Order 43 — Interrogatories, Discovery and Inspection of Documents
Rule 1 Presumption of genuineness of document.
The Court shall presume the genuineness of every document purporting to be:
(a) the Official Gazette of the Federal Government of Nigeria or of a State;
(b) the Official Gazette of any other Country;
(c) a newspaper or journal;
(d) a copy of the journal containing the resolutions or Hansard (that is verbatim report) of the National Assembly or House of Assembly of a State, printed by the Government Printer.
Rule 2 Party to request in writing to make discovery of documents.
Where a party files a matter and serves the process on the other party, but discovers that the party needs to make discovery or inspection or disclosure of document(s) or a recording on an electronic device such as computer hard disk, external hard drive, flash drive or compact disc referred to as CD, tape, memory card, electronic camera and phone, etc, (all of which are in this Order referred to as an “electronic device”) which are in possession, custody, power or control of the other party, the first party may apply to the other party to make available and/or produce the Certified True Copy of the document(s) or electronic copies to the party for inspection or use at the trial.
Rule 3 When party may apply for order to produce document.
Where the party in possession, custody, power or control of the document or a recording on an electronic device referred to in rule 1 of this Order refuses or makes it impossible for the party seeking for discovery or production or inspection or otherwise to achieve those aims, the party seeking may apply by motion on notice for an Order of the Court compelling the other party to produce the document or the recording on an electronic device, etc, in the other party’s possession, custody, power or control.
Rule 4 Party requesting to forward advance copy to the other party.
The party seeking discovery of documents or a recording on an electronic device shall forward an advance copy of his or her application for an Order of the Court to the adverse party.
Rule 5 Prescribed time to answer request.
The party on whom such request is served shall answer on oath completely and truthfully within seven (7) days of the request or within such other time as the Judge may allow.
Rule 6 Copies of documents to accompany affidavit in answer to request for discovery.
Every affidavit in answer to a request for discovery of documents shall be accompanied by copies of documents referred to therein.
Rule 7 Affidavit to detail documents objected to and grounds.
The affidavit to be made by any person in answer to a request for discovery of document or a recording on an electronic device shall specify which, if any, of the listed document or electronic records the person objects to producing, stating the grounds of the objection, and it shall be in Form 1A with such modifications or variation as circumstances may require.
Rule 8 Court to decide on genuineness of request.
On the hearing of the application, the Court or Judge may either refuse the application or adjourn the hearing, if satisfied that the discovery is not necessary or make such order, either generally or limited to certain classes of documents, as may be thought fit, in the discretion of the Court.
Rule 9 Court to decide for fairness and to save cost.
Discovery shall not be ordered when and in so far as the Court is of the opinion that it is not necessary either for disposing fairly of the action or for saving costs.
Rule 10 Other party may file counter-affidavit.
Upon service and receipt of the Motion on Notice of the seeking party, the other party in possession, custody, power or control of the document or a recording on an electronic device may within seven (7) days, file a counteraffidavit with a written statement stating why the Order should not be made.
Rule 11 Court may make order upon hearing of motion and counter-affidavit.
Upon receipt of the application of the party seeking discovery and the counter-affidavit of the adverse party, the Court shall fix the date for the hearing of the motion and the counter affidavit, and after listening to the arguments of both parties, make such an Order as the justice of the case may require.
Rule 12 Failure, refusal or neglect to produce document.
Where the party in possession, custody, power and/or of the document or a recording on an electronic device refuses, fails or neglects to comply with the order of the Court, the Court may presume that if produced or made available by the party, the document or the recording on an electronic device will be unfavourable to the party’s case.
Rule 13 Requesting party to use document in requesting party's possession.
Further to provisions of Rules 1 and 2 of this Order, where the party on whom a request for discovery, inspection or production was made refuses or fails to comply with the request, the Court may allow the party making the request to use the copies of the document or a recording on an electronic device, in the requesting party’s possession at the trial and the party refusing or failing to make such document(s) available shall not have the right to object to the admissibility of any available copy tendered and used by the seeking party.
Rule 14 Time limit to request for discovery.
Every request for discovery or inspection shall be made within seven (7) days of the parties joining issues (Form 39).