”, Proviso “any other party to the cause or
matter may apply to the Court or, if an appeal to the Court of
Appeal or Supreme Court is pending in the cause or matter, to
the Court of Appeal or Supreme Court for an order declaring
that the solicitor has ceased to be the solicitor acting for the
first-mentioned party in the cause or matter, and the Court, or
the Court of Appeal or the Supreme Court as the case may be,
may make an order accordingly". NOTE: The court does not on
its motion remove the Solicitor. There must be an application
from the party. So the first step is if you are aware that your
Solicitor is dead, or he has been struck out from the Roll of
Court or suspended, or he does not have any practicing
certificate, the Rule says you must apply to change that
Solicitor. If you do not apply to change that Solicitor, another
party to the proceedings or any party to the proceedings will
apply for the removal of that Solicitor and an Order will be
accordingly made to remove that particular Solicitor. So it will
now be left to you to choose whether you would want to
represent yourself or you would want to appoint another
Solicitor. So if you look at RULE 4, SUBRULE (2) ,(3), (4) and (5),
it tells you the different steps that should be taken. And
SUBRULE (2) of RULE 4, says, on an application of this nature or
the procedure must be made by summons. "(2) An application
for an order under this rule shall be made by summons and the
summons shall, unless the Court otherwise directs, be served
on the party to whose solicitor the application relates". And
SUBRULE (3) of RULE 4, says, that summons must be supported
by an Affidavit. "(3) The application shall be supported by an
affidavit stating the grounds of the application". So it is very
important for you to bring to the notice of the court that your
Solicitor has either died, or his name has been struck from the
Roll of the court, or he has no practicing certificate etc. So
whatever situation that has arisen, you have a duty by SUBRULE
(1) paragraph (b) of RULE 4, to give notice to change that
Solicitor. If you do not, the Proviso to SUBRULE (1) of RULE 4
will be invoked, that is any party to those proceedings will apply
for that Solicitor to be removed, and once he is removed, you
do not have a Solicitor.
NOTE: If you look at RULE 4, SUBRULE (5), it tells you what you
must do when the Order is given to you. So Rule 4, Subrule (4)
says “Where an order is made under this rule, the party on
whose application it was made shall–
(a) Serve on every other party to the cause or matter (not being
a party in default as to appearance) a copy of the order:
(b) Procure the order to be entered in the District Registry or
other appropriate office mentioned in subrule (2) of rule 1; and
(c) Leave at that office a copy of the order and a certificate
signed by him or his solicitor that the order has been duly
served". So it says: (a) that order that is given to you must be
served on all the parties. That is the order that says we have
removed this particular Solicitor. The only person on whom you
are not going to serve that Order, is the party to the
proceedings who has "not yet Entered Appearance". (b), you
must take the order and register it in the district Registry or
other appropriate office as mentioned in subrule (2) of Rule 1.
(c) you must leave a copy of that Order and a certificate at that
office. So you must ensure that the order that you have
procured is registered at the registry, that the order you have
procured, that a copy is left at the registry and crucially, that
order also is served on all the parties with the exception of the
party who have not yet Entered Appearance. Subrule (5) of
RULE 4 says: "(5) An order made under this rule shall not affect
the rights of the solicitor and the party for whom he acted as
between themselves".
NOTE: what is crucial here is that RULE 4 is essentially where a
certain state of affairs has existed and those state of affairs are
what is contained in paragraph (a). And once the state of affairs
has existed, you are now taking steps to invoke paragraph (b).
So if (a) exists, you have a duty to invoke paragraph (b), if you
do not invoke paragraph (b), the proviso of Subrule (1) of Rule 4
will be invoked, where any party can apply for your Solicitor to
be removed. ORDER 59, RULE 5 (Withdrawal of solicitor who
has ceased to act for party).
So here, it is the Solicitor that is withdrawing from the case. No
situation has existed from Rule 1,2,3,4, where in the Solicitor
removes himself. But here in Rule 5, it is the Solicitor himself
that is Withdrawing. So in this case, if a client is acting contrary
to what you are advising him or her, or the client is withholding
crucial information from you that you hear it for the first time,
and has embarrassed you, or your client has ridiculed you, or
your client is acting at variance to an instant court which has
the tendency to even take you to jail, these could be grounds
on which a Solicitor would Withdraw from acting as a Solicitor
for a client.
(a) So the same procedure that you are to serve all the parties
except to the party that has not yet Entered Appearance.
(b) And that order that you have procured you must ensure
that it is Entered at the Registry. And, (c), you must leave a copy
at the Registry. "5. (1) Where a solicitor who has acted for a
party in a cause or matter has ceased so to act and the party
has not given notice of change in accordance with rule 1, or
notice of intention to act in person in accordance with rule 4,
the solicitor may apply to the Court for an order declaring that
he has ceased to be the solicitor acting for the party in the
cause or matter, and the Court, Court of Appeal or Supreme
Court, as the case may be, may make an order accordingly, but
unless and until the solicitor– (a) serves on every party to the
cause or matter (not being a party in default as to appearance)
a copy of the order: (b) procures the order to be entered in the
district registry or other appropriate office mentioned in
subrule (2) of rule 1; and (c) leaves at that office a copy of the
order and a certificate signed by him that the order has been
duly served, he shall, subject to this Order, be considered the
solicitor of the party till the final conclusion of the cause or
matter, whether in the Court, Court of Appeal or Supreme
Court". Again, Subrule (2) of RULE 5, says the application must
be by Summon, and that Application must be served on all the
parties to the proceedings. "(2) An application for an order
under this rule shall be made by summons, and the summons
shall, unless the judge, Court of Appeal or Supreme Court, as
the case may be otherwise directing, be served on the party for
whom the solicitor acted". And subrule (3) of RULE 5, says that
the application must be supported by an Affidavit. "(3) The
application shall be supported by an affidavit stating the
grounds of the application". And if you look at Subrule (4) of
RULE 5. It says " (4) An order made under this rule shall not
affect the rights of the solicitor and the party for whom he
acted as between themselves". So the contract here must be
fulfilled. That is why we have what is known as "letters of
engagement", it is in a form of a contract with any client. That
letter of engagement defines the extent of work that you are
going to do, you are also going to state that at all times you are
going to take the client instructions and that the client must
listen to your advice and instructions and he must bring in full
and Frank disclosure. That letter is also going to state the stages
of work and the period and means at which the client is going
to pay, whether by installment or whatever it is. So you must
have it and where there is any breach in any terms of that
engagement, you have the right to withdraw as a Solicitor and
for whatever work that you have done, you should be paid. So
that is basically what the Rule is saying. So when you look at
RULE 4, subrule 2,3 and 4 are similar to RULE 5, subrule 2,3 and
4. NOTE: That there is a mistake in the content of the High
Court Rules of 2007 and those are found in. (RULE 4, RULE 5,
RULE 6, RULE 7). If you look at Rule 4 for instance, They were
consistently referring to the Rules that does not apply. Rule 4
deals with Removal of a Solicitor. And what they are referring
to now in Rule 4 is (Removal of solicitor from record at instance
of another party), so what would have supposed to be there
was Rule 3, which deals with (Notice of intention to act in
person). So there is nothing in Rule 4 that deals with notice of
Intention to act in person. The Rule that deals with it is Rule 3.
Even under Rule 6,(1), the proviso, which states "when you
appoint another Solicitor", this has nothing to do with Rule 3.
And it further went to say " or being entitled to act in person,
gives notice of his intention to do so and complies with rule 4"
and when you want to act in person is Rule 3. So you should
take note of those typos. ORDER 59, RULE 6 (Address for
service of party whose solicitor is removed, etc). This is a
situation wherein there has been a change of Solicitor and the
service of processes essentially needs a last known address for
service. This is the address that you are known for before
whatever happens. So what this Rule is saying is that if it is a
company, and the Solicitor that was acting for the company
whatever it is, and they want to serve on this company or this
person, his last known address is the place where they are
going serve. Remember when you are instituting an Originating
Process, on the face of the Originating Summons, the address
of both the Plaintiff and the Defendant will be there. Because if
you do not put the address of the Plaintiff or Defendant there,
then, security for Costs will be applied for. Example: Now, Bah
who was Acting for Baindu, has stopped acting but Baindu have
not appointed another Solicitor yet to act for her. Or Bah was
acting for a company, and has stopped acting and the company
have not appointed another Solicitor yet to act for them, Now,
the last known address of the company is where they will serve.
So on the address of the Writ of Summons, if Baindu lives at
No.10 Sumaila Town, that is where they will leave the
documents, as long as it is not a document that requires
personal Service. If it is a company, it is the last known address
of the company that will be on the writ. If there is no last
known address then, for the purpose of
ORDER 58, RULE 9 An affidavit of service of any document shall
state by whom the document was served, the day of the week
and date on which it was served, where it was served and
how". So ORDER 58 basically deals with SERVICE OF
DOCUMENTS. So essentially, where you have done everything
within your powers to serve and you are not able then, the
court will construed that person as having no address for
Service. So when you look at ORDER 10, RULE 6, there is the
content of Affidavit of service. We said, you should state on
whom you serve, when you serve, where you serve and how
you serve. ORDER 10 , RULE 6. "6. (1) Subject to subrule (2), an
affidavit of service of a document must state by and on whom
the document was served, the day of the week and the date
and the hour on which it was served, where it was served and
how it was served". So what deals with Service of process is
ORDER 10 and ORDER 11. ORDER 58 primarily deals with
SERVICE OF DOCUMENTS. So in line with ORDER 58, RULE 9,
you must state the Affidavit of Service and to whom that you
serve. So because this person have no address for serve, you
must state that he has no address for service whatsoever for
that purpose.
ORDER 59, RULE 6. "6. (1) Where– (a) an order is made under
rule 3; or (b) an order is made under rule 5, and the applicant
for that order has complied with subrule (1) of rule 5, then,
unless and until the party to whose solicitor or to whom, as the
case may be, the order or certificate relates either appoints
another solicitor and complies with rule 3, or being entitled to
act in person, gives notice of his intention to do so and
complies with rule 4, his last known address within the
jurisdiction or, where the party is a body corporate, its
registered or principal office shall for the purpose of the service
on him of any document not required to be served personally,
be deemed to be his address for service. (2) Where the party
has no last known address or registered or principal office, as
the case may be, within the jurisdiction, and the party wishing
to serve documents on him does not know, or may not
reasonably be expected to know, of any other address for
service within the jurisdiction, he shall be deemed to have no
address for service for the purposes of rule 9 of Order 58".
ORDER 35- INJUNCTIONS. (INTERLOCUTORY INJUNCTIONS,
INTERIM PRESERVATION OF PROPERTY).
Essentially, Injunctions are equitable Remedies that are purely
based on the discretion of the Court. However, even though the
court has discretion whether to grant an Injunction or not, that
discretion must be exercised judiciously by the court based on
sound legal principles and guidelines. So, it is an equitable
remedy that is granted by the court's unfettered discretion. But
even though that discretion is unfettered, it must be exercised
judiciously.
Judiciously here simply means, that there are set out
guidelines. There are set out legal principles that the court will
use and evaluate and see whether a party is entitled to get
Injunction or not.
So, Injunction generally, are Orders from Court to maintain the
status quo or primarily aimed at regulating the conduct of the
parties to proceedings, or to prevent them from doing certain
act, or compel them to do certain act, pending the hearing and
determination of either an application or until the Substantive
matter is settled. So, ORDER 35, RULE 1, SUBRULE (1), deals
with Injunction Generally which says, Injunctions can be
granted where it appears to be just and convenient to do so.
"The Court may grant an injunction by an interlocutory order in
all cases in which it appears to the Court to be just or
convenient to do so and the order may be made either
unconditionally or upon such terms and conditions as the Court
considers just".
TYPES OF INJUNCTIONS:
INTERIM INJUNCTIONS Are essentially Ex-parte applications
that are made to temporarily halt or maintain the status quo
pending the hearing or determination of the application Inter-
parte. They usually do not exceed 7 days.
NOTE: Essentially what you must show is that if this Injunction
is not granted, you are going to suffer an irreparable damage
and you must also be able to show the inherent urgency in it.
So, if you look at ORDER 35, RULE 1, SUBRULES (7), (8), (9),
(10), and (11), it deals with INTERIM INJUNCTIONS.
Sub (7) In case of urgency, a party may make the application ex
parte supported by an affidavit.
Sub (8) An application made ex parte under subrule (7) shall
not be granted unless the applicant gives sufficient reasons for
making it ex parte and specifies some irreparable damage or
mischief which will be caused to the plaintiff if he proceeds in
the ordinary manner.
Sub (9) Where an order is made pursuant to an application
made ex parte under subrule (7), it shall not remain in force for
more than 7 days.
Sub (10) If no application is made to the Court to extend the
validity of the order it shall lapse after the expiration of 7 days
from the making of the order unless the Court otherwise
directs.
Sub (11) The Court may, upon application by any party affected
set aside an order made Ex Parte under subrule (7) on such
terms as it thinks fit" So they tell you that the application is
made Ex-Parte. They tell you that it lasts for 7 days. And when
you look at Subrule (10), it said, its validity will not be
extended unless you apply for it.
So let us say the 7 days has lapsed, and you want to come and
renew the INTERIM INJUNCTION, you must apply for it again.
So unless you apply to renew that Interim Injunction for
another 7 days then, that Injunction will seize to exists.
Remember this is an Ex-parte application, the other side is not
here, so because the other side is not here, you cannot give the
Injunction for a long period of time, because they are coming to
argue later Inter-parte why Injunction should not be granted
pending the hearing or determination of the application for
Injunction.
NOTE:
INTERIM INJUNCTIONS is not for entirely pending the hearing
or determination of the TRIAL, It is primarily for 7 days
pending the hearing or determination of the application for
Injunction.
For instance, there is supposed be a chieftaincy Election in
Baima, next week Saturday and then, a particular individual had
been disqualified not to contest that Election on the basis that
this person is not coming from a ruling house. But the Ruling
House Order was not in existence prior to 1961, as the Rule
says. Then, you file an application, because you do not want the
election to go on, on that Saturday. So, when you file an
application for Injunction, you will apply for an Interim
Injunction to stop that election from going on. Because the
danger here is that if the election goes on, paramount
chieftaincy is for LIFE, until the paramount chief dies you
cannot change that person. So if you allow the election to go
on, it will cause irreparable damage that will not be
compensated by money. So you file for an Interim Injunction
which will be heard Ex-parte, and that Interim Injunction will be
heard and then, an Order will be given to you to serve the
Interim Injunction together with the Originating Process.
Because if you look at Subrule (3) of RULE 1, ORDER 35. It says,
"The plaintiff may not make such an application before the
issue of the process by which the action is to be begun, except
where the case is one of urgency and in that case the
injunction applied for may be granted on terms providing for
the issue of the process together with the ex-parte order
obtained on the defendant and such other terms as the Court
thinks fit".
NOTE: What the above point is trying to say is that, nobody is
allowed to apply for an injunction unless he has instituted
proceedings or he has issued an Originating Process instituting
proceedings. This is simply because "The Substantive action
will give you the locus", because the Injunction is not a cause
of action on its own. But more importantly, there must be a
cause of action that is in existence, then, you can institute or
apply for an Injunction.
So, if there is no cause of action, the court will not grant you
an injunction.
In the case of SISKINA V DISTOS NAVIERA, the court said "an
Injunction would not be granted if there is no cause of action
that is pending before the court". The court went further to
say "an injunction is only an Ancillary Relief that will emanate
from the existence of the original action, it is incidental to the
original action, it will not stand on its own, it is just an
equitable Relief.
So, if there is no cause of action, you will not be granted an
Injunction". So, the court will have to look at whether there
are triable Issues. And how is the Court going to look whether
there are triable issues? There must be a Substantive action
before the court, there should be a cause of action, so if there
is no cause of action, the Injunction will not be granted. So
subrule (3) says, you will not be granted Injunction unless
there is a Substantive action in existence, and where the case
is of extreme urgency or emergency, the court says you can
issue them simultaneously.
And subrule (5) of RULE 1, ORDER 35, says because of the
emergency, you should prepare an Order for the court
immediately so the court will just sign and then, you go and
serve the Injunction.
Subrule "(5) A draft of the order sought may be filed with the
application to facilitate the speedy preparation and perfection
of the order”. So the Rule gives you that power as an applicant
because of the irreparable damage that will befall you to serve
the Exparte application together with the Originating Process.
And that is why before even coming, you have drawn up the
court order, and the Judge will just stamp it and then approved
by the Master and then, you go to serve to avoid waste of time
because of the urgency of the application.
NOTE: INTERIM INJUNCTIONS can also be granted even if in
the Originating Process, you have not prayed for Injunction in
it.
Example: You have issued your Writ of Summons, and when
you issue your Writ of Summons or whatever Originating
process it is, one of your prayers in that Writ of Summons is for
an Injunction. Now the Rule says, even if you did not ask in that
Originating Process for an Injunction, it will still be granted to
you either before, during or after trial. So if you look at Subrule
(2) of RULE 1, ORDER 35, it tells you that it does not matter
whether you apply for an Injunction in your Originating Process
or not, what is important is that it will be granted to you.
Subrule "(2) A party to a cause or matter may apply for the
grant of an injunction before or after the trial of the cause or
matter whether or not a claim for the injunction was included
in the party’s writ, counterclaim or third-party notice". So
essentially INTERIM INJUNCTIONS are temporal applications
that are made Ex-Parte primarily to ensure that the status quo
is maintained pending the hearing or determination of the
Injunction Application Inter-Parte. The applicant is of the view
that if this Interim Injunction is not granted, the subject matter
might dissipate, he might suffer irreparable damage that is
difficult to recover. So he wants the status quo to be
maintained until the parties come to argue the Injunction
Application itself.
So, in essence, if you look at RULE 1, subrule (2) to subrule
(11), it basically deals with INTERIM INJUNCTIONS that are
applied for Ex-Parte, With the exception to Subrule (1) of RULE
1, ORDER 35, which covers Injunctions Generally. It says
“Injunctions can be granted where it appears to be just and
convenient to do so”.
MANDATORY INJUNCTION: This is a court Order that compels
an individual to do an act. Unlike Prohibitory Injunctions which
are negative, Mandatory Injunctions are positive in nature
because they are telling you to do a particular act, they are
compelling you to do a particular act, which if you fail in
doing, you will be held for contempt of which you will go to
prison.
So, if the court says take X amount of Money and bring it to
court or put it in an Ex-co account pending the hearing or
determination of this matter, you should do it. If the court says
bring the sample of the product that you are selling, you should
do it. So they are essentially in a form of a positive command
directed to a party to do a particular act, Breach of which you
will be held for contempt. That is how serious court Orders
are.
In fact, note: No matter how bad, no matter how Irregular,
even if the court that Grant the Order does not have
Jurisdiction, they said you must obey that Order until it is set
aside.
PROHIBITORY INJUNCTIONS: These are negative in nature.
They are negative because they are stopping you from carrying
out a particular act. They will prohibit you for example, not to
build on a particular land, not to conduct the elections, so they
are negative commands directed to you stopping you from
carrying out a particular action. If you do not obey, you will also
be sent to prison.
QUIATIMET INJUNCTIONS: They are basically a threat of an
invasion of your right. It has not yet occurred or taken place.
So, these types of Injunctions are Injunctions that usually
happens Wherein there is a possibility that someone is invading
your right. They are preemptive Injunctions that a party
usually takes with a genuine fear that my rights will be
invaded. So, you are saying if you do not apply for this
Injunction then, there is every possibility that X will carry out
his threats. So essentially, it is more or less a black mail kind of
thing, the person has not yet done it but he is threatening to
do it, so there is a genuine fear that your right will be invaded.
QUIATIMET INJUNCTIONS applies to almost everybody.
SUPER INJUNCTIONS. Essentially, usually applies to celebrities.
It is an attempt to prevent the publication of Sensitive
information.
But the court over the years has said they would weigh the
right to freedom of information over the personal interest of
an individual. So, Ryan Giggs and John Terry's issues were
published.
In Summary, QUIATIMET INJUNCTIONS applies to almost
everybody, whilst SUPER INJUNCTION applies to limited
category of people.
So, the court has an unfettered discretion to grant an Injunction
but that discretion must be exercised Judiciously on sound legal
principles and guidelines and these guidelines and principles
were stated in all the cases in Sierra Leone.
These guidelines or principles were stated in the case of
AMERICAN CYANAMID COMPANY V ETHICON LTD. The test
was for the Defendant to show prima facie good case, that
was the test in the AMERICAN CYANAMID CASE. But the court
said prima facie good case means the court will be going to the
merit of the case, and at that stage of the Proceedings, the
court was not concerned about the merit of the case, they were
only looking at whether you should be granted Injunction. If
you start evaluating whether there is a prima facie good case,
essentially what you are doing is evaluating whether there is a
merit to that case deciding in the Substantive matter during the
cause of granting an Injunction. So that test was changed
"from prima facie good case", to "whether there is a serious
or triable issues for the court to grant Injunction".

THE REQUIREMENTS. There are four requirements:

(1) The applicant must first be able to show whether there is a
serious questions or issues to be tried by the court.
(2) He must show that Damages will not be enough if the
Injunction is not granted. The loss is so severe, that no amount
of compensation will be able to redeem it.
(3) He must give an undertaking (ORDER 35, RULE 9-
Undertaking as to damages.). This is fundamental.
(4) Also, the balance of convenient is crucial.
NOTE; the undertaking comes after the Injunction has been
granted to you. But the court says, for the other three points
stated, if you are able to establish that there are serious triable
issues only then, it might not be enough.
Note: Essentially, the requirements are not independent in
themselves, the Requirements must be cumulatively met. IE
you must show that there is a triable issue, Damages Are not
enough and crucially, the balance of convenience.
For instance, in the case of ALHAJI SAM SUMANA V ATTORNEY
GENERAL AND MINISTER OF JUSTICE, VICTOR FOE AND APC,
which is the leading case on Injunction in Sierra Leone.
The Application for Injunction was refused on the basis of
(1) "Balance of Convenience". The question asked by the court
was so do you leave the vice-presidential position in vacuum or
vacant? It will not be allowed. Public Policy Consideration will
not permit the Supreme Court judges to leave the position of
the vice presidency vacant. So, the Balance of Convenience was
not in favour of Sam Sumana, 7 million people against you and
your lawyers, it does not make sense, you are not even up to 10
that would like or apply for an entire country to be prevented
from having a vice president. So, it was on those grounds the
court refused to grant the Injunction because the balance of
convenience did not favour him. So, the court refused and said
the position is constitutional, it is very much sacred, so the
position should not be vacant, because the balance of
convenience will not favour it.
Essentially, looking at RULE 1, SUBRULE (1) of ORDER 35, it
says an injunction should be granted where the situation is just
and convenient. What constitutes justice or what constitutes
convenience, is dependent on the facts of every case. So, the
court will look at and see Whether the balance of convenience
at this particular stage warrants the granting of an Injunction. If
it goes in favour of granting an injunction then, it will be
granted. If it goes contrary to granting an injunction then, it will
not be granted. So, balance of convenience always lies in favour
of Justice, where Justice leans towards that is where the court
will grant a balance of convenience.
(2) Sam SUMANA'S Injunction was also refused because he
failed to give an undertaking in Damages. And that is very
crucial. Those were the two reasons the judges refused to grant
his application for an injunction.
An undertaking in DAMAGE as stated above is provided for in
ORDER 35, RULE 9 of the High Court Rules 2007. It says a party
that is applying for an Injunction must give an undertaking in
Damages. UNDERTAKING IN DAMAGES simply means, "you
are saying this Injunction that I have applied for, if it turns out
that I should not have applied for this Injunction, whatever
losses, or damage the defendant/plaintiff depending on who
is applying for it might have suffered, I am going to
compensate him for it". For instance, let us say you have spent
1 billion Leones on cements, Sand, etc. to build your house
during the raining seasons, and X has injuncted you from
building that house until the hearing and determination of the
matter. But the things that you have bought had all perished
and prices of those materials have skyrocketed. So if X is
applying for that Injunction, X should give an undertaking, to
say in an event this court decides this matter and it goes against
me or it proves that the court ought not to have granted the
Injunction, then, X is going to pay all the damages that the
person has suffered. So, in the case of Sam Sumana, imagine,
Sierra Leone not having a vice president, that will be a colossal
act, and because he is going to give an undertaking to Damages
to 7 million Sierra Leoneans in an event he lost the case, it
would have been very difficult. And the Consequence of an
undertaking is that when you lost that case, the court will
enforce it on you, you either go to prison, or your property will
be seized and sold to compensate the undertaking, and if it is
not enough, they will find another means for you to fully
comply with the undertaking. So that is why even though
Injunction is an Equitable remedy, no party should be
deprived.
The other point is that you must show that there are serious
issues or questions to be tried, Sam Sumana met that limb. But
note: you must prove all the requirements cumulatively and
that was why Sam Sumana was not granted the Injunction.
NOTE: And what constitutes serious issues is determined by
the Court. So, in the case of MORNING STAR CORPORATIVE
NEWSPAPER V EXPRESS NEWSPAPER, "an application was
made by MORNING STAR CORPORATIVE NEWSPAPER to
Injunct EXPRESS NEWSPAPER from launching their new
newspaper known as DAILY STAR". The argument from the
lawyers of MORNING STAR CORPORATIVE NEWSPAPER was
that their newspaper is widely read and so if there is another
newspaper known as DAILY STAR, their costumers would think
it is their newspaper and they will be buying that DAILY STAR
newspaper. The court in rejecting the application for
Injunction said, there is nothing similar between MORNING
STAR CORPORATIVE NEWSPAPER AND DAILY STAR with the
exception of "STAR". And that which the DAILY STAR produces,
is completely different from what the MORNING STAR
CORPORATIVE NEWSPAPER produces. (One was for political
and one was for sport). So, there was nothing similar. In fact,
the court went further to say "only a Moron will mistake
MORNING STAR to mean DAILY STAR". The court therefore,
refused the Injunction and said MORNING STAR CORPORATIVE
NEWSPAPER has not brought a serious issue to the trial.
Also, in the case of SORIE TARAWALLY, in the Supreme Court,
the Court says indeed there are serious issues to be tried, so we
are going to grant an Injunction. Similarly, in the case of JABBIE
V SLPP, the court grants an injunction because there was a
serious issue to be tried because it had to deal with the
leadership of the party. Also the case of VICTOR SHERIFF V
SLPP, also the case of NRM V APC, The court in all those cases
granted an Injunction.
And the Final one is whether Damages will be adequate to
compensate. You must be able to show that Damages is not
enough for that compensation to be granted. And there are
situations in which the courts have said no matter what,
Damages will not be enough, no matter what you do as an
opposing counsel, no matter how you argue, no matter the law
that you bring forward, the court says in such a situation
Damages will not be enough.
NOTE: Where the Injunction sought is the one that goes to the
reputation of the Individual, no amount of argument or
damages would be adequate for compensation.
And finally, the loss that you will suffer is pecuniary. In other
words, no amount of money will be enough to compensate
you. So essentially, when the court wants to grant an
Injunction, it is these requirements that they will evaluate
whether you have been able to fulfill them, if you are not able
to fulfill them then, it becomes very difficult. You may be able
to show that there are serious and triable issues, you may be
able to also show that you can take an undertaking in Damages.
But what if the balance of convenience does not favour you?
Therefore, you must prove all the requirements cumulatively.
ORDER 35, RULE 2, DEALS WITH TWO KINDS OF INJUNCTIONS.
"MAREVA INJUNCTIONS AND ANTON PILLER ORDERS".
MAREVA INJUNCTIONS: Essentially are freezing Orders. So,
they are Court Orders which freeze assets so that a Defendant
to an action cannot dissipate their assets from beyond the
Jurisdiction of the court.
For example: Edifra entered into a contract with Okentu to
supply her goods, then, Okentu takes the goods in excess of 1
million dollars, Edifras business is doing bad, and she is
someone who does business in building materials and she has
machines, tractors, caterpillars which produce those building
materials, and those machines are worth in excess of those 1
million dollars. Edifra is now aware Okentu does not have a
physical cash to pay her as her business is doing bad. So, when
Edifra institutes action against Okentu to recover her 1 million
dollars, she will file it together with an Injunction application to
restraint her not to dispose of her assets (the Tractors, the
caterpillars etc). So, at the end of the day, those are the things
she is going to fall on, sell them, and recover whatever loss she
has suffered, and the surplus if any, she gives to Edifra. So, this
a practical understanding of MAREVA INJUNCTIONS.
So, they are essentially Interlocutory Injunctions or Orders
that are granted by the court preventing the Defendant from:
(1) Removing his assets from the Jurisdiction.
(2) Disposing off his assets.
(3) Transferring or selling his assets.
(4) Dealing with his assets.
(5) Placing a charging Order on his assets.
In essence, the assets are frozen from either transferring,
selling, placing a charging Order or removing his assets or
dealing with his assets in any way that is inconsistent with
depriving the plaintiff from enjoying any benefit or fruit from
the Judgement at the end of the day.
So, the Defendant will essentially be injuncted. So it is similar
to the sequestration Orders, wherein you come and take hold
of the assets of someone.
NOTE: The unique thing about MAREVA INJUNCTION is that "it
goes in so far as to the extent of the value of the assets of the
claim of the Plaintiff." If the assets are worth 2 million dollars
and the debts that you are recovering are 1 million dollars, it
means you can deal with those excesses. IN ESSENCE, what you
Injuncted is what you will be able to get from the judgment.
For example: Mish borrowed phone from Rachael for le
500,000. But Mish has materials that are far worth more than
the phone, as she has cars, Air conditioning, Television and
more. Then, Rachael comes for Freezing Order as Mish is
bankrupt and unable to pay for the phone, so that freezing
Order can go as far as the value of the debt. So, if Mish has 50
equipment but 20 of them will be able to pay off the debt,
those 20 will be sold to pay off the debts.
If you do not fulfill those conditions, you will not be granted.
The conditions or requirements for the court to grant you
MAREVA INJUNCTIONS are so stringent because when granted,
they are essentially depriving you from doing anything with
your assets whatsoever. So because its essence or its effects
are very much Draconian, the court has put measures or
requirements that you must fulfilled and these requirements
are very much Onerous (demanding), if you do not fulfill these
requirements it becomes very much difficult for you to be
granted MAREVA INJUNCTIONS.
So, the titled itself "MAREVA INJUNCTIONS", emanated from
the case of MAREVA COMPANIA NAVIERA SA V
INTERNATIONAL BULK CARRIERS. The Plaintiff made a
preservation Order on detaining the goods of the Defendant, to
prevent that Defendant from dissipating, do not transfer, do
not sell, do not dispose etc, so anything that is inconsistent to
the Plaintiff's rights. But because they are Draconian Orders,
the court has made four difficult Requirements that an
applicant for Mariva Injunction must fulfill. And one thing you
should note, unlike the other Injunction wherein if you prove a
balance of convenience, a good and arguable case, an
injunction would be granted to you, here, "all 4 must be
established''.
THE 4 REQUIREMENTS TO ESTABLISH BEFORE MAREVA
INJUNCTION IS GRANTED TO YOU ARE:
(1) Firstly, you must be able to show that your case or your
claim is justiciable. (The action must be one that is capable of
being litigated upon in front of a court)
(2) You must be able to show that you have a good and
arguable case.
(3) You must be able to also show that the Defendant has
assets within the Jurisdiction.
(4) You must be able to show that there is a real risk that the
Defendant intends to dissipates that asset.
Those 4 requirements must be established, if you do not
establish them, MAREVA INJUNCTION will not be granted to
you. Especially Requirements number (4).
Yes, Anter has assets in Sierra Leone, but you do not have any
idea whether she has intended selling or transferring them to
someone or to remove them from her compound and give
another person. In essence, you must be able to show that
there exists a risk of dissipation of those assets. DISSIPATION is
a broader term for selling, transferring, removing, charging,
disposing, dealing with.
THOSE 4 REQUIREMENTS ARE EXPLAINED BETTER BELOW. So,
when you look at ORDER 35, RULE 2, it tells you that the court
has power to detain or preserve any assets, whatsoever it is to
prevent it from being dissipated until the matter is heard.
(1) THE CASE OR CLAIM MUST BE JUSTICIABLE. So remember
we say an Injunction is an equitable remedy and because it is
an equitable remedy, there must be an existing Substantive
action. If there is no Substantive course of action, it means your
Injunction is not Justiciable. And that is what the SISKINA
principle says. That Injunctions are Ancillary Reliefs, they are
consequential upon the existence of a Substantive course of
action, so if there is no course of action, the court will not grant
an Injunction. So in order for you to be able to freeze the assets
of someone, you must be able to show that you have a
Justiciable course of action and that justiciable course of action
is the Substantive action and that Substantive action must be
an action that is capable of being litigated upon in front of a
court.
For Instance, in the SISKINA case, a Ship in Genoa was
contracted in Cyprus to deliver goods, the bill of lading for the
ship made it very clear that where there is a breach of a
contract, it is the court of Genoa that has Jurisdiction to hear
and determine the claim, and the court of Genoa was based in
Italy. And there was a breach of contract, but the SISKINA SHIP
has account in England, so what they did was to apply to the
court of England and Wales to Injunct the ship from
withdrawing access to their money in England. The court in
England says, your application for Injunction is not Justiciable
for the simple reason that there is no course of action in
England. The bill of lading made it very clear that it is only the
court of Genoa that has Jurisdiction to determine the breach of
contract. Yes, the money is based in England, they have an
account in England but we cannot Injunct them based purely on
equitable remedy, there must be a Substantive claim before the
court of England and the court of England does not have that
Jurisdiction, because by your contract you have said it is the
court in Italy, Genoa that is where all matters should be
brought. So even though it is an equitable remedy and the
court has that discretion to grant it, that discretion must be
based on Justiciable or judicial principle, and one of those
judicial principles you must show in order for you to be granted
the MAREVA INJUNCTIONS, "that there is a Justiciable case or
claim", and Justiciability means, a case that has the ability to
be litigated upon. You can sue and be sued on that case. But in
order to show that, you must be able to show that you have a
course of action that is existing. That is why when you look at
ORDER 35, RULE 1 (2) and (3), it tells you that you may
institute the Substantive action first before you can apply for
Injunction or you may issue them both together, but there
must be in existence first of a Substantive course of action
before you actually can apply.
(2) YOU MUST SHOW A GOOD AND ARGUABLE CASE. A good
and arguable case was defined by LORD KERR in the case of
MINEMIA MARITIME CORPORATION LTD V TRADE AND
CO.LTD. LORD KERR was confronted with a MAREVA
INJUNCTIONS and he said, "a good and arguable case is one
that is capable of barely been arguable. It will be accepted
even if it shows a 50% chance of success"
CIRCUMSTANCES GIVEN BY LORD KERR IN WHICH A CASE WILL
BE CONSTRUED AS NOT GOOD AND ARGUABLE So he went
further to say:
(a) It is not a good and arguable case, if the Defendant can put
up an arguable defense. That is not a good and arguable case.
(b) If the case is capable of being struck out. That is, it is
frivolous, it is vexatious, it is malicious, and it has no merit. That
is not a good and arguable case.
(c) And the third Requirements is that the Plaintiff has not been
able to show substantial evidence as to how he is going to
prove his case.
So those are the three Requirements given by Lord Kerr to
show whether a case is good and arguable or not, because the
court says, it is a case that you can show that you are barely
capable of arguing it, the chances are 50%. But however, the
factors above may affect you from arguing that case.
(3) TO SHOW THAT THE DEFENDANT HAD ASSETS WITHIN THE
JURISDICTION. The court does not act in vain. The court does
not grant equitable Remedies for the sake of granting them.
You must be able to show that the Defendant has assets within
the Jurisdiction.
First of all, you are coming to the court to freeze somebody's
assets, and in your Affidavit, you are not able to show where
the assets are, where they are located, the types of assets and
their value, that means you are wasting the Court's time. So, it
is your duty to say Antar has 10 Tractors, they are located in
Daru, Kailahun District, she has 10 vehicles, she has a hotel
business that is going on etc, so you must be able to pinpoint
the assets to prevent the court from acting in vain. And the
court says assets means anything, it means bills of exchange, it
means money, it means shares, it means boat, it means house,
it means land. Anything of value will be considered an asset for
the purpose of freezing Orders. You may be able to show that
the case is Justiciable, and you may be able to show that it is a
good and arguable case. But the court will now ask you, for
what do we grant now the MAREVA INJUNCTIONS? What
should we freeze? What should we stop the Defendant from
removing or disposing off?
NOTE: "ASSETS could be defined as Something that you have
both legal title to and beneficial interest in". So you will note
that if you are not able to show that you have an asset, even if
your case is Justiciable and that is good and arguable, they will
not be able to grant you the MAREVA INJUNCTION.
(4) TO SHOW THAT THERE IS A REAL RISK OF DISSIPATION. Yes,
you have a Justiciable case, you have a good and arguable case,
and yes, you have shown us the assets. But do you have any
intelligence to say Fatu wants to dispose of the assets? Does
she want to transfer them to Guinea? Did you see it on a
newspaper that she wants to sell? Does she want to transfer
the assets in her children's names? So What feeling do you
have? You must be able to also show that there is a real risk of
dissipation.
NOTE: As stated above ORDER 35, RULE 2, deals with MAREVA
INJUNCTIONS. ORDER 35, RULE 2. "2.
(1) On the application of any party to a cause or matter, the
Court may make an order for the detention, custody or
preservation of any property which is the subject-matter of the
cause or matter, or as to which any question may arise in the
action or for the inspection of such property in the possession
of a party to the cause or matter.
(2) To enable any order made under subrule (1) to be carried
out, the Court may by the order authorize any person to enter
upon any land or building in the possession of any party to the
cause or matter.
(3) Where the right of any party to a specific fund is in dispute,
the Court may, on the application of a party to the cause or
matter, order the fund to be paid into Court or otherwise
secured.
(4) An order under this rule may be made on such terms, if any,
as the Court thinks just.
(5) Unless the Court otherwise directs, an application by a
defendant for such an order may not be made before he enters
appearance to the writ or other originating process by which
the cause or matter was begun".
NOTE: so, look at the Rules and pay attention to words like
Custody, detention, preservation in RULE 2 (1), they all mean
MAREVA INJUNCTIONS.
And when you look at Subrule (2) of RULE 2, the Court may
give an Order or authorize anybody to enter any land or
building in the possession of any person to the cause or
matter before the court.
2) ANTON PILLER ORDERS. (Search orders)
This goes to show the extremity of the oppressive powers of
the court. They are essentially a bundle of Interlocutory Orders
that are usually granted or given to "prospective Plaintiffs" to
enter into and search the premises or house or office, or
business place of an intended Defendant with the sole aim or
purpose of preventing that Defendant from concealing,
destroying or disposing off incriminatory materials or
Documents that are relevant to the Plaintiff's case.
So, ORDER 35, RULE 2 (2) also applies here. And it is even more
applicable here than in the MAREVA.
NOTE: It is important for you to note that ANTON PILLER
ORDERS are:
(1) more Draconian in nature than the MAREVA INJUNCTIONS.
(2) It shows the extreme oppressive powers of the court. So
even though it is an equitable remedy, it is also oppressive in
nature because it is an Order that compels you to produce
documents. It is emanated from the case of ANTON PILLER KG
V MANUFACTURING PROCESSING LTD.

REQUIREMENTS TO FULFILL IN ORDER FOR TO SUCCEED ON

AN APPLICATION FOR ANTON PILLER ORDERS.
(1) The first requirement is for you to show that you have a
strong Prima facie case. And it is different from where you
have to prove 50% chance of success under the MAREVA.
Here, you must prove up to 75 or more percent chance of
success, the case Must be so strong for the court to allow you
enter into another person's house, otherwise, it will be
trespass. So the case that you are bringing is so strong on prima
facie evidence that the court will allow. So the first
requirement is that you have a strong Prima facie case, and
prima facie means that your case is watertight and have at
least more than 75% chance of success or merit. So good and
arguable is different from strong Prima facie case, so here, you
should be able to show that your case is not only watertight
and strong, but it has at least 75% chance of success or merit.
Whether you are going to win or not is not the business of the
court but just demonstrate that the case you are bringing is
strong enough.
NOTE: At this stage, the court is not concerned about the
merit of the case, what is crucial is whether there is a course
of action that has merit, they will evaluate it without making
any pronouncement as to whether you are right or wrong.
Let us say, Mohammad Kamara's place is where they make and
produce fake notes, or the mischievous container that recently
landed in Sierra Leone, the owner is Mohamed Kamara and his
house is at No. 5 Leicester Road, Free Town, There is that
strong claim that the container has drugs or his house is where
fake monies are made, An ANTON PILLER Order will be made to
go and search Mohamed Kamara's house to see whether there
is any documents, to see whether there is anything
incriminatory. So that is how you prove a strong case.
Otherwise, the court is not the court that accepts Frivolity. (2)
The second Requirement is to show that if the Orders are not
granted, your interest will be severely affected or harm. And
this is also important because ANTON PILLER is an Extreme
Order. Sylvester said Vylzinski has Documents and he is saying
in those documents in possession of Vylzinski, there are pieces
of evidence that are incriminatory, pieces of evidence that if
not produced will directly affect or harm him. So What interest
or harm will be done to you if they are not produced? So
Sylvester must be able to show that if those documents are not
produced that are in her possession, his business will collapsed.
So Sylvester is pinpointing let the documents be brought. So
Sylvester must be able to show if these search Orders are not
granted, if these documents are not produced, or if the court
allows Vylzinski to destroy these documents, or conceal or
dispose them off, it will severely, or materially or adversely
affects him and his interest. Like for instance, in the case of
PAOLO CONTEH, They said let us go and watch the cameras,
they said no, for security reasons they refused giving access to
watching the cameras despite the several Applications that
were made by his lawyers. So those are things that goes to the
heart of his own personal liberty. So you must be able to show
that if those cameras or Documents are not produced, it will
severely or adversely affect or harm you.
(3) The third Requirement is that you must be able to
establish that the person has these incriminatory Materials or
Documents in his or her possession. So, you cannot come to
court by rumor, you must be able to show tangible evidence. It
is similar to you establishing that the person has assets within
the Jurisdiction under the Mareva Injunction.
So, you have to give concrete reasons why you believe the
person has these incriminatory materials, Because It goes to
the heart of the privacy of the person, which is searching his
parlor, his room, bathroom etc. It is just like when they give
search warrants to the police. That is why It goes to the
extremity of the oppressive nature of the court, that is how
fundamental it is.
(4) The final requirement is that you must be able to show
that the person wants to destroy those evidence or materials
or Documents. That again is very much important. What is the
risk that is inherent in it.
So, once you see Assets (it connotes MAREVA INJUNCTION).
And where search Orders are given (it connotes ANTON PILLER
ORDERS).
And they will not tell you in the scenario Whether the Plaintiff
has a Justiciable case or claim. You will only know through the
facts stated in the scenario. Because if for instance, they tell
you X instituted by way of Writ of Summons, what does it tell
you? It already tells you that there is a Substantive course of
action. So, you know the first bit of the Requirement has
already been met. So, whether it is a good and arguable case, it
is a completely different thing. So based on the scenario, you
will come to know whether the principles are met or not, but
they will not tell you X person, and if you do not know the
principles, you will not be able to Identify them.
NOTE, when you file either a MAREVA INJUNCTION or ANTON
PILLER ORDER, you do not serve the Defendant.
So, you do not serve the Defendant simply because he might
take mischievous steps in either hiding the documents or
disposing of the documents. So, it will be at first instance
granted to your Ex-parte for 7 days for you to be given an
opportunity to come and argue Inter-parte as to why you
should be granted pending the hearing and determination of
the trial or matter. So, you go first and apply for a 7 days Ex-
Parte MAREVA INJUNCTION, and after you have been granted,
you take now the Writ or Notice of Motion and serve him, for
now to come and argue with you Inter-Parte. So, when he is
coming now, there is already an Order restraining him, whether
that Order will be made Substantive pending the hearing or
determination of the matter, he will come and argue and give
reasons why the MAREVA INJUNCTION should not be granted
or the ANTON PILLER ORDER. You will also argue why it should
be granted to you. So the court now will look at it and say
based on the respective arguments or pieces of evidence
before the court, we are going to grant it or we are going to
refuse it.
ORDER 35, RULE 3 (Deals with Power to order samples to be
taken, etc.)
(1) Where it considers it necessary or expedient for the purpose
of obtaining full information or evidence in any cause or matter,
the Court may, on the application of a party to the cause or
matter, and on such terms, if any, as it thinks just, by order
authorize or require any sample to be taken of any property
which is the subject matter of the cause or matter or as to
which any question may arise in the action, any observation to
be made on the property or any experiment to be carried on or
with such property. (2) To enable any order under subrule (1)
to be carried out the Court may by the order authorize any
person to enter upon any land or building in the possession of
any party to the cause or matter" So let us say the reason you
are in court is for Gold, sand or other precious minerals which
are in your possession as a Defendant. So the court has power
to Order anybody to take possession of anything related to the
matter as a sample to be brought before the court for the
purpose of determining the action or the matter. So when you
look at Subrule (2) of RULE 3, that power is there, the court can
Order anybody to enter into the property to search and to bring
samples to the court, it may be Gold, it may be Drug, it may be
fish. So, they cannot bring the entire Gold, or fish, or drug, but
may be a box each as a sample to test it purposes. So, it could
be anything that will be the subject matter of litigation. So, the
court has power to say bring the sample to court, and once the
court has such power to bringing any sample to court, they can
Injunct anyone from using it pending the hearing or
determination of the matter.
ORDER 35, RULE 4 (deals with Sale of perishable property). "4.
(1) The Court may, on the application of any party to a cause or
matter, make an order for the sale by the applicant in such
manner and on such terms as may be specified in the order of
any perishable property which is the subject-matter of the
cause or matter or as to which any question arises therein and
which for any other good reason it is desirable to sell forthwith.
(2) Unless the Court otherwise directs, an application by a
defendant for an order under this rule may not be made before
entering an appearance". So let us say Farouk is in court, he is a
business man, he does business with goods that are perishable.
He goes to the country side and bring them for sale, In such a
situation, the court would not say to keep for instance, the
mango or banana that Farouk brought in the container until the
matter is settled, what the court will do is to ask what is the
value of these products? And so, they will Order for those
products to be sold. Now the money received from those
perishable goods that were sold will be brought to court
pending the hearing or determination of the matter or placed
into an Ex-co account until the matter is determined.
That is basically what RULE 4 is about, because they cannot
keep it until the end of the proceedings, it will perish, and to
prevent it from going bad, the court will say sell, and after the
determination of the matter, the court will determine who is
wrong, who is to pay damages etc. So that is the importance of
this Rule.
ORDER 35, RULE 5 (deals with Order for early trial.)
WHAT IS EARLY OR SPEEDYTRIAL?
WHAT IS THE PURPOSE OF EARLY TRIAL?
Essentially, what EARLY OR SPEEDY TRIAL means is that, your
application for Injunction has been refused and because it has
been refused, to prevent the assets from Being destroyed, the
court will say come for Early Trial or Speedy Trial.
The court does not want to waste time, it will Order for an
Early or a Speedy Trial.
Now if you have read the case of SAM SUMANA, you will see
that when the Injunction was refused, all the Supreme Court
Judges say, we will make an Order pursuant to ORDER 35,
RULE 5, for an "Early and a Speedy Trial".
ORDER 35, RULE 5.
(1) "Where on the hearing of an application made before the
trial of a cause or matter, for an injunction or the appointment
of a receiver or an order under rule 2, 3 or 4 it appears to the
Court that the matter in dispute can be better dealt with by an
early trial than by considering the whole merits for the
purposes of the application, the Court may make an order
accordingly and may also make such order as respects the
period before trial as the justice of the case requires.
(2) Where the Court makes an order for early trial it shall by the
order determine the place and mode of the trial". Sam
Sumana's Injunction case is about 61 pages. It covers all the law
that governs Injunction cases in Sierra Leone. So whenever an
injunction is refused, the Consequential Order that comes after
is an "Early and Speedy Trial", as provided for by ORDER 35,
RULE 5. ORDER 35, RULE 9 (deals with Undertaking as to
damages). This was dealt with when we were dealing with the
Sam Sumana's case as one of the requirements for the granting
of an Injunction. So Damages as to undertaking is very much
essentially in Injunction applications.
ORDER 35, RULE 9. "9. (1) Where an application is made under
rules (1) and (2), the Court shall require, before making an
order that the applicant shall give an undertaking to the person
opposing the application to pay any damages that person may
suffer as a result of the grant of the application if it turns out in
the end that the applicant was not entitled to the order. (2) The
giving of an undertaking required under subrule (1) shall be a
pre-condition to the making of any order under rules 1 and (3)
Where the applicant gives the undertaking, the Court shall, at
the end of the proceedings in which the undertaking was given
assess the damages, if any, which the person who opposed the
application has suffered and which the applicant is liable to pay
and shall give such judgment as the circumstances require". So,
if you look at Subrule (3) of RULE 9, tells you that the court has
the power to quantify the essence of damages. So, there
should not be vacuum to power. So if you look at ORDER 35,
RULE 9, the court says you should give undertaking before
Injunction is granted.
WHO CAN AND CANNOT BE INJUNCTED?
Pursuant to “Section 18 of the State Proceedings Act of 2000"
You cannot Injunct the government.
So, whether the person is a provincial secretary, minister, for as
long as he is a government officer whatsoever during the
course of his work, you cannot injunct him.
In fact, this principle of law is even recognized in England. You
cannot grant an Injunction against the crown or people working
for and on behalf of the crown or her majesty. In the case of
SMITH V INNER LONDON EDUCATION AUTHORITY, here the
court made it very clear that you cannot grant an Injunction
against an officer working for the crown, against the crown or
any other person appointed by Her majesty to perform a
function or a duty.
NOTE: Section 18 of the State Proceedings Act of 2000 is very
instructive in that respect. Also, in the case of APC V NASMOS,
you will see how the state Proceedings Act came into existence.
NOTE: "An Injunction will not be granted to you as of right
because it is a Discretionary Remedy, and Discretionary
Remedy means the court has power to either grant it or refuse
it on it own". So the court will only grant an Injunction based
on ORDER 35, RULE 1 (1) "Where it is just and convenient".
DEFENCES TO INJUNCTION
So, there are several defenses which a party to an action
against will raise as to why Injunction should not be granted.
These defenses are
(1) ACQUIESCENCE: Essentially, what it means is that where an
individual stands idly by or by his conduct, or silence, fails to
take steps to prevent someone from doing certain act and the
person ended up doing that particular act by your silence. You
will be estopped from bringing an action.
So, it simply means when somebody stands by without raising
any objection to the infringement of their rights. For example:
Elsie sees Antar bringing sand onto her land, Antar further paid
for construction of bricks in the same land, Elsie said or did
nothing, Antar went ahead to construct a perimeter fence, and
after built a house on the Land, and during these undertakings
on the land by Antar, Elsie said or did nothing. And after Antar
has completed building the house, Elsie now is saying the house
belongs to her and so Injunct Antar not to enter the premises.
And if Antar raises the defense of Acquiescence, she will
succeed because Elsie had slept on her rights. That is basically
the principle in WALSH V LONSDALE. So if you also look at the
case of DAVIES V MARSHALL, "the court refused the Injunction
on the bases that the person by reason of his conduct and by
his silenced, he had actively allowed the individual to put
structure on his property and so therefore, that person cannot
be injuncted.
NOTE: So, it is very important for you to note and take into
consideration the effects of your behavior or conduct or
silenced, because it will be very difficult for you to apply for
Injunction where you stand by without raising any objection to
the infringement of your rights.
(2) DELAY AND LACHES:
The second grounds as a defense for you not to be granted an
Injunction when you apply for Injunction, is Delay and Laches.
Acquiescence and Delay are interrelated but they are not the
same. Delay Essentially occur where you fail to enforce your
right at the appropriate time. For example: Sheriff owns this
land, it belongs to her, the Limitation act says 12 years for
adverse possession And the Limitation Act for contracts is 6
years, so essentially, if Sheriff sleeps on her right, she refused
to enforce it until the limitation time is accrued, and then, she
comes for the Injunction, the defense of Delay and Laches will
come in.
In the case of JOHNSON V WYATT, the court made it very clear
that " a Delay is catastrophic and it has the effect of depriving
you of your rights".
NOTE: what constitutes delay is purely dependent on what
definition the court gives you. Some delay could be 1 month, 5
years,10 years etc, basically what is Delay, is what the court
persist it to be depending on the nature of the subject matter in
dissolute. Also, in the case of CENTURY ELECTRONICS LTD V
CVS ENTERPRISES, the Court says, dependent on the subject
matter in question, " Delay can even mean month".
For the purpose of education and better understanding, read
the case of MUSTAPHA ABDUL TARAFF V DR DENIS SANDI
AND THE MINISTRY OF LAND. It is a Supreme Court Decision of
Sierra Leone delivered in 2021. Now, the court says for the
context of Limitation to accrue, you must be able to show that
you have adversely taken possession of the land, and by your
action the limitation has accrue. Then, the court gave the
meaning of what it means to Dispossessed. If you are in
American and your Land is in Sierra Leone, does not mean you
are not the owner of the land or you are not in control of the
land, even if there is a caretaker who visits your land every two
months, that practically means you are in control. What was
known as the meaning of DISPOSSESSION was defined in ABDUL
TARAFF (read the case for better understanding). So, living out
of the Jurisdiction is not the basis upon which you can
dispossess someone. You must should have come to the land,
do some activities in that land, and no one protests or raise an
Objection. So you must have someone as a caretaker looking
over your property. You may also read the cases of SEYMOUR
WILSON V MUSA ABESS.
(3) HARDSHIP:
Injunctions are Equitable Remedies. So, the court in doing
Justice would not want a situation wherein they will create
unreasonable and unnecessary hardships on the parties.
(4) THE COURT DOES NOT ACT IN VAIN:
This essentially means that a party applying for Injunction must
be able to show that the Injunction is one that is worthy to be
granted or it is not a vain action. In the case of ATTORNEY
GENERAL V GUARDIAN NEWSPAPER. Now, there was a
publication that was done, but the publication has gone viral
and then, the Attorney General applied to stop the Guardian
Newspaper or any other newspaper from publishing the story,
the court said no, we cannot act in vain. This is already in the
country's domain, the story is all over the place, so therefore, if
we grant an Injunction, it is just like acting in vain. So, in
ATTORNEY GENERAL V GUARDIAN NEWSPAPER, the court said
no, we cannot grant the Injunction that you are seeking
because the story that you are seeking to prevent from
publication is all over the place, is all over England and the
United Kingdom. So if we are to grant an Injunction, it means
we are acting in vain. So this is another defense you can raise to
say my Lord, it makes no sense to grant this Injunction because
the story is already out there, it is all over the place. Except if
you apply for further publication. But in England you know they
have the Defamation Act of 2013, so the court will always
balance the Freedom of Expression, the right to express
yourself versus your rights. So the court the court gave the case
of RYAN GIGGS and JOHN TERRY and all those cases that apply
to Injunction.
NOTE: Again, the court will not grant you an injunction that
requires Continuous Supervision, because it will be the court
acting in vain.
(5) THE COURT WILL NOT GRANT AN INJUNCTION FOR
PERSONAL SERVICE:
It revolves around relationship between Employer and
Employee. Essentially, it is a provision for professional service.
If I am the one who employed Farouk, the Court cannot Injunct
me not to sack him. GITTEN STRONGE V SIERRA LEONE
BREWERY The court said you can wake up one morning and say
Gomeh, I no longer want you as my staff. So, an employer has a
discretionary power to sack an employee. An Employer cannot
be prevented or injuncted from sacking his employee. It is a
Supreme Court decision which says "An employer can sack his
employee at any time without giving any reason". So as long as
he has to pay you all what he is supposed to pay, he has the
right to sack you at any time. Also, you cannot compel
someone, to take someone to perform personal Services.
(Contract in the performance of service). So, If Pleasant is an
Artist or a musician, and there is a personal Service for her to
come and sing for the law society and she said no, I am not
going to do it, no court can Compel Pleasant to go and perform.
Like the case where an Artist refused to perform in Syria for
wants of human right issues or abuses, no court can compel
that person to go and perform. So if you look at the case of
WORREN V MENDY, the court says, nobody should be
injuncted or prevented from dispensing with the personal
service of another person, neither someone should be compel
to perform a personal Service for someone.
NOTE: This is different from contract to service wherein you are
in consultant with a professional. I have given you money to
come and do wire connections in my house, and you refuse, I
can go to court to compel you for specific performance. All I
need to show is that I have performed part of my contract.
(6) HE WHO COMES FOR INJUNCTION MUST COME WITH A
CLEAN HANDS:
Remember Injunction is an Equitable Remedy, and therefore, if
you are coming for an Equitable Remedy, you must show that
you are coming on a clean slate or clean hands.
ORDER 28- (SUMMONS FOR DIRECTIONS).
Summons For Directions are very essential and pivotal when it
comes to Practice.
But first, you must note and appreciates the fact that ORDER
28 Summons for Direction only applies to actions that are
Begun by WRIT OF SUMMONS.
So, in essence, ORDER 28 does not apply to PETITION, it does
not apply to ORIGINATING NOTICE OF MOTION, it does not
apply to ORIGINATING SUMMONS.
REASONS "It is simply Because the documents or Evidence are
proved by Affidavit Evidence". So when you file your Affidavit
In Support or Opposition, you exhibit all your documents in
pleadings. Which is very different from a WRIT OF SUMMONS,
for a WRIT OF SUMMONS, you do not exhibit the documents
which is said to rely on to prove your case. What you do After
you have exchange Pleadings, you go for what is known as
"SUMMONS FOR DIRECTIONS". So, the first thing that you must
note is that SUMMONS FOR DIRECTIONS is only applicable to
actions that are begun by WRIT OF SUMMONS. They do not
apply to any other Originating Process.
So, if a person says I institute this action by Petition, know that
there will be no Summons for Directions, if a person say I
institute this action by Originating Summons, know that there
will be no Summons for Directions, if a person say I institute
this action by Originating Notice of Motion, know that there will
be no Summons for Directions. So, the only situation or
circumstance in which Summons for Directions is applicable,
are those situations or circumstances in which the action is
begun by Writ of Summons.
REASONS WHY SUMMONS FOR DIRECTIONS ARE ALLOWED.
The reason why Summons for Directions are allowed is to
prepare in advance for Trial. So it is to allow parties to put
together all documents that are relevant for the Trial.
WHAT ARE SUMMONS FOR DIRECTIONS MEANT FOR? OR
WHAT IS IT PURPOSE GENERALLY?
So, in essence, Summons for Directions are meant to ensure
the expeditious, speedy, just and economical Trial of the
action.
If you look at ORDER 28, RULE 1, SUBRULE (1), paragraph (b), it
tells you the reasons why Summons for Directions must be
taken out. And when you look at the Rule, you will realize that
the 3 variables that you see, is for a "Just, expeditious or
economic management of an action. ORDER 28, RULE, 1, (1)
(b) such directions may be given as to the future course of the
action as appear best adapted to secure the just, expeditious
and economical disposal thereof".
In other words, the parties are given the opportunity to
prepare in advance for Trial. So, the parties are allowed to
prepare all the documents in so far as that stage is concerned.
NOTE: Remember we have established that summons for
Directions is only applicable where the action is begun by Writ
of Summons.
Which means If the action is begun by any other Originating
Process, Summons for Directions is not applicable because the
documents that are required to prove the case are exhibited in
Affidavits.
We have also established why Summons for Directions, as
referred to ORDER 28, RULE 1 SUBRULE (1) paragraph (b). So, if
you look at that particular Rule, it tells you why Summons for
Directions are taken out, as it says for the just, expeditious and
economic trial of the action. In other words, you do not want a
situation wherein you come for a trial in a haphazard manner.
So, in essence, it is to prevent trial by ambush. You must bring
All what you have to the table.
WHEN ARE SUMMONS FOR DIRECTIONS TAKEN? So, if you
look at the Proviso of paragraph (b) Subrule (1) of RULE 1, it
tells you that Summons for Directions are taken when
Pleadings are deemed closed. "The plaintiff shall, within one
month after the pleadings in the action are deemed to be
closed, take out a summons (in these rules referred to as a
summons for directions) returnable in not less than 14 days".
So, it tells you that 1 month after Pleadings are deemed closed,
you must take out a Summons for Directions which is
returnable in 14 days.
NOTE: for you to know when Pleadings are deemed closed,
you would have to look at ORDER 21, RULE 18.
ORDER 21, RULE 18. The pleadings in an action are deemed to
be closed –
(a) At the expiration of 14 days after service of the reply or, if
there is no reply but only a defense to a counterclaim, after
service of the defense to a counterclaim;
(b) If neither a reply nor a defense to a counterclaim is served,
at the expiration of 14 days after service of the defense.
So essentially, "PLEADINGS are deemed closed 14 days after
the last paper is filed".
WHAT CONSTITUTES THE LAST PAPER?
What Constitutes the last paper is dependent upon the parties.
For Instance, The Plaintiff may after the file of a defense, say I
am not going to file a reply.
So essentially, 1 month (that is, 28 days or 30 days), after the
PLEADINGS are deemed closed, the Plaintiff is under an
obligation to take out a SUMMONS FOR DIRECTIONS.
WHO TAKES OUT SUMMONS FOR DIRECTIONS? (GENERAL
RULE) So as a General Rule, it is the duty of the Plaintiff to
take out SUMMONS FOR DIRECTIONS after Pleadings are
deemed closed.
NOTE: After the Plaintiff has taken out a Summons for
Directions, he is expected to return it within 14 days. Now you
will see in cases for instance, R V TURNER, Where the court
says not less than 14 days could also mean 14 clear days.
So, if you look at the Proviso of paragraph (b) Subrule (1) of
RULE 1. It is there. it talks about 1 month after Pleadings are
deemed closed and returnable in not less than 14 days. So
essentially, the obligation is on the Plaintiff, because if you look
at the Rule, it says "Plaintiff" must take out a Summons for
Directions. E.g C.C. 53/22 2022 X. NO.8 IN THE HIGH COURT OF
SIERRA LEONE (NDUSTRIAL AND SOCIAL SECURITY DIVISION)
BETWEEN: XXXXXXXX -PLAINTIFF/APPLICANT 216 BAY ROAD
FREETOWN AND YYYYYYYYY -DEFENDANT/RESPONDENT 2B BAY
DRIVE FREETOWN LET ALL PARTIES HEREIN attend the Judge in
Chambers at the High Court sitting at Law Court Building, Siaka
Stevens Street, Freetown on the---- day of April 2021 at 9:00
O'clock in the forenoon or so soon thereafter as Counsel may
be heard on the Hearing of an application on behalf of the
plaintiff herein for the following Orders:
(1) That each party makes and serves on the other party a list of
all documents which are or have been in their possession,
custody and power relevant to this matter within 7 days of the
grant of the directions herein and that each party makes and
serves on the other an affidavit Verifying such within 14 days of
the grant of the directions herein.
(2) That each party serves on the others copies of all
documents which are or have been in the possession, custody
and power and relevant to this matter within 14 days of the
grant of the directions herein.
(3) That the Plaintiff set down this action for trial within 7 days
of the grant of the directions herein and that the Court fixes the
estimated length of this matter and the date for the trial.
(4) That each party prepares and contemporaneously serve on
the other written witness statements of the factual witnesses it
tends to call at the trial of this matter within 21 days of the
grant of the directions herein.
(5) That the Defendant within 21 days from the date the action
is set down for trial identifies to the Plaintiff Documents central
to his case which he would want included in the bundle to be
provided in Court pursuant to Order 40(9)(2) of the High Court
Rules 2007.
(6) That the Plaintiff at least 7 days to the date of the trial shall
prepare the Court Bundle which shall compromise:
 Copies of the Pleadings and any Affidavits
 b. Summary of issues in Dispute c. Nature of evidence to
be relied upon (oral or documentary) and including any
agreed evidence d. A list of witnesses and witness
statements exchanged between parties e. Chronology of
relevant facts
(7) That the matter be adjourned to a date after the deadline
fixed for compliance with the Orders granted herein with a
view to ascertaining whether there has been full compliance
and the fixing of a trial date.
(8) That liberty be granted to restore the Summons for further
directions.
(9) That the costs of this application be costs in the cause.
DATED THE DAY APRIL 2022 TO: 1. THE MASTER AND
REGISTRAR HIGH COURT FEETOWN 2. SORIEBA & ASSOCIATES
1st FLOOR, BAY STREET FREETOWN SOLICITORS FOR THE
DEFENDANT This Summons was taken out by Fuad & Associates
of Bay Street, Freetown, Solicitor for the Plaintiff. C.C. 53/22
2022 X. NO.8 IN THE HIGH COURT OF SIERRA LEONE
(INDUSTRIAL AND SOCIAL SECURITY DIVISION) BETWEEN:
XXXXXXXX -PLAINTIFF/APPLICANT 216 BAY ROAD FREETOWN
AND YYYYYYYYY -DEFENDANT/RESPONDENT 2B BAY DRIVE
FREETOWN SUMMONS FOR DIRECTIONS FUAD & ASSOCIATES
7 WALPOLE STREET FREETOWN SOLICITORS FOR THE
PLAINTIFF.
So, you will see from paragraph 1 onto paragraph 9, these are
all Interlocutory Issues that are to be dealt with in the
Summons for Directions cases.
So essentially, if you look at ORDER 28, RULE 1 (1) paragraph
(a), it tells you why you take out SUMMONS FOR DIRECTIONS.
1.With a view to providing, in every action to which this rule
applies, an occasion for the consideration by the Court of the
preparations for the trial of the action, so that- (a) all matters
which shall or can be dealt with on interlocutory applications
and have not already been dealt with may, so far as possible,
be dealt with;".
WHY TAKE OUT SUMMONS FOR DIRECTIONS?
You take out SUMMONS FOR DIRECTIONS to deal with all
INTERLOCUTORY APPLICATIONS that ought to be dealt with or
that will be dealt with during the course of the trial, as
provided for in paragraph (a) of Subrule (1), RULE 1, of ORDER
28.
So, if you look at the Template, it tells you from 1 to 9, that
they are all INTERLOCUTORY APPLICATIONS, that a party will
be dealing with.
Now remember, the purpose of Summons for Directions is to
ensure the JUST, EXPEDITIOUS and ECONOMIC disposal of the
trial because the courts do not want any delay.
Summons for Directions is essentially meant for case
management, that is why it is said for a Just, expeditious and
economic management of the case.
That is why when you look at the Template, it has several time
limits within which things must be done. For instance, it tells
you for matters that ought to be dealt with within 7 days and
those in 14 days. So, it tells you time management to prevent
any situation or circumstance wherein a party will say I was not
aware.
But NOTE: it is only Applicable to actions that are begun by
Writ of Summons.
Usually, the exams questions are around. (A) How can a
Defendant ask for and obtain Directions within the Context of
Summons for Directions (ORDER 28)? (B) Who prepares the
court bundle? So usually, the question is twofold. (A) Now, we
have established that the General Rule as provided for in
ORDER 28, RULE 1, (1) which is the Proviso to paragraph (b), is
that it is the Plaintiff that has the duty or the obligation to take
out Summons for Directions. Now, after establishing that
General Rule, your next step should be that the plaintiff has
defaulted in taking out Summons for Directions as provided for
by the Proviso in paragraph (b) RULE 1, Subrule (1). And as
provided for in R V TURNER, 14 clear days means not less than
14 days. The question is basically saying, what should the
Defendant do? Because the question basically means the
plaintiff has defaulted to take out Summons for Directions. So,
the questions now what options are available to the
Defendant now that the Plaintiff has defaulted? So now one of
the options available to the Defendant is ORDER 28, RULE 1,
Subrule (4). It says "(4) If the plaintiff does not take out a
summons for directions in accordance with subrules (1) to (3),
the defendant or any defendant may do so or apply for an
order to dismiss the action".
But NOTE: before this option kicks in, the Defendant should be
able to show that:
(1) the one-month period within which the Plaintiff should take
out Summons for Directions has lapsed.
(2) the 14 days period within which it should be returnable has
also lapsed. So, the Defendant should be able to show that. So
firstly, establish the General Rule.
FOR CLARITY’S SAKE ON QUESTION
(A) Generally, Summons for Directions are taken out to ensure
the just, expeditious and economic management of the trial.
In other words, it is case management to prepare for the trial in
advance to deal with all Interlocutory matters that ought to
have been dealt with. This is provided for by ORDER 28, RULE
1, subrule (1) (a) and (b).
Also, the plaintiff is under an obligation to take out Summons
for Directions as provided for in the Proviso of paragraph (b), of
Subrule (1), RULE 1, ORDER 28 within 1 month after the closed
of Pleadings, and same to be returned not less than 14 days
after it has been taken out. However, where the Plaintiff fails
to take out Summons for Directions, the options that are
available to the Defendant are as follows: Pursuant to ORDER
28, RULE 1, SUBRULES (4), (5) and (7) are the options available
to the Defendant.
Sub (4) says " If the plaintiff does not take out a summons for
directions in accordance with subrules (1) to (3), the defendant
or any defendant may do so or apply for an order to dismiss the
action.
Sub (5). On an application by a defendant to dismiss the action
under subrule (4), the Court may either dismiss the action on
such terms as may be just or deal with the application as if it
were a summons for directions.
Sub (7) Notwithstanding anything in subrule (1), any party to an
action to which this rule applies may take out a summons for
directions at any time after the defendant has entered
appearance or, if there are two or more defendants, at least
one of them has entered appearance".
So, if you look at Subrule (4), the Defendant can take out
Summons for Directions in a situation wherein the plaintiff fails
to take out Summons for Directions.
The Defendant also has another option if the Plaintiff fails to
take out Summons for Directions, instead of the Defendant
doing the job, the Defendant will apply to dismiss the matter.
So subrule (4) gives you two options where the Defendant can
ask for summons for Directions, Firstly, the Defendant is to take
out Summons for Directions Where the Plaintiff has failed to do
so. The second option is which most Defendant will tend to
do, is that the Defendant will apply to the court to strike out
the Plaintiff's claim. Because the plaintiff is the one that
brought the matter, so it shows he is not serious to proceed
with the matter. That is why the Defendant is applying to the
court to strike it out.
And the interesting part is subrule (5), so where the Defendant
applies to the court to dismiss the action, the court may
(discretionary) dismiss the action or treats the application as a
Summons for Directions and direction will be given there
forthwith.
Usually, for 99% of cases, the court will grant the latter which is
treating the application as a Summons for Directions and
direction will be given there forthwith. Because the essence of
these Applications, is to ensure that the matters are heard on
their merits in just, fair and equitable manner.
HOWEVER, NOTE: It is not in every case that the court will
strike out the summons for Directions.
NOTE: Where the court dismisses the action of the Plaintiff for
failing to take out Summons for Directions, Subrule (8) of RULE
1, gives option to that Plaintiff to restore his action.
Sub 8 says "A plaintiff whose action has been dismissed under
subrule (5) may apply not later than one month after the date
of the order by notice on motion supported by an Affidavit for
the action be restored. And the Court may, for good and
sufficient cause order that the action be restored upon such
terms as it may think fit".
So, in essence, it gives the Plaintiff an opportunity to restore
the action by Notice of Motion, supported by Affidavit.
Because the essence of litigation is to ensure that the matters
are heard on their merits.
NOTE. The success of that application to restore the action
earlier set aside is dependent upon the party applying to give
good and sufficient reasons why he failed to take out
Summons for Directions. And that application if successful
comes with cost because the Proviso in paragraph (b) of
subrule (1), RULE 1, has given you an obligation within 1 month,
you have failed to comply. Also, you must note that because
you have failed to comply, the Defendant has chosen now to do
what he thinks is right and proper.
Furthermore, the other option that is available to the
Defendant where the Plaintiff fails to take out a Summons for
Directions is provided for in Subrule (7). And that is where now
the proper Exception comes in.
As provided for in the Proviso of paragraph (b), it is the Plaintiff
that must take out Summons for Directions, now if you look at
ORDER 28, RULE 1, Subrule (7), it clearly tells you that what is
stated in Subrule (1), paragraph (b), which is the Proviso, is "not
absolute". So that is also another way the Defendant can
obtain or ask for Directions within the Context for a summons
for Directions.
So will note that the Proviso in Subrule (1), paragraph (b) is
quite restrictive and specific. It says the "Plaintiff". Subrule (7)
now gives the General Powers to any party to the Proceedings
to take out Summons for Directions.
It could be the Defendant, it could be a Third Party, it could be
the plaintiff. As long as you are able to show that a Defendant
has entered Appearance. And Subrule (7) is usually what the
Plaintiff will rely on to argue his case. But 99% chances to 1%,
the court will always Rule against the Plaintiff.
NOTE: "Where there is a specific provision, the subsidiary
Provision does not take effect until there is a default on that
Specific Provision".
In essence, the Defendant will not wake up and take up
summons for Directions until that Proviso under RULE 1,
Subrule (1) paragraph (b) has been breached.
NOTE:
(1) We have dealt with reasons for taking out Summons for
Directions.
(2) We have dealt with actions for which Summons for
Directions are taken out for.
(3) We have dealt with who is responsible for taking out
Summons for Directions.
(4) And we have dealt with how can the Defendant take out
Summons for Directions.
NOTE SUPER IMPORTANT:
By way of General Rule, Summons for Directions are only
Applicable to actions that are begun by WRIT OF SUMMONS.
However, it is not all actions that are begun by Writ of
Summons that you take out Summons for Directions.
THE EXCEPTIONS.
The exceptions are in Subrule (2) of RULE 1.
It says "Subrule (1) applies to all actions begun by writ except
(A) Actions in which the plaintiff or defendant has applied for
summary judgment under Order 16, and directions have been
given under the relevant rule.
(B) Actions in which an order has been made under rule 4 of
Order 27 for the trial of an issue or question before
discovery". So Subrule (2) of RULE 1, states the exception.
Example: Let us say Abdul Malik sued Chernoh Bah for debt
recovery. Then, Abdul Malik looks at the Writ of Summons and
came to the conclusions that Cherry has no defense, or even if
he has a defense, the defense is a sham. (A Defense that is
fictitious and interposed in bad faith and irrelevant to fact).
In such a situation, Abdul Malik will apply for Summary
Judgement. The moment he applies for Summary Judgment,
he is not going to take out Summons for Directions again even
though the action was begun by Writ of Summons.
The reason for this is that:
When you file for Summary Judgement to the court, and the
court decides the Summary Judgement, and rules in your
favour that there are no triable issues, that defendant's defense
is a sham, that it has no prospect of success, that is where the
matter ends Automatically.
The only remedy that is available to the defendant is to appeal.
BUT NOTE: Where the court after hearing the application for
Summary Judgment finds out that the defendant in this case
Cherry has shown triable issues, he has shown a valuable
defense on its merits, so it is not a sham, the court will write
down everything in that "Summons for Directions template" as
the Judgement. The court will automatically give directions
there and then, they will not waste time again.
Now the court will do all the nine variables as part of its Orders
to the part of the Judgement (see templates for summons for
directions). So, the court will give directions as provided for in
ORDER 16, RULE 6. Which states: "Where the Court–
(a) Orders that a defendant or a plaintiff shall have leave
(whether conditional or unconditional) to defend an action or
counterclaim, as the case may be, with respect to a claim or a
part of a claim; or
(b) Gives judgment for a plaintiff or a defendant on a claim or
part of a claim but also orders that execution of the judgment
be stayed pending the trial of a counterclaim or of the action,
as the case may be, the Court shall give directions as to the
further conduct of the action, and rules 2 to 6 of Order 28,
shall, with the omission of so much of subrule (1) of rule 6 of
Order 28 as requires parties to serve a notice specifying the
orders and directions which they require and with any other
necessary modifications, apply as if the application under rule 1
or rule 5 as the case may be, on which the order was made
were a summons for directions". So, there will be no need for
you to go and take Summons for Directions again, the
Directions that the court will give is similar to you taken out
Summons for Directions. It will be a waste of time for you to go,
file a Summons for Directions, before the same Judge, and
come again and prove it before the Judge grants you. So there
and then, the Judge has decided that there are triable issues, so
they are going to trial. And remember the essence for
directions is paragraph (b) of RULE 1 (1) of ORDER 28. Which is
for a Just, expeditious and economic Trial of the matter. The
Judge will not want to waste time and he will just say for
example: I direct that X must serve Amadu these Bundles. Sorie
must serve this and this, so this is done for the just, expeditious
and economic management of the case because remember, it is
all about case management the court will give directions there
and then.
FOR CLARITY’S SAKE. So, one of the exceptions which says the
Plaintiff or anybody can take out Summons for Directions if the
action is begun by Writ, is wherein either the Plaintiff has
applied for Summary Judgment or the Defendant on his
Counterclaim has applied for Summary Judgment.
LET US UNDERSTAND IT THIS WAY ALSO. Now what we are
saying is that there are actions that are begun by Writ of
Summons, but because a party had applied for Summary
Judgment, no party is under an obligation to take out Summons
for Directions again because either the court Rule in favour of
the party that applied for the Summary Judgement which
determines the matter subject to appeal or the court Rule
against him and give Consequential Orders. Those
Consequential Orders are what are provided for in ORDER 16,
RULE 6. Which are the directions. So, the court will list all what
you have in your hands in a form of Judgement, in the
Substantive Judgement that they are giving in Summary
Judgement.
FOR CLEARER UNDERSTANDING So yes, the action was begun
by Writ, Pleadings were filed, the time frame within which
Pleadings are expected to be closed ORDER 21, RULE 18 is
closed. And because they are closed, generally what is expected
is for the Plaintiff to take out Summons for Directions, but
instead of the Plaintiff taking out Summons for Directions, what
did he do? He filed an application for Summary Judgment. Now
because he has filed an application for Summary Judgment, he
has taken the action out of the Realm of ORDER 28
(SUMMONS FOR DIRECTIONS) to ORDER 16 (SUMMARY
JUDGEMENT).
Now once that application is dealt with, if it is judged in his
favour, the Defendant will only need to Appeal, but if it is
judged against him, the court will invoke its powers provided
in ORDER 16, RULE 6 (a) and (b). That is why it is called
Directions.
NOTE: So essentially, it is very important for you to note these
Exceptions.
The exams questions usually are on what are the options
available to the Defendant, as thoroughly explained supra. And
questions on who prepares the Court Bundle.
NOTE: Summons for Directions is the only Summons that does
not require Affidavit. Because the duty to give all information
are stated there, if you look at the Template, the directions are
stated there, it tells you within 14 days what you should do,
within 7 days what you should do. So, if you look at ORDER 28
of the High Court Rules, Particularly Rule 5, subrule (1) (it deals
with Duty to give all information at hearing). RULE 5 (1), "5. (1)
Subject to subrule (3), no affidavit shall be used on the hearing
of the summons for directions except by the leave or direction
of the Court, but, subject to subrule (5) it shall be the duty of
the parties to the action and their advisers to give all such
information and produce all such documents on any hearing of
the summons as the Court may reasonably require for the
purpose of enabling it properly to deal with the summons".
So, it says no Affidavit. And you could see from the template, it
does not require an Affidavit in Summons For Directions,
Unless, the Court grants leave wherein you think that there are
information (because this Rule deals with duty to disclose
information), that are paramount that you think you can bring
in, then, you can apply to the court to bring in those
information.
NOTE: Even though RULE 5, deals with the duty to give all
information, if you look at Subrule (5) of RULE 5. It says: "(5)
Notwithstanding anything in this rule, no information or
documents which are privileged from disclosure shall be
required to be given or produced under this rule by or by the
advisers of any party otherwise than with the consent of that
party". meaning it has an exception.
It is not all information you can give. For Instance, if the
information has to do with State Security, Intelligence, or
someone do not want his or her medical report seen publicly
etc. So even though RULE 5 says to disclose all information.
But however, if those information falls within Subrule (5) of
RULE 5, the court will not give an Order for it to be disclosed.
There are certain information that can only be heard in
chambers, such information are between just the Judge and
lawyers involved in the matter. They are exclusively heard in
Chambers, so it could be anything that is very personal and not
meant for the public. So, in such a situation, even though the
court has a wider discretion to compel a party to disclose
information but the court is very much caution as to the type of
information you must disclose.
So even though RULE 5 Subrule (1) is saying Summons for
Directions do not require Affidavit, but If you Have Extra
information that you want to bring in under that same
Subrule (1) of RULE 5, ORDER 28, It says you can seek the
leave of the court. That is, if it occurs that that information can
only be brought by Affidavit Evidence, that is what RULE 5,
Subrule (1) is saying.
What you are expected to do essentially, is to bring out all
relevant issues as you have seen in the template from 1 to 9.
And crucially, pay attention to the words in the Rules, if you
look at RULE 5, subrule (5), the word used there is "privileged",
so if it is privileged, you cannot be compelled to bring out the
information, as long as it is privilege.
NOTE: "SUMMONS FOR DIRECTIONS is pre-trial.
Meaning It is before the commencement of the trial. There is
no witnesses whatsoever at this stage, so it is called pre-trial
stage". Also NOTE: RULE 2, of ORDER 28 essentially deals with
the obligation of the Court to deal with all Interlocutory
Applications. "2. (1) When the summons for directions first
comes to be heard, the Court shall consider whether-
(a) it is possible to deal then with all the matters which, by the
subsequent rules of this Order, are required to be considered
on the hearing of the summons for directions, or
(b) it is expedient to adjourn the consideration of all or any of
those matters until a later stage". So, When the Summons for
Directions come to the court, the court has an obligation to
deal with RULE 2, all Interlocutory Applications there and then,
or they can choose other options to say, we are not going to
deal with all Interlocutory Applications, which is (b), they will
adjourn. If you look at the Template, there are 9 Interlocutory
Applications there, the court may look at 5 and say we can
adjourn and continue the next day.
Essentially, RULE 2 (deals with Duty to consider all matters).
And so, if you look at Subrule (1) of RULE 2 paragraph (a), it
says the court has duty to consider all matters that are brought
before them, or subrule (1) of RULE 2 paragraph (b), they can
choose to adjourn the matter. Subrule (2) and subrule (3) of
RULE 2, makes it very clear what happens if the court chose to
consider all the matters or not. "(2) If, when the summons for
directions first comes to be heard the Court considers that it is
possible to deal then with all the matters mentioned in subrule
(1), it shall deal with them forthwith and shall endeavor to
secure that all other matters which must or can be dealt with
on interlocutory applications and have not already been dealt
with are also then dealt with.
(3) If, when the summons for directions first comes to be heard,
the Court considers that it is expedient to adjourn the
consideration of all or any of the matters which, by this Order,
are required to be considered on the hearing of the summons,
the Court shall deal forthwith with such of those matters as it
considers can conveniently be dealt with forthwith and adjourn
the consideration of the remaining matters; and the Court shall
endeavor to secure that all other matters which must or can be
dealt with on interlocutory applications and have not already
been dealt with are dealt with either then or at a resumed
hearing of the summons for directions". So, If the court chose
to invoke subrule (1) paragraph (a) of RULE 2, what will
happen? (Subrule (3)).so Subrule (3) is connected with Subrule
(1) (b). And subrule (2) is connect with Subrule (1) paragraph
(a). So essentially, if you look at paragraph (a) and paragraph
(b), the court has the option to consider all the matters that
comes before it or adjourn. (That is from paragraph 1-9 of the
template, those are the matters that the court chooses to
consider). Now if the court chose to consider all of them, they
can make an Order forthwith. But if they chose to say that
there are certain matters that are complex in nature, we are
not going to deal with them at this stage, such as, matters that
has to deal with ORDER 28, RULE 5 (5), those privilege or
difficult Documents, the court will say No, we can adjourn these
proceedings for further hearing. For instance, in criminal
Proceedings, we have a Voir Dire (A preliminary hearing
without a jury in order to determine whether the evidence
meets the test for admissibility to go to a full hearing at a
criminal trial). Or a trial done in Camera. Which is also available
in civil procedure. Because remember if you look at ORDER 28,
RULE 1, Subrule (1) (a), it says all matters that are to be dealt
with on Interlocutory basis are going to be dealt with for the
summons for Directions. So what subrule (2) of Rule 2 is saying
now is when the matter is brought to court to deal with them
on an Interlocutory basis, they must Consider everything and
they will be dealt with forthwith. If they cannot deal with all of
them, they will adjourn and therefore, they will invoke subrule
(3) of Rule 2. So, if they choose to use paragraph (a) of Rule 2,
subrule (1), then, Subrule (2) of Rule 2 will kick in Automatically.
If they choose to go by paragraph (b) of subrule (1) of Rule 2,
which is to adjourn for further hearing, then, Subrule (3) of Rule
2 will kick in Automatically.
NOTE: Now let us go to the (B) part of the question which is
ORDER 28, RULE 2, Subrule (4).
(B) WHO IS ENTITLED TO PREPARE THE COURT BUNDLE AND
WHAT SHOULD BE INSIDE THE COURT BUNDLE? (YOU MUST
HAVE TO MEMORIZE THIS ASPECT, THAT IS, EVERYTHING
THAT IS IN ORDER 40 RULE 9).
ORDER 28, RULE 2, SUBRULE (4). "(4) On the hearing of the
summons for directions the Court shall give directions on all
matters which by this Order are required to be considered on
the hearing of a summons for directions including whether the
bundle to be provided under rule 9 of Order 40 is to include the
documents mentioned in paragraph (c) of subrule (2) of rule 9
of Order 40 and the summons shall be adjourned to a date after
the deadline fixed for compliance with that order; and no date
shall be fixed for the trial of the action until there has been
total compliance with the order made by the Court at such
hearing".

ORDER 40, basically deals with (SETTING DOWN FOR TRIAL -

ACTION BEGUN BY WRIT).
ORDER 40, RULE 9 (The Court Bundle). "9. (1) Within 14 days
from the date the action is set down for trial, the defendant
shall identify to the plaintiff those documents central to his
case which he wishes to be included in the bundle to be
provided under subrule (2). (2) At least 7 clear days before the
date fixed for the trial, the plaintiff shall lodge two bundles
consisting of one copy of each of the following documents:– (a)
witness statements which have been exchanged and expert’s
reports which have been disclosed, together with an indication
of whether the contents of such documents are agreed; (b)
those documents which each party wishes to have included in
the bundle and those central to each party’s case; and (c)
where a direction has been given under subrule (4) of rule 2 of
Order 28, of a note agreed by the parties, failing agreement, a
note by each party given in the following order:– (i) a summary
of the issues involved; (ii) a summary of any propositions of law
to be advanced together with a list of authorities to be cited;
and (iii) a chronology of relevant events. (3) Nothing in this rule
shall prevent the Court from giving, whether before or after the
documents have been lodged, such further or different
directions as to the documents to be lodged as may, in the
circumstances be appropriate".
NOTE: THE QUESTION IS WHO PREPARES THE COURT BUNDLE
AND WHAT SHOULD BE IN THE COURT BUNDLE? ANSWER
PLAN.
Start firstly by establishing who prepares the Court Bundle.
WHO PREPARES THE COURT BUNDLE?
ANS: "It is the Plaintiff's obligation, or responsibility or duty to
prepare the court Bundle". BUT NOTE: "it is ALSO important to
note after the PLAINTIFF HAS prepared all the documents, the
Defendant will also prepare all the Documents he relies on and
sends them to the plaintiff. The Plaintiff will also prepare all the
Documents he relies on and sends them to the Defendant.
Note: Those documents that they have exchanged is not the
Court Bundle, that is their individual bundle.
So, we now have two court Bundle, (that is, the plaintiff's
bundle and the Defendant's bundle).
Now to prepare the court bundle, the plaintiff has an
obligation to take the Defendant's Documents and join them
to his, in order to have one Court Bundle". So that is what is
called the Court Bundle.
Which means you will not be going back and forth writing the
Defendant's bundle and whatsoever, so you have single bundle.
NOTE: Court Bundle is very much paramount and important, a
failure to prepare a court Bundle, Judgment in default will be
obtained against you.
So, you might have filed your Writ, you might have filed your
defense, you might have filed your Counter Claim, but if you fail
to take out the Court Bundle then, Judgement in Default will be
obtained against you.
So, if you look at ORDER 40, RULE 10, (which deals with failure
to comply with RULE 9 of ORDER 40). It says, "10. (1) If a party
fails to comply with any of the provisions of rule 9, the Court
may make such orders as it thinks just, including, in particular,
an order that the action be dismissed or, as the case may be,
an order that the defense be struck out and judgment be
entered accordingly.
(2) A party against whom an order has been made under
subrule (1) may apply not later than one month after the date
of the order, by notice of motion that the order be set aside
and the action or defense be restored; and the Court may, for
good and sufficient cause order that the action or defense be
restored, upon such terms as it thinks fit". So definitely as
stated in RULE 10, (1) of ORDER 40, failure to take out the
Court Bundle, Judgement in Default will be obtained against
you.
NOTE: (1) "Now usually what happens is that, where the
Defendant serves his own bundle on the Plaintiff then, the
Plaintiff fails to serve his own Bundle, the Defendant will
apply for the action to be struck out".
(2) "If the Defendant has a counter claim, he will apply to strike
out the Plaintiff's claim and also apply for Judgement to be
entered on that counter claim in his favour only".
(3) "Now where the Plaintiff serves the Defendant his own
bundle, but the Defendant fails to serve the Plaintiff his own
bundle, the Plaintiff will apply for the Defendant's defense to
be struck out and Judgement entered in the Plaintiff's favour
accordingly". For examples: Example (1) "Rolanda sues Isatu
Deen, Rolanda is the Plaintiff, Isatu Deen is the Defendant. Now
the court have given Summons for Directions, which means
they have given Directions, they have given time frames. Isatu
Deen has filed defense and everything necessary, Rolanda sues
the action so she is the one that brought the Writ. Isatu Deen
now has sent her own court bundle to Rolanda, Rolanda who is
the Plaintiff did not serve Isatu Deen the Court Bundle. In this
scenario, Isatu Deen will apply to the court for Rolanda's case
to be struck out. Because she is the one that brought the case
and did not do anything".
Example (2) "But Isatu Deen has a Counter Claim on her
defense, she will not only apply for Rolanda's case to be struck
out, but Isatu Deen will also apply for Judgement to be entered
in default against Rolanda because she has failed to comply".
Example (3) "And on the other hand, Rolanda who is the
Plaintiff has served Isatu Deen the court Bundle, then, Isatu
Deen has failed to serve her own court bundle on Rolanda,
Rolanda will apply for Isatu Deen's case to be struck out and
also apply for Judgement to be granted in her favour
accordingly".
NOTE: this failure to comply is so serious, and it is provided for
in Subrule (5) of RULE 2, of ORDER 28. RULE 2, subrule "(5) If
either party fails to comply with the order as required by
subrule (4), the Court may make such order as it thinks just
including, in particular an order that the action be dismissed or,
as the case may be, an order that the defense be struck out and
judgment be entered accordingly". So if they fail to comply with
ORDER 40, RULE 9, this same provision in ORDER 40, RULE 10, is
similar to the provision in ORDER 28, RULE 2, subrule (5). (So
ORDER 40, RULE 10 and ORDER 28, RULE 2, Subrule (5) are
virtually the same, as both talks about the failure to comply
with ORDER 40, RULE 9).
NOTE: so, your answer will also include RULE 10 of ORDER 40
and Subrule (5), of RULE 2, of ORDER 28.
NOTE: Who prepares the court Bundle? state it. What is in the
court bundle? state it. And where there is a failure to comply
with ORDER 40, RULE 9, a brilliant student will go further to
state ORDER 28, RULE 2, Subrule (5) and ORDER 40, RULE 10.
ORDER 28, RULE 3 Deals with agreements and admissions.
Usually when you file your Writ of Summons, a party by virtue
of ORDER 34 (ADMISSIONS), can admit or agree. So, admissions
are ultimately consent Judgement drawn. So, they will admit or
agree, for example, okay, paragraph 1, I agree, paragraph 2, I
agree, paragraph 3, I agree that I entered into a contract with
you but this is not the amount. So once there is an admission,
you will draw what is known as consent. That admission can be
agreed upon during summons for Directions to go discuss or
argue the summons for Directions. So, what you agree will be
recorded in the Summons For Directions, and you can go now
and draft a consent Judgement and file it like a normal court
Order.
NOTE: that does not mean if later I am not satisfied, I cannot
appeal that agreement, but it should always be in good Faith.
ORDER 28, RULE 3. "3. At the hearing of a summons for
directions, the Court shall endeavor to secure that the parties
make all admissions and agreements as to the conduct of the
proceedings which ought reasonably to be made by them and
may cause the order on the summons to record any admissions
or agreements so made, and (with a view to such special order,
if any, as to costs as may be just being made at the trial) any
refusal to make any admission or agreement".
ORDER 28, RULE 4 (talks about limitation of right of appeal).
"4. Nothing in rule 3 shall be construed as requiring the Court
to endeavor to secure that the parties shall agree to exclude or
limit any right of appeal, but the order made on the summons
for directions may record such agreement".
NOTE: RULE 3 and 4 are not examinable but you may read and
understand them. ORDER 28, RULE 6. (Deals with Duty to
make all interlocutory applications on summons for
directions). It is examinable and it is used by almost all
practitioners. WHAT DOES THIS RULE PARTICULARLY SAYS? If
you look at the Template, it is at number 8, Liberty to apply.
Now that liberty to apply is fundamentally important for ORDER
28, RULE 6, Particularly Subrule (3) of that RULE. Example:
Demba has issued his summons for Directions, and he has listed
what he thinks he has. And the summons for Directions has
been granted to him, they have also exchanged Documents. But
As the trial is ongoing, he remembers that there are other
documents that he has, that he has forgotten completely to put
them in, he did not remember that he had those documents.
Now he wants to bring those documents in. WHAT ESSENTIALLY
SHOULD HE DO? That is what ORDER 28, RULE 6 is basically
about (subrule (1) ,(2) and Particularly Subrule (3)).
HOW DO YOU RESTORE THE SUMMONS FURTHER
DIRECTIONS?
So that is where you have liberty to apply to restore the
Summons. So, the liberty to apply as seen in Subrule (1), is
essentially to restore the Summons for Directions back to
pretrial stage. You might lead witnesses because you realize
that these are Documents that are crucial for the case, and so
they need to come in.
NOTE:
You are at liberty to bring in Documents Even after the case
has finished but Judgement has not yet been written, if you
look at ORDER 28, RULE 6, Subrule (3), the word there is
(...before Judgement.), so even when you have finished with
closing arguments, you can apply to restore the Summons and
bring the documents. The reason for this is because of what is
provided for in Paragraph (b) of Subrule (1) RULE 1, for the Just,
expeditious and economic management of the trial. And this
limb now is for the Justice of the case.
NOTE: when you are bringing that Documents, you must show
that :
(1) Firstly, that that document was not in your possession at the
time that you were filing, you were not aware of it existence,
you did not know it was existing at the time you were filing.
(2) Then the Second or crucial test is whether if you had done
due diligence, you would have seen the documents. (3) And the
third requirement is whether the document that you are
bringing will affect the substratum of the case. So if you look at
the case of HAMID MOJO, it concerns about how you bring
Documents after trial has already finished.
FOR CLARITY SAKE
(1) So the first test is whether the document was available at
the time of the trial?
(2) What due diligence steps did you take to search for that
document.
(3) And the third requirement is whether the document that
you are bringing will affect the substratum or will substantially
affect the scale of the case? If it will affect the scale of the case,
then, justice says it must be brought in. So if you do not fulfill
those three requirements in the case of HAMID MOJOE
KAMARA V OKEKY FISHING CO. LTD, it becomes very much
difficult.
ORDER 28, RULE 6, Subrules (1), (2), (3). "6. (1) Any party to
whom the summons for directions is addressed shall so far as
practicable apply at the hearing of the summons for any order
or directions which he may desire as to any matter capable of
being dealt with on an interlocutory application in the action
and shall, not less than 7 days before the hearing of the
summons, serve on the other party or parties a notice
specifying those orders and directions in so far as they differ
from the orders and directions asked for by the summons. (2) If
the hearing of the summons for directions is adjourned and any
party to the proceedings desires to apply at the resumed
hearing for any order or directions not asked for by the
summons or in any notice given under subrule (1), he shall, not
less than 7 days before the resumed hearing of the summons,
serve on the other parties a notice specifying those orders and
directions in so far as they differ from the orders and directions
asked for by the summons or in such notice. (3) Any application
subsequent to the summons for directions and before
judgment as to any matter capable of being dealt with on an
interlocutory application in the action shall be made under the
summons by two clear days’ notice to the other party stating
the grounds of the application". And the test question this year
on ORDER 28, surrounds RULE 6. Q. ORDER 28 of the High Court
Rules 2007 provides as follows: any application subsequent
(after) to the summons for Directions and before judgment, so
as to any matter capable of being dealt with on an Interlocutory
application in the action shall be made under the summons by
two clear days notice to the other party stating the grounds of
the application. With relevant examples clearly explain the
above provision. So it is important and imperative for you to
note how you go about that Question. Start Generally by
Stating the essence of summons for Directions. Remember
when we started, we said Summons For Directions deals with
all Interlocutory matters that ought to have been dealt with
during trial. So you answer your question by highlighting the
stages, was the documents available? Was due diligence done?
What is the effect of this document in so far as this trial is
concerned? So these are things that comes to your mind when
discussing the question.