Order 40 — Habeas Corpus, Committal for Contempt

An application for an Order of Habeas Corpus Ad Subjiciendum shall be made to the Court, except that the application may be made to a Judge sitting otherwise than in Court in the following circumstances:
(a) during Legal Vacation or at any time when no Judge is sitting in Court or when the Court is not sitting; and
(b) where the application is made on behalf of a child.

(1) The application may be made by Motion ex-parte and shall be accompanied by:
(a) an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint;
(b) a Written Address.

(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 himself.

(1) A Judge to whom the application is made may make the Order forthwith for the production of the Applicant.

(2) Where the application is made to a Judge sitting otherwise than in Court, he may direct the Order to issue or that an application thereof be made by Motion on Notice to the Judge or to a Judge.

(3) A Judge to whom the application is made may adjourn it so that notice thereof may be given to the person or authority in whose custody the Applicant is.

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

(1) The Motion on Notice aforesaid 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 two clear days between the service of the Notice and the date named for the hearing of the application.

Every party to the application shall serve on the other party or parties copies of the Motion, Affidavits and Written Addresses which he proposes to use at the hearing of the application.

(1) The Order or Motion may be served personally or by courier on the person or authority in whose custody the Applicant is confined or restrained or on any other public official, and copies of the Order or 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 committal of the party disobeying will be taken.

Upon service of the Order or Motion on the person or authority in whose custody the Applicant is, he shall within two 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 person or authority in whose custody the Applicant is.

(1) Where the Applicant is brought up in accordance with the Order, his Legal Practitioner shall be heard first, then the Legal Practitioner for the person or authority in whose custody the Applicant is and then the Legal Practitioner for the Applicant in reply.

(2) Where the Applicant is not brought in accordance with the Order, a Judge may upon the application of his Legal Practitioner, Order that he be discharged or make any other Order.

(1) The power of the Court to punish for contempt of Court may be exercised by an Order of Committal.

(2) An Order of Committal may be made by the Court where contempt of Court:
(a) is committed in connection with:
(i) any proceedings before the Court;
(ii) criminal proceedings;
(iii) proceedings in an inferior Court.
(b) is committed in the face of the Court, or consists of disobedience to an Order of the Court, or a breach of an undertaking to the Court; or
(c) is committed otherwise than in connection with any proceedings.

(1) An application for an Order of Committal shall be made to the Court by Motion on Notice supported by an affidavit stating the grounds for the application.

(2) The Motion on Notice, affidavit and grounds shall be served personally on the person sought to be committed: Provided that the Court may dispense with personal service where the justice of the case so demands.

(3) No application for an Order of Committal under this Rule shall be made unless Notice of Consequences of Disobedience to Court Order enforceable by committal is served on the person sought to be committed. Such notice shall be endorsed on the Order sought to be enforced as follows:

Notice of Consequence of Disobedience to Court Order

To ………………………………. of ………………………………………..

TAKE NOTICE that unless you obey the direction(s) contained in this Order, you will be guilty of contempt of Court and will be liable to be committed to a Correctional Centre.

Dated this …………………………. day of ……………………. 20……………..

……………………………..
Registrar

(1) Upon service of the application for committal in a case to which Rule 9 of this Order applies, the Respondent shall before the return date stated in the application, file a Statement stating the reasons why an Order for committal should not be issued.

(2) The Statement shall be verified by an affidavit deposed to by the Respondent.

Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an Order of committal of its own motion against any person guilty of contempt of Court.

(1) Subject to sub-rule 2 of this Rule, the Court hearing an application for an Order may sit otherwise than in Court in the following cases, that is to say:
(a) where the application arises from proceedings:
(i) involving a child or infant;
(ii) relating to a person with legal disability;
(iii) in which a secret process, discovery or invention is in issue;
(b) where it appears to the Court that in the interest of the administration of justice or for reasons of national security the application should be heard otherwise than in Court.

(2) Except as aforesaid, the application shall be heard in open Court.

(3) If the Court hearing the application otherwise than in Court by virtue of sub-rule (1) of this Rule decides to make an Order of committal against the person sought to be committed, it shall in open Court state:
(a) the name of the person;
(b) in general terms, the nature of the contempt of Court in respect of which the Order of committal is being made; and
(c) if he is being committed for a fixed period, the length of that period.

(4) Except with the leave of the Court, no grounds shall be relied upon at the hearing except the ground set out in the Statement under Rule 10 of this Order.

(5) If on the hearing of the application, the person sought to be committed expresses to give oral evidence on his own behalf, he shall be entitled to do so.

The foregoing provisions are without prejudice to the powers of the Court to commit for contempt in the face of the Court.

The Court by whom an Order of Committal is made may, by Order, direct that the execution of the Order of Committal shall be suspended for such period or on such terms or conditions as it may specify.

(1) The Court may, on the application of any person committed to Correctional Centre for any contempt of Court, discharge him.

(2) Where a person has been committed for failing to comply with a Judgment or Order requiring him to deliver anything to some other person or to deposit anything in Court or elsewhere and a writ of sequestration has been issued to enforce that Judgment or Order, then, if the thing is in the custody or power of the person committed, the Sheriff may take possession of it as if it were the property of that person and, without prejudice to the generality of the sub-rule (1), the Court may discharge the person committed and may give such directions for dealing with the thing taken by the Sheriff as it thinks fit.

Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an Order requiring a person guilty of contempt of Court or a person punishable by virtue of any enactment in like manner as if he had been guilty of contempt of Court to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with necessary modifications, shall apply in relation to an application for such an Order as they apply in relation to an application for an Order of Committal.

Every Order of Committal issued in a case to which this Order applies shall be made returnable before the Court. If a return of non est inventus is made, one or more Writs may be issued on the return of the previous Writ.