CHAPTER 27 - HIGH COURT ACT: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

High Court Rules

High Court (Jurisdiction of Registrars) Rules

High Court (Jurisdiction of Assistant Registrars) Rules

Duties and Function of Assistant Registrars and Deputy Assistant Registrars Directions

Clerks of Sessions

Witnesses and Assessors Allowances Rules

High Court (District Registrars) Rules

High Court (Income Tax Appeals) Rules

High Court (Appeals) (General) Rules

High Court (1997 Sessions) Order

High Court (1998 Sessions) Order

High Court (1999 Sessions) Order

High Court (2004 Sessions) Order

High Court (2005 Sessions) Order

High Court (2007 Sessions) Order

High Court (2008 Sessions) Order

High Court (2009 Sessions) Order

High Court (Electronic Filing) Rules

HIGH COURT RULES

RULES MADE UNDER THE HIGH COURT ACT - CHAPTER 3 OF THE 1960 EDITION OF THE LAWS

[RETAINED AS PER SECTION 15 OF THE INTERPRETATION AND GENERAL PROVISIONS ACT]

[Currency mentioned in this regulation should be re-denominated as stipulated under S 4 of Re-denomination Act, 2012, read with S 29 of Bank of Zambia Act, 1996.]

Arrangement of Rules

   Rule

   1.   Title

   2.   Interpretation

   3.   Orders

      FIRST SCHEDULE

      SECOND SCHEDULE

[Rules by the High Court Rules Committee]

Act 57 of 1964,

GN 193 of 1933,

GN 44 of 1936,

GN 50 of 1937,

GN 142 of 1943,

GN 218 of 1944,

GN 165 of 1950,

GN 174 of 1950,

GN 311 of 1952,

GN 312 of 1952,

GN 252 of 1954,

GN 22 of 1958,

GN 80 of 1958,

GN 93 of 1958,

GN 98 of 1958,

GN 113 of 1958,

GN 171 of 1958,

GN 235 of 1958,

GN 275 of 1958,

GN 106 of 1959,

GN 275 of 1959,

GN 136 of 1960,

GN 309 of 1960,

GN 311 of 1960,

GN 76 of 1962,

GN 179 of 1964,

GN 206 of 1964,

GN 207 of 1964,

GN 497 of 1964,

SI 37 of 1964,

SI 63 of 1964,

SI 396 of 1967,

SI 252 of 1968,

SI 305 of 1968,

SI 92 of 1980,

SI 102 of 1980,

SI 6 of 1984,

SI 30 of 1984,

SI 105 of 1986,

SI 208 of 1986,

SI 92 of 1988,

SI 174 of 1990,

SI 109 of 1994,

SI 47 of 1995,

SI 71 of 1997,

SI 88 of 1997,

SI 69 of 1998,

SI 29 of 1999,

SI 67 of 2000,

SI 27 of 2012.

1.   Title

These Rules may be cited as the High Court Rules.

2.   Interpretation

In these Rules, unless the context otherwise requires—

“District Registry” means a District Registry directed to be established under section 39 of the Act;

“legal practitioner” means a practitioner as defined by the Legal Practitioners Act;

“Principal Registry” means the office of the Registrar at Lusaka;

“Probate Registry” means the branch of the Principal Registry that is set aside for the purpose of the exercise of probate jurisdiction;

“proper officer” means the Registrar or any Deputy Registrar, District Registrar or Assistant Registrar and all Clerks to Judges and any other person especially appointed in that behalf by the Registrar;

“Registrar” means the Registrar of the High Court, and includes a Deputy Registrar and a District Registrar;

“Registry” includes the Principal Registry and a District Registry;

“taxing master” means the Registrar of the High Court, a Deputy Registrar or a District Registrar;

“taxing officer” means a taxing master or an Assistant Registrar empowered by rule made under section 7 of the Act to tax bills of costs.

[Am by GN 106 1959; 275 of 1959; 309 of 1960; 76 of 1962; rule 2 of SI 71 of 1997.]

3.   Orders

These Rules are divided into the following Orders—

Order

I.

General Forms of Process, Fees, etc.

Order

II.

Computation of Time

Order

III.

Miscellaneous Provisions

Order

IV.

Employment of Barristers and Advocates

Order

V.

Evidence

Order

VI.

Writs of Summons and Originating Process

Order

VII.

Endorsement of Address

Order

VIII.

Concurrent Writs

Order

IX.

Renewal of Writ

Order

X.

Service of Process

Order

XI.

Appearance

Order

XII.

Default of Appearance

Order

XIII.

Leave to Sign Judgment and Defend where Writ Specially Endorsed

Order

XIV.

Parties

Order

XV.

Particulars of Claim

Order

XVI.

Alteration of Parties

Order

XVII.

Discontinuance of Suits

Order

XVIII.

Amendment

Order

XIX.

Orders of Directions

Order

XX.

Default of Pleading

Order

XXI.

Admissions

Order

XXII.

Settlement of Issues

Order

XXIII.

Inquiries and Accounts

Order

XXIV.

Appearance of Parties

Order

XXV.

Arrest of Defendant under Section 10 of Debtors Act

Order

XXVI.

Interim Attachment of Property

Order

XXVII.

Injunctions, etc.

Order

XXVIII.

Equitable Relief, Counter-claim, Set-off

Order

XXIX.

Payment into and out of court and Tender

Order

XXX.

Applications and Proceedings in Chambers and in court

Order

XXXI.

Place and Mode of Trial and Setting Down for Trial

Order

XXXII.

Recording of Proceedings

Order

XXXIII.

Postponement of Hearing

Order

XXXIV.

Order of Business

Order

XXXV

Non-attendance of Parties at Hearing

Order

XXXVI.

Judgment

Order

XXXVII.

Recording of Judgments

Order

XXXVIII.

Affiliation and Maintenance of Children Act

Order

XXXIX.

Review

Order

XL.

Costs

Order

XLI.

Enforcement of Orders

Order

XLII.

Execution

Order

XLIII.

Interpleader

Order

XLIV.

Procedure on Applications under Companies Act

Order

XLV.

Reference to Arbitration

Order

XLVI.

Probate and Administration

Order

XLVII.

Civil Appeals

Order

XLVIII.

Proceedings in District Registries

Order

XLIX.

Sittings and Vacations

Order

L.

Recovery of Costs by Legal Practitioners

Order

LI.

Agency Allowance

Order

LII.

Proceedings By and Against the State Orders

ORDER I
GENERAL FORMS OF PROCESS, FEES, ETC.

1.   Sealing of process

The signature of a Judge or the Registrar, as the case may be, on any writ or process shall not be necessary in addition to sealing, unless signature is particularly prescribed by some law or rule of court.

[Am by GN 106 of 1959.]

2.   Forms

The forms in the First Schedule, or forms to the like effect, may be used in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.

3.   Provision for additional forms

In proceedings for which forms are not provided in the First Schedule or prescribed by any Act or rules or orders of court, the Registrar may, subject to the approval of the court, from time to time, frame the forms required, using as guides those which may have been provided.

4.   Fees

The fees specified in the Second Schedule shall be paid by the party at whose instance they are incurred, and may be afterwards recovered as costs of cause, if the court or a Judge shall so order. The court or a Judge may, on account of the poverty of any party, although such party may not have been formally admitted to sue or defend as a pauper, or for other sufficient reasons, dispense, if it or he sees fit, with the payment of any fees.

5.   Mode of payment of fees

The court fees or any other fees payable under these Rules shall be paid by stamps, cash, postal or Bank certified cheque.

[Subs by rule 2 of SI 88 of 1997.]

6.   Acceptance of document on payment of fees

The document on which a fee is to be paid shall be the document indicated in the Third Column of the Second Schedule, Parts 1 to 5. The fees shall be paid before the document is presented at the Registry or District Registry concerned, and unless so paid, the document shall not be accepted.

[Subs by rule 3 of SI 71 of 1997.]

7.   Duty of officers

The proper officer of the court whose duty it is to receive any document shall ensure that a proper fee is paid on any document before accepting the same.

[Subs by rule 3 of SI 71 of 1997.]

8.   Refund of fees paid in certain cases

   (1) When any document not requiring to be paid for is inadvertently paid for or when the fees paid exceed those laid down in the Second Schedule, Parts 1 to 5 inclusive, or the document is not presented to or is not accepted for filing by the court, the document may at the instance of the party by whom it was so paid for, be cancelled and substituted.

   (2) The proper officer of the court may refund the fees paid on any document cancelled under the provisions of sub-rule (1) to the party who paid the fees:

Provided that—

      (i)   the application is made to the proper officer of the court within thirty days of the date of cancellation of such document; and

      (ii)   the application is accompanied by the cancelled document which shall be attached by the proper officer of the court to the voucher in support of the refund and shall henceforth be the property of the Government.

[Subs by rule 3 of SI 71 of 1997.]

9.   ...

[Revoked by rule 3 of SI 71 of 1997.]

10.   ...

[Revoked by rule 3 of SI 71 of 1997.]

11.   Scale of costs

Except as otherwise provided by these Rules, costs shall be allowed to legal practitioners and taxed in accordance with the scale of costs set forth in the Third Schedule.

[Am by GN 165 of 1950.]

ORDER II
COMPUTATION OF TIME

1.   Commencement of a limited time

Where, by any section of the Act, or any order or rule of court, or any special order, or the course of the court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply—

      (a)   How to be made

The limited time shall not include the day of the date or of the happening of the event, but shall commence at the beginning of the day next following that day.

      (b)   When act to be done

The act or proceeding must be done or taken at latest on the last day of the limited time.

      (c)   Saturdays, Sundays and holidays

When the limited time is less than six days, the following days shall not be reckoned as part of the time, namely, Saturdays, Sundays and any public holidays.

      (d)   Time expiring on Saturday, Sunday or holiday

When the time expires on one of those days, the act or proceeding shall be considered as done or taken in due time, if it is done or taken on the next day afterwards, not being one of those days.

[Am by SI 37 of 1964.]

2.   Enlargement or abridgement of time

Parties may, by consent, enlarge or abridge any of the times fixed for taking any step, or filing any document, or giving any notice, in any suit. Where such consent cannot be obtained, either party may apply to the court or a Judge for an order to effect the object sought to have been obtained with the consent of the other party, and such order may be made although the application for the order is not made until after the expiration of the time allowed or appointed.

3.   Length of notice after delay of one year

In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give one month's notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this rule.

[Am by GN 106 of 1959.]

4.   When pleadings may be delivered in the Michaelmas and Christmas vacations

Summonses may be issued and pleadings may be amended, delivered or filed during the last eleven days of the Michaelmas and Christmas vacations respectively, but pleadings shall not be amended, delivered or filed during any other part of such vacations unless by the direction of the court or a Judge.

[Am by GN 309 of 1960.]

5.   Michaelmas and Christmas vacations not generally to be reckoned in time for delivery, etc., of pleadings

Save as in the last preceding rule mentioned, the time of the Michaelmas and Christmas vacations in any year shall not be reckoned in the computation of times appointed or allowed in accordance with these Rules for amending, delivering or filing any pleadings unless otherwise directed by the court or a Judge.

[Am by GN 309 of 1960.]

ORDER III
MISCELLANEOUS PROVISIONS

1.   Public or private sittings of court

The sittings of the court for the hearing of causes and matters shall ordinarily be public; but the court may, for a reason to be specified by it on the minutes, hear any particular cause or matter in the presence only of the parties, with their legal advisers, if any, and the officers of the court.

2.   What orders to be made

Subject to any particular rules, the court or a Judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.

3.   Jurisdiction of Registrar

The Registrar may transact all such business and exercise all such authority and jurisdiction in respect of the same as under the Act or these Rules may be transacted or exercise by a Judge at chambers, except in respect of the following proceedings and matters, that is to say—

      (a)   All matters relating to criminal proceedings or to the liberty of the subject;

      (b)   Appeals from District Registrars;

      (c)   Injunctions;

      (d)   Reviewing taxation of costs, save as provided in Order XL, rules 3 and 4.

[Am by GN 309 of 1960.]

4.   Registrar to open and keep banking account

The Registrar shall keep an account of all moneys received and all payments made by him in the performance of his duties, and, for the purpose of keeping the said account, shall cause to be opened at a Bank, to be approved by the court, an account to be called “The High Court Account”, and payments of money into and out of such account shall be made in such manner and subject to such conditions as the court may direct.

5.   Consolidation of causes or matters

Causes or matters pending in the court may, by order of the court or a Judge, be consolidated, and the court or a Judge shall give any directions that may be necessary as to the conduct of the consolidated actions.

6.   Interpreter

If, in any cause or matter, any accused person, party, witness or other person is unable to speak or understand the English language, the court or a Judge may direct a fit and proper person to attend and interpret the proceedings so far as may be necessary. Before so interpreting, such person shall swear an oath in the following form—

“I swear that I will well and truly interpret and explanation make of all such matters and things as shall be required of me to the best of my skill and understanding. So help me God.”

7.   Receipts

   (1) When any fee has been paid in respect of a document, the officer authorised to receive the fee shall endorse an initial on the document stating the fee paid and the number of the receipt recording the payment.

   (2) The officer of the court authorised to receive any fee for any matter or thing done or performed shall, before doing or performing such matter or thing, ensure that the proper fee is paid.

[Subs by rule 4 of SI 71 of 1997.]

ORDER IV
EMPLOYMENT OF BARRISTERS AND ADVOCATES

1.   Change of practitioners during the hearing of a cause or matter

A party suing or defending by a barrister or advocate in any cause or matter shall be at liberty to change his advocate in such cause or matter, without an order for that purpose, upon notice of such change being filed in the office of the Registrar. But, until such notice is filed and a copy served, the former advocate shall be considered the advocate of the party until final judgment, unless allowed by the court or a Judge, for any special reason, to cease from acting therein; but such advocate shall not be bound, except under express agreement or unless re- engaged, to take any proceedings in relation to any appeal from such judgment.

2.   Liability to pay costs

   (1) When it shall appear to the court that any civil cause or matter has been commenced or carried on maliciously or without probable grounds, and the party by whom or on whose behalf such cause or matter has been so commenced or carried on has been represented therein by a barrister or advocate who had knowledge of such malice or lack of probable grounds, or if it shall appear that any barrister or advocate has, by any sort of deceit, induced his client to enter into or continue any litigation, every such barrister or advocate shall, on failure of his client to pay any costs which he may be ordered to pay, be liable, if the court so orders, to pay the amount thereof to the party to whom costs are given. Such failure shall be deemed to have taken place if the client shall have refused or neglected to make payment after a demand has been made on him, although no process of execution may have been issued against him.

   (2) This rule shall not be construed to restrict the liability of any barrister or advocate in respect of the misconduct referred to in sub-rule (1) or any other misconduct for which he would otherwise be punishable.

ORDER V
EVIDENCE

I - Exclusion of Witnesses

1.   Ordering witnesses out of court

On the application of either party, or on its own motion, the court may order witnesses on both sides to be kept out of court; but this rule does not extend to the parties themselves or to their professional representatives, although intended to be called as witnesses.

2.   Preventing communication with witnesses

The court may, during any trial, take such means as it considers necessary and proper for preventing communication with witnesses who are within the court House or its precincts awaiting examination.

II - Documentary Evidence

3.   Entries in books of account

Entries in books of account, kept in the course of business with such a reasonable degree of regularity as shall be satisfactory to the court or a Judge, shall be admissible in evidence whenever they refer to a matter into which the court or a Judge has to inquire, but shall not alone be sufficient evidence to charge any person with liability.

4.   Government Gazettes

The Government Gazette in Zambia and any Government Gazette of any Commonwealth Country may be proved by the bare production of the Government Gazette.

[Subs by rule 5 of SI 71 of 1997.]

5.   Proof of Proclamations, etc.

All Proclamations, Acts of State, whether legislative or executive, nominations, appointments, and other official communications of the Government, appearing in any Gazette referred to in the last preceding rule may be proved by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.

6.   Books of science, maps, charts, etc

On matters of public history, literature, science or art, the court or a Judge may refer, if it or he shall think fit, for the purposes of evidence, to such published books, maps or charts as the court or a Judge shall consider to be of authority on the subject to which they relate.

7.   Foreign law

Books printed or published under the authority of the government of a foreign country and purporting to contain the statutes, code or other written law of such country, and also printed and published books of reports of the decisions of the courts of such country, and books proved to be commonly admitted in such courts as evidence of the law of such country, shall be admissible as evidence of the law of such country.

8.   Public maps

All maps made under the authority of any government or of any public municipal body, and not made for the purpose of any litigated question, shall prima facie be deemed to be correct, and shall be admitted in evidence without further proof.

9.   Examined or certified copies of documents admissible in evidence

Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no Act or statute exists which renders its contents provable by means of a copy, any copy thereof or extract there from shall be admissible in evidence, if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.

10.   Production of documents without giving evidence

Any person, whether a party or not, in a cause or matter may be summoned to produce a document, without being summoned to give evidence; and, if he cause such document to be produced, the court or a Judge may dispense with his personal attendance.

III - Affidavits

11.   Affidavits to be filed

Before an affidavit is used in any proceeding for any purpose, the original shall be filed in the court, and the original or an office copy shall alone be recognised for any purpose by the court or a Judge.

12.   Not to be sworn before certain persons

An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his Advocate, or before a partner or clerk of his Advocate.

13.   Defective in form

The court or a Judge may permit an affidavit to be used notwithstanding it is defective in form according to these Rules, if the court or a Judge is satisfied that it has been sworn before a person duly authorised.

14.   Amendment and re-swearing

A defective or erroneous affidavit may be amended and re-sworn, by leave of the court or a Judge, on such terms as to time, costs or otherwise as seem reasonable.

15.   No extraneous matter

An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion.

16.   Contents of affidavits

Every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

17.   Grounds of belief to be stated

When a witness deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.

18.   Informant to be named

When the belief of a witness is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.

19.   Copies of exhibits

Where any document referred to in an affidavit and exhibited thereto is a handwritten document other than a statement of account, book of account or extract there from, there shall also be exhibited therewith a typewritten or printed copy thereof certified in such affidavit to be a true and correct copy of the original.

[Am by GN 106 of 1959.]

20.   Rules in taking affidavits

The following rules shall be observed by Commissioners and others before whom affidavits are taken—

      (a)   To be properly entitled

Every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter.

      (b)   Description of witness

It shall state the full name, trade or profession, residence and nationality of the witness.

      (c)   In first person

It shall be in the first person and divided into convenient paragraphs, numbered consecutively.

      (d)   Erasures, etc., to be attested

Any erasure, interlineation or alteration made before the affidavit is sworn shall be attested by the Commissioner, who shall affix his signature or initials in the margin immediately opposite to the interlineation, alteration or erasure.

      (e)   If improperly written

Where an affidavit proposed to be sworn is illegible or difficult to read, or is, in the judgment of the Commissioner, so written as to facilitate fraudulent alteration, he may refuse to swear the witness, and require the affidavit to be re-written in an unobjectionable manner.

      (f)   Witness to sign

The affidavit shall be signed by the witness (or, if he cannot write, marked by him with his mark in the presence of the Commissioner).

      (g)   Form of jurat

The jurat shall be written, without interlineation, alteration or erasure (unless the same be initialed by the Commissioner), immediately at the foot of the affidavit, and towards the left side of the paper, and shall be signed by the Commissioner.

Date and place:

It shall state the date of the swearing and the place where it is sworn.

In presence of Commissioner:

It shall state that the affidavit was sworn before the Commissioner or other officer taking the same.

Illiterate or blind witness:

Where the witness is illiterate or blind, it shall state the fact, and that the affidavit was read over (or translated into his own language in the case of a witness not having sufficient knowledge of English), and that the witness appeared to understand it.

Marksmen:

Where the witness makes a mark instead of signing, the jurat shall state that fact, and that the mark was made in the presence of the Commissioner.

Joint affidavit:

Where two or more persons join in making an affidavit, their several names shall be written in the jurat, and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit.

      (h)   If affidavit altered, to be re-sworn

The Commissioner shall not allow an affidavit, when sworn, to be altered in any manner without being re-sworn.

      (i)   New jurat

If the jurat has been added and signed, the Commissioner shall add a new jurat on the affidavit being re-sworn; and, in the new jurat, he shall mention the alteration.

      (j)   New affidavit

The Commissioner may refuse to allow the affidavit to be re-sworn, and may require a fresh affidavit.

      (k)   Declarations without oath

The Commissioner may take, without oath, the declaration of any person affirming that the taking of any oath whatsoever is, according to his religious belief, unlawful, or who, by reason of immature age or want of religious belief, ought not, in the opinion of the Commissioner, to be admitted to make a sworn affidavit. The Commissioner shall record in the attestation the reason of such declaration being taken without oath.

      (l)   Certificate on exhibit

Every certificate on an exhibit referred to in an affidavit signed by the Commissioner before whom the affidavit is sworn shall be marked with the short title of the cause or matter.

[Am by GN 106 of 1959.]

IV - Objections to Evidence

21.   When to be made

In every case, and at every stage thereof, any objection to the reception of evidence by a party affected thereby shall be made at the time the evidence is offered:

Provided that the court may, in its discretion, on appeal, entertain any objection to evidence received in a subordinate court, though not objected to at the time it was offered.

[Am by GN 218 of 1944.]

22.   Where question objected to

Where a question proposed to be put to a witness is objected to, the court or a Judge, unless the objection appears frivolous, shall, if required by either party, take a note of the question and objection, and mention on the notes whether the question was allowed to be put or not and, if put, the answer to it.

23.   Marking of rejected documents

Where a document is produced and tendered in evidence and rejected by the court or a Judge, the document shall be marked as having been so tendered and rejected.

V - Taking of Evidence

24.   Evidence of witnesses, how taken

In the absence of any agreement between the parties, and subject to these Rules, the witnesses at the trial or any suit shall be examined viva voce and in open court; but the court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court may think reasonable; or that any witness whose attendance in court ought, for some sufficient cause, to be dispensed with be examined by interrogatories or otherwise before an officer of the court or other person:

Provided that, where it appears to the court that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

25.   Admission of affidavits.

In any suit, the court may, in its discretion, if the interests of justice appear absolutely so to require (for reasons to be recorded in the minutes of the proceedings), admit an affidavit in evidence, although it is shown that the party against whom the affidavit is offered in evidence has had no opportunity of cross-examining the person making the affidavit

26.   Evidence on commission

The court or a Judge may, in any suite where it shall appear necessary for the purpose of justice, make any order for the examination, before any officer of the court or other person, and at any place, of any witness or person, and may order any deposition so taken to be filed in the court, and may empower any party to any such suit to give such deposition in evidence therein on such terms, if any, as the court or a Judge may direct.

27.   How to be taken

Evidence on commission, when not directed to be taken upon interrogatories previously settled, shall be taken, as nearly as may be, as evidence at the hearing of a suit, and then the notes of the evidence shall be read over to the witness and be signed by him. If the witness refuses, the officer of the court or other person shall add a note of his refusal, and the statement may be used as if he had signed it.

28.   Evidence before suit instituted

Evidence may be taken in like manner, on the application of any person, before suit instituted, where it is shown to the satisfaction of the court or a Judge on oath that the person applying has good reason to apprehend that a suit will be instituted against him in the court, and that some person within the jurisdiction at the time of the application can give material evidence respecting the subject of the apprehended suit, but that he is about to leave the jurisdiction, or that, from some other cause, the person applying will lose the benefit of his evidence if it be not at once taken; and the evidence so taken may be used at the hearing, subject to just exceptions:

Provided always that the court or a Judge may impose any terms or conditions with reference to the examination of such witness, and the admission of his evidence, as to the court or a Judge may seem reasonable.

29.   Facilities for proving deed, etc.

Any party desiring to give in evidence any deed or other instrument which shows upon the face of it that it has been duly executed may deliver to the opposite party, not less than four clear days before the return day, a notice in writing specifying the date and nature of and the parties to such deed or instrument, and requiring the opposite party to admit that the same was executed as it purports to have been, saving all just exceptions as to its admissibility, validity and contents; and if, at or before the hearing of the suit, the party so notified shall neglect or refuse to give such admission, the court or a Judge may adjourn the hearing in order to enable the party tendering such deed or instrument to obtain proof of the due execution thereof, and, upon production of such proof, the court or a Judge may order the costs of such proof to be paid by the party so neglecting or refusing, whether he be the successful party or not.

30.   Commission or letter of request

Where the court or a Judge to which or to whom application is made for the issue of a commission for the examination of a person residing at a place not within Zambia is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.

31.   Not to issue until sum deposited in court to cover cost thereof

The court shall not issue any commission or letter of request abroad for the taking of evidence, unless and until the person applying for the issue of such commission or letter of request shall have paid into court by way of deposit, or shall have given approved security for, such sum as the court or a Judge shall consider sufficient to cover the expenses incurred, or likely to be incurred, in connection with and in consequence of the grant of any such application.

ORDER VI
WRITS OF SUMMONS AND ORIGINATING PROCESS

[Subs by rule 6 of SI 71 of 1997.]

1.   Commencement of proceedings

   (1) Except as otherwise provided by any written law or these Rules every action in the High Court shall be commenced by Writ of Summons endorsed and accompanied by a full statement of claim.

[Subs by rule 2 of SI 69 of 1998.]

   (2) Any matter which under any written law or these Rules may be disposed of in chambers shall be commenced by an originating summons.

[Subs by rule 2 of SI 69 of 1998.]

   (3) The proper officer shall seal with the official seal the writs of summons and the statement of claim where such statement of claim is on a separate sheet and shall return the copies to the person commencing the action.

[Subs by rule 6 of SI 71 of 1997.]

2.   Form of writ of summons

Every writ of summons shall be in the appropriate form as set out in the First Schedule with such variations as circumstances may require.

[Subs by rule 6 of SI 71 of 1997.]

3.   Writs to be tested

Every writ of summons shall bear the date on the day on which it shall be issued, and shall be tested in the name of the Chief Justice or, if the office of the Chief Justice be vacant, in the name of the Judge or other person appointed to perform the functions of the Chief Justice.

[Subs by rule 6 of SI 71 of 1997.]

4.   Endorsement of writ of summons

Every writ of summons shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required and shall, subject to the other provisions of these Rules, state a time (to be fixed by the Registrar) within which appearance must be entered by the party sued or to be served.

[Subs by rule 6 of SI 71 of 1997.]

5.   Payment of fees

No writ of summons shall be issued unless the proper fees have been paid.

[Subs by rule 6 of SI 71 of 1997.]

6.   Endorsement where claim is liquidated

   (1) Whenever the plaintiff's claim is for a debt or liquidated demand only, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt or in respect of such demand, and for costs respectively, and shall further state that the defendant can pay the amount claimed and costs—

      (a)   into court if the plaintiff or one of the two or more co-plaintiffs is resident outside Zambia or is acting by order or on behalf of a person so resident, or if the defendant is making the payment by order or on behalf of a person so resident; or

      (b)   in all other cases to the plaintiff, his advocate or agent; and that the payment shall be made within the time allowed for appearance, and that upon such payment further proceedings will be stayed:

Provided that where the defendant pays the amount into court under this rule he shall give notice of the payment to the plaintiff, his advocate or agent, in Form 17 set out in the First Schedule.

   (2) The endorsement for costs required by sub-rule (1) shall be as set out in Form 4 in the First Schedule.

   (3) The defendant may, notwithstanding a payment under this rule, have the costs taxed, and if more than one-sixth shall be disallowed, the plaintiff's advocate shall pay the costs of taxation.

[Subs by rule 6 of SI 71 of 1997.]

7.   Sealing

Every writ of summons shall be sealed by the proper officer and shall thereupon be deemed to be issued.

[Subs by rule 6 of SI 71 of 1997.]

8.   Procedure on sealing

The plaintiff or his advocate shall, on presenting any writ or summons for sealing, leave with the proper officer a copy, written or printed or partly written and partly printed of the writ and all the endorsement thereto, and the copy shall be signed by or for the advocate, or by the plaintiff himself if he is proceeding in person.

[Subs by rule 6 of SI 71 of 1997.]

9.   Filing and marking

The proper officer receiving the copy shall file it and an entry of the filing thereof shall be made in a book to be called the Civil Causes Register, which is to be kept in the manner which civil causes registers are now kept, and the action shall be distinguished by the date of the year, the letters and a number, in the manner in which causes are now distinguished in such registers.

[Subs by rule 6 of SI 71 of 1997.]

10.   Assignment of cause on filing to trial Judge

Every action shall, upon being commenced, be assigned to a Judge who shall be responsible to monitor its pace and eventually hear the cause.

[Subs by rule 6 of SI 71 of 1997.]

ORDER VII
ENDORSEMENT OF ADDRESS

[Am by GN 106 of 1959; rule 7 of SI 71 of 1997.]

1.   Where the plaintiff sues by advocate

   (1) The advocate of a plaintiff suing by an advocate shall endorse upon the writ of summons—

      (a)   physical, postal and electronic address of the plaintiff;

   

[Am by rule 2(a) of SI 27 of 2012.]

      (b)   his own name or firm and his own place of business and the postal, physical and electronic address thereof; and

   

[Am by rule 2(b) of SI 27 of 2012.]

      (c)   if his place of business and postal address or either of them be more than ten kilometres from the Registry at which the writ is issued, a proper place and postal address or either of them, as the case may require, which shall be not more than ten kilometres from such Registry;

and either of the addresses which are not more than ten kilometres from such Registry shall be his address for service for the purposes of these Rules.

   (2) Where any such advocate is only agent of another advocate, he shall, in addition to the matters set out in sub-rule (1), add the name or firm and place of business and electronic mail address of the principal advocate.

[Am by SI 71 of 1997, rule 2(c) of SI 27 of 2012 .]

2.   Where plaintiff sues in person

   (1) A plaintiff suing in person shall endorse upon the writ of summons his place of residence, his postal and electronic mail address and his occupation.

[Am by rule 2(d) of SI 27 of 2012.]

   (2) If his place of residence and postal address are not more than ten kilometres from the Registry at which the writ is issued, either of such addresses shall be an address for service for the purposes of these Rules, and if his place of residence and postal address or either of them be more than ten kilometres from such Registry, or if he has no place of residence or postal address, the plaintiff shall also endorse on the writ of summons a proper place and postal address or either of them, as the case may require, which shall not be more than ten kilometres from such Registry and either of the addresses within the limit aforesaid shall in such case be his address for service.

[Am by rule 7 of SI 71 of 1997.]

3.   Address for service

An address for service shall be an address where notices, pleadings, orders, summons, warrants and other documents, proceedings, electronic and written communications, if not required to be served personally, may be left for, transmitted or posted to, the plaintiff or his advocate, as the case may be.

[Subs by rule 2(f) of SI 27 of 2012.]

4.   Where notice is served in lieu of writ

Where notice of a writ of summons is to be served on a defendant in pursuance of Order X, rule 18, the endorsements required by the preceding rules of this Order shall be made both on the writ and on the notice.

5.   Proceedings not commenced by writ

Where proceedings are commenced otherwise than by writ of summons, the preceding rules of this Order shall apply to the process by which the proceedings are originated as they apply to a writ of summons.

ORDER VIII
CONCURRENT WRITS

[Am by GN 106 of 1959.]

1.   Concurrent writ, how issued

The plaintiff in any action may, at any time of or at any time during twelve months after the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal bearing the word “concurrent” and the date of issuing the concurrent writ; and such seal shall be impressed upon the writ by the proper officer:

Provided always that such concurrent writ or writs shall only be in force for the period during which the original writ in such action shall be in force.

2.   Concurrent originating summons

A concurrent originating summons may be issued in the same manner, mutatis mutandis, as a concurrent writ of summons.

3.   Concurrent writs for service within and without the jurisdiction

A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice in lieu of service is to be given, out of the jurisdiction; and a writ for service or whereof notice in lieu of service is to be given, out of the jurisdiction, may be issued and marked as a concurrent writ with one for service within the jurisdiction.

4.   Concurrent originating summons for service within and without the jurisdiction

An originating summons for service within the jurisdiction may be issued and marked as a concurrent originating summons with one for service out of the jurisdiction; and an originating summons for service out of the jurisdiction may be issued and marked as a concurrent originating summons with one for service within the jurisdiction.

ORDER IX
RENEWAL OF WRIT

[Am by GN 106 of 1959.]

1.   Original writ in force for 12 months. Renewal seal

No original writ of summons shall be in force, for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith the plaintiff may, before the expiration of the twelve months, apply to the court or a Judge for leave to renew the writ; and the court or Judge if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ. And the writ shall in such case be renewed by being marked with the seal of the court and bearing the date of the day, month and year of such renewal; such seal to be impressed upon the writ by the proper officer, upon delivery to him by the plaintiff or his Advocate of a memorandum in Form 12 in the First Schedule, with such variations as circumstances may require; and a writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons.

2.   Effect of renewal

The production of a writ of summons purporting to be marked with the seal of the court, showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for all purposes.

ORDER X
SERVICE OF PROCESS

1.   Service may be effected by any person

   (1) Personal service of a petition, notice, summons, order or other document, of which service is required may be made by any person.

   (2) Document to be explained.

Any person serving any document shall, on the request of the party served, explain to such party the contents of such document.

   (3) Acknowledgement of service

Any person serving a writ of summons or other originating process, default of appearance to which would, under Order X11, entitle the plaintiff to enter final judgment, shall request the party served to acknowledge receipt by signing on the original or other copy of the process or on some other document tendered for the purpose, and the fact of any refusal to sign shall be so endorsed by the person serving.

[Am by SI 37 of 1964, 30 of 1984.]

2.   Mode and time of service, where not personal

   (1) All writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, in respect of which personal service is not requisite, shall be sufficiently served if left at the address for service of the person to be served, as defined by Orders VII and XI, with any person resident at or belonging to such place, or if posted in a prepaid registered envelope addressed to the person to be served at the postal address for service as aforesaid:

Provided that, where service under this rule is made by registered post, the time at which the document so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof.

   (2) This rule does not apply in the case of documents for which special provisions for service have been made by any written law.

[Am by GN 106 of 1959; SI 63 of 1964.]

3.   Substituted service

Where personal service of any writ, notice, pleading, summons, order, warrant or other document, proceeding or written communication is required and it is made to appear to the court or a Judge that prompt personal service cannot be effected, the court or a Judge may make such order for substituted or other service, or for the substitution for service of notice by letter, public advertisement or otherwise, as may be just. Every application to the court or a Judge for an order to be made under this rule shall be supported by an affidavit setting forth the grounds upon which the application is made.

[Am by GN 106 of 1959.]

4.   Service upon advocate of party formerly appearing in person

Where a party, after having sued or appeared in person, has given notice in writing to the opposite party or his advocate, through a advocate, that such advocate is authorised to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders, warrants and other documents, proceedings and written communications, which ought to be delivered to or served upon the party on whose behalf the notice is given, shall thereafter be delivered to or served upon such advocate. Such notice shall contain all the particulars required from an advocate by Order VII or XI, as the case may be.

[Am by GN 106 of 1959.]

5.   Service of writ of summons

Personal service of the writ on the defendant shall not be required where the defendant's advocate undertakes in writing to accept service on behalf of the defendant.

[Am by SI 109 of 1994.]

6.   Personal service

Where service is personal, the document to be served shall be delivered to the person to be served himself. Service shall be completely effected by the delivery of a duplicate or attested copy of any document, without the exhibition of any original.

7.   Service where no appearance or no address for service

Where no appearance has been entered for a party, or where a party or his advocate, as the case may be, has omitted to give an address for service, all writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications in respect of which personal service is not requisite may be served by filing them with the Registrar.

8.   Varying order of service

An order for service may be varied, from time to time, with respect to the mode of service directed by the order.

9.   Dies non

Service in a civil cause shall not be made on Sunday, Good Friday or Christmas Day.

10.   Service on Government officers

When the party to be served is in the service of the Government, the Registrar may transmit a duplicate of the document to be served to the head officer of the department in which such party is employed, for the purpose of being served on him, if it shall appear to the court or a Judge that it may be most conveniently so served, and such head officer shall cause the same to be served on the proper party accordingly.

11.   On partners

   (1) Where partners are sued in the name of their firm, the writ or other document shall be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership upon any person having, at the time of the service, the control or management of the partnership business there; and such service shall be deemed good service upon the firm.

   (2) Where a writ is issued against a firm, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.

   (3) ...

[Sub-rule (3) ins by rule 8 of SI 71 of 1997, rep by rule 3 of SI 69 of 1998. ]

12.   On prisoner

Where the person on whom service is to be effected is a prisoner in a prison, it shall be sufficient service to deliver the writ or document at the prison to the gaoler or person appearing to be the head officer in charge thereof, who shall cause the same to be served on such prisoner.

13.   On person in asylum or prison

Where the person on whom service is to be effected is employed and dwells in any lunatic or other public asylum or in any prison, it shall be sufficient service to deliver the writ or document to the gatekeeper or lodge keeper of such asylum or prison, who shall cause the same to be served on such person.

14.   Where defendant resides out of but carries on business within jurisdiction

Where the suit is against a defendant residing out of but carrying on business within the jurisdiction in his own name, or under the name of a firm, through an authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving it to such agent, and such service shall be equivalent to personal service on the defendant.

15.   When service out of the jurisdiction allowed

Service out of the jurisdiction of a writ of summons, originating summons or originating notice of motion, or of a notice of such writ of summons, originating summons or notice of motion may be allowed by the court or a Judge whenever—

      (a)   The whole subject-matter of the action is land situate within the jurisdiction (with or without rents or profits), or the perpetuation of testimony relating to land within the jurisdiction; or

      (b)   Any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action or matter; or

      (c)   Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or

      (d)   The action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Zambia; or

      (e)   The action is one brought to enforce, rescind, dissolve, annual or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract—

      (i)   made within the jurisdiction; or

      (ii)   made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or

      (iii)   by its terms or by implication to be governed by Zambian law;

or it is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction; or

      (f)   The action is founded on a tort committed within the jurisdiction; or

      (g)   Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or

      (h)   Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction; or

      (i)   The action is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under paragraph (e)) any personal judgment or order for payment of any moneys due under the mortgage.

[Am by GN 218 of 1944; SI 63 of 1964.]

16.   Application for leave to serve out of jurisdiction

An application for leave to issue for service out of the jurisdiction a writ of summons, originating summons, or originating notice of motion or a concurrent writ of summons, originating summons or originating notice of motion may be made ex parte to the court or a Judge on deposit of the writ, summons or notice with the Registrar together with an affidavit in support of such application. The affidavit shall state—

      (a)   the grounds upon which the application is made and the facts which bring the plaintiff's case within the class in respect of which service out of the jurisdiction may be allowed;

      (b)   that the deponent is advised and believes that the plaintiff has a good cause of action or right to relief;

      (c)   in what place or country the defendant resides or probably may be found;

      (d)   whether the defendant is a citizen of Zambia or not.

[Am by GN 218 of 1944; SI 63 of 1964.]

17.   Substituted service out of the jurisdiction

Substituted service out of the jurisdiction of a writ, summons or notice issued for service within the jurisdiction cannot be ordered but if a concurrent writ, summons or notice for service out of the jurisdiction is issued then substituted service out of the jurisdiction of such concurrent writ, summons or notice may be allowed. A writ, summons or notice issued for service out of the jurisdiction may be ordered to be served by substituted service whether outside the jurisdiction or within the jurisdiction and either with or without the issue of any concurrent writ, summons or notice.

[Am by GN 218 of 1944.]

18.   Service on foreign person in foreign country

Where a writ of summons, originating summons or originating notice of motion is issued for service out of the jurisdiction upon a person not being a citizen of Zambia, notice thereof and not the originating process itself shall be electronically transmitted served upon such person.

[Am by GN 218 of 1944; SI 63 of 1964; rule 3 of SI 27 of 2012.]

19.   Where violence threatened

Where the officer of court or person charged with the service of any writ or document on any person is prevented by the violence or threats of such person, or any other person in concert with him, from personally serving the writ or document, it shall be sufficient to inform the person to be served of the nature of the writ or document, and to leave the writ or document as near such person as is practicable.

20.   Certificate of service

In all cases where service of any writ or document shall have been effected by a bailiff or other officer of court, a certificate of service in Form 14 in the First Schedule signed by such bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service.

[Am by GN 106 of 1959.]

21.   Return

In all cases the bailiff or other officer of court charged with the service of any particular process shall not later than fourteen days after the receipt of the process render a return in Form 16 in the First Schedule to the court in duplicate and the duplicate thereof shall thereupon be despatched by the proper officer to the party requiring the same to be served, or his Advocates, specifying whether the same has been served and, if not, giving reasons why the same has not been so served.

[Am by GN 106 of 1959.]

22.   Endorsement on service

The person serving a writ of summons shall, within three days at most after such service, endorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty (except where service shall have been effected by an officer of the court appointed under Part VIII of the Act) in case of non-appearance to proceed by default; and every affidavit of service of such writ shall mention the day on which such endorsement was made. This rule shall apply to substituted as well as other service.

[Am by GN 106 of 1959.]

23.   Transmission of letter of request

Where, in any civil or commercial matter pending before a court or tribunal of a foreign county, a letter of request from such court or tribunal for service on any person within the jurisdiction of any process or citation in such matter is transmitted to the Minister responsible for foreign affairs and such Minister considers that it is desirable that effect should be given to the same, the following procedure shall be adopted—

      (a)   Translation required

The letter of request for service shall be accompanied by a translation thereof in the English language, and by two copies of the process or citation to be served and two copies thereof in the English language, and shall be transmitted to the court by the Permanent Secretary, Ministry of Foreign Affairs;

      (b)   Service by officer of the court

Service of the process or citation shall be effected by an officer of the court;

      (c)   Service, how to be effected

Such service shall be effected by delivering to and leaving with the person to be served one copy of the process to be served and one copy of the translation thereof, in accordance with the rules and practice of the court regulating service of process;

      (d)   Report of service to Registrar

After service has been effected the process server shall return to the Registrar one copy of the process, together with the evidence of service by affidavit of the person effecting the service verified by a person empowered to take oaths, and particulars of charges for the cost of effecting such service;

      (e)   Taxing master to certify charges

The particulars of charges for the cost of effecting service shall be submitted to the taxing master of the court, who shall certify the correctness of the charges or such other amount as shall be properly payable for the cost of effecting service;

      (f)   Letter of request to be returned to Ministry of Foreign Affairs

The Registrar shall forward to the Permanent Secretary, Ministry of Foreign Affairs, for transmission to the foreign country concerned, the letter of request for service received from the foreign country together with the evidence of service, with a certificate appended thereto in Form 49 in the First Schedule, with such variations as circumstances may require, duly sealed with the seal of the court;

      (g)   Substituted service

Upon the application of the Attorney-General, the court or a Judge may make all such orders for substituted service or otherwise as may be necessary to give effect to the above procedure.

[Am by SI 63 of 1964.]

24.   Service of foreign documents in Zambia

Where, in any civil or commercial matter pending before a court or tribunal in any foreign country with which a Convention in that behalf has been or shall be made and applied to the Republic, a request for service of any document on a person in Zambia is received by the court from the consular or other authority of such country, the following procedure shall, subject to any special provisions contained in the Convention, be adopted—

      (a)   The service shall be effected by the delivery of the original or a copy of the document, as indicated in the request, and a copy of the translation to the party or person to be served in person by an officer of the court;

      (b)   No court fees shall be charged in respect of this service. The particulars of charges of the officer employed to effect service shall be submitted to the taxing master of the court, who shall certify the amount properly payable in respect thereof;

      (c)   The Registrar shall transmit to the consular or other authority making the request a certificate establishing the fact and the date of service in person, or indicating the reason for which it has not been possible to effect it, and, at the same time, shall notify to the said consular or other authority the amount of the charges certified under paragraph (b).

ORDER XI
APPEARANCE

[Am by GN 106 of 1959.]

1.   Mode of entering appearance

   (1) A defendant shall enter appearance to a writ of summons by delivering to the proper officer sufficient copies of memorandum of appearance in writing or electronically dated on the day of their delivery, and containing the name of the defendant's advocate, or stating that the defendant is defending in person. The defendant shall at the same time deliver to the proper officer sufficient copies of the defence and counter claim if any:

[Am by rule 4(a) of SI 27 of 2012.]

provided that no appearance shall be accepted after entry of judgement in default of appearance.

[Proviso subs by rule 4(a) of SI 69 of 1998.]

   (2) A memorandum of appearance not accompanied by a defence shall not be accepted.

   (3) The proper officer shall seal the memorandum of appearance and defence and shall return the copies to the person filing them for service upon the plaintiff.

   (4) A defendant may enter a memorandum of appearance together with the defence electronically.

[Subs by rule 9 of SI 71 of 1997; sub-rule (4) ins by rule 4(b) of SI 27 of 2012.]

2.   Appearance by post

   (1) In the case of a defendant desiring to enter the appearance in person, the defendant may, in lieu of delivering to the proper officer the memorandum of appearance and defence, enter the appearance through the post by sending to the proper officer by pre-paid registered letter—

      (a)   sufficient copies of the memorandum of appearance duly completed;

      (b)   sufficient copies of the defence and counter claim, if any; and

      (c)   two envelopes each sufficiently stamped, one addressed to the plaintiff's advocate or to the plaintiff if he sues in person at the postal address for service, and the other addressed to the postal address of the defendant entering the appearance.

   (2) On receipt of these documents the proper officer shall forthwith enter the appearance as of the date of receipt of the memorandum of appearance and defence and shall seal them with the official seal showing the date on which they are sealed and shall post a copy to the defendant:

Provided that no appearance shall be accepted which is received out of time.

[Subs by rule 9 of SI 71 of 1997.]

3.   Notice of appearance

   (1) A defendant shall, on the day of entering the appearance to a writ of summons, give notice of the appearance to the plaintiff's advocate or if a plaintiff sues in person, to the plaintiff by—

      (a)   leaving copies of the sealed memorandum of appearance and defence at the address given for service; or

      (b)   sending the copies of the memorandum of appearance and defence by pre-paid letter directed to the postal address for service and posted on the date of entering the appearance in due course of post.

   (2) Sub-rule (1) shall not apply to a defendant entering an appearance in person through the post under rule 2.

[Subs by rule 9 of SI 71 of 1997.]

4.   Defendant's address for service

   (1) The advocate of a defendant appearing by advocate shall state in the memorandum of appearance—

      (a)   his own place of business and the postal address thereof; and

      (b)   if his place of business and postal address or either of them be more than ten kilometres from the Registry in which the cause or matter is pending, a proper place and postal address or either of them, as the case may require, which shall be not more than ten kilometres from such Registry;

and either of the addresses which are not more than ten kilometres from such Registry shall be his address for service for the purposes of these Rules. O. 11

   (2) Where any such advocate is only agent of another advocate, he shall, in addition to the matters set out in sub-rule (1), add the name or firm and place of business of the principal Advocate.

[Am by rule 9(b) of SI 71 of 1997.]

5.   When defendant appears in person

   (1) A defendant appearing in person shall state in the memorandum of appearance his place of residence and postal address.

   (2) If his place of residence and postal address are not more than ten kilometres from the Registry in which the cause or matter is pending, either of such addresses shall be an address for service for the purposes of these Rules and if his place of residence and postal address or either of them be more than ten kilometres from such Registry, or if he has no place of residence or postal address, the defendant shall also state in the memorandum of appearance a proper place and postal address or either of them, as the case may require, which shall not be more than ten kilometres from such Registry and either of the addresses within the limit aforesaid shall in such case be an address for service.

[Am by rule 9(b) of SI 71 of 1997.]

6.   Memorandum irregular, address fictitious

If the memorandum does not contain such address it shall not be received; and if any such address shall be illusory or fictitious, the appearance may be set aside by the court or a Judge, on the application of the plaintiff.

7.   Address for service

An address for service shall be an address where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for or posted to the defendant or his Advocate, as the case may be.

8.   Memorandum of appearance

The memorandum of appearance shall be in Form 18 in the First Schedule, with such variations as circumstances may require.

9.   Officer to enter memorandum

Upon receipt of a memorandum of appearance, the proper officer shall forthwith enter the appearance in the Civil Causes Register.

10.   Appearance of partners

Where persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

11.   No appearance except by partners

Where a writ is served under Order X, rule 11(2), upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued.

12.   Appearance under protest of person served as partner

Any person served as a partner under Order X, rule 11, but who denies that he was a partner or liable as such at any material time, may enter an appearance stating therein that he does so as “a person served as a partner in the defendant firm, but who denies that he was a partner at any material time”. Such appearance as long as it stands shall be treated as an appearance for the firm. If an appearance is so entered (a) the plaintiff may apply to set it aside on the ground that the person entering it was a partner or liable as such, or may leave that question to be determined at a later stage of the proceedings; or (b) the person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as such; or he may at the proper time deliver a defence denying either or both (1) his liability as a partner, (2) the liability of the defendant firm in respect of the plaintiff's claim. An order may, on the application of either party at any time, be made that the questions as to the liability of the person served and the liability of the defendant firm may be tried in such manner and at such time or times as the court or a Judge may think fit.

13.   Defendants appearing by same advocate

If two or more defendants in the same action shall appear by the same advocate and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum.

14.   Advocate not entering appearance

A advocate not entering an appearance in pursuance of his written undertaking so to do shall be liable to an attachment.

15.   Time of appearance

A defendant may appear at any time before judgment.

16.   Recovery of land

Any person not named as a defendant in a writ of summons for the recovery of land may, by leave of the court or a Judge, appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.

17.   Landlord appearing

Any person appearing to defend an action for the recovery of land as landlord, in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord.

18.   Recovery of land, person not named defendant

Where a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the court or a Judge to appear and defend, he shall enter an appearance, according to the foregoing rules of this Order, instituted in the action against the party named in the writ as defendant, and shall forthwith give notice of such appearance to the plaintiff's advocate, or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the action.

19.   Recovery of land limiting defence

Any person appearing to a writ of summons for the recovery of land shall be at liberty to limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance, or in a notice intitle in the action and signed by him or his advocate. Such notice shall be served within four days after appearance; and an appearance, where the defence is not limited as above mentioned, shall be deemed an appearance to defend for the whole.

20.   Form of notice

The notice mentioned in rule 19 shall be in Form 19 in the First Schedule, with such variations as circumstances may require.

21.   Motion to set aside writ

A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service.

22.   Appearance to originating summons

The parties served with an originating summons shall, save as otherwise provided, before they are heard, enter appearances, and give notice thereof. A party so served may appear at any time before the hearing of the summons. If he appears at any time after the time limited by the summons for appearance he shall not, unless the court or a Judge shall otherwise order, be entitled to any further time for any purpose, than if he had appeared according to the summons.

ORDER XII
DEFAULT OF APPEARANCE

1.   Liquidated demand endorsed. First Schedule, Form 30

   (1) Liquidated demand

Where the Writ of Summons is endorsed for a liquidated demand and the defendant fails or all the defendants if more than one fail to appear, the plaintiff may enter final judgement, signed by the Deputy or District Registrar for any sum not exceeding the sum endorsed on the writ together with interest and costs, upon an affidavit or certificates as the case may be, of due service being filed.

[Subs by rule 5(a) of SI 69 of 1998; am by rule 5 of SI 27 of 2012.]

   (2) Several defendants

Where the Writ of Summons is endorsed for a liquidated demand and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may enter final judgment, as in sub-rule (1), against such as have not appeared and may issue execution upon the judgment without prejudice to his right to proceed with the action against those that have appeared.

[Subs by rule 10(a) of SI 71 of 1997.]

   (3) Damages or detention of goods

Where the writ is endorsed with a claim for pecuniary damages and the defendant fails, or all the defendants if more than one, fails to appear, the plaintiff may enter interlocutory Judgment and a notice of assessment shall issue to assess the value of goods and the damages, or damages only as the case may be, in respect of the causes of action disclosed by the statement of claim:

Provided that the Court or a Judge may order particulars to be filed before any assessment of damages.

[Subs by rule 5(a) of SI 69 of 1998.]

   (4) Damages or detention of goods. Several defendants

Where the writ is endorsed as in the last preceding sub-rule mentioned, and there are several defendants, of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the court or a Judge shall otherwise direct:

Provided that the court or a Judge may order that, instead of a writ of inquiry or trial, the value and amount of damages, or either of them, shall be ascertain in any way which the court or a Judge may direct.

   (5) Damages, detention of goods and liquidated demand

Where the writ is endorsed with a claim for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and is further endorsed for a liquidated demand, whether specially or otherwise, and any defendant fails to appear to the writ, the plaintiff may enter final judgment for the debt or liquidated demand, interest and costs against the defendant or defendants failing to appear, and interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in such of the preceding sub-rules as may be applicable.

   (6) Recovery of land

In case no appearance shall be entered in an action for the recovery of land within the time limited by the writ for appearance, or if an appearance be entered but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence does not apply.

   (7) Mense profits

Where the plaintiff has endorsed a claim for mense profits, arrears of rent, double value, or damages for breach of contract or wrong or injury to the premises claimed, upon a writ for the recovery of land, he may enter judgment as in the last preceding sub-rule mentioned for the land; and may proceed as in the other proceding sub-rules mentioned as to such other claim so endorsed.

   (8) Default of appearance in actions not otherwise specifically provided for

In all actions not otherwise specifically provided for by the other sub-rules, in case the party served with the writ of summons does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit or certificate of service, the action may proceed as if such party had appeared.

[Subs by rule 10(b) of SI 71 of 1997.]

   (9) Default of appearance to proceedings under O. 30, r. 14

In any action in which the plaintiff is claiming any relief of the nature or kind specified in Order XXX, rule 14, no judgment shall be entered in default of appearance without the leave of the court or a Judge who may require the application for leave to be supported by such evidence as might be required if relief were being sought on originating summons under Order XXX, rule 14, and may require notice of such evidence to be given to the defendant and to such other person (if any) as the court or a Judge may think proper.

[Sub-rule 9 repealed and sub-rule 10 renumbered as sub-rule 9 by rule 10(b) of SI 71 of 1997.]

   (10) Where the claim is endorsed with a claim for possession of any chattel and the defendant fails, or all the defendant if more than one fail to appear, the plaintiff may sign Judgement against the defendant or defendants so failing to appear for possession of the chattel.

[Ins by rule 5(b) of SI 69 of 1998.]

2.   Setting aside judgment by default

Where judgment is entered pursuant to the provisions of this Order, it shall be lawful for the court or a Judge to set aside or vary such judgment upon such terms as may be just.

ORDER XIII
LEAVE TO SIGN JUDGMENT AND DEFEND WHERE WRIT SPECIALLY ENDORSED

1.   Summary judgment on specially endorsed writ

Where the defendant appears to a writ of summons specially endorsed under rule 9 of Order VI, the plaintiff may, on affidavit made by himself, or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any), and stating that in his belief there is no defence to the action, apply to the court or a Judge for liberty to enter final judgment for the amount so endorsed, together with interest, if any, or for recovery of the land (with or without rent or mesne profits) or for the delivering up of a specific chattel, as the case may be, and costs. The court or a Judge may thereupon, unless the defendant by affidavit, by his own viva voce evidence or otherwise shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, make an order empowering the plaintiff to enter judgment accordingly.

[Am by GN 218 of 1944.]

2.   Four day summons for leave to sign judgment. First Schedule, Form 22

The application by the plaintiff for leave to enter final judgment under rule 1 shall be made by summons returnable not less than four clear days after service, accompanied by a copy of the affidavit and exhibits referred to therein.

3.   court may treat summons for directions

Where leave, whether conditional or unconditional, is given to defend, the court or a Judge shall have power to give all such directions as to the further conduct of the action as might be given on a summons for directions under Order XIX, and may order the action to be forthwith set down for trial.

4.   Costs under rule 1

   (1) The costs of and incident to all applications under rule 1 shall be dealt with by the Registrar on the hearing of the application, who shall order by and to whom and when the same shall be paid, or may refer them to the Judge at the trial:

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

   (2) Costs of application when same dismissed

If the plaintiff makes an application under rule 1 where the case is not within the rule, or where the plaintiff, in the opinion of the Registrar, knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, in any of such cases the application may be dismissed with costs to be paid forthwith by the plaintiff.

ORDER XIV
PARTIES

1.   Suit on behalf of others

If any plaintiff sues, or any defendant is sued, in any representative capacity, it shall be expressed on the writ. The court or a Judge may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.

2.   Joint ground of suit

Where a person has jointly with other persons an alleged ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit.

3.   Where joint interest, parties may be authorised to sue or defend for others

Where more persons than one have the same interest in one suit, one or more of such persons may be authorised to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.

4.   Joint and several demand

Where a person has a joint and several demand against two or more persons, either as principals or sureties, it is not necessary for him to bring before the court as parties to a suit concerning that demand all the persons liable thereto, and he may proceed against any one or more of the persons severally or jointly and severally liable. Where a defendant claims contribution, indemnity or other remedy or relief over against any other person, he may apply to have such person made a party to the suit.

5.   Non-joinder

   (1) If it shall appear to the court or a Judge, at or before the hearing of a suit, that all the persons who may be entitled to, or claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court or a Judge may adjourn the hearing of the suit to a future day, to be fixed by the court or a Judge, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons, or in such other manner as the court or a Judge thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause:

Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court or a Judge for leave to appear, and such leave may be given upon such terms (if any) as the court or a Judge shall think fit. The court or a Judge upon the application of any party may give directions for service upon a new party of copies of any writ of summons or other document or process and also may give such other directions in relation to the adding of such new party as justice and the circumstances of the case may require.

   (2) Misjoinder

The court or a Judge may, at any stage of the proceedings, and on such terms as appear to the court or a Judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, improperly joined, be struck out.

   (3) No suit shall be defeated by reason of non-joinder or misjoinder of parties.

[Am by GN 218 of 1944.]

6.   Claims by the Government

Claims by the Government against any person may be brought by the Attorney-General or by any officer authorised by law to prosecute such claim on behalf of the Government, as the case may be.

7.   Proceedings by or against partners

Any persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms (if any); and any party to an action may, in such case, apply to the court or a Judge for a statement of the names of the persons who are co-partners in any such firm, to be furnished in such manner and verified on oath or otherwise as the court or a Judge may direct.

8.   Distinct causes of action in one writ

In case a writ states two or more distinct causes of action by and against the same parties, and in the same rights, the court or a Judge may, either before or at the hearing, if it appears inexpedient to try the different causes of action together, order that the trials be had separately, and make such order as to adjournment and costs as justice requires.

9.   Misjoinder of actions

In case a writ states two or more distinct causes of action, but not by and against the same parties, or by and against the same parties but not in the same rights, the writ may, on the application of any defendant, be amended or dismissed by the court or a Judge, as justice may require.

ORDER XV
PARTICULARS OF CLAIM

[Subs by rule 11 of SI 71 of 1997.]

1.   Further particulars

The court or a Judge may, on the application of the defendant, order further or better particulars.

2.   Judgment not to exceed claim

The plaintiff shall not, at the hearing, obtain a judgment for any sum exceeding that stated in the particulars, except for subsequent interest and the costs of suit, notwithstanding that the sum claimed in the writ for debt or damages exceeds the sum stated in the particulars.

3.   Amendment of claim

Particulars of claim shall not be amended except by leave of the court or a Judge, but the court or a Judge may, on any application for leave to amend, grant leave, on its appearing that the defendant will not be prejudiced by the amendment:

Provided that the court or a Judge may refuse leave or grant it, on such terms as to notice, adjournment or costs as justice requires.

ORDER XVI
ALTERATION OF PARTIES

1.   Where change of interest, court may make order enabling suit to proceed

Where, after the institution of a suit, any change or transmission of interest or liability occurs in relation to any party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the court or a Judge any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings:

Provided that any person served with such an order may within such time as the court or a Judge in the order directs apply to the court or a Judge to discharge or vary the order.

2.   Death of party not to abate suit, if cause of action survives

The death of a plaintiff or defendant shall not cause the suit to abate, if the cause of action survive.

3.   Cause of action surviving to surviving plaintiff or plaintiffs

If there be two or more plaintiffs or defendants, and one of them die, and if the cause of action survive to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.

4.   Cause of action surviving to surviving plaintiff and legal representative of deceased plaintiff

If there be two or more plaintiffs, and one of them die, and if the cause of action shall not survive to the surviving plaintiff or plaintiffs alone, but shall survive to them and the legal representative of the deceased plaintiff jointly, the court or a Judge may, on the application of the legal representative of the deceased plaintiff, enter the name of such representative in the suit in the place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the deceased plaintiff. If no application shall be made to the court or a Judge by any person claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs; and the legal representative of the deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by the judgment given in the suit, in the same manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs, unless the court or a Judge shall see cause to direct otherwise.

5.   Death of sole or surviving plaintiff

In case of the death of a sole plaintiff, or sole surviving plaintiff, the court or a Judge may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed; if no such application shall be made to the court or a Judge within what it or he may consider a reasonable time by any person claiming to be the legal representative of the deceased sole plaintiff or sole surviving plaintiff, it shall be competent to the court or a Judge to make an order that the suit shall abate, and to award to the defendant the reasonable costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased sole plaintiff or surviving plaintiff; or the court or a Judge may, if it or he thinks proper, on the application of the defendant, and upon such terms as to costs as may seem fit, make such order for bringing in the legal representative of the deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit in order to reach a final determination of the matters in dispute, as may appear just and proper in the circumstances of the case.

6.   Dispute as to legal representative

If any dispute arise as to who is the legal representative of a deceased plaintiff, it shall be competent to the court or a Judge either to stay the suit until the fact has been duly determined in another suit, or to decide, before the hearing of the suit, who shall be admitted to be such legal representative for the purpose of prosecuting the suit.

7.   Death of one of several defendants or of a sole surviving defendant

If there be two or more defendant, and one of them die, and the cause of action shall not survive against the surviving defendant or defendants alone, and also in case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may make an application to the court or a Judge specifying the name, description and place of abode of any person whom the plaintiff alleges to be the legal representative of such defendant, and whom he desires to be made the defendant in his stead; and the court or a Judge shall thereupon enter the name of such representative in the suit in the place of such defendant, and shall issue an order to him to appear on a day to be therein mentioned to defend the suit; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit.

8.   Bankruptcy of plaintiff

The bankruptcy of the plaintiff, in any suit which the assignee or trustee might maintain for the benefit of the creditors, shall not be a valid objection to the continuance of such suit, unless the assignee or trustee shall decline to continue the suit and to give security for the costs thereof, within such reasonable time as the court or a Judge may order; if the assignee or trustee neglect or refuse to continue the suit and to give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy of the plaintiff as a reason for abating the suit.

ORDER XVII
DISCONTINUANCE OF SUITS

1.   Discontinuance of suit

If, before the date fixed for the hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his alleged claim, he shall give notice in writing of discontinuance or withdrawal to the Registrar and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice, such defendant shall not be entitled to any further costs, with respect to the matter so discontinued or withdrawn, than those incurred up to the receipt of such notice, unless the court or a Judge shall otherwise order; and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the court or a Judge to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit. If, in any other case, the plaintiff desires to discontinue any suit or to withdraw any part of his alleged claim, or if a defendant desires to discontinue or withdraw his counter-claim or any part thereof, such discontinuance or withdrawal may, in the discretion of the court or a Judge, be allowed on such terms as to costs and as to any subsequent suit and otherwise as to the court or a Judge may seem just.

2.   Stay of subsequent suit

If any subsequent suit shall be brought before payment of the costs of a discontinued suit, for the same or substantially the same cause of action, the court or a Judge may order a stay of such subsequent suit until such costs shall have been paid.

ORDER XVIII
AMENDMENT

1.   Under what circumstances

The court or a Judge may, at any stage of the proceedings, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.

ORDER XIX
ORDERS FOR DIRECTION

[Subs by rule 6 of SI 69 of 1998.]

1.   Order for direction

The court or trial Judge shall, not later than 21 days after appearance and defence have been filed, summon parties to a scheduling conference and give directions with respect to the following matters—

      (a)   reply and defence to counter claim, if any;

      (b)   discovery of documents;

      (c)   inspection of documents;

      (d)   admissions;

      (e)   interrogatories; and

      (f)   place and mode of trial:

Provided that the period for doing any of these acts shall not exceed 14 days.

[Subs by rule 6 of SI 69 of 1998; am by rule 6(a) of SI 27 of 2012.]

2.   Extension of time

Notwithstanding rule 1, the court may, for sufficient reason, extend the period within which to do any of the acts specified in rule 1.

[Subs by rule 6 of SI 69 of 1998.]

3.   Scheduling Conference

   (1) The Court or trial Judge may, at the scheduling conference, refer parties to mediation in accordance with rule 4 of Order XXXI, or where applicable, to arbitration.

   (2) Where a matter is referred to mediation and it is not settled or mediated within forty-five days, the matter shall be referred back to the trial Judge who shall summon the parties within fourteen days to a scheduling conference to chart the events.

   (3) If the failure of mediation is due to non-attendance of any of the parties to the dispute, the Court may order the defaulting party to be liable for all the costs of the litigation whatever the outcome.

   (4) A Judge may, after a scheduling conference, summon parties to a compliance or status conference and make any order as to costs against any defaulting party.

[Ins by rule 7(b) of SI 27 of 2012.]

ORDER XX
DEFAULT OF PLEADING

[Subs by rule 13 of SI 71 of 1997.]

1.   Default of plaintiff in delivering defence to counter claim

If the plaintiff fails to deliver a defence to the counter claim within the time allowed for that purpose by the order for directions, the defendant may, at the expiration of such time, enter final judgment or interlocutory judgment, as the case may be.

2.   Probate action

In probate actions, if any defendant defaults in filing a memorandum of appearance and defence, the action may proceed to trial, notwithstanding the default

3.   Setting aside judgment by default

Any judgment by default, whether under this Order of under any of these Rules, may be set aside by the court or a Judge, upon such terms as to costs or otherwise as the court or Judge may think fit.

4.   Proceedings against the Government

In proceedings against the Government, no judgment for the plaintiff shall be entered in default of pleading without the leave of the court or a Judge, and any application for the leave shall be made by notice of motion or summons served not less than seven days before the return day.

ORDER XXI
ADMISSIONS

1.   Notice of admissions

Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the writ of summons, statement of claim, defence or other statement of any other party.

2.   Notice to admit

Any party may call upon any other party to admit, saving just exceptions, any document or fact.

3.   Costs on refusal to make reasonable admissions

In case of refusal or neglect to admit after notice, the costs of proof of the document or fact shall be paid by the party refusing or neglecting to admit, whatever be the result of the suit, unless the court or a Judge is of opinion that the refusal or neglect to admit was reasonable.

4.   Judgment by consent

If the plaintiff and defendant shall agree as to the terms and conditions on which judgment shall be entered, the court or a Judge, unless it or he sees good reason to the contrary, shall enter judgment on such terms and conditions.

5.   Admission by defendants

If any defendant shall sign a statement admitting the amount claimed in the summons or any part of such amount, the court or a Judge, on being satisfied as to the genuineness of the signature of the person before whom such statement was signed, and unless it or he sees good reason to the contrary, shall, in case the whole amount is admitted, or in case the plaintiff consents to a judgment for the part admitted, enter judgment for the plaintiff for the whole amount or the part admitted, as the case may be, and, in case the plaintiff shall not consent to judgment for the part admitted, shall receive such statement in evidence as an admission without further proof.

6.   Application on admissions

A party may apply, on motion or summons, for cancelled judgment on admissions where admissions of facts or part of a case are made by a party to the cause or matter either by his pleadings or otherwise.

[Ins by rule 14 of SI 71 of 1997.]

ORDER XXII
SETTLEMENT OF ISSUES

[Subs by rule 7 of SI 69 of 1998.]

1.   Settlement of issues

   (1) At any time before or at the hearing, the Court or a Judge may, if it or he thinks fit, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such question into writing and settle them in the form of issues, which issues, when settled, may state question of law on admitted facts or questions of disputed fact, or questions partly of the one kind and partly of the other.

   (2) The Court or a Judge may, if it or he thinks fit, direct the parties to prepare issues, and the same shall be settled by the Court or a Judge.

   (3) The issues may be settled, without any previous notice, at any stage of the proceedings at which all the parties are actually present, or at the hearing. If otherwise, notice shall be given to the parties to attend at the settlement of the issue.

   (4) At any time before the decision of the case, if it shall appear to the Court necessary for the purpose of determining the real question or controversy between the parties, the Court may amend the issue or frame additional issues, on such terms as it shall determine.

[Subs by rule 7 of SI 69 of 1998.]

ORDER XXIII
INQUIRIES AND ACCOUNTS

1.   Questions of fact or of account may be investigated by referee

In any civil cause or matter in which all parties interested who are under no disability consent thereto, and also, without such consent, in any civil cause or matter requiring any prolonged examination of documents or accounts or any scientific or local examination which cannot, in the opinion of the court or a Judge, conveniently be made by the court in the usual manner, the court or a Judge may, at any time, on such terms as it or he may think proper, order any question or issue of fact, or any question of account arising therein, to be investigated or tried before a referee, to be agreed on between the parties or appointed by the court or a Judge.

2.   Instructions to referee

Where an order has been made under rule 1, the court or a Judge shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry. The instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation.

3.   Interim inquiries or accounts

The court or a Judge may, at any stage of the proceedings, direct any necessary inquiries or accounts described in rule 1 to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.

4.   General powers of referee

The referee may, subject to the order of the court or a Judge, hold the inquiry at or adjourn it to any place which he may deem most convenient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall, so far as practicable, proceed with the inquiry de die in diem.

5.   Evidence

Subject to any order to be made by the court or a Judge ordering the inquiry, evidence shall be taken at any inquiry before a referee, and the attendance of witnesses may be enforced by subpoena; and every such inquiry shall be conducted in the same manner, as nearly as circumstances will admit, as trials before a Judge, but not so as to make the tribunal of the referee a public court of justice.

6.   Referee's authority in the inquiry

Subject to any order as mentioned in the last preceding rule, the referee shall have the same authority in the conduct of any inquiry as a Judge when presiding at any trial.

7.   Limitation in certain particulars

Nothing in these Rules contained shall authorise any referee to commit any person to prison or to enforce any order by attachment or otherwise; but the court may, in respect of matters before a referee, make any order of attachment or commitment it may consider necessary.

8.   Referee may report questions or facts specially

The referee may, before the conclusion of any inquiry before him, or by his report under the reference, submit any question arising therein for the decision of the court, or state any facts specially.

9.   Effect of report by referee

The proceedings and report in writing of the referee shall be received in evidence in the case, unless the court may have reason to be dissatisfied with them, and the court shall have power to draw such inferences from the proceedings or report as shall be just.

10.   Powers of court

The court shall have power to require any explanations or reasons from the referee, and to remit the cause or matter, or any part thereof, for further inquiry or consideration to the same or any other referee, as often as may be necessary, and shall pass such ultimate judgment or order as may appear to be right and proper in the circumstances of the case.

ORDER XXIV
APPEARANCE OF PARTIES

1.   court may permit party to appear by proxy

In every civil cause or matter pending before the court, in case it shall appear, to the satisfaction of the court or a Judge, that any plaintiff or defendant who may not be represented by counsel or advocate is prevented by some good or sufficient cause from attending the court in person, the court or a Judge may, in its or his discretion, permit any other person who shall satisfy the court or a Judge that he has authority in that behalf to appear for such plaintiff or defendant.

2.   Proceeding without authority

Any person doing any act or taking any proceeding in the name or on behalf of another person, not being lawfully authorised thereunto, and knowing himself not to be so authorised, shall be guilty of a contempt of court.

ORDER XXV
ARREST OF DEFENDANT UNDER SECTION 10 OF DEBTORS ACT

[Am by GN 218 of 1944.]

1.   Form of application and order to arrest

An order to arrest under section 10 of the Debtors Act shall be made upon affidavit and ex parte; but the defendant may at any time apply to the court or a Judge to rescind or vary the order or to be discharged from custody, or for such other relief as may be just.

2.   Costs of arrest

It shall be lawful for the court or a Judge before making the order to arrest, to require the plaintiff to deposit in court such sum as the court or a Judge may think sufficient for the costs of arresting the defendant and of conveying him to prison.

3.   Endorsement on order to arrest

An order to arrest shall before delivery to the Sheriff be endorsed with the plaintiff's address for service as required by Order VII.

4.   Security by defendant

The security to be given by the defendant may be a deposit in court of the amount mentioned in the order, or a bond to the plaintiff by the defendant and two sufficient sureties (or with the leave of the court or a Judge either one surety or more than two), or, with the plaintiff's consent any other form of security. The plaintiff may, within four days after receiving particulars of the names and addresses of the proposed sureties, give notice that he objects thereto, stating in the notice the particulars of his objections. In such case the sufficiency of the security shall be determined by the Registrar who shall have power to award costs to either party. It shall be the duty of the plaintiff to obtain an appointment for that purpose, and unless he do so within four days after giving notice of objection, the security shall be deemed sufficient.

5.   Control of the court

The money deposited, and the security, and all proceedings thereon, shall be subject to the order and control of the court or a Judge.

6.   Costs

Unless otherwise ordered, the costs of and incidental to an order of arrest shall be costs in the cause.

7.   Completion of security and discharge from custody

Upon payment into court of the amount mentioned in the order, a receipt shall be given; and upon receiving the bond or other security, a certificate to that effect shall be given, signed or attested by the plaintiff's advocate if he have one, or by the plaintiff, if he sue in person. The delivery of such receipt or a certificate to the Sheriff or other officer executing the order, shall entitle the defendant to be discharged out of custody.

[Am by SI 71 of 1997.]

8.   Date of arrest

The Sheriff or other officer named in an order to arrest shall, within two days after the arrest, endorse on the order the true date of such arrest.

9.   Cost of subsistence of person arrested

The expenses incurred for the subsistence in prison of the person so arrested shall be paid by the plaintiff in the action in advance. The court or a Judge shall fix whatever allowance it or he shall think sufficient for such subsistence or per diem. The amount so disbursed may be recovered by the plaintiff in the suit, unless the court or a Judge shall otherwise order. The court or a Judge may release the person so imprisoned on failure by the plaintiff to pay the subsistence money, or in the case of serious illness, order his removal to hospital. During the period of such person's stay in hospital, the subsistence allowance shall be paid by the plaintiff, unless the court or a Judge shall see fit, in any case, to order otherwise.

ORDER XXVI
INTERIM ATTACHMENT OF PROPERTY

1.   In what cases

If the defendant, in any suit for an amount or value of 500,000 kwacha or upwards, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove any such property from the jurisdiction, the plaintiff may apply to the court or a Judge, either at the time of the institution of the suit, or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any decree that may be made against him in the suit, and, on his failing to give such security, to direct that any property, movable or immovable, belonging to the defendant, shall be attached until the further order of the court or a Judge.

[Am by rule 16 of SI 71 of 1997; rule 8 of SI 69 of 1998.]

2.   Application for attachment

The application shall contain a specification of the property required to be attached and the estimated value thereof, so far as the plaintiff can reasonably ascertain the same; and the plaintiff shall, at the time of making the application, declare that, to the best of his information and belief, the defendant is about to dispose of or remove his property with such intent as aforesaid.

3.   Form of order

If the court or a Judge, after making such investigation as it or he may consider necessary, shall be satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of the decree, it shall be lawful for the court or a Judge to order the defendant, within a time to be fixed by the court or a Judge, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security. The court or a Judge may also, in the order, direct the attachment, until further order, of the whole or any portion of the property specified in the application.

4.   Where defendant fails to show cause or give security First Schedule, Form 29

If the defendant fail to show such cause, or to furnish the required security within the time fixed by the court or a Judge, the court or a Judge may direct that the property specified in the application, if not already attached, or such portion thereof as shall be sufficient to fulfil the decree, shall be attached until further order. If the defendant show such cause, or furnish the required security, and the property specified in the application, or any portion of it, shall have been attached, the court or a Judge shall order the attachment to be withdrawn.

5.   Rights of third parties not to be affected

The attachment shall not affect the rights of persons not parties to the suit, and, in the event of any claim being preferred to the property attached before judgment, such claim shall be investigated in the manner prescribed for the investigation of claims to property attached in execution of a decree.

6.   Removal of attachment

In all cases of attachment before judgment, the court or a Judge shall, at any time, remove the same on the defendant furnishing security as hereinbefore required together with security for the costs of the attachment.

ORDER XXVII
INJUNCTIONS, ETC.

1.   To stay waste, damage or alienation Appointment of receiver

In any suit in which it shall be shown, to the satisfaction of the court or a Judge, that any property which is in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, it shall be lawful for the court or a Judge to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such order, for the purpose of staying and preventing him from wasting, damaging or alienating the property, as to the court or a Judge may seem meet, and, in all cases in which it may appear to the court or a Judge to be necessary for the preservation or the better management or custody of any property which is in dispute in a suit, it shall be lawful for the court or a Judge to appoint a receiver or manager of such property, and, if need be, to remove the person in whose possession or custody the property may be from the possession or custody thereof, and to commit the same to the custody of such receiver or manager, and to grant to such receiver or manager all such powers for the management or the preservation and improvement of the property, and the collection of the rents and profits thereof, and the application and disposal of such rents and profits, as to the court or a Judge may seem proper.

2.   Orders for sale of perishable goods

It shall be lawful for the court or a Judge, on the application of any party to a suit, to make any order for the sale by any person named in such order, and in such manner and on such terms as to the court or a Judge may seem desirable, of any goods, wares or merchandise, the right to which is in dispute in the suit, which may be of a perishable nature, or likely to depreciate from keeping, or which, for any other just and sufficient reason, it may be desirable to have sold at once.

3.   Detention and inspection of property in dispute

It shall be lawful for the court or a Judge, upon the application of any party to a suit, and upon such terms as may seem just, to make any order for the detention, preservation or inspection of any property being the subject of such suit, and, for all or any of the purposes aforesaid, to authorise any person or persons to enter upon or into any land or building in the possession of any party to such suit; and, for all or any of the purposes aforesaid, to authorise any samples to be taken, or any observations to be made or experiments to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

4.   Orders to restrain breaches of contract or tort

In any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same be accompanied by any claim for damages or not, it shall be lawful for the plaintiff, at any time after the commencement of the suit, and whether before or after judgment, to apply to the court or a Judge for an injunction to restrain the defendant from the repetition or the continuance of the breach of contract or wrongful act complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and such injunction may be granted by the court or a Judge on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as to the court or a Judge shall seem reasonable and just:

Provided that any order for an injunction may be discharged, varied or set aside by the court or a Judge, on application made thereto by any party dissatisfied with such order.

5.   Notice of application

The court or a Judge may, in every case, before granting an injunction or order as aforesaid, direct such reasonable notice of the application for the same to be given to the opposite party, as it or he shall see fit.

6.   Order for assessment of damages

A Judge may, on application or on his own motion pursuant to an undertaking as to damages, order an assessment of damages arising out of discharged injunction found to have been unjustified, and that the damages shall be assessed by the Registrar.

[Ins by rule 17 of SI 71 of 1997.]

7.   Injunctions

   (1) Without prejudice to the provisions of any other rule, the court on an application by a party to a marriage shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely—

      (a)   a provision restraining the other party to a marriage from molesting the applicant; or

      (b)   a provision restraining the other party from molesting a child living with the applicant whether or not any other relief is sought in the proceedings.

   (2) The provisions of sub-rule (1) shall apply to a man and woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to a marital home shall be construed accordingly.

[Ins by rule 17 of SI 71 of 1997.]

ORDER XXVIII
EQUITABLE RELIEF, COUNTER-CLAIM, SET-OFF

1.   Equitable defence

Every suit implies an offer to do equity in the matter thereof, and admits of any equitable defence.

2.   Equitable relief

The plaintiff may obtain any such equitable relief as the facts stated and proved entitle him to, though not specifically asked.

3.   Counter-claim. Set-off

A defendant in an action may set off, or set up by way of counter-claim against the claim of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross- action so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the court or a Judge may, if, in its or his opinion, such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereto.

ORDER XXIX
PAYMENT INTO AND OUT OF COURT AND TENDER

[Am by GN 218 of 1944.]

1.   Payment into court

   (1) In any action for a debt or damages the defendant may at any time after appearance upon notice to the plaintiff pay into court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action:

Provided that with a defence setting up tender before action the sum of money alleged to have been tendered must be brought into court.

   (2) Where the money is paid into court in satisfaction of one or more of several causes of action the notice shall specify the cause or causes of action in respect of which payment is made and the sum paid in respect of each such cause of action unless the court or a Judge otherwise order.

   (3) The notice shall state whether liability is admitted or denied and receipt of the notice shall be acknowledged in writing by the plaintiff within three days.

2.   Plaintiff may take money out of court

   (1) Where money is paid into court under rule 1 the plaintiff may within twenty-one days of the receipt of the notice of payment into court or, where more than one payment into court has been made, within twenty-one days of the receipt of the notice of the last payment into court, accept the whole sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the sum or sums relate, by giving notice to the defendant to that effect and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction aforesaid.

   (2) Payment shall be made to the plaintiff or on his written authority to his advocate, and thereupon proceedings in the action or in respect of the specified cause or causes of action, as the case may be, shall be stayed.

   (3) If the plaintiff accepts money paid into court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more specified causes of action, and gives notice that he abandons the other cause or causes of action he may, after four days from payment-out and unless the court or a Judge otherwise order, tax his costs incurred to the time of payment into court, and forty-eight hours after taxation may sign judgment for his taxed costs.

   (4) A plaintiff in an action for libel or slander who takes money out of court may apply by summons to a Judge in chambers for leave to make in open court a statement in terms approved by a Judge. The statement must be confined to clearing the character and reputation of the plaintiff and must not attack the defendant or any other person.

   (5) This rule does not apply to Admiralty action or to an action or cause of action in which a defence of tender before action is pleaded.

[Am by SI 71 of 1997.]

3.   Money remaining in court

If the whole of the money in court is not taken out under rule 2, the money remaining in court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in and in pursuance of an order of the court or a Judge, which may be made at any time before, at or after trial.

4.   Several defendants

   (1) Money may be paid into court under rule 1 by one or more of several defendants sued jointly or in the alternative, upon notice to the other defendant or defendants.

   (2) If the plaintiff elects within twenty-one days after receipt of notice of payment into court to accept the sum or sums paid into court, he shall give notice to that effect to each defendant.

   (3) Thereupon all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, shall be stayed, and the money shall not be paid out except in pursuance of an order of the court or a Judge dealing with the whole costs of the action or cause or causes of action, as the case may be.

5.   Counterclaim

A plaintiff or other person made defendant to a counterclaim may pay money into court in accordance with the foregoing rules, with the necessary modifications.

6.   Non-disclosure at trial of payment into court

Except in an action to which a defence of tender before action is pleaded or in which a plea under the Libel Acts, 1843 and 1845, of the United Kingdom, has been filed, no statement of the fact that money has been paid into court under the preceding rules of this Order shall be inserted in the pleadings and no communication of that fact shall at the trial of any action be made to the Judge or assessors until all questions of liability and amount of debt or damages have been decided, but the Judge shall, in exercising his discretion as to costs, take into account both the fact that the money has been paid into court and the amount of such payment.

7.   Money recovered by infant or person of unsound mind or by widow under Fatal Accidents Acts

   (1) In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into court, whether before or at or after the trial shall, as regards the claims of any such infant or person of unsound mind, be valid without the approval of the court or a Judge.

   (2) No money (which expression for the purposes of this rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise payment, payment into court or otherwise, before or at or after the trial shall be paid to the plaintiff or to the next friend of the plaintiff or to the plaintiff's advocate unless the court or a Judge shall so direct.

   (3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the court or a Judge shall direct and the said money or any part thereof may be so directed to be paid into court and to be invested or otherwise dealt with there as may be ordered from time to time.

   (4) The direction referred to in sub-rule (3) may include any general or special directions that the court or a Judge may think fit to give, including (without prejudice to the generality of the above provision) directions as to how the money is to be applied or dealt with and as to any payment to be made either directly or out of the amount paid into court to the plaintiff or to the next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind or otherwise or to the plaintiff's advocate in respect of taxed costs or of the certified difference between party and party and advocate and client costs.

   (5) The provisions of this rule shall also apply to all actions in which damages are claimed or recovered by or on behalf of or adjudged or ordered or awarded or agreed to be paid to an infant or person of unsound mind under the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom. Where such proceedings are taken by or for the benefit of more than one person and the amount recovered is to be divided amongst such persons, the Judge shall divide and apportion the share to be paid to each of the said persons and the amount so apportioned shall be specified in the order or judgment made or directed in the court.

   (6) Nothing in this rule shall prejudice the lien of a advocate for costs.

   (7) The costs of the plaintiff, or, if more than one, of all the plaintiffs in any such cause or matter or incident to the claims therein or consequent thereon shall be taxed by the Registrar, or, if such cause or matter is proceeding in a District Registry by the District Registrar, as between party and party and as between advocate and client, and the Registrar or District Registrar shall certify the respective amounts of the party and party and advocate and client costs, and the difference (if any) and the proportion of such difference (if any) payable respectively by any adult party to the cause or matter and by or out of the moneys of any party who is an infant or person of unsound mind, and no costs other than those so certified shall be payable to the advocate for any plaintiff in the cause or matter.

   (8) This rule shall apply to the case of a counter-claim by an infant or a person of unsound mind, the expression plaintiff, plaintiff's advocate and next friend being read as applying to a defendant setting up the counter-claim or his guardian ad litem.

This rule shall apply to the case of a lunatic so found by inquisition, the expression next friend or guardian ad litem being read if necessary as applying to the committee.

   (9) Money paid into court or securities purchased under the provisions of this rule, and the dividends or interest thereon, shall be sold, transferred, or paid out to the party entitled thereto, pursuant to the order of the court or a Judge.

[Am by SI 71 of 1997.]

ORDER XXX
APPLICATIONS AND PROCEEDINGS IN CHAMBERS AND IN COURT

[Am by GN 218 of 1944.]

I - Applications in Chambers

1.   Application to be by summons

Every application in chambers shall be made by summons.

[Subs by rule 19(a) of SI 71 of 1997.]

2.   Form of summons

The summons shall be in Form 21 set out in the First Schedule, with such variations as circumstances may require, and shall be addressed to all the persons on whom it is to be served.

[Subs by rule 19(a) of SI 71 of 1997.]

3.   Service of summons

Every summons shall be served two clear days before return thereof, unless in any case it shall be otherwise ordered:

Provided that in case of summonses for time only, the summons may be served on the day previous to the return day.

[Subs by rule 19(a) of SI 71 of 1997.]

4.   Proceeding ex parte where party fails to attend

Where any of the parties to a summons fail to attend, whether upon the return of the summons, or at any time appointed for the consideration or further consideration of the matter, the Judge may proceed ex parte, if, considering the nature of the case, he think it expedient so to do; no affidavit of non-attendance shall be required or allowed, but the Judge may require such evidence of service as he may think just.

5.   Reconsideration of ex parte proceeding. Costs

Where the Judge has proceeded ex parte, such proceedings shall not in any manner be reconsidered in the Judge's chambers, unless the Judge shall be satisfied that the party failing to attend was not guilty of wilful delay or negligence; and in such case the costs occasioned by his non-attendance shall be in the discretion of the Judge, who may fix the same at the time, and direct them to be paid by the party or his advocate before he shall be permitted to have such proceeding reconsidered, or make such other order as to such costs as he may think just.

6.   Costs thrown away by non-attendance of party

Where a proceeding in chambers fails by reason of the non-attendance of any party, and the Judge does not think it expedient to proceed ex parte, the Judge may order such an amount of costs (if any) as he shall think reasonable to be paid to the party attending by the absent party or by his advocate personally.

7.   Further attendance where summonses not fully disposed of

Where matters in respect of which summonses have been issued are not disposed of upon the return of the summons, the parties shall attend from time to time without further summons, at such time or times as may be appointed for the consideration or further consideration of the matter.

8.   Adjournment into court or into chambers

In every cause or matter where any party thereto makes any application at chambers, either by way of summons or otherwise, he shall be at liberty to include in one and the same application all matters upon which he then desires the order or directions of the court or Judge; and upon the hearing of such application it shall be lawful for the court or Judge to make any order and give any directions relative to or consequential on the matter of such application as may be just; and such application may, if the Judge thinks fit, be adjourned from chambers into court, or from court into chambers. What matters to be included in the same summons

9.   Reference by Registrar to Judge

If any matter appears to the Registrar proper for the decision of a Judge, the Registrar may refer the same to a Judge and the Judge may either dispose of the matter or refer the same back to the Registrar with such directions as he may think fit.

10.   Appeal from Registrar

   (1) Any person affected by any decision, order or direction of the Registrar may appeal there from to a Judge at chambers. Such appeal shall be by notice in writing to attend before the Judge without a fresh summons, within seven days after the decision, order or direction complained of, or such further time as may be allowed by a Judge or the Registrar. Unless otherwise ordered, there shall be at least one clear day between service of the notice of appeal and the day of hearing. An appeal from the decision, order or direction of the Registrar shall be no stay of proceedings unless so ordered by a Judge or the Registrar.

   (2) Appeal from Assistant Registrar

Any person affected by any decision, order or direction of an Assistant Registrar may appeal there from to the Registrar. Such appeal shall be by notice in writing to attend before the Registrar without a fresh summons, within seven days after the decision, order or direction complained of, or such further times as may be allowed by the Registrar or Assistant Registrar. Unless otherwise ordered there shall be at least one clear day between service of the notice of appeal and the day of hearing. An appeal from the decision, order or direction of an Assistant Registrar shall be no stay of proceedings unless so ordered by the Registrar or Assistant Registrar.

   (3) Further appeal from Registrar

An appeal from the decision, order or direction of the Registrar on appeal from a decision, order or direction of an Assistant Registrar shall lie to a Judge in accordance with the provisions of sub-rule (1).

[Am by GN 309 of 1960.]

   (4) An appeal from the decision or order of the Registrar on assessment of damages shall lie to the Supreme Court; and

[Ins by rule 19(b) of SI 71 of 1997.]

11.   Business to be disposed of in chambers

The business to be disposed of in chambers shall consist of the following matters, in addition to the matters which under any other rule or by statute or by the law and practice for the time being observed in England and applicable to Zambia may be disposed of in chambers—

      (a)   Applications for time to plead, for leave to amend pleadings, for discovery and production of documents, and generally all applications relating to the conduct of any cause or matter;

      (b)   An application by any person claiming to be interested under a deed, will or other written instrument for the determination of any question of construction arising under the instrument and for a declaration of the rights of the person interested;

      (c)   An application by any person claiming any legal or equitable right, in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, for the determination of such question of construction and for a declaration as to the right claimed;

      (d)   All proceedings in the court under the Trustee Act, 1893, or under the Land Transfer Act, 1897, of the United Kingdom;

      (e)   Applications as to the guardianship and maintenance or advancement of infants;

      (f)   Applications connected with the management of property;

      (g)   Applications for or relating to the sale by auction or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into court and investment of the purchase money;

      (h)   All applications for the taxation and delivery of bills of cost and for the delivery by any Advocate of deeds, documents and papers;

      (i)   All matters which under any other rule or statute were formerly allowed to be commenced by originating summons;

   

[Subs by rule 19(c) of SI 71 of 1997.]

      (j)   Such other matters as a Judge may think fit to dispose of in chambers.

12.   Originating summons to deal with matters arising out of trusts

The executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them, and any person claiming to be interested under the trust of any deed or instrument in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law of a deceased person or as cestui que trust or as claiming by assignment or otherwise under any such creditor or other person as aforesaid may take out an originating summons for such relief of the nature or kind following, as may be specified in the summons and as the circumstances may require, that is to say, the determination, without an administration by the court of the estate or trust, of any of the following questions or matters so far as the same arise in the course of the administration or performance of such estate or trust—

      (a)   any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin, or heir-at-law, or cestui que trust;

      (b)   the ascertainment of any class of creditors, legatees, devisees, next of kin, or others;

      (c)   the furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when necessary) of such accounts;

      (d)   the payment into court of any money in the hands of the executors or administrators or trustees;

      (e)   directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees;

      (f)   the approval of any sale, purchase, compromise, or other transaction;

      (g)   the determination of any question arising in the administration of the estate or trust.

13.   Order for administration of estate of deceased, and of trust

Any of the persons named in the last preceding rule may in like manner apply for and obtain an order for—

      (a)   the administration of the personal estate of the deceased;

      (b)   the administration of the real estate of the deceased;

      (c)   the administration of the trust;

      (d)   any act to be done or step to be taken which the court could have ordered to be done or taken if any such administration order as aforesaid had previously been made.

14.   Originating summons for foreclosure

Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclosure or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable in the chambers of a Judge for such relief of the nature or kind following as may by the summons be specified, and as the circumstances of the case may require; that is to say—

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