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CIVIL PROCEDURE

Procedure and Rules that govern the proceedings

Assuming the defendant has been served and opted not to defend the procedure may be that one applies for judgment in default of defence.  One has to find out whether they are entitled to final or interlocutory judgment both of which have different procedures.

Assuming Defendant chooses to defend the action – a defence is filed.  If the defence is filed and served one has to decide whether to make an application.  Decision depends on cause of action if it is in the sphere of Order 36 one can apply for summary judgment which applies in only some cases.  This is a short cut – the court has right to make orders.

If not under Order 36 if one thinks what is filed does not constitute a defence one may want to terminate the proceedings under Order 2 Rule 15 in favour of their client i.e. if the suit is frivolous.  These are two ways of bringing to an end the proceedings without a trial.

When one wants to demand for information to help them make their mind, or wants matters clarified to determine the next step to take.

To preserve the subject matter of litigation pending trial, you don’t want judgment or to strike out the defence, for this purpose one requires an injunction to preserve the subject matter.  Order 39 or 40.  At this stage one has to make their minds which application to make  these are interlocutory proceedings.

Fixing your suit for trial has another series of steps i.e. summoning witnesses, knowing whether there is a procedure in adjournment of suits.  What happens if a suit is fixed for trial and only the plaintiff turns up.  After these and the suit eventually comes to trial, one must know who has the right to begin.

Under Civil Procedure Rules there are times when the Defendant must begin, usually it is the Plaintiff who is entitled.  It depends on the kind of pleadings, if the defence admits the facts as stated by the Plaintiff.

Evidence is conducted in a particular order.  The sequence of calling evidence it is important to make a statement to establish ones case.  examination in chief begins and then cross examination by the other side.  Where a witness turns hostile, the rules allow one to examine the hostile witness to show that they are unreliable.  Sometimes witnesses can choose to forget.  Ensure you have an understanding with your witnesses to streamline their memory and to anticipate.

Once this is done the court delivers judgment.

What is a judgment?
Once judgment is written, there is a procedure of extracting the decree.  Trials of civil proceedings do not end in judgment there is a subsequent step which is important.  This distinguishes whether your client has won theoretically.  One applies for execution of the judgment, enforcement of a right that has been acquired.  One must apply for the decree to be executed.

What mode of execution does one adopt, if one has an injunction, it will depend on what one wants to enforce, it could be attachment of property or winding up.  Execution proceedings are very important.

Another party may appear at the execution stage i.e. claiming to have an interest in what has been attached, or where the attached property is not in the hands of the Judgment debtor.  Proceedings take place,

Acting for the Defendant – one may want to appeal the decision you go to court to ask for a stay of execution, one of the mistakes which we make is to assume that if judgment has been passed and one wants a stay of execution, one must go to the court dealing with appeals. Not always, where one is applying to set aside, one must know the right procedures. One has to identify the right order, this is not appealing or setting aside so one cannot apply for a stay.

Costs:
If judgment is entered in default of appearance and defence one goes for a certificate of costs to enable execution.  These are costs that have been certified by the registrar and a certificate issued in respect of uncontested cases.

Judicial Review Order 53

Ganishee Proceedings – where one has a decree but property of the judgment debtor is not in the hands of the judgment debtor.

 
 
 

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