HIGH COURT OF BORNO STATE OF NIGERIA (CIVIL PROCEDURE) RULES, 2006. BORNO STATE HIGH COURT (CIVIL PROCEDURE RULES), 2004. A [LAW] TO ESTABLISH THE HIGH COURT OF BORNO STATE (CIVIL PROCEDURE) RULES AND FOR CONNECTED PURPOSES BE IT ENACTED BY THE BORNO STATE HOUSE OF ASSEMBLY AS FOLLOWS: Date of Commencement. 1. (1) The Rules may be cited as the High Court of Borno State (Civil Procedure) Rules, 2006 and shall come into ce on.day of.., 2006. (2) The provisions contained in the Rules set out in the Schedule to this Bill (hereafter refferred to as the Rules ) shall be the Rules of (Civil Procedure) to be followed in the High Court of Borno State. 2. Where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned. 3. (1) Any reference in this Bill to anything done under this Bill includes a reference to the thing done bee the commencement of this Bill.
(2) Except where the context otherwise requires, any reference to this Bill to any enactment shall be construed as a reference to that enactment as amended, extended or applied or under any other enactment. 4. In the rules unless the context otherwise requires: Court means the High Court of Borno State of Nigeria; Government means the Governor of Borno State; and State means the Borno State of Nigeria. 5. The High Court of Borno State (Civil Procedure) Law, 2004 is here repealed. This Law may be cited as the High Court of Borno State (Civil Procedure) Law, 2006 and shall come into ce on.day of.. SCHEDULE HIGH COURT OF BORNO STATE (CIVIL PROCEDURE) RULES 2006. TABLE OF CONTENT Order Rule Description Pages 1.- CITATION AND COMMENCEMENT. 1 1. Application 2. Interpretation of terms 2.- PLACE OF INSTITUTING AND TRIALS OF SUITS 1. Suits relating to Land and Property distrained or seized 3
2. Suits recovery of penalties, feiture 3 3. Suits upon contract 3 4. Other suits 3 5. Suits commenced in wrong judicial division 3 6. Transfer of proceedings 3 3.- FORM AND COMMENCEMENT OF ACTION 1. Proceeding which must be begun writs 4 2. Mode of beginning civil procceedings 4 3. Form of Writ, Civil Form 1 5 4. Form of Writ Service out of Nigeria, Civil Form 2 5 5. Proceedings which may be begun originating Summons 5 6. Construction of enactment 5 7. Discretion of the Judge 5 8. Forms of originating summons 6 9. Service outside Borno State 6 10. Originating process to be tested its dates 6 4.- INDORSEMENT OF CLAIM AND OF ADDRESS 1. Indorsement 7 2. Indorsement to show representative capacity 7 3. Probate actions 7 4. What is indorsed where the claim is liquidated 7 5. Ordinary account 6. Indorsement of address claimant or legal practitioner 7 7. Indorsement of address 8 8. Originating process without an address or with fictitious address 8 5.- EFFECT OF NON COMPLIANCE
1. Non- compliance with rules. 9 2. Application to set aside irregularity 9 6.- ISSUE OF ORIGINATING PROCESS 1. Preparing Originating Process 10 2. Sealing of Originating Process 10 3. What is to be done after sealing 10 4. Copies to be served 10 5. Probate action: affidavit with originating process. 10 6. Renewal of Originating process: Civil Form6 11 7. Indorsement of Renewal 11 8. Loss of Originating process 11 9. Concurrent originating process 11 10. Concurrent originating process service within and out of jurisdiction 11 7.- SERVICE OF ORIGINATING PROCESS 1. By whom services is to be effected 12 2. Service of originating process, etc: how effected. 12 3. When originating process need not be served personally. 12 4. Mode of service when not personal. 12 5. Substituted service. 12 6. Persons under Legal Disability 13 7. Prisoner of Detainee 13 8. Partners. 13 9. Corporation or company 13 10. Foreign corporation or company Cap. 59 I FR 1990 13 11. Local agent of principal who is out of jurisdiction. 14 12. Where violence threatened. 14 13. Proof of service 14
14. Expenses of service 14 15. Time of service on certain days 14 16. Recording of services. 15 8.- SERVICE OUT OF NIGERIA AND SERVICE OF FOREIGN PROCESS 1. Cases where service of originating process, etc are allowed out of Nigeria 16 2. Agreement as to service 18 3. Service abroad letter of request. 18 4. Where leave is granted or not required 19 5. Service of Foreign Processes 20 6. Inapplicability of Rule 4. 21 7. Service on behalf of eign tribunals 21 8. Substituted service of eign process 21 9.- APPEARANCES 1. Mode of entry of appearances 22 2. Defendant appearing in prison or represented legal practitioner 22 3. Fictitious address. 22 4. Defendants appearing through same legal practitioner. 22 5. Late appearance. 23 6. Intervener in probate matters. 23 7. Recovery of Land. 23 8. Landlord appearing. 23 9. Person under legal disability appearing 23 10. Tenant. 23 10.- DEFAULT OF APPEARANCE 1. Default of appearance person under legal disability. 24 2. Default of appearance generally. 24
3. Liquidated demand. 24 4. Liquidated demand: several defendants. 24 5. Detention of goods. 24 6. Several defendants. 25 7. Detention of goods, damages and liquidated demand. 25 8. Recovery of land. 25 9. Mesne profits. 25 10. Judgment of costs: upon payment satisfaction, etc. 25 11. Setting aside judgment. 26 12. Default of appearance in actions not otherwise specifically provided 26 13. Compulsory service. 26 11.- SUMMARY JUDGMENT 1. Where claimant believes there is no defence. 27 2. Delivery of extra copies. 27 3. Service. 27 4. Where complainant intends to defend. 27 5. Where defendant had good defence, or has no good defence or has good defence to part of the claim. 27 6. Where there are several defendants. 28 7. Oral submission on written brief. 28 12.- APPLICATION FOR ACCOUNT 1. Order of account. 29 2. Application how made 29 3. Account may be taken a Judge or Referee 13.- PARTIES GENERALLY 1. Person claiming jointly or severally. 30 2. Action in name of wrong claimant. 30
3. Misjoinder and counter-claim. 30 4. Any person may be joined as defendant. 30 5. Action in name of wrong defendant. 30 6. Defendant need not be interested in all the reliefs sought. 30 7. Joinder or persons severally or liable. 31 8. Claimant in doubt as to persons from whom redress is to be sought. 31 9. Persons under legal disability. 31 10. Guardian. 31 11. Trustee, executors, etc, may be sued as representing the estate. 31 12. Numerous persons. 31 13. Representation of persons or class of persons in certain proceedings. 32 14. Power to approve compromise. 33 15. Where there is no personal representative. 33 16. Proceedings not defeated misjoinder or nonjoinder. 34 17. Application to add or strike out. 34 18. Where defendant is added. 35 19. Third parties may be joined any of the parties. 35 20. Appearance Third Party. 35 21. Default Third Party. 35 22. Subsequent Third Party. 35 23. Claim against co-defendant. 35 II ACTIONS AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN 24. Actions and against firms. 36 25. Disclosure of partners names. 36 26. Appearance of partner. 36 27. Application of rules to action between co-partners. 37 28. Person trading as firms. 37
III CHANGE OF PARTIES BY DEATH OR OTHERWISE, ETC. 29. Action not abated where cause of action survives. 37 30. Order to carry on proceedings. 37 31. In case of assignment, creation or devolution of estate or title. 38 32. Application to discharge order person under disability having a guardian 38 33. By persons under disability having no guardian. 38 IV. LEGAL PRACTITIONER OR AGENTS 34. Acts may be done legal practitioner or agents. 38 14.- JOINDER OF CAUSES OF ACTION 1. All cases of actions may be joined. 39 2. Recovery of Land. 39 3. Executor and administrator. 39 4. Claims joint claimants. 39 15.- PLEADINGS 1. Filing of Pleadings. 40 2. Pleadings to state material facts and not evidence 40 3. Particulars to be given where necessary. 40 4. Further and better statement or particulars. 41 5. Denial 41 6. Conditions precedent. 41 7. Defence, reply, certain facts to be specifically pleaded. 41 8. Pleadings to be consistent. 41 9. Joinder of issue. 41 10. Effect of documents to be stated. 41 11. Notice. 42 12. Implied contract or relation. 42 13. Presumptions of Law 42
14. Stated or settled account 42 15. Technical objection. 42 16. Striking out of pleadings. 42 17. Defamation. 42 18. Where pleading discloses no reasonable cause of action. 43 19. Close of pleadings. 44 16.- STATEMENT OF CLAIM 1. Statement of claim. 45 2. Claim beyond indorsement. 45 17.-DEFENCE AND COUNTER CLAIM 1. Statement of defence. 46 2. Evasive denial. 46 3. Denials generally. 46 4. Persons in representative capacity. 46 5. Pleadings to damages. 46 6. Set-off and counter-claim. 46 7. Title of counter-claim. 46 8. Claims against persons not parties. 47 9. Appearance added parties. 47 10. Reply to counter-claim. 47 11. Discontinuance of the claimant s claim. 47 12. Judgment balance. 47 13. Grounds of defence after action brought. 47 14. Further defence or reply. 48 15. Concession to defence. 48 16. Defence to originating summons. 48
18.- REPLY 1. Filing of reply. 49 2. Reply to counter-claim. 49 19.- ADMISSIONS 1. Notice of admission of facts. 50 2. Notice to admit documents. 50 3. Notice to admit. 50 4. Judgment or Order upon admission of fact. 51 5. Cost of notice where documents unnecessary. 51 20.- DEFAULT OF PLEADING 1. Claim debt or liquidated demand. 52 2. Several defendants: default of one. 52 3. Damages of one or more defendants. 52 4. Default of one or more defendants. 52 5. Debt or damages and detention of goods or damages. 52 6. Recovery of land. 52 7. Claim Mesne Profits arrears or damages. 52 8. Where a defence is filed to part of claim only. 52 9. Defendant in default. 52 10. One of several defendants in default. 52 11. Default of third party. 54 12. Setting aside judgment default. 54 21.- PAYMENT INTO AND OUT OF COURT 1. Payment into and out of court. 55 2. Claimant may take out money. 56 3. Money remaining in court. 56
4. Several defendants. 57 5. Counter-claim. 57 6. Persons under legal disability. 57 7. Payment into and withdrawal of money from Court. 58 22.- PROCEEDING IN LIEU OF DEMURER 1. Demurer abolished. 59 2. Points of law may be raised pleading. 59 23.- DISCONTINUANCE 1. Claimant may discontinue bee defence. 60 2. Withdrawal consent. 60 24.- AMENDMENT 1. Amendment of originating process and pleadings. 61 2. Application. 61 3. Amendment of originating process. 61 4. Failure to amend after order. 61 5. Filing and service of amended process. 61 6. Date of order and amendment to be displayed. 61 7. Clerical mistakes and accidental omissions. 62 8. General power to amend. 62 25.- PRE-TRIAL CONFERENCE AND SCHEDULING 1. Pre-Trial conference notice. 63 2. Scheduling and planning. 63 3. Agenda. 64 4. Time-Table. 64 5. Report. 65
6. Sanctions. 65 7. Management. 65 26.- DISCOVERY AND INSPECTION 1. Discovery interrogatories. 66 2. Civil Form 19. 66 3. Corporation or Company. 66 4. Objection to interrogatories. 66 5. Affidavit in answer; filing of. 66 6. Forms of affidavit in answer; Civil Form 20. 66 7. Order to answer or answer further. 66 8. Application discovery of documents. 67 9. Processes filed after pre-trial conference. 67 10. Verification of business. 67 11. Attachment of party after service on legal practitioner. 68 12. Attachment of legal practitioner. 68 13. Using answers to interrogatories at trial. 68 14. Discovery against sheriff. 68 15. Order to apply to person under legal disability. 68 27.- ISSUES, INQUIRIES, ACCOUNTD AND REFERENCES TO REFEREES 1. Issues of facts. 69 2. Reference to referee. 69 3. Instructions to referee. 69 4. General powers of referee. 69 5. Evidence. 69 6. Reports made in pursuance of reference. 69 7. Special directions as to mode of taking accounts. 71 8. Accounts to be verified affidavits, numbered and left in registry 71
9. Mode o vouching accounts. 71 10. Surcharge. 71 11. Accounts and Inquiries to be unnumbered; Civil Form 22. 71 12. Just allowances. 71 13. Expediting proceedings in case of undue delay. 72 28.- SPECIAL CASE 1. Special case consent. 73 2. Special case order bee trial. 73 3. Special case to be signed. 73 4. Application to set down where a person under legal disability is a party. 73 5. Agreement as to payment of money and cost. 74 6. Application of order. 74 29.- CAUSE LISTS 1. List of causes hearing. 75 2. Pre-Trial and weekly cause list. 75 3. Public Holidays. 75 4. Judge unable to sit. 75 5. Notice boards. 75 30.- PROCEEDING AT TRIAL 1. Non-appearance of both parties. 76 2. Default of appearance defendant at trial. 76 3. Default of appearance claimant. 76 4. Judgment default may ser aside on terms. 76 5. Adjournment of trial. 76 6. Times of commencement and termination of trial. 76 7. Order of proceeding. 76
8. Burden of proof party to begin. 77 9. Documentary evidence. 77 10. Additional witness. 77 11. Close of cause of parties. 77 12. Exhibits during trial. 77 13. Written address party beginning. 78 14. Written address the other party. 78 15. Written address of party beginning. 78 16. Right of reply. 78 17. Custody of exhibit after trial. 78 18. Office copy of list of exhibits. 78 19. Indolent prosecution. 79 31.- FILING OF WRITTEN ADDRESS 1. Application. 80 2. Content of written address. 80 3. Summation of address. 80 4. Oral argument. 80 5. Copies of written address. 80 32.- EVIDENCE GENERALLY 1. Facts how proved. 81 2. Particular fact. 82 3. Limitation of medical and expert evidence. 82 4. Limitation on use of documentary evidence. 82 5. Revocation and variation. 82 6. Office copies admission to evidence. 82 7. Examination of witness abroad. 82 8. Form of order examination of witnesses abroad. 83
9 Order attendance of person to produce document. 83 10. Disobedience to order attendance. 83 11. Expenses of persons ordered to attend. 83 12. Contempt of court. 83 13. Examination of witnesses. 83 14. Deposition not to be given in evidence without consent or leave of a judge. 84 15. Oaths. 84 16. Attendance of witness under subpoena examination or to produce documents. 84 17. Practice as to taking evidence at any stage of cause or matter. 84 18. Special directions as to taking evidence. 84 19. Evidence n proceedings subsequent to trial. 84 20. Form of praecipe a subpoena. 84 21. Form of subpoena. 84 22. Subpoena attendance of witness in chambers. 85 23. Correction of errors in subpoena. 85 24. Personal service of subpoena. 85 25. Duration of subpoena. 85 26. Action to perpetuate testimony. 85 27. Examination of witness to perpetuate testimony. 85 28. Such action not to be set down trial. 85 33.- AFFIDAVITS 1. Evidence on motions, etc. 86 2. Title of affidavit. 86 3. Use of defective affidavit. 86 4. Special time filing affidavits 86 5. Affidavits in support of ex-parte applications. 86 6. Notice of intention to use affidavits. 86 7. Alterations in accounts to be initialed. 86
8. Exhibits. 87 9. Certificate of exhibit. 87 10. Application of Evidence Act, L.F.N. Cap. 112 87 34.- NON-SUIT 1. Power of court to non-suit. 88 2. Non-suit where no leave reserved 88 35.- JUDGMENT, ENTRY OF JUDGEMENT 1. Delivery of judgment at or after trial. 89 2. Date of judgment pronounced in court. 89 3. Date of judgment directed to be entered 89 4. Judge may direct time payment or permance and interest 89 5. Time to be stated doing any act: Memorandum to be indorsed 89 6. Judgment consent where defendant appears a legal practitioner 90 7. Judgment consent where defendant has no legal practitioner 90 36.- DRAWING UP OF ORDERS 1. Date of order, when drawn. 91 2. What orders need not be drawn up. 91 3. Form of order. 91 37.- TRANSFER AND CONSOLIDATION I. TRANSFERS. 1. Order transferring proceedings to High Court Cap. 63 S. 72 LBOS,1994 Borno State, 1994 92 2. Payment of filling fees. 92 3. Duties of registrars. 92
4. Directions. 93 5. Party failing to attend. 93 6. Construction. 93 II. CONSOLIDATION. 7. Consolidation of actions. 93 38.- INTERLOCUTORY ORDERS, ETC. 1. Presentation or interim custody of subject matter of disputed contract. 93 2. Early trial of cause. 93 3. Order sale of perishable goods, etc. 93 4. Detention, preservation or inspection of property; the subject of an action. 93 5. Sale of property in possession of Court of appeal. 95 6. Order recovery of specific property other than land subject to lien, etc. 95 7. Allowance of income of property pendent elite. 96 8. Injunction against repletion of wrongful act breach. 96 9. Appointment of a receiver way of equitable execution. 96 10. Receivers: Security and remuneration. 96 11. Where receiver appointed in Court: adjournment to give security. 96 12. Fixing days receivers to leave and pass their accounts and pay In balances and neglect of receiver. 98 13. Form of receivers accounts. 98 14. Leaving account in Registry. 98 15. Consequences of default receiver. 98 16. Passing of guardians account. 98 39.- MOTIONS AND OTHER APPLICATIONS 1. Application motion. 99 2. Restriction on rule nisi and order to show cause. 99
3. When notice of motion should be given. 99 4. Motion on arbitral award. 99 5. Special leave. 100 6. Motions may be dismissed or adjourned where necessary notice not given. 101 7. Adjournment of hearing. 101 8. Service of motion with writ. 101 9. Account legal practitioner. 101 10. Interim certificate. 101 40.- APPLICATION FOR JUDICIAL REVIEW 1. Cases appropriate application judicial review. 102 2. Joinder of claims relief. 104 3. Grant of leave to apply judicial review. 104 4. Time within which to bring application. 104 5. Mode of applying judicial review. 105 6. Statements and affidavits. 105 7. Claims damages. 105 8. Interlocutory application. 105 9. Hearing of application judicial review. 105 10. Person acting in obedience to an order to mandamus. 106 11. Consolidation of application. 106 41.- I JURISDICTION OF CHIEF REGISTRAR 1. Chief Registrar. 107 2. Business to be transacted Chief Registrar. 107 3. Chief Registrar may refer matters to the Chief Judge. 107 4. Appeal from order of Chief Judge 107 5. Chief Registrar s list. 108 6. Legal practitioner may represent party. 108
II - CHIEF REGISTRAR S CERTIFICATE 7. Certificate 108 8. Reference to judgment etc. 108 9. Form of certificate: contents of certificate in cases of accounts and transcripts. 108 10. When certificates becomes binding. 109 11. Bill of cases. 109 12. Discharge of variation of certificate after lapse of anything 109 42.- HABEAS CORPUS, ATTACHMENT FOR CONTEMPT I HABEAS CORPUS 1. Application how made. 110 2. Affidavit to accompany exparte application. 110 3. Power to issue order to release immediately. 110 4. Service of notice. 110 5. Copies of affidavits. 111 6. Service of order to release. 111 7. Statement and verifying affidavit. 111 8. Procedure at hearing. 111 II ATTACHMENT FOR CONTEMPT 9. Procedure attachment. 111 10. Procedure on disobedience of order of court. 112 11. Response. 113 12. Return. 113 43.- INTERPLEADER 1. When relief interpleader is granted. 114
2. Matter to be proved application. 114 3. Adverse titles of claimants. 114 4. When application to be made a defendant. 114 5. Summons applicant. 114 6. Stay of action. 115 7. Order upon summons. 115 8. Questions of law. 115 9. Failure of claimant to appear, or neglect to obey summons. 115 10. Costs, etc. 115 44.- COMPUTATIN OF TIME 1. Rules of computation of time. 116 2. Holiday. 116 3. Time of service. 116 4. Court may extend time. 116 45.- MISCELLANEOUS PROVISIONS I COURT SITTING AND VACATION 1. Days of sitting. 117 2. Public or Private Sittings of long vacation. 117 3. Office hours. 117 4. Days of sitting and long vacation. 117 5. Vacation. 117 6. Vacation not reckoned in time pleadings. 118 II - GENERAL 7 Recovery of penalties and costs. 118 8 Notices. 118 9 Filling. 118
10 How process addressed. 118 11 No fees where proceedings Government Department. 118 12 Regulations. 119 13 Savings. 119 46.- ARREST OF ABSCONDING DEFENDANT. 1. Application. 120 2. Defendant leaving Nigeria. 120 3. Warrant to arrest. 120 4. Bail appearance or satisfaction. 120 5. Deposit in lien of bail. 120 6. Committal in default. 120 7. Cost of subsistence of person arrested. 121 47.- PROCEEDINGS INFORMA PAUPERIS 1. Application. 122 2. Who may sue or defend in ma pauperis. 122 3. Conditions to be fulfilled. 122 4. Fees and costs. 122 5. Procedure to be followed. 122 6. Revocation or order, discontinuance. 122 7. Payment to legal practitioner. 123 8. Duty of Legal Practitioner. 123 9. Appeal. 123 48.- CHANGE OF LEGAL PRACTITIONER 1. Legal practitioner to conduct cause or matter to final judgment. 124 2. Application change of legal practitioner or withdrawal. 124 3. Service of application legal practitioner. 124
49.- COSTS 1. Principle to be observed in fixing costs. 125 2. Security costs. 125 3. Security costs claimants temporarily within jurisdiction. 125 4. Action founded on judgment or bill of exchange. 125 5. Bond as security costs. 125 6. Costs at discretion of court. 126 7. Costs at discretion of court. 126 8. Stay of proceedings till cost paid. 126 9. Stay of proceedings at which costs to be dealt with 126 10. When costs to follow the event. 126 11. Matters to be taken into account in exercising discretion. 126 12. Costs arising from misconduct or neglect. 126 13. Personal liability of legal practitioner costs. 127 14. Taxation of costs. 128 15. Notice of other party. 128 16. Power to taxing officer. 128 17. Supplementary powers of taxing officer. 129 18. Extension of time. 129 19. Power of taking officer where party liable to be paid and to pay costs. 130 20. Mode of beginning proceedings taxation. 130 21. Provisions as to bills of costs. 130 22. Provisions as to taxation proceedings. 130 23. Scale of costs. 131 24. Certificate of taxing officer. 131 25. Fees in taxation. 131 26. Application review. 131 27. Application summons. 131
50.- BUSINESS IN CHAMBERS 1. Representation in chambers. 133 2. Matters to be disposed of in chambers. 133 I -PROCEEDINGS RELATING TO PERSONS UNDER LEGAL DISABILITY 3. Evidence upon applications appointment of guardians and maintenance 133 4. Guardian with relevance to proceeding in chambers. 133 II-FURTHER CONSIDERATION 5. Further consideration of matter originating in chambers. 133 6. Notes of proceeding in chamber. 134 7. Drawing up entry of orders made in chambers. 134 8. Costs. 134 9. Decisions given in chambers, now set aside or varied. 136 51.- FORECLOSURE AND REDEMPTION 1. Originating summons eclosure. 136 2. Civil Forms 35, 36, 37. 136 3. Service and execution of judgment. 136 52.- I- SUMMONS TO PROCEED 1. Bringing in judgment etc, directing accounts and inquiries. 137 2. Summons to proceed with accounts and inquiries. 137 3. Settling deed where parties differ. 137 4. Where service of notice of judgment or order dispensed with. 138 5. Stoppage of proceedings where all necessary parties have not been Served with notice of judgment or order. 138
6. Documents: copies use of Judge. 138 II- SUMMONS TO PROCEED BOOK 7. Entry in summons use of Judge. 138 53.- SUMMARY PROCEEDINGS FOR POSSESSSION OF LANDED PROPERTY OCCUPIED BY SQUATTERS OR WITHOUT THE OWNER S CONSENT. 1. Application of this order. 138 2. Form of originating summons Civil Form 38. 138 3. Affidavit in support. 138 4. Service of originating summons. 140 5. Application occupier to be made a party. 140 6. Order of possession. 140 7. Writ of possession. 141 8. Setting aside of order. 141 54.- STAY OF EXECUTION PENDING APPEAL 1. Stay of execution pending appeal. 142 2. Compilation of record. 142 3. Court may grant or refuse order stay. 142 4. Formal order to be drawn up. 142 55.- PROBATE AND ADMINISRATION 1. Petition to be made to probate. 143 2. Preservation of property. 143 3. Unauthorized persons intermeddling with property. 143 4. Production of testamentary papers. 143 5. Judge may order production. 143 6. Examination respecting papers 144
7. Notice to executor to come in and prove 144 8. Liability of executor neglecting to apply probate. 144 9. Evidence of identity. 144 10. Judge may refuse grant until all persons interested are given due notice 144 11. Value of property. 144 12. Answers required bee grant. 145 13. Form of suits. 145 14. Testator may deposit Will. 145 15. Custody of Wills of which probate is granted. 145 16. Will not given out without order of Judge. 145 17. Examination of Will as to its execution. 145 18. Evidence as to due execution of Will. 145 19. Evidence on failure of attesting witnesses. 146 20. Evidence as to terms; conditions and date of execution of Will. 146 21. Attempted revocation of Will. 146 22. Affidavits as to due execution, terms, etc, of Will. 146 23. Wills of persons in military service and seamen. 146 24. Evidence of eign law. 147 25. Order of priority grant where deceased left a Will. 147 26. Joinder of Administrator. 148 27. Will of blind or illiterate testator. 148 28. Interlineations, erasures, obliterations. 148 29. Documents referred to in a will or annexed or attached thereto. 149 30. Executor dying without proving or not appearing. 149 31. Marking of Wills. 149 32. Viva voce examination of persons making affidavits. 149 33. Letters of administration. 149 34. Administration bond. 149 35. Guarantee 150
36. Assignment of bond. 151 37. Administration summons. 151 38. Order administration. 151 39. Order relating to property. 151 40. Administration may be granted to officer. 151 41. Officer to act under the direction of Judge. 151 42. Court may appoint person to be administrator. 152 43. Remuneration of administrator. 152 44. Securing and collection of estate. 152 45. Application Consular officer or person authorized to administer estate.152 46. Accounts to be filed. 152 47. Court may refuse application to review. 153 48. Grant to be signed Probate Registrar. 153 49. Application. 153 50. Application grants through Legal Practitioner. 153 51. Personal applications. 153 52. Duty of Registrar on receiving application grant. 154 53. Oath in support of grant. 154 54. Grant in additional name. 154 55. Engrossment purposes of record. 155 56. Grant to attesting witnesses, etc. 155 57. Right of assignee to a grant. 155 58. Additional personal representatives. 155 59. Grants where two or more persons entitled in the same degree. 155 60. Prevention of grant. 156 61. Grants to person having spes successionis. 156 62. Grants where deceased was domiciled outside the State. 156 63. Grant to attorney. 157 64. Grants on behalf of minors. 157
65. Grants where minor s co-executor. 158 66. Grants in case of mental or physical incapacity. 158 67. Renunciation of probate and administration. 158 68. Notice to State of intended application grant. 159 69. Resealing. 160 70. Amendment and revocation of grant. 161 71. Notice to prohibit grant. 161 72. Citation. 162 73. Citation to accept or refuse a grant. 162 74. Citation to propound a will. 172 75. Address order to bring or to attend examination. 173 76. Application order to bring or to attend examination. 173 77. Limited grants. 173 78. Grants and colligenda bona. 174 79. Application Leave to Swear to death of a person. 174 80. Grants in respect of codicil and copies of wills. 174 81. Grants durants absentia. 174 82. Notice of election surviving spouse to redeem life interest. 175 83. Photocopy of wills or other documents may be certified and sealed 175 84. Power to require application to be made summons or motions. 175 85. Service or Notices and summons. 175 86. Service of Notice, etc. at the person s address. 176 87. Affidavits. 176 88. Time. 176 89. Application. 176 90. Contentious probate: m of suits 176 II. PROCEEDING GENERALLY 91. Probate actions. 176
92. Service of writ of summons. 176 93. Pleadings and further actions. 176 94.Where claimant disputes defendants interest. 177 95. Notice of opposition to will. 177 96. Inquiry as to outstanding personal estate. 177 97. Discretion to order costs. 177 98. Originating summons relating to deceased person. 177 100. Person to be served. 178 101. Judge not bound to order administration. 179 102.Order which may be made on application administration or Execution of trusts, where no account or insufficient accounts have been rendered. 179 103. Interference with discretion of trustee. 180 104. Application summons appointment of new trustees and vesting order. Vesting order on sale, etc. payment out of court. 180 105. Interpretation Law; Cap. 70, Vol.2, Laws of Borno State, 1994. 181 56. All appeals (Civil and criminal) from magistrate Courts, District Courts, Area, Sharia/Upper Sharia Courts, Rent Tribunal, etc to the High Court. 57. Appeals to the High Court from Decisions of Auditors. 58. Appeals to the High Court from professional bodies. 59. Interlocutory Applications: i- Motions generally ii- Ex-parte motions iii- Order to show cause iv- Notice of Motion v- Evidence in Interlocutory Proceedings. 60. Petition: General Provisions 61. Arbitration: A- Reference to arbitrator
B- Arbitration Proceedings C- Encement of Arbitration Award D- Registration of Foreign arbitration Award E- Alternative Dispute Resolution. 62. Receivers. 63. Interim Attachment of Property 64. Gamishee Proceedings. 65. Legitimacy Proceedings. 66. Filing of Briefs of Argument 67. Forms: Appendix I 68. Fees payable: Appendix II For commencement of cases other than matrimonial and legitimacy causes. Appendix III Regulations regarding fees Appendix IV Notaries Public fees of office, translations. Appendix V Fees registration of judgment. HIGH COURT OF BORNO STATE OF NIGERIA HIGH COURT (CIVIL PROCEDURE) RULES, 2006. ( ) Date of Commencement. ORDERS ORDER 1 - CITATION AND COMMENCEMENT. 1. (1) These Rules may he cited as the Borno State High Court (Civil Procedure) Rules, 2006 and shall come into ce on the...day of 2006.
(2) Application of these Rules shall be directed towards the achievement of just, efficient and speedy dispensation of justice. 2. (1) These Rules shall be interpreted in accordance with the Interpretation Law, Cap,70, Laws of Borno State, 1994 or any re-enactment thereof. (2) Where in these Rules depositions and affidavits are required to be made, if the deponent does not understand the English Language such deposition of affidavit shall be made in a language he understands and shall be accompanied interpretation thereof in English language. (3) In the construction of these Rules, unless there is anything in the subject of context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the following meanings: "Claimant" shall include a claimant in a counter-claim; "Court" means the High Court of Borno State; "Court Process or "Process" includes writ of summons, originating summons, originating process, notices, petitions, pleadings, orders, motions, summons, warrants and all documents or written communication of which service is required; "Decision" means any decision of a Court and includes judgment, ruling, decree, order, conviction, sentence or recommendation; "Defendant" shall include a defendant to a counter claim; "Guardian" means any person who has the time being, the charge of or control over a person under legal disability and includes a person appointed to institute or defend an action on behalf of any person under legal disability;
"Law" means the High Court Law, Cap. 63, Laws of Borno State, 1994 or any re-enactment thereof; "Minor" means a person who has not attained the age of 18 years; "Originating Process" means any Court process which a suit is initiated. "Persons Under Legal Disability" means persons who lack capacity to institute or defend any proceedings reason of age, insanity, unsoundness of mind or otherwise; "Probate action" means an action the grant of probate of the will, or letters of administration of the estate of a deceased person or the revocation of such a grant or a decree pronouncing or against the validity of an alleged will, not being an action which is non-contentious or common from probate business; "Registrar" means the Chief Registrar, Deputy Chief Registrar, Assistant Chief Registrar, Principal Registrar, Senior Registrar, High Registrar, or any other officer acting or perming the functions of a Registrar; "Registry" means the Registry of the High Court of Borno State in the appropriate judicial division; "Taxing Officer" means the Chief Registrar or such other officer of the Court as the Chief Judge may appoint to tax costs. ORDER 2 - PLACE OF INSTITUTING AND TRIAL OF SUITS Subject to the provisions of the Law on transfer suits, the place trial suit shall be regulated as follows; 1. All suits, relating to land or any mortgage or charge on or any interest in land, or any inquiry or damage to land and action relating to personal property distrained or seized any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distrain took place.
2. All actions recovery of penalties, feitures, and all actions against Public officers shall be commenced and tried in the Judicial Division in which the cause of action arose. 3. All suits the specific permance, or upon the breach of any contract, may be commenced and determined in the Judicial Division in which such contract ought to have been permed or in which the defendant resides or carries on business. 4. (1) All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business. (2) Where there are several defendants who resides or carryon business in different Judicial Divisions, the suit may be commenced in anyone of those Judicial Divisions subject to any order or direction a Judge may make or give as to the most convenient arrangement trial of the suit. 5. If any suit is commenced, in the wrong Judicial Division, it may be tried in that Division unless the Chief Judge otherwise directs. 6. No proceedings which may have been taken previously to such plea in objection shall be in any way affected there; but the Judge shall order that the cause be transferred to the Judicial Division to which it may be proved to his satisfaction to belong, or, failing such proof, that it be restrained and proceed in the Court in which it has been commenced. ORDER 3 - FORM AND COMMENCEMENT OF ACTION 1. Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than writ, a writ of summons shall be the m of commencing all proceedings: a. where a claimant claims: (i) any relief or remedy any civil wrong or otherwise, or
(ii) (iii) damages breach of duty, whether contractual, statutory or otherwise, or damages personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property. b. where the claim is based on or includes an allegation of fraud, or c. where an interested person claims a declaration. 2. (1) All civil proceedings commenced writ of summons shall be accompanied : (a) (b) (c) (d) statement of claim; list of witnesses to be called at the trial; written statements on oath of the witnesses and copies of every document to be relied on at the trial. (2) where a claimant fails to comply with Rules2 (1) above, his originating process shall not be accepted filing the Registry. 3. Except in the cases in which any different ms are provided in these Rules, the writ of Summons shall be in Form I with such modifications or variations as circumstances may require. 4. A writ of summons to be served out of Nigeria shall be in Form 2 with modifications or variations as circumstances may require.
5. Any person claiming to be interested under a deed, Will, enactment or other written instrument may apply originating summons the determination of any question of construction arising under the instrument and a declaration of the rights of the persons interested. 6. Any person claiming any legal or equitable right in a case where the determination of the question when he is entitled to the right depends upon a question of construction of an enactment may apply originating summons the determination of such question of construction and a declaration as to the right claimed. 7. A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit. 8. (1) An originating summons shall be in the Forms 3, 4, or 5 to these Rules, with such variations as circumstances may require. It shall be prepared the applicant or his Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed shall be deemed to be issued. (2) An originating summons shall be accompanied : (a) (b) (c) an affidavit setting out the facts relied upon; all the exhibits to be relied upon; a written address in support of the application. (3) the person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub--rule 2 above service on the respondent or respondents.
9. Subject to the provisions of the Sheriffs and Civil Process Act, a writ of Summons or other originating process issued the Court service in Nigeria outside Borno State shall be endorsed the Registrar of the Court with the following notice -- - "This summons (or as the case may be) is to be served out of Borno State of Nigeria and in the state. 10. (1) The Registrar shall indicate the date and time of presentation filing on every originating process to him and shall arrange service thereof to be effected. (2) An originating process shall not be altered after it is sealed except upon application to a Judge. ORDER 4 - INDORSEMENT OF CLAIM AND OF ADDRESS 1. Every originating process shall contain the claim, the relief or remedy sought and the full names and address of the claimant. 2. Where a claimant sues, or the defendant or any of several defendants is sued in a representative capacity the originating process shall state that capacity. 3. In probate actions the originating process shall state whether a claimant claims as creditor, executor, administrator, beneficiary, and next of kin or in any other capacity. 4. (1) Where the claim is debt or liquidated demand only, the originating process shall state the amount claimed debt or in respect of such demand with costs and shall further state that the defendant may pay the amount with costs to the claimant's Legal Practitioner within the time allowed appearance and that upon such payment the proceedings shall terminate.
(2) The defendant may notwithstanding payment under this rule, have the costs taxed and if more than one sixth of the costs shall be disallowed, the claimant's Legal Practitioner shall pay the costs of taxation. 5. In all cases where a claimant in the first instance desires to have an account taken, the originating process shall so state. 6. (1) A claimant suing in person shall state on the originating process his residential or business address as his address service. If he lives and carries on business outside the jurisdiction he shall state an address within the jurisdiction as his address service. (2) Where a claimant sues through a Legal Practitioner the Legal Practitioner shall state on the originating process his chamber's address as the address service. If the Legal Practitioner is based outside the jurisdiction he shall state a chamber's address within the jurisdiction as his address service. 7. Where an originating process is to be served on a defendant outside the jurisdiction the process shall state the address required in Rule 6. 8. If the originating process does not state an address service, it shall not be accepted and if any such address is illusory, fictitious or misleading the process may be set aside a Judge on the application of the defendant. ORDER 5 - EFFECT OF NON-COMPLIANCE 1. (1) Where in beginning or purporting to begin any proceeding there has reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings. (2) Where at any stage in the course of or in connection with any proceedings there has reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner,
or m, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps. (3) The Judge shall not wholly set aside any proceedings or the writ or other originating process which they were begun on the ground that the proceedings were required any of these rules to be begun an originating process other than the one employed. 2. (1) An application to set aside irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and bee the party applying has taken any fresh step after becoming aware of the irregularity. (2) An application under this rule may be made summons or motion and the grounds of objection shall be stated in the summons or notice of motion. ORDER 6 - ISSUE OF ORIGINATING PROCESS 1. Originating process shall be prepared a claimant or his Legal Practitioner, and shall be clearly printed on Opaque A4 paper of good quality. 2. (1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued. (2) A claimant or his Legal Practitioner shall, on presenting any originating process scaling, leave with the Registrar as many copies of the process as there are defendants to be served and one copy endorsement of service on each defendant. (3) Each copy shall be signed the Legal Practitioner or a claimant where he sues in person and shall be certified after verification the Registrar as being n true copy of the original process filed.
3. The Registrar shall after sealing an originating process, file it and note on it the date of filing and the number of copies supplied a claimant or his Legal Practitioner service on defendants. The Registrar shall then make all entry of the filing ill the cause book and identify the action with a suit number that may comprise abbreviation of the Judicial Division, a chronological number and the year of filing. 4. The Registrar shall promptly arrange personal service on each defendant of a copy of the originating process and accompanying documents duly certified as provided Rule 2(3) of this order. 5. The originating process in probate actions shall be accompanied an affidavit sworn to a claimant or one of several claimants verifying the contents of the process. 6. (1) The life span of every originating process shall be 6 months. (2) If a Judge is satisfied that it has proved impossible to serve an originating process on any defendant within its life span and a claimant applies bee its expiration or renewal of the process, the Judge may renew the original or concurrent process 3 months from the date of such renewal. A renewed originating process shall be in Form 6 with such modifications or variations as circumstances may require.. 7. A Judge may order two renewals in each case strictly good cause and upon prompt application, provided that no originating process shall be in ce longer than a total of 12 months. The Registrar shall state the fact, date, and duration of renewal on every renewed originating process. 8. Where an originating process is lost after issue, a Judge, upon being satisfied of the loss and of the correctness of the process, may order the Copy to be filed and scaled in place of the lost originating process.
9. A claimant may at the issuance of an originating process or at any time during its life span, cause to be issued one or more concurrent originating processes each to bear the same date as the initial process marked 'CONCUR-RENT' and have stated on it the date of issue. 10. An originating process service within jurisdiction may be issued and marked as a concurrent originating process with one service out of jurisdiction and an originating process service out of the jurisdiction may be issued and marked as a concurrent originating process with one service within jurisdiction. ORDER 7 - SERVICE OF ORIGINATING PROCESS 1. (1) Service of originating process shall be made a Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officer or other officers of the Court. The Chief Judge may also appoint and register any law Chambers, Courier Company or any other person to serve Court processes and such person shall be called process server. (2) Where a party is represented a Legal Practitioner service of Court process of which personal service is not required may be made on such Legal Practitioner or on a person under his control. 2. The process server shall serve an originating process delivering to the party to be served a copy of the process duly certified as prescribed Order 6 Rule 2(3). 3. No personal service of an originating process shall be required where the defendant has authorized his Legal Practitioner in writing to accept service and such Legal Practitioner enters appearance: Provided that such written authority shall be attached to the memorandum of appearance filed such Legal practitioner.
4. All processes in respect of which personal service is not expressly required these rules or any applicable law shall be sufficiently served if left with an adult person resident or employed at the address service given under Order 4; Rule 6. 5. (1) Where personal service of an originating process is required these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected the Judge may upon application the claimant make such order substituted service as may seem just. (2) Every application to the Judge substituted or other service, or the submission of notice service shall be supported an affidavit setting th the grounds upon which the application is made. 6. (1) Where a person under legal disability is a defendant, service on his guardian shall be deemed good and sufficient personal service, unless a Judge otherwise orders: Provided that personal service on a minor who is over 16 years of age living independently or doing business is good and sufficient. (2) The Judge may order that personal service on a person under legal disability shall be deemed good and sufficient. 7. Where a detainee or prisoner is a defendant, service on the head or other officer in charge or the station, facility or prison where the defendant is, or on an officer of the agency in charge of the station, facility or prison shall be deemed good and sufficient personal service on the defendant. 8. Where persons are sued as partners in the name of their firm the originating process shall be served upon anyone or more of the partners at the principal place of business within the jurisdiction or upon any person having control or management of the partnership business there; and such service shall be deemed good service upon the firm whether any of the members are out of the jurisdiction or not, and no leave to issue an originating process against them shall be necessary:
Provided that in the case of partnership that has been dissolved to the knowledge of the claimant bee the commencement of the action, the originating process shall be served upon every person within the jurisdiction sought to be made liable. 9. Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or further process requiring personal service may be served on the organization delivery to a director secretary, trustee or other senior, principal or responsible officer of the organization, or leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction. 10. When the suit is against a eign corporation or company within the meaning of Section 54 of the Companies and Allied Matters Act having an office and carrying on business within the jurisdiction, and such suit is limited to a cause of action which arose within the jurisdiction, the originating process or other documents requiring personal service may be served on the principal officer or representative of such eign corporation or company within the jurisdiction: Provided that where a eign company has complied with the provision of chapter 3 of the Companies and Allied Mailers Act, personal service shall be effected on one of the persons authorized to accept service on behalf of the said company, 11. Where a contract has been entered into within the jurisdiction or through an agent residing or carrying on business within the jurisdiction on behalf of a principal residing or carrying on business out of the jurisdiction, an originating action relating to or arising out of such contract may, bee the determination of such agent's authority or of his business relations with the principal, be served on such agent. A copy or the originating process shall be sent promptly the claimant courier to the defendant at his address out of the jurisdiction.
12. Where a person to be served, whether alone or in concert with others, resists service or applies or threatens violence to the process server, the pro-cess server may leave the process within the reach of person to be served, and this shall be deemed good and sufficient service all purposes. 13. (1) After serving any process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of ser-vice, describing the process served and shall exhibit the acknowledgement of service. (2) After service the affidavit shall be prima facie proof of service. 14. (1) The party requiring service of any process shall pay in advance all costs and expenses of and incidental to service. (2) The rate of service shall be as directed the Chief Judge in Practice Directions from time to time. 15. (1) Service of originating and other processes, pleadings, notices, summons, orders, and documents whatsoever shall be effected between the hours of six in the morning and six in the evening. (2) Save in exceptional circumstances and as may be authorized a Judge, service shall not be effected on a Sunday or on a public holiday. 16. (1) A register shall be kept at the Registry in such m as the Chief Judge may direct recording service of processes any process server. The Registrar shall record therein the names of the claimant and defendant, the method of service, whether personal or otherwise, and the manner used to ascertain that the right person was served. (2) Where any process was not served the cause of failure shall be recorded in the register. Every entry in such register or certified copy thereof shall be prima facie evidence or the matters stated therein. ORDER 8 - SERVICE OUT OF NIGERIA AND SERVICE OF FOREIGN PROCESS