Order 42 — Habeas Corpus

An application for an Order of Habeas Corpus Ad Subjiciendum shall be made to the Court, except that:

(a) in vacation or at any time when no Judge is sitting in Court, it may be made to a Judge sitting otherwise than in Court;

(1) The application may be made ex-parte and shall be accompanied by an affidavit by the person restrained showing that it is made at the person’s instance and setting out the nature of the restraint.

(2) Where the person restrained is unable, owing to the restraint, to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person, which shall state that the person restrained is unable to make the affidavit.

(1) A Judge to whom the application is made may make the order forthwith.

(2) Where the application is made to a Judge sitting otherwise than in Court, the Judge may direct the Order to issue or that an application therefor be made by summons or notice of motion.

(3) A Judge to whom the application is made may adjourn it so that notice thereof may be given to the detainer or jailer.

(4) Where the person detained is produced before a Judge, the Judge may discharge the person immediately with or without conditions.

(1) The summons or notice of motion mentioned in Rule 3(2) of this Order shall be served on the person against whom the order is sought and on such other persons as the Judge may direct.

(2) Unless the Judge otherwise directs, there shall be at least 2 clear days between the service of the summons or notice of motion and the date named for the hearing of the application.

Every party to the application shall supply to the other party or parties copies of the affidavits which the party proposes to use at the hearing of the application.

(1) The order as well as the summons or notice of motion may be served personally or by courier on a detainer or jailer where the person is confined or restrained, or on any other public official and copies of the order as well as the summons or notice of motion may be served in like manner on each person connected with or having authority over the place of confinement or restraint.

(2) The order shall contain the date on which the person restrained is to be brought before a Judge and that, in default of obedience, proceedings for attachment of the party disobeying will be taken.

Upon service of the order and the summons or notice of motion in accordance with Rule 6(1) of this Order, the party served shall, within 2 days file a statement stating the reasons for the detention, the period of the detention and any other matter that may be directed by the Judge. The statement shall be verified by an affidavit deposed to by the detainer or jailer.

(1) Where a person in custody is brought up in accordance with the order, his Legal Practitioner shall be heard first, then the Legal Practitioner for the State, detainer or jailer and then his Legal Practitioner’s reply, if any.

(2) Where a person in custody is not brought in accordance with the order, a Judge may, upon an application by his Legal Practitioner order that he be discharged or make any other order.