Order 9 — Parties

Any person may be joined in one action as plaintiff in whom any right to relief is alleged to exist whether jointly or severally and judgement may be given for such plaintiff as may be found to be entitled to relief and for such relief as the plaintiff may be entitled to without any amendment.

A Judge may order the substitution or addition of any other party as plaintiff on such terms as may be just where:

(a) an action has been commenced in the name of the wrong party as plaintiff; or

(b) it is doubtful whether it has been commenced in the name of the right plaintiff.

Where in commencing an action any person has been wrongly or improperly included as a plaintiff and a defendant has set up a counter-claim or set-off, such defendant may establish his set-off or counter claim as against the parties other than the plaintiff so included, notwithstanding the inclusion of such plaintiff or any proceeding based on it.

(1) Where in any class action concerning trademarks, copyright or patents and designs, a Judge is satisfied that:

(a) a person, the class, or some members of the class interested cannot be ascertained or cannot rightly be ascertained;

(b) a person, a class, or some members of the class interested cannot be ascertained or cannot rightly be ascertained;

(c) a person, a class or some members of the class interested if ascertained, cannot be found; or

(d) a person, a class and the members cannot be ascertained and be found,

it is expedient for the purpose of efficient procedure that one or more persons be appointed by the Judge to represent that person or class or members of the class.

(2) The decision of the Judge in the proceedings shall be binding on the person or class of persons so represented.

(3) In any class proceedings a person, class or member of the class may apply to the Court or a Judge in chambers to opt in or opt out of the class.

(4) A Court or Judge in chambers may on good and justifiable cause permit any person, class or members of the class represented in a class action to opt in or opt out.

Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative and Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

Where an action has been instituted against a wrong defendant or where the name of a defendant has been incorrectly stated, a Judge may upon an application order the:

(a) substitution or addition of any person as defendant; or

(b) correction of such name on any term as may be just.

(1) It shall not be necessary that every defendant shall be interested in all the reliefs prayed for, or as to every cause of action included in any proceeding against him.

(2) A Judge upon considering the defence filed by any defendant may on application by that defendant make such order as may appear just to prevent him from being embarrassed or put to expense by being required to attend any proceeding in which he may have no interest.

Any plaintiff may, at his option, join as parties to the same action any person severally, or jointly and severally, liable on any contract, including the party to bills of exchange and promissory notes.

Where a plaintiff is in doubt as to the party from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, with the intent that the question as to which, if any, of the defendant is liable and to what extent, may be determined as between all parties.

A person under legal disability may sue or defend by the guardian appointed for that purpose.

Before the name of a person is used in any action as next friend of an infant or other party, or as relator, that person shall sign a written authority for that purpose, and the authority shall be filed in the registry.

(1) Where there is more than one person having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of the persons so interested.

(2) Where there is more than one person having the same interest in one suit and they seek to defend the action, a Judge may allow one or more of such persons to defend the action on behalf or for the benefit of the persons so interested.

(1) Where in any proceeding it appears to a Judge that any deceased person who was interested in the proceedings has no legal personal representative, the Judge may:

(a) proceed in the absence of any person representing the estate of the deceased person; or

(b) appoint a person to represent the deceased person’s estate for the purpose of the proceeding on such notice to such persons, if any, as the Judge shall deem fit either specifically or generally by public advertisement.

(2) The order made pursuant to the provisions of sub-rule (1) of this rule and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceedings.

(3) Where a sole or sole surviving plaintiff or defendant in a proceeding dies and the cause of action survives but the person entitled to proceed fails to proceed, a Judge may on the application of either the deceased person’s legal practitioner or the opposing party order any person to take the place of the deceased and proceed with the suit.

(4) In default of such application or where the person substituted fails to proceed, Judgement may be entered for the defendant or as the case may be for the person against whom the proceedings might have been constituted.

(1) A proceeding shall not be defeated by reason of misjoinder or non-joinder of a party, and a Judge may deal with the matter in controversy so far as regards the right and interest of the parties actually before him.

(2) A Judge may:

(a) at any stage of the proceeding either upon or without the application of either party and on such terms as may appear to the Judge to be just, order that the name of any party improperly joined be struck out; and

(b) order that the name of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the question involved in the proceedings be added.

(3) A person under legal disability shall not be added as a plaintiff suing without a guardian and a person shall not be added as the guardian of a plaintiff under legal disability without his own consent in writing.

(4) A party whose name is added as defendant shall be served with the originating process or notice in the manner prescribed in these Rules or in such manner as may be prescribed by a Judge and the proceedings against such person shall be deemed to have begun on the service of such originating process or notice.

(1) An application to add, strike out, substitute or vary the name of a plaintiff or defendant may be made to a Judge by motion.

(2) Where the application is for the purpose of adding a plaintiff or a defendant, the application shall be accompanied by the statement of claim or defence as the case may be, the exhibit intended to be used and the deposition of all the witness.

(3) Where the application is to substitute a deceased party with another person the application may not be accompanied by the documents specified in sub-rule (2) of this rule.

Where a defendant is added or substituted, the originating process shall be amended accordingly and the plaintiff shall unless otherwise ordered by a Judge file an amended originating process and cause the new defendant to be served in the same manner as the original defendant.

(1) The Court or a Judge in chambers may give leave to the defendant to issue and serve a third party notice where in an action a defendant claims as against any person not already a party to the action, in this section called “the third party”, that:

(a) he is entitled to contribution or indemnity;

(b) he is entitled to any relief or remedy relating to, or connected with the original subject matter of the action and substantially the same as one relief or remedy claimed by the plaintiff; or

(c) any question or issue relating to or connected with the said subject matter is substantially the same as a question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but also as between the plaintiff and the defendant and the third party or between any or either of them.

(2) The Court or a Judge in chambers may give leave to issue and serve a third party notice on ex parte application supported by affidavit and a written address or, where the Court or Judge in chambers directs a summons to the plaintiff to be issued, upon the hearing of the summons.

(1) The notice shall:

(a) state the nature and grounds of the claim, the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed;

(b) be in accordance with Form 12 or Form 13 in Appendix 6 to these Rules with such variations as circumstances may require; and

(c) be sealed and served on the third party in the same manner as a writ of summons is sealed and served.

(2) The notice shall, unless otherwise ordered by the Court or by a Judge in Chambers, be served within the time allowed for delivering the defence, or, where the notice is served by a defendant to a counter-claim, the reply and with it also shall be served a copy of the writ of summons or originating summons and of any pleadings filed in the action.

The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

(1) The third party may enter an appearance in the action within:

(a) 8 days of service; or

(b) such further time as may be directed by the Court or Judge in Chambers as specified in the notice.

(2) Where the third party is served outside the jurisdiction of the Court, the period for entering appearance shall be at least 30 days.

(3) Where the third party fails to appear within the time specified, he may apply to the Court or Judge in chambers for leave to appear, and the leave may be given upon such terms, if any, as the Court or Judge in Chambers thinks fit.

Where a third party duly served with a third party notice does not enter an appearance or defaults in filing any pleading which he has been ordered to file, he shall be deemed to admit:

(a) any claim stated in the third party notice and shall be bound by any Judgment given in the action, whether by consent or otherwise, and by any decision therein or any question specified in the action; and

(b) his liability in respect of a contribution or indemnity or other relief or remedy when contribution or indemnity or other relief for remedy is claimed against him in the notice.

(1) Where a third party defaults in entering an appearance or filing any pleading which he had been ordered to file and the defendant giving the notice suffers Judgment by default, the defendant shall be entitled at any time, after satisfaction of the Judgment against himself, or before the satisfaction by leave of the Court or a Judge in chambers to enter:

(a) Judgement against the third party to the extent of any contribution or indemnity claimed in the third party notice, or by leave of the Court or a Judge in chambers; or

(b) such Judgement in respect of any other relief or remedy claimed as the Court or a Judge in chambers shall direct.

(2) The Court or a Judge in chambers may set aside or vary the Judgement against the third party upon such terms as may seem just.

(1) Where the third party enters an appearance, the defendant giving notice may, after notice of the intended application has been served upon the plaintiff, the third party and any other defendant, apply to the Court or a Judge in Chambers for directions.

(2) Pursuant to sub-rule (1) of this rule, the Court or Judge in Chambers may:

(a) where the liability of the third party to the defendant giving the notice is established on the hearing of the application, order such Judgement as the nature of the case may require to be entered against the third party in favour of the defendant giving the notice;

(b) if satisfied that there is a question or issue properly to be tried as between the plaintiff and the defendant and the third party or between any or either of them as to the liability of the defendant to the plaintiff or as the liability of the third party to make any contribution or indemnity claimed, in whole or in part, or as to any other relief or remedy claimed on the notice by the defendant or that a question or issue stated in the notice shall be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third party or any or either of them, order that question or issue to be tried in such manner as the Court or Judge in chambers may direct; or

(c) dismiss the application.

(3) Any direction given pursuant to this rule may be:

(a) given either before or after any Judgement has been entered in favour of the plaintiff against the defendant in the action; and

(b) varied from time to time or rescinded.

(4) The Court or a Judge in chambers may, at any time, set aside the third party proceedings.

The Court or a Judge in Chambers upon the hearing of the application for directions may, where it appears desirable to do so, give the third party liberty to defend the action either alone or jointly with the original defendant upon such terms as may be just, or to appear at the trial and take such part as may be just and generally may order such proceedings to be taken, pleading or document to be filed, or amendment to be made, and give such directions as to the Court or Judge in chambers may appear proper for having the question and the rights and the liabilities of the parties most conveniently determined and enforced, and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or Judgement in the action.

(1) Where the action is tried, the Judge who tries the action may, at or after the trial, enter such Judgement as the nature of the case may require for or against the defendant giving the notice or against or for the third party, and may grant to the defendant or to the third party, any relief or remedy which might properly have been granted if the third party had been made a defendant to an action duly instituted against him by the defendant but execution shall not be issued without leave of the Court or of a Judge in chambers until after satisfaction by the defendant of the Judgement against him.

(2) Where the action is decided otherwise than by trial, the Court or a Judge in Chambers may:

(a) on application by motion or summons, make such order as the nature of the case may require; and

(b) where the plaintiff has recovered Judgement, cause such Judgement as may be just to be entered for or against the defendant giving notice against or for the third party.

(1) Any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firm, if any, of which they were partners when the cause of action arose.

(2) Pursuant to sub-rule (1) of this rule, any party to an action may in such case apply to the Judge for a statement of the name and address of the persons who were partners in the firm when the cause of action arose, to be furnished in such manner, and verified on oath or otherwise as the Judge may direct.

(1) Where an originating process is issued by partners in the name of their firm, the plaintiffs or their legal practitioners shall, on demand in writing by or on behalf of any defendant declare in writing the name and residential address of all the persons constituting the firm on whose behalf the action is brought.

(2) Where the plaintiff or their legal practitioners fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as a Judge may direct.

(3) Where the names of the partners are so declared, the suit shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as plaintiffs in the originating process; provided that the proceedings may continue in the name of the firm.

(1) 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 continue in the name of the firm.

(2) Where an originating process is served upon a person having the control or management of the partnership business, an appearance by him shall not be necessary unless he is a partner of the firm sued.

The provisions of rules 26 to 28 of this order shall apply to proceedings between a firm and one or more of its partners and between firms having one or more partners in common, provided such firm carry on business within the jurisdiction.

Any person carrying on business within the jurisdiction in the name or such other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, the rules relating to any proceeding against a firm shall apply.

(1) Where after the institution of a suit a 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 an order for curing the defect, or enabling or compelling proper parties to carry on the proceedings.

(2) A person served with an order made pursuant to sub-rule (1) of this rule may, within such time as the Court in the order directs, apply to the Court to discharge or vary the order.

Where any person who is under no legal disability or being under any legal disability but having a guardian in the proceedings, is served with an order under rule 31 of this order, such person may apply to a Judge to discharge or vary such order at any time within 14 days from the service of the order.

Where any person under any legal disability and not having a guardian in the proceedings is served with an order under rule 32 of this order, the person may apply to a Judge to discharge or vary such order at any time within 14 days from the appointment of a guardian for such party, and until the 14 day period has expired, the order shall have no force or effect as against the person under legal disability.

Where by these Rules any act may be done by any party in a proceeding, the act may be done either by the party in person, his legal practitioner, or his agent unless an agent is expressly barred under these Rules.

(1) A party to any cause or matter who sues or defends by a counsel, may change his legal practitioner without an order for that purpose, and until notice of the change is filed and served on every other party to the cause or matter and on the former legal practitioner, the former legal representative shall remain the legal practitioner of the party for the duration of the action.

(2) A copy of the notice referred to in sub-rule (1) of this rule accompanied by an affidavit stating that the notice has been duly filed in the registry shall also be filed.

(3) The party giving the notice referred to in sub-rule (1) of this rule may perform the duty prescribed by this order in person or by his new legal representative.

(1) Where a legal practitioner who has acted for a party in a cause or matter ceases to act and the party has not given notice of the change in accordance with rule 35 (1) of this order, the legal practitioner may apply to the Court for an order declaring that the legal representative has ceased to be the one acting for the party in the cause or matter and the Court may make an order accordingly.

(2) An order under sub-rule (1) of this rule shall not be made until the legal practitioner serves on every party to the cause or matter a copy of the notice otherwise he shall be considered the legal practitioner of the party for the remaining duration of the cause or matter.

(3) An application for an order under this rule shall be made by originating motion supported by an affidavit and a written address stating the grounds of the application.

(4) An order made under this rule shall not affect the right of the legal representative and the party for whom he acted as between them.

After an order is made under rules 35 or 36 of this order, the address of the party shall be his last known address or where the party is a body corporate, its registered or principal office for the purpose of the service on the party of any document not required to be served personally.