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OTHER WAYS OF APPROACHING THE COURT


ORIGINATING SUMMONS

An application to the court by way of O.S

The most common way of approaching the court is by way of plaint.  The Originating Summons method is less common and is only used where the Civil Procedure Rules provide for it or some other statutes especially permit that method of approaching the court.  It is a shortened version of the Plaint.  The method of O.S. is intended for simpler, shorter and speedier process.  Usually when you approach the court of O.S. there are no witnesses and evidence is by way of Affidavit.  The question for decision by the court is raised directly in the Summons and the Evidence is raised in the Affidavit.  The issues are raised in a concise manner but with sufficient particulars to enable the court identify the issues and the course of action.  The remedy or relief sought is also stated clearly therein.  Order 37 Rule

It is used in cases related with agreements for sale or purchase of immoveable property Order 37 Rule 3 but only in cases where the existence of the Agreement or Contract is not in dispute and also where the validity is not in dispute.

Order 37 Rule 4 – Summons by a mortgagee, mortgagor and others.
“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  foreclose  or  redeem  any mortgage,  whether  legal  or  equitable,  may  take  out  as  of  course  an  originating summons, returnable before the judge in chambers, for such  relief  of  the  nature  or  kind  following  as  may  be  by  the  summons specified,  and as  the  circumstances of  the  case may  require;  that  is  to  say,  sale,  foreclosure,  delivery  of  possession  by  the  mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.”

Order 37 Rule 5 – has to do with Caveats approach the court by way of Chamber Summons if there is a pending suit in court.

Anything to do with the Government Lands Act should be by O.S where there is a pending suit go with the C.S.


Order 37 Rule 6 Application for extension of time under the rules of Limitations Act will go by way of O.S.

Order 37 Rule 7 Application for Land ownership by virtue of adverse possession is made by way of O.S.

When you apply for a file to be reconstructed it is also through O.S.

under order 37 Rule 8A which provides for fixing of the cause directions by parties ,the court is enjoined to list the OS for directions within 30 days and under rule 9 the issue whether or not the OS should be disposed of by oral evidence is to be decided at the time of directions and not on the hearing of the summons. Where directions are that the matter be heard by way viva voce evidence the provisions of Order 11 come into play.


INTER PLEADER PROCEEDINGS:

One makes an application for inter pleader proceedings by way of Originating Summons. 

The Applicant for inter pleader proceedings must be a neutral party with no claim or interest whatsoever, to the subject matter.  They must be making the application, for the sole purpose of protecting themselves from damages as a result of their action in relation to either of the two claimants.

The Applicant must not be in collusion with either of the parties and the claimant must be willing and ready to deal with the subject matter in whatever manner the court directs.

The Application is made by way of O.S.

We cite the enabling section of the law in every O.S. and C.S because the court has to straight away know that it is allowed by the statutes.

Order 34 sub rule 2
Where one applies for inter-pleader proceedings he must first satisfy the court that:
1.    He claims no interest in the subject matter in dispute other than for charges or for costs.
2.    There’s no collusion between him and any of the parties.
3.    He is willing to pay or transfer into the court the subject matter or to    dispose it as the court may order.

NOTICE OF MOTION:

A Notice of Motion must include a concise statement of the nature of the claim or the relief or remedy required.  Examples of where a Notice of Motion is used.


1.            Application for orders for Judgment on Admission;
2.            Application of Summary Judgment;
3.            Application of Stay of Proceedings;
4.            Application for lifting of an injunction, variation or discharge of it;
5.            Application for Release Orders e.g. Harbeus Corpus Order.

All these Applications can be made ex parte although the court is usually reluctant to issue ex parte orders.  You are expected to serve the other party with the Notice of Motion.



CHAMBER SUMMONS:

Applications by way of Chamber Summons are used when seeking orders within a pending suit.  The Application must always be brought and sought under a specific rule.  Chamber Summons was historically heard in chambers thus the name Chamber Summons.

Look at the general rules relating to Notice of Motion and Chamber Summons.

These applications are normally requested for certain orders and the courts will not usually grant ex parte orders unless it has heard both sides.  Service is of the essence.

if it is an urgent matter and irreparable harm will be occasioned, the court can grant the Order Ex Parte after hearing one side.  An ex parte order is only granted upon the undertaking by that party that they shall file the substantive suit and/or serve the other side within a period specified by the Court.

Every summons shall state in general terms the grounds of the Application usually supported by evidence in an affidavit.

Application is heard in Chambers an may be transferred to open court or vice versa as the judge may deem convenient.

In the case where an applicant is being heard in chambers the public shall be allowed to be present.

Where the Application has been made, the Respondent should file and serve the Applicant with an Affidavit and a statement of the grounds upon which he will oppose the application.

WRITTEN SUBMISSIONS

If you apply by way of Chamber Summons or Notice of Motion accompanied by an Affidavit, evidence of service, response from the other side (grounds upon which they object and the Supporting Affidavit and the Evidence that they have served you with it.  Written submissions that the Applicant will make in court and the Respondents submission.

 
 
 

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