Order 13 — PARTIES GENERALLY

All persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such claimant(s) as may be found to be entitled to relief and for such relief as he or they may be entitled to, without any amendment.

Where an action has been commenced in the name of the wrong person as claimant or where it is doubtful whether it has been commenced in the name of the right claimant, a Judge may order the correction of any such name or the substitution or addition of any other person as Claimant on such terms as may be just.

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

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. 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 application order a substitution or addition of any person as defendant or correction of any such name on such term as may be just.

(1) It shall not be necessary that every defendant shall be interested as to 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 proceedings in which he may have no interest.

A claimant may at his option join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

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

(1) Persons under legal disability may sue or defend by their guardians appointed for that purpose.

(2) (i) Where any person is sued as a guardian of a person under legal disability he shall if he objects to being so sued, be at liberty to apply to Court within 14 days of the service of the Originating Process on him for his name to be struck out from the suit. The application shall be on notice to the Claimant.

(ii) An application under the preceding rule shall show good cause why the person so sued, is not the appropriate person to stand as guardian to the person under legal disability.

(iii) Where the Court strikes out the name of the person applying to be struck out under sub-rule (i) above, the court may appoint any person appearing to it to be the appropriate person, to stand as guardian to the person under legal disability. The person so appointed by the Court shall be served with the requisite processes in the suit.

Trustees, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such person, but a Judge may, at any stage of the proceedings order any of such persons to be made parties in addition to or in lieu of the previously existing parties. This rule shall apply to trustees, executors and administrators in proceedings to enforce a security by foreclosure or otherwise.

Where there are numerous persons 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 all persons so interested.

(1) Where in any proceedings concerning:

(a) the administration of an estate; or

(b) property subject to a trust; or

(c) land held under customary law as family or community property; or

(d) the construction of any written instrument, including a statute, a Judge is satisfied that:

(i) the person, the class or some members of a class interested in the subject matter of the proceeding cannot be ascertained or cannot readily be ascertained, the Judge may make an order appointing one or more persons to represent the persons, the class or members of the class in the proceedings;

(ii) the person, the class or some members of the class interested, if ascertained cannot be found, the Judge may make an order appointing one or more persons to represent the persons, the class or members of the class in the proceedings;

(iii) though the person, the class and members thereof can be ascertained and found, it is expedient for the purpose of efficient procedure that one or more persons be appointed to represent that person or class or member of the class, the Judge may make an order appointing one or more persons to represent the persons, the class or members of the class in the proceedings.

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

(2) Notice of appointment made by a Judge under this rule and all processes filed in court, shall be served on a person(s) so appointed.

(3) Provided that where the subject matter of the suit is land, the notice shall also include an advertisement in a national newspaper widely circulated within the jurisdiction of the Court, as well as a notice on signboards, posted on the land. When these are done they shall constitute sufficient notice to the class or persons so represented.

(4) If in any proceedings mentioned in sub-rule 1 of this Rule, several persons having the same interest in relation to the matter to be determined attend the hearing by separate Legal Practitioners, then, unless the judge considers that the circumstances justify separate representation, not more than one set of costs of the hearing shall be allowed to these persons, and the judgment or order shall be framed accordingly.

(5) In this Rule, the word “class” includes the persons recognized by Customary Law as members of a family or as members of a land owing community.

Where in any proceedings mentioned in sub-rule (1) of Rule 12 of this Order, a compromise is proposed and some of the absent persons who are interested in or may be affected by the compromise are not parties to the proceedings (including unascertained persons) but:

(i) there are some other persons having the same interest before the court who assent to the compromise or on whose behalf the court sanctions the compromise; or

(ii) the absent persons are represented by a person under Rule 12 of this Order who so assents;

a Judge if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that such compromise shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.

(1) If in any proceedings it appears to a judge that any deceased person who was interested in the proceedings has no legal representative, the Judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent the 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, and the order so made 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.

(2) Where a sole or sole surviving claimant or defendant in a proceedings 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’s Legal Practitioner or the opposing party order any person to take the place of the said deceased and proceed with the suit.

(3) In default of such application or where the person substituted fails to proceed, the court may proceed with the case and enter judgment as the justice of the case demands or as the case may be, for the person against whom the proceedings might have been continued.

(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.

(2) A Judge may at any stage of the proceedings, 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 names of any parties improperly joined be struck out.

(3) A Judge may order that the names 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 questions involved in the proceedings be added.

(4) Every person whose name is added as defendant shall be served with the originating processes 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 processes or notice.

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

(2) Where the application is to add a claimant, the application shall be accompanied by the statement of claim, the depositions of all the witnesses and all the exhibits intended to be used:

Provided that where the application is to substitute a deceased party with another person the application may not be accompanied by the documents specified above.

(1) Where a defendant is added or substituted the originating process shall be amended accordingly and the claimant 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.

(2) The newly Joined Defendant shall within 30 days file his Statement of Defence, copies of documentary exhibits intended to be tendered at the trial, list of non documentary exhibits, list of his witnesses and their statements on oath.

(1) Where it appears to a Judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the Judge may upon an ex-parte application allow that person to be joined as a Third Party by any of the defendants. The application shall state the grounds for the applicant’s belief that such Third Party may bear eventual liability.

(2) The order and existing processes shall be served on the Third Party.

Where a party is joined to any proceeding as a Third Party he shall enter appearance within 30 days of service of the order of joinder on him.

If a Third Party duly served with the order and all existing processes does not enter an appearance or makes default in filing any pleading, he shall be deemed to admit the claim against him and shall be bound by any judgment given in the action, whether by consent or otherwise.

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 firms, if any, of which they were partners when the cause of action arose and any party to an action may in such case, apply to the judge for a statement of the names and addresses 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.

A party joined as a Third Party in any proceedings may join any other party in the same manner as he was joined and the expression “Third Party” shall apply to and include every person so joined.

23. (1) When an originating process is issued by partners in the name of their firm, the claimants or their Legal Practitioners shall, on demand in writing by or on behalf of any defendant declare in writing the names and residential addresses of all the persons constituting the firm on whose behalf the action is brought.

(2) Where the claimants 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 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 claimants 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 no appearance by him shall be necessary unless he is a member of the firm sued.

Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in his own name with a statement that he carries on business in the name and style under which he does business, as it were a Firm name and so far as the nature of the case will permit Rules relating to proceedings against Firms shall apply.

No proceedings shall abate by reason of death or bankruptcy of any of the parties, if the cause of action survives and shall not become defective by the assignment, creation or devolution of any estate or title pendente lite, and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party after defence has closed its case.

(1) Where by reason of death or bankruptcy, or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the proceeding, it becomes necessary or desirable that any person not already a party should be made a party or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and such new party or parties may be obtained ex parte upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence.

(2) An order obtained under this rule shall be served upon the continuing party or parties, or their Legal Practitioner(s) and also upon such new party unless the person making the application is the new party.

(3) Every person served who is not already a party to the proceedings shall where applicable enter an appearance thereto within the same time and in the same manner as if he had been served with the originating process and all existing processes.

(4) Any party served under this rule who was not already a party to the proceedings shall file his pleadings and other documents as if he had been an original party to the proceedings.

In case of an assignment, creation or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved.

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 27, 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 27, such a 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 such period of 14 days has expired, such 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 any proceedings, such act may be done either by the party in person, or by his agent duly appointed in writing or by his Legal Practitioner,

Provided that a Legal Practitioner shall not give evidence in place of his client.