ORDER 28 ORIGINATING SUMMONS PROCEDURE
1 Application (O. 28, r. 1)
2 Fixing time for attendance of parties before Court (O. 28, r. 2)
3 Notice of first hearing, etc. (O. 28, r. 3)
4 Directions, etc., by Court (O. 28, r. 4)
5 Adjournment of summons (O. 28, r. 5)
6 Application affecting party in default of appearance (O. 28, r. 6)
7 Counterclaim by defendant (O. 28, r. 7)
8 Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8)
9 Order for hearing or trial (O. 28, r. 9)
10 Failure to prosecute proceedings with despatch (O. 28, r. 10)
11 Abatement, etc., of action (O. 28, r. 11)

 

 

ORDER 28

ORIGINATING SUMMONS PROCEDURE

Application (O. 28, r. 1)
1. This Order applies to all originating summonses subject, in the case of originating summonses of any particular class, to any special provisions relating to originating summonses of that class made by these Rules or by any written law; and, subject as aforesaid, Order 32, Rule 5, shall apply in relation to originating summonses as it applies in relation to other summonses.

Fixing time for attendance of parties before Court (O. 28, r. 2)
2. —(1) Where, in the case of an originating summons to which appearance is required to be entered, any defendant served with the summons has entered, or has within the time limited for appearing failed to enter, an appearance, the plaintiff may —

(a) if no appearance has been entered, after the time limited for appearing shall have expired;

(b) after the defendant has filed the affidavit or affidavits under Rule 3 (4); or

(c) if no such affidavit has been filed, after the time limited for filing such affidavit shall have expired,

as the case may be, apply for an appointment for the attendance of the parties before the Court for the hearing of the summons, and a day and time for their attendance shall be fixed by a notice in Form 57 sealed with the seal of the Supreme Court or the Subordinate Courts, as the case may be.

(2) Subject to Rule 3 (2) and (4), a date and time for the attendance of the parties before the Court for the hearing of an originating summons to which appearance is not required to be entered, or for the hearing of an ex parte originating summons, may be fixed on the application of the plaintiff or applicant, as the case may be.

(3) Where a plaintiff fails to apply for an appointment under paragraph (1), any defendant may, with the leave of the Court, obtain an appointment in accordance with that paragraph provided that he has entered an appearance.

Notice of first hearing, etc. (O. 28, r. 3)
3. —(1) The party, on whose application the date was fixed for the attendance of the parties before the Court for the hearing of an originating summons to which appearance is required to be entered, must serve a copy of the notice fixing it on every other party who has entered an appearance and, if the first-mentioned party is a defendant, on the plaintiff, within 3 days after the notice has been issued.

(2) Where the plaintiff intends to adduce evidence in support of an originating summons he must do so by affidavit, and must file the affidavit or affidavits and serve a copy thereof on every defendant not later than 7 days after the service of the originating summons (whether or not such defendant has entered an appearance and whether or not the summons is one to which an appearance is required to be entered).

(3) In the case of an ex parte originating summons, the applicant must file an affidavit or affidavits in support at the time of filing of the originating summons.

(4) Where the defendant intends to adduce evidence with reference to the originating summons served on him, he must also do so by affidavit and the affidavit or affidavits must be filed and a copy thereof must be served on the plaintiff not later than 21 days after being served with a copy of the affidavit or affidavits by the plaintiff under paragraph (2).

(5) No further affidavit shall be received in evidence without leave of the Court.

Directions, etc., by Court (O. 28, r. 4)
4. —(1) The Court by whom an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the order may be varied or revoked by a subsequent order of the Court on such terms as it thinks just.

(2) Unless on the first hearing of an originating summons the Court disposes of the summons altogether or orders the cause or matter begun by it to be transferred to a District Court or makes an order under Rule 8, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof.

(3) Without prejudice to the generality of paragraph (2), the Court shall, at as early a stage of the proceedings on the summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct.

(4) Without prejudice to the generality of paragraph (2), and subject to paragraph (3), the Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any other directions.

Adjournment of summons (O. 28, r. 5)
5. —(1) The hearing of the summons by the Court may (if necessary) be adjourned from time to time, either generally or to a particular date, as may be appropriate, and the powers of the Court under Rule 4 may be exercised at any resumed hearing.

(2) If the hearing of the summons is adjourned generally, the party on whose application the day for its hearing was fixed under Rule 2 may restore it to the list on two days’ notice to all the other parties (except a defendant who has failed to enter an appearance or, if the summons is one to which an appearance is not required, has not been served with the summons), and any of those parties may restore it with the leave of the Court.

Application affecting party in default of appearance (O. 28, r. 6)
6. Where in a cause or matter begun by originating summons an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party is in default of appearance.

Counterclaim by defendant (O. 28, r. 7)
7. —(1) A defendant to an action begun by originating summons who has entered an appearance to the summons and who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter (whenever and however arising) may make a counterclaim in the action in respect of that matter instead of bringing a separate action.

(2) A defendant who wishes to make a counterclaim under this Rule must at the first or any resumed hearing of the originating summons by the Court, but, in any case, at as early a stage in the proceedings as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the Court under paragraph (3), the claim shall be made in such manner as the Court may direct under Rule 4 or 8.

(3) If it appears on the application of a plaintiff against whom a counterclaim is made under this Rule that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.

Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8)
8. —(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

(2) Where the Court decides to make such an order, Order 25, Rules 2 to 7, shall, with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if there had been a summons for directions in the proceedings and that order were one of the orders to be made thereon.

(3) This Rule applies notwithstanding that the cause or matter in question could not have been begun by writ.

(4) Any reference in these Rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this Rule to continue as if the cause or matter had been so begun.

Order for hearing or trial (O. 28, r. 9)
9. —(1) Except where the Court disposes of a cause or matter begun by originating summons in Chambers or orders it to be transferred to a District Court or makes an order in relation to it under Rule 8 or some other provision of these Rules, the Court shall, on being satisfied that the cause or matter is ready for determination, make an order for the hearing or trial thereof in accordance with this Rule.

(2) Order 34, Rules 1 to 5, shall apply in relation to a cause or matter begun by originating summons and to an order made therein under this Rule as they apply in relation to an action begun by writ and shall have effect accordingly with the necessary modifications and with the further modification that for references therein to the summons for directions there shall be substituted references to the first or any resumed hearing of the originating summons by the Court.

Failure to prosecute proceedings with despatch (O. 28, r. 10)
10. —(1) If the plaintiff in a cause or matter begun by originating summons makes default in complying with any order or direction of the Court as to the conduct of the proceedings, or if the Court is satisfied that the plaintiff in a cause or matter so begun is not prosecuting the proceedings with due despatch, the Court may order the cause or matter to be dismissed or may make such other order as may be just.

(2) Paragraph (1) shall apply, with any necessary modifications, in relation to a defendant by whom a counterclaim is made under Rule 7 as it applies in relation to a plaintiff.

(3) Where, by virtue of an order made under Rule 8, proceedings in a cause or matter begun by originating summons are to continue as if the cause or matter had been begun by writ, paragraphs (1) and (2) shall not apply in relation to the cause or matter after the making of the order.

Abatement, etc., of action (O. 28, r. 11)
11. Order 34, Rule 6, shall apply in relation to an action begun by originating summons as it applies in relation to an action begun by writ.