Order 38 — Proceedings at Trial

Where a cause on the Weekly Cause List has been called for hearing and neither party appears, the Court may in the absence of any justifiable good cause strike out the case.

(1) Where a cause fixed for hearing is called and the Claimant appears in Court but the Defendant is absent in Court and has not filed any defence to the claim in accordance with these Rules, the Claimant shall be entitled to judgment as far as he can prove his case.

(2) Where a cause is called for hearing and the claimant appears in Court but the defendant or respondent and/or counsel who has entered defence was not in Court and no good cause has been shown for the absence, the Claimant may prove the claim in so far as the burden of proof lies upon the Claimant.

(3) Where a Claimant was allowed by the Court to prove his claim in the absence of the Defendant or respondent and/or counsel, the Court shall adjourn the case to enable the Defendant appear in Court to prove the defence.

(4) If on the date fixed for the Defendant to appear before the Court to prove the defence and the Defendant fails or neglects to appear, the Claimant may be allowed to file a Final Address and adjourn the case for adoption of the Final Address.
Provided that the Defendant shall be put on notice on a date fixed for the adoption of the Final Address.

(5) Where the Defendant appears and shows good and justifiable cause for his absence, the Court may allow the Defendant to enter defence in accordance with these Rules.

(1) Where a cause is called for hearing and the defendant or respondent appears but the Claimant or counsel to the Claimant does not and no good cause is shown for the absence, the defendant or respondent, shall be entitled to judgment striking out the action, but if the defendant or respondent has a counterclaim, then the defendant may prove such counterclaim in so far as the burden of proof lies upon the defendant.

(2) Where any party to the proceedings has been duly served with notice to appear or the party is to the satisfaction of Court aware of the adjourned date and without reasonable excuse fails to appear, the Court may consider and deal with the matter before it in the absence of such party.

(3) Where in a matter before the Court, Written Addresses have been filed by the parties or their respective counsel, and the matter is fixed for hearing and adoption of the Written Addresses and any of the parties or their respective counsel fails to appear to adopt the party’s Written Address and adumbrate thereon without giving any cogent or compelling reason(s) for the absence, the Written Address shall be treated by the Court as having been duly adopted and adumbrated upon.

(4) Upon the service of any application on the defendant/respondent directly or on counsel, the defendant/respondent counsel may within seven (7) days file a notice of intention not to contest the application and upon such notice the application may be heard by the Judge without oral argument.

Where any party to the proceedings fails to comply with an order or direction of the Court, the Court may order that the party be barred from taking any further part in those proceedings until the party has complied with such direction or order or may make such other order as the Court thinks just.

In any matter before the Court, no individual or group of individuals may appear as both claimant or claimants and respondent or respondents in the same matter, notwithstanding the fact that they all belong to the same disputing organization.

(1) Where a cause is struck out under rule 1 of this Order either party may apply for the cause to be re-listed on the Cause List on such terms as the Court may deem fit.

(2) Any judgment obtained where a party did not appear at the trial may be set aside by the Court upon such terms as it may deem fit.

(3) An application to re-list a cause struck out or to set aside a judgment under this rule shall be made within fourteen (14) days after the order or judgment or such other extended period as the Court may allow.

(4) The application to re-list under sub-rule 1 of this Rule shall be accompanied by an affidavit and written address stating the grounds and reasons why the Court should re-list the matter. Upon service of the application on the other party, the other party shall have seven (7) days to respond as appropriate by filing a counter affidavit and Written Address.

(1) Where a cause or matter is ripe for trial, the trial shall be from day to day.
Provided that the Court may, where it thinks fit in the interest of justice, adjourn a trial for such time and upon such terms as it shall deem fit.
Provided further that any matter fixed for trial shall not, except for very special circumstances or cogent or compelling reason(s) be adjourned for more than two times at the instance of a party.

(2) Notwithstanding sub-rule 1 of this Rule the Court may in the interest of justice, grant adjournments to any party where such party has exhausted the number of adjournments permitted under this Rule.

(3) Where a cause or matter has been fixed or set down for hearing or trial and any of the parties intends to seek for an adjournment, such party shall notify the Court in writing and send a copy of the notice to the other party or the counsel not later than three (3) working days before the date fixed for the hearing or trial of the cause or matter;
Provided that the party seeking or applying for adjournment shall satisfy the Court that there are cogent unforeseen reasons or compelling circumstances warranting the grant of the application.

Where a matter was adjourned by the Court at the instance of a counsel due to the counsel’s inability to attend a court sitting, it shall be the responsibility of the counsel to find out from the Registrar of court the date to which the matter was adjourned.

Where any matter fixed for trial is adjourned twice at the instance of a party or counsel to a party and the party or counsel fails or neglects or is not ready or willing to continue with the hearing of the party’s case, the case shall be foreclosed against that party and the Court shall deal with the matter as the justice of the case may demand.

Once a matter is fixed for hearing or trial, at the concurrence of all the counsel in the matter and the Court, the matter shall not be adjourned on the ground that any of the counsel is either not present in Court, or being present in Court is not ready to go on with the hearing or trial of the matter.

Where a matter is slated for the hearing of a motion or substantive matter and a counsel announces appearance as holding the brief of another counsel in the matter, except the Court is not ready to take the motion or hear the matter or upon good cause being shown, the counsel shall be asked to proceed with the business of the day.
Holding brief shall mean holding brief for all intents and purposes.

(1) Where a matter is fixed for hearing as jointly agreed by the counsel in the matter and the Court, and on the day so fixed, a junior counsel appears in Court and asks for adjournment on the ground that the principal counsel has expressed the intention through the junior counsel to personally handle the matter, the Court may proceed with the hearing, notwithstanding the absence of the senior or principal counsel in the matter.
Provided that where the junior counsel provides cogent and compelling reasons to the satisfaction of the Court as to why the senior or principal counsel must personally handle the matter, the Court may grant the request for adjournment.

(2) Further to the provisions of sub-rule (1) of this Rule, where the junior counsel refuses or is unwilling to proceed with the case as directed by the Court, the Court may close and call upon the Counsel on the other side to open, continue or proceed with the opposing party’s case, as the Court deems fit.

The Court may adjourn a matter fixed for hearing or trial, if any of the counsel in the matter gives in advance, to the satisfaction of the Court, cogent, compelling and justifiable reasons.

The Registrar of Court shall endorse the Court’s files stating the time at which any matter commences or terminates to enable the Taxing Officer to assess cost.

The order of proceeding at the trial of a matter shall be as prescribed hereunder:
(a) The party on whom the burden of proof lies by the nature of the issues or questions between the parties shall begin.
(b) Documentary evidence shall be put in and may be read or taken as read by consent of parties.
(c) The Court may order that witness statements on oath be read in court or taken as read by consent of the parties.

(1) A party shall close the party’s case on completion of presentation of evidence.

(2) Either party may make an oral application to have the case closed.

(3) Notwithstanding the provisions of sub-rules (1) and (2) of this Rule, the Court may suo-motu where it considers that either of the parties fails or neglects or is unwilling to conclude the party’s case within a reasonable time, close the case for the party based on the occurrence of any of the following events. That is, where:
(a) the party fails or neglects or is unwilling to call the party’s witness on the date fixed for hearing;
(b) after hearing notices have been served and the party served fails or neglects or is unwilling to abide by the date fixed for hearing on the notice;
(c) the party fails or neglects or is unwilling to proceed with the party’s case and the matter has already been adjourned more than twice by the Court;
(d) the party fails or neglects or is unwilling to file a final Written Address within the time stipulated by the Rules of the Court;
(e) the party behaves in a manner that is likely to impede the speedy hearing and dispensation of the case before the Court or as otherwise ordered by the Court.

(4) Where a party before the Court has filed a Witness Statement on Oath in compliance with Order 3, Rule 9 (d), but fails or neglects to present the witness who deposed to the Witness Statement on Oath on the date fixed for trial without any cogent, convincing and compelling reason for the absence of the witness and the counsel to any of the other party or parties is present in Court, the Court may deem the said witness statement on oath abandoned and deal with the matter in accordance with the Rules of the Court.

(5) Where any of the parties has filed a witness statement on oath, such a witness shall not be allowed to adduce oral evidence on issues not pleaded by any of the parties.

(1) The Court may of its own motion or on the application of any party order any person to appear before it as a witness or to produce any document.

(2) A party who desires to call any witness not being a witness whose deposition on oath accompanied the party’s pleading shall apply to the Judge for leave to call such a witness.

(3) An application for leave in sub-rule (2) above shall be accompanied by the deposition on oath of such a witness.

(1) The Court may compel any person present in Court to either give evidence or produce any document in such a person’s possession and power as provided in Section 43 of the National Industrial Court Act, 2006.

(2) A person whether a party or not in a cause, may be summoned to produce a document without being summoned to give evidence, and if such a person causes such document to be produced in Court, the Court may dispense with the person’s physical attendance.

(3) Whenever the Court so mout orders a person present in Court either to give evidence or produce any document in the person’s possession and power in accordance with sub-rule 1 of this rule, such a person may not swear to a witness statement on oath, but may be allowed to give oral evidence after being sworn or affirmed.
Provided that nothing in this Rule shall preclude such a person from filing a witness statement on oath if the person so requires or wishes.

(4) Where a witness is subpoenaed by a party to the action to appear before the Court to give evidence, the subpoenaed witness may not file a witness statement on oath if the witness is only appearing before the Court to tender a document and answer questions either in examination-in-chief, cross-examination or re-examination relating to the document the witness has been subpoenaed to tender.
Provided that where such a witness is subpoenaed to give evidence on what the witness did, saw or knew about, such a subpoenaed witness shall file a witness statement on oath in line with the Rules of the Court.

(5) Any of the parties to an action or matter before the Court may apply to the Court by motion ex parte to issue a summons to bring up a person before the Court either to be examined as a witness or to tender a document in the person’s possession, or custody, or control or power or care, in any cause or matter pending or to be inquired into by the Court.

(6) The Court shall ensure that while conducting the trial of a matter there is no communication with any witness(es) who is/are within the court hall or its precincts awaiting to be called as witness(es).
Provided that this provision shall not extend to the parties themselves or to their respective legal advisers although intended to be called as a witness(es).
Provided further that a party that intends to give evidence or such party’s Counsel who is intending to be called as a witness shall not be asked to leave the Court hall while the trial is on.

(1) The Registrar shall take charge of every document or object put in as an exhibit during the trial of an action and shall mark every exhibit with a letter or letters indicating the party by whom the exhibit is tendered (or where more convenient the witness by whom the exhibit is proved) and with a number, so that all the exhibits put in by a party (or proved by a witness) are numbered in one consecutive series.

(2) The Registrar shall cause a list of all the exhibits in the action to be made.

(3) The list of exhibits when completed shall form part of the record in the action.

(4) For the purpose of this rule a bundle of documents may be treated and counted as one exhibit.

(5) In this Rule, a witness by whom an exhibit is proved includes a witness in the course of whose evidence the exhibit may be put.

(1) When the party beginning has concluded evidence, the Court shall ask the other party if the party intends to call evidence. If the other party does not intend to call evidence, the party beginning shall within twenty-one (21) days after close of evidence file a Written Address. Upon being served with the Written Address, the other party shall within twenty-one (21) days file the other party’s Written Address.

(2) Where the other party calls evidence that party shall within twenty-one (21) days after the close of evidence file a Written Address.

(3) Upon being served with other party’s written address the party beginning shall within twenty-one (21) days file a Written Address.

(4) The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within seven (7) days after service of the other party’s address.

(5) The Written Address by either party shall be accompanied by an electronic (soft) copy in an electronic storage device such as compact disc, flash drives, or by any other electronic storage device or means.

(1) Whenever a case is concluded and judgment delivered and any of the parties who wishes to go on appeal requires the exhibits used in the trial of the case for his appeal, such party shall by motion on notice apply to the Court for the exhibit to be released within thirty (30) working days from the date of delivery the judgment.

(2) An exhibit shall not be released after the trial to the party who puts in the exhibit unless the period during which Notice of Appeal may be given has elapsed.

(3) Where the Presiding Judge in the case (or in the absence of the Presiding Judge), another Judge on being satisfied that the period of the Notice of appeal has elapsed may grant leave to release such exhibit;
Provided that:
(a) the exhibit will be kept, duly marked and labeled and will be produced, if required, at the hearing of an appeal (if any such appeal is lodged), or
(b) the release of the exhibit will not in any way prejudice any other party.

(4) After a Notice of Appeal has been filed, an exhibit produced at the trial shall not be released by the Court unless leave to release such exhibit is granted by the Court of Appeal.

(1) Any party may apply for and obtain an office copy of the list of exhibits or of the exhibits on payment of the prescribed fee.

(2) Where there is an appeal, an office copy of the list of exhibits shall be included amongst the documents supplied for the purpose of the appeal.

(1) The Court may, suo motu or on application strike out any proceedings for lack of diligent prosecution.

(2) Where a matter is struck out for lack of diligent prosecution, either of the parties may with good cause shown apply to re-list the matter on the Cause List.
Provided that the party applying for re-listing shall comply with the provisions of rule 6 (3) and (4) of this Order.

(3) The Court on being satisfied with the cause shown may grant the application to re-list the matter.

(1) The Court may, either of its own motion or on application by any of the parties to the proceedings, review any order made by it and may, on such a review, revoke or vary that order on the grounds that:
(a) the order was wrongly made as a result of an error on the part of the court staff;
(b) a party did not receive proper notice of the proceedings leading to the order;
(c) the order was made in the absence of a party entitled to be heard;
(d) new evidence has become available since the making of the order; or
(e) the interest of justice requires such review.

(2) An application under sub-rule (1) of this rule shall be made within 14 days of the date of the order.

A clerical mistake or error in any order arising from an accidental slip or omission may at any time be corrected by or on the authority of the Court.

(1) When a Judge is transferred from one Division to another and the Judge has a part-heard matter in the former Division, any of the parties in the case may apply to the President of the Court for a fiat to enable the Judge continue to hear the case to conclusion in either the former or new Division.

(2) Upon an application by any of the parties, the President of the Court may having regard to the exigency of court work grant a fiat to a Judge to hear a case at his former or new Division as the justice of the case may require.

(3) The party applying for fiat shall state the reasons for the fiat and shall forward an advance copy of the party’s application for fiat to counsel to the other party.

(4) The application for fiat shall be served on counsel to the other party in the matter.

(5) The other party or counsel to that party shall communicate his acceptance or objection in writing; where the other party raises an objection, such party or counsel to that party shall be required to state the grounds of the objection.

(6) The President of the Court may after considering the application and the response of the other party grant or refuse the application in the interest of justice.

(7) In granting the application for fiat, the President of the Court may issue the fiat directing the Judge to continue with the hearing of the case as may be desirable for a specified period.

(8) Where a Judge is granted the fiat to hear a matter in line with subrule (7) of this rule and the Judge is unable to conclude the hearing and determination of the matter within the period given, the Judge shall make a request to the President of the Court for an extension of the fiat.

(9) The President of the Court may extend the fiat for continuation of hearing and determination of the matter.

(10) The decision of the President of the Court to grant or refuse to grant or extend the period of a fiat, shall be final.

(11) Where the President of the Court refuses to extend the life span of a fiat, the Judge handling the matter shall remit the file to the President of the Court for re-assignment to another Judge.

(1) Where a matter arising from the workplace is pending before the Court, an application may be made to the Court by any of the parties for the Court to move to the workplace to inspect any part of or the entire workplace with a view to establishing facts in issue or facts that are relevant to the issue.
Provided that the Court may suo motu order that an inspection be made of a workplace in order to ascertain a fact in issue and do justice to same accordingly.

(2) Where the Court grants an application to visit a workplace as required by this rule, a notice to that effect shall be issued and served on the Managing Director/Chief Executive Officer or a Director or a Manager or any other Principal Officer of the workplace three (3) working days before the day fixed for the visit.

(3) Where an application is made under this rule, it shall be lawful for the Judge and the officers of the court to visit and inspect the workplace and the proceedings of the Court shall continue at that place to the extent only that evidence, if any, of what transpired at the workplace shall be given afterwards in the Court.

(4) Examination-in-chief and cross-examination as well as re-examination of a witness or witnesses may take place during the visit to the workplace pursuant to and in compliance with the provisions of section 12(2) of the Act.

(5) The Court may take evidence from either party to the case or from their witnesses or any other person during the visit to the workplace.

(6) A witness, who has started giving evidence in Court, may continue with the evidence at the workplace visit upon being reminded of the oath already sworn by such a witness.

(7) The Court may in the interest of justice order or direct any person during the visit to the workplace to testify and the parties and their counsel shall have the right to cross-examine such person.

(8) The evidence taken by the Court during the workplace visit shall form part of the record of proceedings of the Court.

If at the end of the proceedings, a matter is adjourned for Judgment or Ruling, the Registrar of the Court shall within three (3) working days thereafter, send the file to the Judge with a minute reminding the Judge of the pendency of the Judgment or Ruling.

The Court may, where it deems it fit and expedient in the interest of justice grant leave to either Claimant or Defendant after the case has been closed and Judgment reserved to file an application to re-open a case, for the purpose of recalling a witness.
Provided that such an application shall be for the purpose of clarifying a point in issue already in evidence, and shall be made by motion on notice to the other party, and filed within 7 days of the adoption of final addresses.

The Court may suo motu on or before the date fixed for Judgment order or direct either party to the case to address it on any issue requiring further clarification for the fair trial of the case.

Upon being satisfied with the grounds on which the application is made, and where the Court deems it fit in the interest of justice and fair trial to do so, the Court shall grant leave to the party to reopen the case for purposes of clarifying the point of law and/or presenting the additional evidence as contained in the application to the Court.
Provided that the respondent party shall have the right to reply within seven (7) days as the case may be.

(1) Where in a matter pending before the Court a party or counsel to a party files an application which is found by the Court to be frivolous, vexatious or an abuse of Court process, the Court after striking out or dismissing the application may order that punitive cost be paid either by:
(a) the party; or
(b) counsel who filed the application.

(2) Where the Court has ordered that a punitive cost be paid in accordance with sub-rule (1) of this rule, the Court may further order that the cost be paid before the next adjourned date.

(1) In any proceeding before the Court, parties may by consent at the close of pleadings agree to a trial on records where they rely only on the documents and exhibits frontloaded and thereby dispense with the need for oral testimony and/or cross-examination.

(2) Where parties agree to a trial on records, Written Addresses shall be filed starting with the Claimant on the basis of the document on record.

(3) The Written Address which shall be in the format provided in rule 2 of Order 45 of these Rules shall be served first on the defendant in compliance with the provisions of rule 20 of this Order.

(1) In a matter or proceeding before the Court, a party or a witness may either before the commencement or in the course of the proceeding formally or orally apply for an interpreter in the language in which such a party is more comfortable to communicate.

(2)(a) The Court shall keep a Register of Interpreters.
(b) The Court may invite an Interpreter from the Register of Interpreters kept by the Court.

(3) The Court shall bear the cost of payment for the services of the Interpreter on pre-agreed terms.

(1) Where an action relating to or connected with contract of employment or contract of services is pending before the Court and in the contract of employment or contract of services the mode of settlement of dispute or an internal dispute resolution mechanism is stated, the Court may order the parties in the matter before it to exploit the stated mode of settlement or the internal dispute resolution mechanism for the settlement of the dispute before proceeding with the matter.

(2) Where an action relating to or connected with a contract of employment or contract of services is pending before the Court, and the Court has ordered that parties in the matter exploit the use of the mode of settlement of dispute stated in the terms of the contract of employment or contract of services, any of the parties in the matter may apply to the Court for an order of the Court directing the other party(ies) in the matter to participate in the internal dispute resolution process.

(3) Where the parties in the matter stated in sub-rule (1) of this rule are able to resolve the matter using the mode of settlement or the internal dispute resolution mechanism stated in the terms of the contract of employment, the terms of settlement entered into by the parties may be filed with the Court to be adopted as a binding judgment of the Court.

(4) Where the parties in the matter stated in sub-rule (1) of this rule are unable to settle the dispute using the mode of settlement or the internal dispute resolution mechanism as stated in the terms of contract of employment or contract of services, the parties shall report to the Court for the Court to proceed with the trial of the matter.

(5) Where a matter relating to a contract of employment or contract of services is before the Court and the Court has ordered that parties exploit the use of the mode of settlement or internal dispute resolution mechanism as stated in sub-rule 1 of this rule to resolve the matter before proceeding to trial, the Court may order that the parties in the matter maintain the status quo ante until the report of the outcome of the internal dispute resolution mechanism is submitted to the Court.