Order 33 — Proceeding at Trial

When a case on the Weekly Cause List has been called for hearing and neither party appears, the Judge shall, unless there is a good reason to the contrary, strike the case out.

When a case is called for hearing, if the Plaintiff appears and the Defendant does not appear, the Plaintiff may prove the claim, so far as the burden of proof lies upon the Plaintiff.

When a case is called for hearing, if the Defendant appears and the Plaintiff does not appear, the Defendant, if the Defendant has no counterclaim, shall be entitled to judgment dismissing the action, but if the Defendant has a counterclaim, then the Defendant may prove such counter-claim, so far as the burden of proof lies upon the Defendant.

(1) Where a case is struck out under Rule 1 of this Order, either party may apply that the case be relisted on the cause list on such terms as the Judge may deem fit.

(2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge, upon such terms as the Judge may deem fit.

(3) An application to re-list a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such other longer period as the Judge may allow.

The Judge may, if it appears to be expedient in the interest of justice, postpone or adjourn a trial for such time and upon such terms, if any, as the Judge shall deem fit.

Provided that a party shall not be entitled to more than three adjournments during the course of trial.

The Registrar or other proper officer present at any trial or hearing shall make a note of the times at which the trial or hearing commences and terminates respectively and the duration of such trial or hearing on each day it goes on for communication to the Taxing Officer, if required.

The order of proceeding at the trial of a cause shall be as prescribed in the following rules:

(i) The party on whom the burden of proof lies by the nature of the issues or questions between the parties shall begin.

(ii) Documentary evidence shall be put in and may be read or taken as read by consent.

(iii)(a) A party who desires to call any witness, not being a witness whose deposition accompanied the pleading, shall apply to the Judge for leave to call such witness.

(b) An application for leave in sub-rule iii (a) above shall be accompanied by the deposition of such witness.

When the party beginning has concluded evidence: the Judge shall ask the other party if the party intends to call evidence;

(i) if the other party does not intend to call evidence, the party beginning shall, within 14 days after close of evidence or such shorter period as may be fixed by the Court, file a written address;

(ii) upon being served with the written address, the other party shall, within 14 days or such shorter period as may be fixed by the Court, file a written address in response to that of the party beginning.

Where the other party calls evidence, that party shall, within 14 days or such shorter period as may be fixed by the Court after the close of evidence, file a written address.

Upon being served with the other party’s written address, the party beginning shall, within 14 days or such shorter period as may be fixed by the Court, file a written address.

The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within 5 days after service of the other party’s address.

(1) An exhibit shall not be released after the trial to the party who has put it in unless the period during which notice of appeal may be given has elapsed without such notice having been given, and then only if the trial Judge (or in the absence of the trial Judge, another Judge) grants leave to release such exhibit on being satisfied:

(a) that 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) that the release of the exhibit will not in any way prejudice any other party.

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

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

(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.

A Judge may, suo motu or on application, strike out any proceedings not being prosecuted diligently.