Order 26 — Interlocutory Applications

Subject to these Rules, an interlocutory application may be made at any stage of an action.

(1) Where by these Rules an application is authorized to be made to the Court or to a Judge in Chambers, the application shall be made by motion which may set out the grounds on which the party intends to rely.

(2) The Registrar shall make up, for each day on which there is a motion to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving and the terms of the order sought by him.

The party moving a motion shall support the motion with an affidavit setting out the facts on which the party intends to rely and the motion shall be filed along with a written address.

A party on whom a motion has been served in accordance with the rules of this order and who intends to reply, may do so by filing his counter affidavit along with a written address not later than 7 days from the date of service on him.

(1) A motion shall not be made without previous notice to any party affected by it.

(2) Notwithstanding the provisions of sub-rule (1) of this rule, the Court may, if satisfied that to delay the motion till after notice is given to any party affected would entail irreparable damage or serious mischief to the party.

(1) A motion ex parte shall be supported by an affidavit which in addition to the requirements in rule 3 of this Order, shall state sufficient facts why a delay in granting the Order sought may lead to irreparable damage, loss, injury or serious mischief to the party moving.

(2) In an application for Anton Piller Order, the applicant shall in addition show that:

(a) he has a strong prima facie case;

(b) he may suffer serious damages; and

(c) the defendant has an incriminating document and there is a real possibility that the defendant may destroy the material before the discovery process.

Any party moving the Court ex parte may support his motion by an argument addressed to the Court on the facts entered into evidence, and any other party to the suit or proceeding, although present, other than the party moving, shall not be entitled to be heard.

Where a motion is made ex parte, the Court may:

(a) make or refuse to make the order sought;

(b) direct the motion to be made on notice to the party to be affected; or

(c) grant an order to show cause why the order sought should not be made.

(1) Where an order is made on a motion ex parte, any person affected by it may, within 7 days after service of it or within such further time as the Court may allow, apply to the Court by motion to vary or discharge it.

(2) The Court may, on notice to the party obtaining the order:

(a) refuse to vary or discharge it; or

(b) vary or discharge it with or without imposing any term as to cost or security, or otherwise, as seems just.

(1) An Order made on motion ex parte may not, unless the Court otherwise directs in the interest of justice, last for:

(a) more than 14 days after the party or person affected by the Order has applied for the Order to be varied or discharged; or

(b) another 14 days after application to vary or discharge it has been argued.

(2) An application to vary or discharge an order made ex parte may be made by the party or person affected within 14 days after service and shall not last for more than 14 days after the application has been argued unless the Court otherwise directs.

(3) Where a motion to vary or discharge an ex parte order is not taken within 14 days of its being filed, the ex parte order shall lapse unless the court otherwise directs in the interest of justice.

An order to show cause shall specify a day when cause is to be shown, to be called the ‘return day’ to the order, which shall ordinarily be not less than (3) days after service.

A person served with an order to show cause may, before the return day, produce evidence to contradict the evidence used in obtaining the order, or set forth other facts on which he relies to satisfy the Court to discharge or vary the order.

Where the person served does not appear on the return day and it appears to the Court that the service on any proper party has not been duly effected, the Court may:

(a) enlarge the time; and

(b) direct further service or make such further order as seems just.

Where the person served appears or the Court is satisfied that service has been duly effected, the Court may proceed with the matter.

The Court may either discharge the order or make the same absolute, adjourn the consideration, or permit further evidence to be produced in support of or against the order, and may modify the terms of the order so as to meet the merits of the case.

Unless the Court gives special leave to the contrary, there shall be at least 2 days between the service of a motion and the day named in the notice for the hearing of the motion.

Notice of motion may be served by any person, notwithstanding that such person is not an officer of the Court.

Where a party acts by a solicitor, service of notice of motion on the solicitor shall be deemed good service on that party.

There shall be served along with the notice of motion, a copy of any affidavit with a written address on which the party moving intends to rely at the hearing of the motion.

Where at the hearing of any motion, the Court is of the opinion that any person, to whom notice has not been given, ought to have had such notice, the Court may adjourn the hearing and direct that notice be served on the affected person upon such terms as the court may deem fit.

Oral evidence shall not be heard in support of any motion unless by leave of the Court.

The Court may, in addition to or in lieu of an affidavit, if it thinks it expedient, examine any witness viva voce, or receive any document in evidence, and may summon any person to attend to produce any document before it, or to be examined or cross-examined before it in like manner as at the hearing of a suit.

Such notice as the Court in each case according to the circumstances, considers reasonable, shall be given to the person summoned, and to such person (parties to the cause or matter or otherwise interested) as the Court considers is entitled to inspect the document to be produced, or to examine the person summoned, or to be present at his examination, as the case may be.

Upon the hearing of any motion the Court may, on such terms as to cost and adjournment as it may deem fit, allow any additional affidavit to be used, after the affidavit has been duly filed and served on the opposing party.