LITIGATION PROCESS

Initiating a claim

Before the Limitation periods for bringing civil claims Pursuant to section 6(1)(a) of the Limitation Act
1953, an action founded on a contract or on tort cannot be brought after the expiration of six years
from the date on which the cause of action accrued. This time limit applies similarly to actions to
enforce a recognisance, actions to enforce an award, and actions to recover any sum recoverable by
virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or
forfeiture. Similarly, actions to recover rent have a limitation period of six years.

Where there is a substantial dispute of fact or where the plaintiff intends to seek summary judgment,
a writ should begin the proceeding. Where there are no or few disputes of fact and the main issues
are questions of law, or involve the construction of any document where such questions are suitable
for determination without the full trial of the action, the proceeding may be begun by originating
summons.

A civil claim shall be commenced by a party by either Writ of summons in form 2 of the ROC 2012 or
Originating summoning form 5 or 6 of the ROC 2012

Both of these summoning’s will be valid until the date of its issue

Based on the provisions of the ROC 2012 of o.18 1. Of the ROC 2012 a statement of claim is endorsed
on the writ, the plaintiff shall serve a statement of claim on the defendant. when the writ is served
on that defendant or at any time after service of the writ but before the expiration of fourteen days
the defendant shall enter an appearance.

2. Entry of Appearance and Defence

An entry of appearance is a formal submission in response to the summons, to the Court informing
them that the party being sued is represented by a solicitor and/or is going to defend him/herself.

The Defendant shall enter appearance by properly completing a memorandum of appearance (in
Form 11 of the ROC 2012), within fourteen (14) days from the date of service, failing which a
Judgement in Default of Appearance may be entered into against him/her. The issue of a Judgement
in Default of Appearance will also be discussed in a separate article.

Subsequently, Order 18 rule 2 of the ROC 2012 provides that a Defendant who enters appearance
shall then serve a defence on the Plaintiff within fourteen (14) days after the time limited for
appearing or after the Statement of Claim is served on him/her, whichever is the later.

The Plaintiff then has a right to file a reply to the Defendant’s defence and/or counterclaim within
fourteen (14) days from the date of service of the defence and/or counterclaim.
Pleadings

pleadings are the foundation on which a claim is based on. These documents submitted to the Court
are written statements of facts that sets the narrative of a litigant’s case.

a Statement of Claim, Statement of Defence and Reply to Defence are all pleadings.

In the case where the Defendant has a counterclaim, the pleading ought to be the Statement of
Defence and Counterclaim and the subsequent reply by the Plaintiff ought to be the Reply to Defence
and Defence to Counterclaim.

This is the stage where each party sets out their legal positions in formal legal documents. These
include:

 statement of claim: proceedings are usually started with the initial claim, referred to in most
courts as a statement of claim. The party filing a claim is called the plaintiff or applicant;
 defence: the other party, called the defendant or respondent, then has a period of time,
usually between 21 and 28 days, to file its defence;
 cross-claim: the defendant may also file a cross-claim or counterclaim with its defence if it
has a claim against the plaintiff;
 defence to cross-claim: if a defendant files a cross-claim, the plaintiff must file a defence to
this; and
 reply: some courts allow the plaintiff to file a reply to respond to matters raised in the
defence.

4.Close of Pleadings

After the documents have been issued, filed and served; pleadings are deemed to be closed. The
narrative of a litigant’s case is then taken note of by the Court and thereafter, the Court will
pronounce a closing of pleadings.

Under Order 18 rule 20 of the ROC 2012, the close of pleadings is at the expiration of fourteen (14)
days after the service of the Reply to Defence and/or Counterclaim or if there is no reply, at the
expiration of fourteen (14) days after the service of the defence.
JUDGEMENT IN DEFAULT (JID)

a Defendant shall enter appearance within fourteen (14) days from the date of service, failing which
a Judgment in Default of Appearance may be entered against him/her.

The Plaintiff may obtain a JID against the Defendant where the Court has been satisfied that a Writ of
Summons has been served on the Defendant, but he/she has failed to enter appearance within the
specified timeline.

a JID can be entered automatically without the need to inform the Defendant further after the expiry
of the deadline.

Once a JID is entered, the matter is closed and a final judgment is deemed entered, unless set aside.

Setting Aside a JID

Under Order 43 rule 13 of the ROC 2012, the Defendant has a time frame of thirty (30) days from the
date of receipt of the JID to apply to the Court to set aside the JID.

Setting aside or varying judgment and orders (O. 42, r. 13)

13. Save as otherwise provided in these Rules, where provisions are made in these Rules for the
setting aside or varying of any order or judgment, a party intending to set aside or to vary such order
or judgment shall make an application to the Court and serve it on the party who has obtained the
order or judgment within thirty days after the receipt of the order or judgment by him.

However, the setting aside is not guaranteed as the Court has the power to exercise its discretion in
doing so as provided for under Order 13 rule 7 of the ROC 2012.

Setting aside judgment (O. 13, r. 8)

8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in
pursuance of this Order.
PRE TRIAL-CASE MANAGEMENT DOCS PTCM

Pre Trial Case Management

This stage commences after the close of pleadings, where the statement of claim, defence and reply
to defence has been filed and exchanged.

A Pre Trial Case Management (“PTCM”) is to be attended by both the parties whereby directions will
be given by the Court for the parties to compile all documents relevant and in support of their
respective case. The Court will also ask the parties to identify their respective witnesses.

The aim of the PTCM is for the parties to summarise their respective cases and to streamline the
documents to be used in trial. This process aims to provide a speedy and smoother trial process.

Under Order 34 rule 2 of the Rules of Court 2012 (“ROC 2012”), the Court may direct any party or
parties to the proceedings to appear before the Court to attend a PTCM regarding matters arising in
the action or proceedings. The failure to attend the PTCM or comply with the directions given by the
Court may result in the dismissal of the claim.

Exchange and Filing of Documents

During the PTCM, the Court may consider any matter and issue directions for, inter alia, the
compilation of Bundle of Pleadings, Common Agreed Bundle of Documents, Issues to be Tried and
Agreed Facts, List of Witnesses and finally Witness Statements, together with strict timelines given
for all the filings.

Order 34 rule 2(2)(d) and (e) of the ROC 2012 provides for the classification of the bundle of
documents.

Documents can be classified into 3 parts:

 Part A whereby parties agree to the authenticity and truth of the contents of the documents.
 Part B whereby parties agree to the authenticity of the documents, but not the truth of its
contents.
 Part C whereby parties agree to neither the authenticity nor the truth of the contents of the
documents.
 Bundle of pleadings

Statements

 A Statement of Issues to be Tried lists the main legal issues in dispute between the parties
 a Statement of Agreed Facts lists facts which are not disputed by either parties and are
contained in the Statement of Claim and Defence.
 Witness Statements are the evidence given by the respective witnesses to support and prove
facts alleged by the parties.

this entire process is to ensure that the trial process is conducted in a speedy and smooth manner, as
the parties would have streamlined the issues to be tried, the agreed facts and the documents that
are relevant to be considered in arriving at a decision.
Hearing

During the trial, the examination of witnesses will be conducted by the parties in the following order:
Examination-in-Chief of a party’s own witness, followed by Cross-Examination by the opposing party,
and thereafter, Re-Examination of a party’s own witness.

Questions asked during the examination of witnesses are limited to the documents filed and marked
by the Court.

 the Plaintiff will begin their case by calling witnesses to testify and produce documents for
both the Plaintiff and their witnesses to identify.
 Once all witnesses have been called, the Defendant will then begin their case in accordance
with the same procedure.
 All witnesses must give an oath or affirmation to testify truthfully before the examination
begins.

Under Order 38 rule 2 of the ROC 2012, in a writ action, a witness shall give Evidence-In-Chief
wherein the witness gives evidence of facts within his/her own knowledge and recollection, and is
subject to Cross-Examination, if the witness is absent, their statement will be inadmissible in Court.

At the end of the case once all the examinations of witnesses have been completed by both parties,
the parties will then prepare their submissions which will then be followed by a reply to submissions,
all of which will be heard by the Court.

Thereafter, the presiding Judge or Magistrate (depending on whether the trial is heard in the High
Court, Sessions Court or Magistrates Court) will deliver the decision, which means the trial is
concluded.

The Court will either allow or dismiss the application or claim and award costs to the successful
party, and the decision of the Court is final and binding on both parties.

After judgement

the avenue of appeal is open to any of the parties who are dissatisfied with any of the findings of the
presiding Judge.

In any event, the successful party is at liberty to file a written judgment which will be sealed by the
Court.

This written instrument is called a Final Judgment.

INTERLOCUTORY APPLICATION

is a request made by one party during a lawsuit or a legal proceeding that seeks to obtain a specific
ruling or order from the court.

This application is usually filed after the commencement of an action and can be used to achieve
various objectives in the action.

 applications for summary judgment

Interlocutory Hearings

An interlocutory hearing is a mini hearing to deal with a procedural matter relating to the main
proceedings. There may be one or more interlocutory hearings held between the filing of pleadings
and the main hearing.

Interlocutory hearings occur when the parties do not consent to a procedural matter, such as
whether to:

 amend pleadings
 make further orders for discovery
 apply for an urgent injunction.
Types of Interlocutory Applications

Injunctive Relief

Orders that stop the other party from doing something, like terminating a contract or completing a
sale purchase. They are usually urgent, requiring the orders by a certain deadline.

Particulars

Orders to compel a party to provide particulars (details) that the other party has requested, seeking
clarification of information in legal documents, including a statement of claim or defence.

Discovery

interlocutory application seeks orders that the documents should be discovered.

Orders to compel a party to provide certain documents sought by the other party through the
discovery process.

Example

one party may object to discovering a certain category of documents, claiming the request is too
broad or that the documents are not relevant to the proceedings.

Subpoenas

Subpoenas are orders to determine whether a party can ask a third party to provide certain
documents. As above, the other party may object to documents sought by the other party because
they are not relevant to the proceedings.

Interrogatories

Orders to compel the other party to answer certain questions, required to determine a position on a
matter in dispute. The questions must be necessary and to help provide a fair trial.

Medical Examination

Orders that one party submit to a medical examination. For example, this may be sought where the
other party has concerns about the medical condition of that party and how it may impact the
matters in dispute.

Setting Aside a Default Judgment

Orders to set aside (overturn) a judgment ordered by the court when the other side fails to lodge a
defence by the deadline.

Where there was a valid reason for failure to lodge the defence, the party can seek orders that the
judgment is set aside, allowing them to file the defence.

When should an interlocutory application be used?

You can use an interlocutory application, such as an interlocutory injunction, to help keep a case on
track or to protect your rights. They stop parties from acting unethically, and parties often use them
when one party believes the other has not complied with their court procedure obligations.